ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00028064

Parties:

	Complainant	Respondent
Anonymised Parties	Clinical Nurse Manager	Hospital

Representatives

David Miskell & Kylie McNicholas Irish Nurses and Midwives Organisation

Dispute:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00035244-001	16/03/2020

Date of Adjudication Hearing: 12/04/2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to prese to me any evidence relevant to the dispute.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

The Employee was successful in a competition for the post of CNM2 with the Employer. She was advised verbally and in writing to resign her position, which she did. The following day she was informed that the job offer was withdrawn. She is seeking compensation for loss of income that the post would have given her, compensation for the embarrassment and personal impact that this has had on her and her family, seeking that the employer adopt reasonable recruitment practices and that she is appointed to the post that she was originally offered.

The Employer has rejected this claim.

Summary of Employee’s Case:

This case concerns the fact that the Employee had an offer of employment as a CNM2 revoked having received confirmation that all necessary employment checks had been carried out by the Employer. At the time the matters in dispute arose in this claim, she was employed as a Clinical Nurse Manager 1 (CNMl). She acted to her detriment on foot of the Employer’s offer of employment, and accordingly she seeks that the CNM2 role offered by the Employer be granted to her, along with appropriate compensation for the manner in which she was treated.

The matter arose in September 2019. She received an email on 02/09/2019 from, Human Resources Department following on from the interview, advising that she was recommended by the interview board as being suitable for the position of CNM2 on the Step-Down Ward and placed 2nd on the panel from which future vacancies would be filled. She at that juncture inquired about the validity of the panel and the procedure of filling the vacancies in the future, however, there was no reply received. On 24/09/2019 she received another e-mail from the Human Resources Department saying that a vacancy is now available for the position of CNM 2- Step down Ward and to complete the pre-employment screening forms to move to the next stage of the recruitment process. She accepted the Job offer and commenced the pre-employment screening procedures. There were a number of documents which she was required to complete prior to an offer of employment being made. She completed all the required documentation and returned it to the Employer. When given the consent to obtain the reference from the nominated referees, she notified the Employer that the third referee was currently on sick leave when contacted in relation to the matter and the third referee was happy to give the reference after consulting with her Line Manager provided the documents forwarded to her house. The Employer was satisfied with the two references. On 11th November 2019, she attended an Occupational Health Assessment as scheduled by Occupational Health Nurse. In addition, she gave consent to access medical records related to her previous hospitalisation as requested by the Occupational Health Nurse. While she was in the process of completing the pre employment screening, she had received phone calls from the Assistant Director of Nursing inquiring how soon she could take up the position with them. She assured them that as soon as receiving a confirmation from HR to tender her resignation. She would be required to give 30 days' notice to her current employer. On 25th November 2019, she received a call from the Employer advising that she had passed all aspects of the Occupational Health Assessment and can tender her resignation. On 27th November 2019, she received an email confirmation from them of an employment start date of the 30th. of December 2019 and was further advised to hand in her notice. The e-mail confirmation of the employment offer came about on foot of a request by her of the Human Resources Department to do so by email. Acting on foot of this communication, she tendered her resignation. An Employment Verification letter was collected from her employment and emailed to the Employer on 2ndof December 2019 and discussed over the phone, and the decision was to meet the Employer in person to sign the Contract of Employment on 5th December 2019 in HR department. Unexpectedly, she received a phone call from the Employer advising that she would be required to work Monday to Sunday every week, and that she would not be supernumerary and that she would be required to manage a patient caseload. The position of CNM2 within the Service is supernumerary. On this basis she was asked if she was willing to proceed with the appointment. She contends that this phone call was quite shocking, as she at this stage already tendered her notice

She inquired with management if it would be necessary to work night duty and she was told no. On the same afternoon, she. received another phone call from the Employer asking for a referee. This was another shock for her as all reference checks were completed by management prior to confirming the permission to tender her resignation. When she inquired about this, management mentioned that she was under pressure from management and required three reference checks. At this juncture, she had to find another referee and obtain permission to nominate the referee, as previously nominated person was still on sick leave. There was no further communication from the Employer until the 3rdof December 2019, when Human Resources Department contacted to say that the Employment offer was withdrawn. She contends that this phone call was totally unimaginable, unacceptable, and devastating. When she questioned why this was the case, then it was confirmed to her that, they under pressure from management, a third reference obtained on 3rdof December 2019, and that was unsatisfactory. When asked for an explanation, she identified that the sick leave was the basis on which the Employment Offer was withdrawn. She explained to management her whole journey through the recruitment process had caused her pain and distress relating to the shocking news at the very last moment, having completed the required documents, reference checks, and attending an Occupational Health Assessment, tendering her resignation and that a reference was used for her present employment. All sick leaves were certified and had been clearly disclosed as part of the pre-employment screening process. She requested to speak with management on the basis that she had been dealing with the issue up to that point. However, that member of management was on leave and later it was observed that was on leave till 09/12/2020. Management committed to providing an update to her after discussing the matter with management next day, which was 4th of December 2019, however, did not do so, or return calls until that evening. She received a call late that evening, advising her to withdraw her resignation and a further promise was made to update her regarding the employment after discussing with her manager on 9th December 2019 however, did not hear anything further. She contacted management on 10th December 2019 and was told that she would be updated on 12th December after discussing with two managers on 11th December 2019. Again, she had no communication from management. On 1 December 2019 she had sent a detailed email to management outlining matters in her absence and was copied to a member of management to get clarity about what was happening . There was no response to this email. In light of this, the union wrote to management requesting an explanation for the decision to withdraw the offer of employment in circumstances where she had been advised to tender her resignation and that all satisfactory employment checks had been completed. Concern was also expressed around the fact that the basis for the withdrawal of the employment offer related to absence in a previous employment. Correspondence, on the same date was sent directly to her by the Group Human Resource Manager on 18/12/2019 confirming that the Hospital would not be proceeding any further with her application as a result of unsatisfactory pre employment checks. Further correspondence was sent to the Group HR Manager noting that the offer of employment was confirmed to her and that she was advised to tender her resignation from her current post. In light of the fact that reference was made to absence in a previous employment, a Form EE2 was also sent pursuant to Section 76 of the Employment Equality Acts 1998, to gain some further insight into the rationale for the decision, in the absence of any detailed explanation. While it was not expressly indicated by HR the reason that the employment offer was withdrawn, she believed the issue arose as a result of human error in relation to reference. She has thirteen years of service there prior to assuming her post in recent and was successful in her application for the post on the basis of her references from her previous employment. It was important that she address this matter, as for obvious reasons such a state of affairs was a source of grave concern for her not only in the context of the immediate situation, but also for future career progression. No response was forthcoming to the previous correspondence requesting clarity on the situation, and a further email was sent to the Group HR Manager requesting a response, enclosing the previously sent correspondence and requesting that the matter be given urgent attention given the implications for her at this juncture she was attempting to rearrange her affairs and further discussions with her employer to revoke her resignation. Understandably, this was an extremely concerning time for her psychologically socially and physically. A further request was made to the Group HR Manager to forward a copy of the reference that was received from her previous employer, so some clarity could be provided on what the issue was besides, references received from her employer. A conversation took place between the union and the |Group HR Manager in relation to the matter, and it remained his position that the offer of employment was withdrawn on the receipt of unsatisfactory employment checks. Further correspondence was sent to the Group HR Manager outlining the concerns that remained, and her dissatisfaction with the situation. It was put to the Group HR manager that given the fact that no progress had been made on resolution of the matter, there was no option but to refer the matter to a third party on the basis that the local grievance process had been exhausted. A further request was made to the Group HR Manager to revert if this was not the case and there was a further basis to resolve the issue. No further contact was made with either the union or herself in relation to the situation and accordingly the matter was referred to the Workplace Relations Commission. It is her argument that she was successful at interview and was offered the post of CNM2 subject to satisfactory pre-clearance checks. She completed all the documentation when requested to do so and returned it to the Employer’s Human Resources Department. Having returned this documentation, she was advised to tender her resignation from her post as all these checks had been completed. In the circumstances it was entirely unreasonable of the Employer to subsequently revoke this offer. Having sent back the required documentation, and received an offer of employment, she was legitimately entitled to operate on the basis that all of the pre-employment checks had be completed to the satisfaction of the Human Resource Department. During the phone conversation between them sick leave was cited as the basis for the withdrawal of the employment offer, however all sick leave was brought to the attention of the Employer during the course of the pre-employment checks and assessment period, and in particular, when she attended at the Occupational Health Assessment with the Occupational Health Nurse. On completion of this assessment the person who had the responsibility for following up in relation to the pre-employment checks, advised specifically that all pre-employment checks had been passed and that she could tender her resignation. This is in addition to the email referred to above stating that she was to hand in her resignation, and that her start date was to be the 30thof December 2019. As a result of the withdrawal of her offer of employment, she suffered a financial loss that arose by the way of a difference between her CNM l salary at and the CNM2 post, in addition to the embarrassment, stress and humiliation associated in having to revoke her resignation and her credibility was questioned among her colleagues. It is accepted that the offer of any position is contingent upon satisfactory pre-employment checks and references. However, there is an onus on a prospective employer to be fair and thorough in its assessment of such matters, and to adapt recruitment practices that are fair and reasonable. It is not reasonable, to confirm to any employee that these checks have been completed, advise that they can resign their current post, issue a start date, and subsequently revoke that offer to the employee's detriment. It is contended in this case, that the Employer fell far short of the required standards in its dealings with her, who it had not only found her suitable for the position by way of an open competition, but specifically advised her to resign on the basis that the relevant employment checks had been completed. Accordingly, it is respectfully requested that the Adjudicator find in favour of her on this matter on the basis that the Employer has manifestly failed to follow fair and reasonable recruitment practices in its dealings with her. She seeks that she be granted the original post of CNM2 that she was offered and is of the view that this was the toughest time in her professional life, family life, and her social life. She further contends that she always communicated with management throughout this pre-employment screening process through emails and phone calls and sought clarity where required. She was employed for 13 years and an exemplary reference from her employer when she applied for a promotional position with the next employer. During the l3-year period, the number of days she was absent from work due to illness was clearly mentioned in her pre-employment Occupational Health Checklist. In addition, this information was detailed in the references given from Connolly Hospital. She was successful in the competition for the position and was working as Clinical Nurse Manager 1 when she applied for the position as Clinical Nurse Manager 2 , with the aim of reuniting with her family. Her husband's new business is in that area and consequently was planning to relocate there. In addition, she had enrolled her children in that areas. As a result of the conduct of the respondent, she is still separated from her children and as a mother, is of the view that it is devastating, as she couldn't bring back her children as planned. Her family life and social life is affected, and her husband has to spend almost four hours back and forth everyday travelling to his work after dropping her to her work and picking her from work. She had to answer her staff and colleagues and her friends of what happened with the job and it was humiliating. She is worried that her little ones are emotionally affected. She is going through physically, socially, and psychologically challenging moments in her life which no words can express than her anguish. She seeks that she be granted the CNM 2 role offered by the Employer in addition to compensation that is just and equitable in this circumstance is sought. She has quantified her losses as follows: Salary difference: €1,534, Approximate fuel expense: €3,030 ,Overuse/maintenance cost of car: €1,222,

Flight cancellation: €250,Child benefit: €3,920 School fees: €1,140 ,Home carer expense: €2,625

Summary of Employer’s Case:

The claim centres on having interviewed for and been successful in a competition for the post of Clinical Nurse Manager 2 (“CNM2”), she received confirmation that all pre-employment checks were completed and that she should tender her resignation from her current post. The offer of employment was then withdrawn, as the relevant checks had not been completed where her previous absence records were the issue of difficulty in processing her for the post. The Employee is in dispute with the Employer where the decision by the Employer not to proceed with her appointment caused her significant difficulties and financial loss. The matter was raised with the Employer, but no resolution was reached.

The employer accepts that premature notice for the complainant to tender her resignation was given. The recruitment process was flawless but for that. Vacancies during the pandemic creates an even greater burden on the services and the need to fill such vacancies in record turnaround times is a critical need. Undoubtedly, this pressure resulted in a failure to complete the full pre-employment checks as it related to the complainant. The Director of Nursing put serious pressure on the recruitment department at the hospital to have people recruited as soon as possible. In most cases, this omission would have had no impact on the process but for the significant absence record of the complainant. When that information became known and even though it was after the complainant was told to tender her resignation the concern as to her absence was serious resulting in a reluctant decision to withdraw the offer of employment. The Employer advertised for the post of CNM2 in the Step Down Ward with a closing date of Tuesday 9 July 2019 at 12 noon. The Employee submitted an application for the post based on the job specification. She was invited for on-line interview for Monday 26 August 2019. By letter dated the 2 September 2019 she was advised that she was recommended by the interview board as being suitable for the position and placed 2nd on the panel. As there was only one vacancy it was to be filled by number 1 on the panel. The recruitment department proceeded to appoint number 1 on the panel but at an advanced stage of recruitment checks, the applicant declined the post. The Employee as number two was next to be appointed to the vacancy and the recruitment process was commenced for her. On 04 October 2019 the necessary paperwork was emailed to the Employee. On 21 November she was sent an email advising that the she was not passed fit for the role. That email was replied to by the Employee who was shocked at this development. The Employee advised that she was going to her GP stating if fit she would be happy to be assessed by Occupational Health. The Employee duly consulted her GP and in his opinion she was fit and able to work. That certification was attached to an email sent to the Employer on 22 November 2019. On 27 November she emailed the Employer stating she was ready to give her notice to resign her position. She indicated that she would finish on 29 December and begin the new job on the 30 December. In reply the Employer confirmed that start date and advised her to proceed and hand in her notice. On the next day the Employer was in email contact with the Assistant Director of Nursing and advised that she needed to speak with the Employee before the contract was signed. This was in response to the email from the Employer advising that while she was passed fit there was a note on file stating that she does have a medical problem and has had a recent exacerbation of this. It was decided that the Employer needed to review the complainant’s references, absence records etc. before any decision on hire. The Employer was conscious that she had only the day before advised her to hand in her notice and with that in mind she contacted her that day 28 November advising her that management were reviewing her sick leave and that they needed to contact a referee. She gave her the name of a CNM1 referee. They contacted the CNM1 by phone but the CNM1 had to ask HR to get employment dates and sick leave record. They asked for these to be sent to her as soon as possible. Strangely, she contacted the Employer on 2 December by email attaching an employment verification letter from her work and indicating that she could meet the Employer on 5 December to sign the contract. On 3 December the Employer received an email with a reference. This reference had an attendance record from the 2 November 2016 to 13 March 2018. She was absent for seven incidences amounting to 22 days for absences under 14 day duration. She was also absent for two incidences amounting to 50 days for absence durations in excess of 14 days. This coupled with the absence record from 2018, which showed a further four incidents of sick leave amounting to 11 days for periods of less than 14 days and two incidences amounting to 72 days for periods over 14 days, added to the fit slip which identified an ongoing medical problem led to a decision not to proceed with the signing of the contract. This was conveyed to her by letter dated 18 December 2019 by the Group HR Manager. She would not have been surprised at this correspondence as she was aware that her references and absence records were being checked as far back as 28 November. Another hospital with the Employer advertised for the position of a CNM2. The closing date for the competition was 30 June 2020. She applied for this role, was interviewed on 9 July and was placed number 1 on the panel. A number of references were sought and received. Her absence record was high. All references were concerned at the high level of absence. She met with management prior to her commencement date where an open and frank conversation was had. They outlined their serious concerns at the sick leave record. She accepted that her sick leave record was poor and advised management that she had numerous investigations to see what the underlying cause of her sickness was. In the main, the complainant was suffering numerous episodes of migraine. Management was keen to have a CNM2 appointed as she was under pressure with new developments and decided to take a chance. She was duly appointed and is working in that capacity currently albeit she is on sick leave. The claim submitted essentially relates to the significant difficulties and financial loss caused to the Employee by the withdrawal of the job offer. Neither point is explained. She was advised the next day that the offer was subject to further reference checks. That put her on notice that the job might not materialise and that she should withdraw her resignation. There was no contract signed and the offer of appointment to the CNM2 post was always contingent on satisfactory recruitment checks. The Employer do not accept any wrong doing in this case. While it was unfortunate that the complainant was told to proceed and hand in her notice on 27 November 2019, the recruitment office spoke to her the following day letting her know that further reference checks were being sought. The Employee applied for the post of CNM2. She was interviewed and successful being placed number 2 on the panel. Number one candidate did not take the job and as such, it was offered to her. This offer as with all offers of employment in this employment is subject to recruitment pre-employment checks. She would have been on notice of that verbally and in writing. The references identified a poor absence history and that caused concern for the receiving hospital. That concern was not flagged with the recruitment department until after she was told to give notice of her resignation. She was contacted the following day and told that there was concerns with her absence record and that a further reference was sought. She, at that stage was clear that the job offer was not proceeding until the reference check was completed. She would have known to withdraw her notice to resign. On receipt of the further reference check the hospital were satisfied that the attendance record was poor and they were not prepared to proceed with the appointment. They informed her of this formally on 18 December 2019. The Employer is within their rights to resile from the offer of employment. The offer was always contingent on satisfactory references. No contract was signed. Interestingly the next offer made to her raised a similar concern but another Director of Nursing took a chance given the pressure she was under for a CNM2. She did meet her and explained her concerns showing a consistent approach by the nurse managers in both locations. It is against this background that the Employer respectfully request the Adjudicator to hold in management’s favour.

Findings and Conclusions:

I find that the facts in this case are not in dispute.

I find that the Employee applied for a promotional position with the Employer and was successful to the stage where she was advised to hand in her notice of resignation to her employer, which she did.

I find that the following day she was advised that a reference check was not satisfactory and that she was told that the Employer would not be offering the job and that she was to withdraw her resignation.

I find that the reference check showed a concern with her attendance record.

I accept the Employee’s statement that this came as a complete shock and embarrassment to her.

I find that she queried this and sought the assistance of her union, but the Employer did not change its mind.

I find that the Employee had to withdraw her resignation, which was accepted but it caused her a lot of embarrassment.

I find that the Employer put this matter down to the pressures of getting staff in position with the considerable pressures on this sector.

I note that the Employer’s position was that it did no wrong, no contract was signed, she was able to withdraw her resignation and she has been successful in obtaining a similar promotional post in a hospital within a reasonable distance.

I do not accept the Employer’s position that it did no wrong.

I find that they informed the Employee to tender her resignation as she was successful in her application. This was confirmed in writing.

I appreciate the reason why the Employer withdrew its offer of employment, but they should have made sure that their reference checks were complete before they offered her the position and informed her to resign her position.

I find that the Employer must accept the mistake that it made.

I find that I am not in a position to grant her the post that she sought as I believe that it is not within my rights as an Adjudication Officer to do so, that position has been filled.

Likewise, I am not willing to consider all the claims set out at the end of her submission regarding her losses as I find that they were opportunistic.

However, I find that she is entitled to be compensated for the wrong put on her by the mistakes of the Employer.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the Employer pays the Employee compensation of €5,000 for the wrong done to her. This should be paid within six weeks of the date below.

Dated: 19th July 2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Withdrawal of job after being advised to resign position