Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts

ADJ-00037869

23.03.2022

The complainant submitted as follows in her complaint form:

“This is a Stage 4 Grievance which is the final stage of a workplace grievance that has been previously considered by my employer and has not been resolved satisfactorily. My grievance is related to my role as manager and being given instructions by my line manager that contravene the respondent’s National Policy in relation to a grievance taken out by another remember of staff, and directions given to me in relation to a Temporary Appointment. My grievance also relates to the significant delays in having this grievance heard and the impact this delay is having on my ability to do my work and the impact the issue involved is having on my health and welfare at work, in line with the provisions of relevant Safety, Health and Welfare at work Legislation. I will forward evidence in the form of supporting documentation by post”.

The respondent contends that the complainant’s grievance was processed in accordance with the respondent’s policies and an outcome was issued which found against the complainant. The respondent acknowledged that relationships between the parties remains to be dealt with and favours  mediation as a process to normalize relations between the parties.

The claimant’s representative submitted as follows:

 The case before you today has been referred by the employee under Section 13 of the Industrial Relations Act 1969. The dispute relates to a grievance raised by the complainant that

 (1) a grievance which was taken out by a member of staff who reports to the complainant was upheld without appropriate consideration of the issues and

(2) that recommendations made on foot of that grievance have resulted in the complainant being asked to carry out an instruction which is flawed and contrary to agreed the respondent’s  policies and recruitment Codes of Practice.

 Background to the case- the complainant is an experienced mental health nurse manager, qualifying in mental health nursing in 1991. Since 1991 she has worked in a number of clinical areas and has been working as a nurse manager since 2004. She has completed a number of post graduate studies and has most recently completed a course on study at Level 9, QQI. She is employed in her current role as an ADON in the health service since 2014, managing a range of community mental health services in the west of Ireland.

 In 2018, a member of staff in her area Mr X, was interested in pursuing a course of study in addiction counselling. Mr. X asked the complainant to support him in undertaking this course. In addition to supporting his application for funding and releasing him from work to attend the requisite days on college, the complainant supported Mr. X with access to a defined caseload to meet the requirements of his course and put in place the required additional supports for the staff member, including clinical supervision from an existing addiction counsellor. This package of support was agreed with Mr. X the existing addiction counsellor, education staff from the Personal Counselling Institute (PCI) and was communicated to the multidisciplinary team (MDT) at the time. All requirements for the course were put in place and Mr. X commenced the 2-year course of study in 2018.

 In February 2020, Mr. X sought to meet with the complainant to discuss his role as a nurse working in addictions. At that time he was still undertaking the aforementioned training course. In the meeting, he identified that in a peer supervision group, he “was not an appointed CNS in addictions”. The matter was discussed with Mr. X and he was reminded of the supports that were in place for him to complete the course of study. It was also identified that there was no vacant CNS posts in the County and that if there was such a vacancy, Mr. X would have to ‘compete’ in a recruitment process. Mr. X expressed some concerns that he might not do well in interviews. The complainant offered Mr. X the choice of remaining as a staff nurse working with an addiction caseload, given that he had not yet finished his training course, or if he wished to return to his staff nurse post in the Hospital. The content of the discussion was confirmed in writing.

Planned Redeployment of Health Staff in March 2020, when the pandemic arrived to Ireland, the respondent advised on the approach managers should take in redeploying staff to best meet the demands on services in the face of community spread of the disease and the anticipated effect the pandemic would have on staffing essential services. In the complainant’s area in approximately March 2020, a Pandemic Business Continuity Plan was circulated to all service areas. This Continuity Plan set out a list of services in order of priority (P); P1 - Acute Inpatient, Community Residential, Community Crisis and Community Crisis Nursing Intervention. P2 – Depot Maintenance Clinics P3 – Detoxification programmes, Day Hospitals, Outpatient appointments and Rehabilitation programmes P4 – Mental Health Promotion, Day Centres, Peer Support groups, Counselling services. With reference to the above plan and an identified need from inpatient services at the end of April / early May 2020, Mr. X and a number of other staff were advised they were redeployed to meet the staffing challenges in our high priority clinical areas. This redeployment was discussed and communicated to the Area DON on 30th April 2020, and the Area DON supported the plan.

Grievance from Mr. X

Following the decision to redeploy Mr. X, he submitted a written Grievance to the (Area DON) on 9th May 2020 (Appendix 4) and protested that; 1. “The complainant ADON altered my work pattern from 5/7 to 11/42, or 5 days per week to shift pattern over continual roster) without prior notice or discussion and against my explicit agreement. And in subsequent communications misrepresenting that agreement was sought and received” 2. “Allocating my COVID 19 contingency commitments of re-deployment in a patently unfair and unequal comparison to my peers” 3. “A concerted and sustained attempt to diminish my qualifications of addiction counsellor in providing a professional service of addiction counselling to the adult mental health team, Mental Health Service since February 2017”.

 The Area DON sought clarification from the complainant and a written response to the points raised in Mr. Xs grievance was sent to the Area DON on 25th May 2020. The Area DON responded to the grievance with some instructions to the complainant (Appendix 6) which can be summarised as follows; Mr. X… should return to the post he was redeployed from prior to the Covid-19 redeployment – Staff Nurse/Addiction Counsellor. Mr. X took up the role of Addiction Counsellor, including caseload of fellow Addiction Counsellor (ROC). He was viewed as an Addiction Counsellor by members of the MDT. Mr. X should be paid higher duty allowance for the period he has taken on the role of the Addiction Counsellor. Discussions should take place with the staff member prior to redeployment including discussion re changes to their duty roster.

The complainant’s grievance at the decision of the Area DON and subsequent decisions at stage 2 & 3 of the Grievance Procedure

The letter from the Area DON following her considering the grievance from Mr. X has significant consequences in terms of the complainant’s role as a senior line manager, has implications in relation to the complainants ’s requirements to adhere to national policy in relation to Temporary Appointments and the Principles of Recruitment and does little to provide assurance that senior management have considered fully the impact of their decision in apparently supporting the Area DON decision.

“Unfair and unequal Redeployment”

 The first issue in relation to redeployment does not appear to have considered that The complainant not only followed the national agreed ‘Pandemic Business Continuity Plan’. Furthermore, the complainant’s plan of action and decisions were communicated in advance to the Area DON. The decision to redeploy Mr. X and other staff was based on the aforementioned respondent’s policy.

“A concerted and sustained attempt to diminish my qualifications of addiction counsellor”

 It is unfortunate that Mr. X feels there has been a concerted effort to diminish his qualifications. Following Mr. X having successfully completed a course at Level 7 QQI in 2017, The complainant organised and processed payment of the Qualification Allowance for Mr. X Furthermore, as evidenced by her support in facilitating Mr. X in undertaking the higher-level studies in Addiction Counselling, the complainant has at all times supported professional development for all staff, including Mr. X .It would appear that this support from a line manager has not been interpreted in a fair and reasonable light and furthermore it is interpreted incorrectly by her senior managers, despite the complainant clarifying the issue at all three stages of the Grievance process, specifically that she did not place Mr. X into position as an addiction counsellor. It is particularly concerning that it has been claimed that the complainant herself has breached established recruitment procedures.

This is very disappointing, where her actions as a line manager is being represented in such a detrimental manner by senior manager from within the employment. The more concerning directive from the Area DON, despite the fact that Mr. X’s original grievance did not, in any aspect, refer to aspects of payments has caused the complainant to find herself in an impossible position, specifically in relation to the instruction to pay Mr. X a “higher duty allowance”. The complainant wrote to the Area DON on 27th July 2020, outlining what she saw as the contradictions in the outcome of Mr. Xs grievance. The complainant sought confirmation of the decision in light of her concerns about the portrayal of Mr. X as being anything other than availing of supports to facilitate him complete a course to make him eligible to apply for Addiction Counsellor posts at CNS level. On 4th August 2020, the Area DON wrote to the complainant and in that correspondence there were a number of inconsistencies and inaccuracies which did not clarify the concerns raised by the complainant.

The facts are as follows; Mr. X did not meet the criteria to be given a Temporary Appointment for the following reasons.

 • This was a training opportunity afforded Mr. X by his line manager, the complainant in support of his professional development. He was allowed access to a caseload, under supervision of an experienced Addiction Counsellor for the duration of his studies. There appears to have been a consistent failure to understand the context of his facilitated and supported learning opportunity provided by the complainant to Mr. X, as his line manager.

 • In reference to the decision that Mr. X should be paid the “higher duty allowance” for the period he has taken on the role of Addiction Counsellor, this is the contentious issue at the heart of this issue. The complainant has sought clarification from the Area DON on this matter because in her correspondence of 4th August 2020, it is stated that “…the Area DON did not reference temporary appointment”. Yet there continues to be reference to paying Mr. X at a higher level and identifies a historical CNM post (ROC) in the county.

 • There is no funded vacant Addiction Counsellor post in the county’s mental health services. The respondent’s HR Guidance on Temporary Appointment states unequivocally that “The post must continue to be a funded post and the budget holder has funding to maintain budgetary compliance arising from any additional costs associated with the temporary appointment.”

 • Even if such a funded vacant post at Clinical Nurse Specialist grade existed in the county’s mental health services, Mr. X did not meet the eligibility criteria set out by the respondent  for the post of Clinical Nurse Specialist, specifically “a major academic Level 8 or higher award” when he began his course in 2018. He completed his course of study in the latter half of 2020.

• The complainant has sought advice from the Area DON and HR Department in the region  in relation to what mechanism Mr. X should be paid an allowance. The advice has not been of any assistance in addressing her valid concerns.

 • In being asked to retrospectively appoint or pay Mr. X the “higher duty allowance” there are a number of risks in that course of action which may expose the complainant in her role as a manager and have consequences for any other manager who permits staff to undertake a training placement as part of a training course.

• The respondent has put in place strict criteria and processes for filling of a Temporary appointment. To “appoint” Mr. X would be in the absence of any normal recruitment process where Mr. X would be expected to ‘compete’ with other applicants. It would appear that the complainant is now required to breach those HSE processes without due consideration to the historical facts of the situation.

 • Most significantly the situation as it stands is that the complainant’s ’s role as a senior nurse manager has been considerably undermined to such an extent given the instruction from the Area DON. The worker, Mr. X, continues to consider himself as an ‘Addiction Counsellor,’ portrays himself to his fellow MDT members as an Addiction Counsellor and presumably now expects to be paid a “higher duty allowance” from the date he commenced his placement as part of a course. As already referenced, Mr. X is already being paid a qualification allowance on the merits of his Level 7 course which he undertook prior to 2018. It is a matter of fact that it was the complainant who organised this payment for Mr. X.

 • In addition to relevant HR circulars and policies in relation to recruitment and filling of posts, line managers are frequently reminded of the need to adhere to the provisions of the Public Service Management (Recruitment and Appointments) Act, 2004. These policy and legal requirements extend to both Temporary Appointments and Permanent Appointments. The instructions from the Area DON put the complainant in an uncertain position.

 • The complainant is very disappointed that she is here today for doing her job to the best of her ability but has been placed in a “Catch-22 situation” by her employer. She believes the original grievance from Mr. X should not have resulted in an exacerbation of the situation. She is being asked to pay a “higher duties allowance” when no such allowance exists. Correspondence from the area DON does clarify if the Area DON is referring to Temporary Appointment, or not! Mr. X is already paid for the qualification he had prior to undertaking his higher-level studies. There has been no clear guidance on how to progress the paradoxical directive that would not appear to adhere to any policy or legal requirements.

 • Finally, Chairperson, the complainant would like to summarise by saying that this process has inadvertently undermined her role as a senior nurse manager and caused her significant stress. She welcomes your intervention and hopes this issue can be concluded satisfactorily having consideration of all the factors at stake in this matter. The discord between the instruction given to the complainant and relevant policies is significant to such a degree that it has taken a toll on her health and well-being. This has not been helped by the fact that this grievance process has been ongoing since 21 October 2020, when the complainant first initiated her grievance. The delayed timeline of more than 2 years from initiation of this grievance by the complainant has been unhelpful in having this matter brought to a conclusion and thus the grievance has not been handled in a timely manner in accordance with the principles of natural justice and fairness.

The complainant set out a chronological account of her interactions with Mr. X .As far as she was concerned she had acted appropriately at all times and was now being asked to circumvent existing arrangements for payment of a higher duty allowance and she submitted that there was no authority  to circumvent existing arrangements and that when she sought documentation from the Area Director on what specifically the Area Director was relying upon when she failed to uphold her grievance , no such documentation was forthcoming. The complainant insisted that she was unable to approve the payment of the higher allowance to Mr. X without such documentation. The complainant asserted that additionally the respondent was ignoring existing practise with respect to recruitment into an acting / higher duty post. The complainant argued that Mr. X did not go into a higher entry post and that a business case would have to be presented for the filling of a vacant funded post. The complainant argued vehemently that the person Mr. X replaced went into a different role on foot of occupational health imperatives and that Mr. X did not go into a higher post to justify the payment of the higher duty allowance. She submitted that there was no mechanism for this to happen and that other staff members who had aspirations for promotion would be unhappy about it. The complainant asserted that Mr. X did not take on the caseload of his colleague and that consultants had no understanding of the qualifications of Mr. X or indeed the qualifications required for the post. She submitted that the issue of the payment of higher duty allowances was never part of Mr. X’s original grievance. The complainant asserted that there was no protocol to implement the outcome of the grievance process and in particular the payment of the higher duty allowance and stated she did not want to be in breach of protocols. She was seeking information on the mechanism to pay the higher duty allowance to Mr. X and it was not forthcoming from the Area Director. The complainant indicated that she would be amenable to engaging in a mediation process subject to safeguards and agreement on the terms of reference for the mediation.

The respondent’s representative submitted as follows :

1. The complainant as per her complaint form CA-00049292 (Receipt date 23/03/2022 13:25:12) seeks adjudication by the WRC under Section 13 of the Industrial Relations Act 1969.

2. In her complaint the complainant states “This is a Stage 4 Grievance which is the final stage of a workplace grievance that has been previously considered by my employer, and has not been resolved satisfactorily. My grievance is related to my role as manager and being given instructions by my line manager that contravene the respondent’s National Policy in relation to a grievance taken out by another remember of staff, and directions given to me in relation to a Temporary Appointment. My grievance also relates to the significant delays in having this grievance heard and the impact this delay is having on my ability to do my work and the impact the issue involved is having on my health and welfare at work, in line with the provisions of relevant Safety, Health and Welfare at work Legislation. I will forward evidence in the form of supporting documentation by post.”

Respondent’s Position

3. The Grievance of the complainant was lodged and processed in accordance with the terms and provisions of the HSE Grievance Procedures (Stages 1, 2 and 3)

The Stage 3 Grievance Determination as issued to the parties confirmed as follows

 Findings in respect of Stage III Grievance of the Complainant 

Respondent – Area Director of Nursing.

Recommendations

Although the grievance is not upheld, there is evidence of fractured relationships and the following recommendations focus on a re-enforcement of positive working relationships:

·       Individual mediation be considered by yourself and colleagues and to be agreed with management.

·       A discussion to take place between you and management in regard to Social work meetings.

·       Senior Management to enter into discussion to agree line management until mediation is considered and agree timelines of application.

·       Appropriate team building initiatives to be considered by management.

·       Management consider engaging with LETD in relation to other relevant management and staff supporting courses.

1. This report relates to consideration of an appeal, under Stage III of the Grievance Procedure, brought by complainant who is employed as an ADON.

2. I met with the complainant on October 26th, 2021. At this meeting, the complainant was accompanied by her union representative, Ms. Caroline Brilly, PNA. As part of the process, I also met with the Area Director of Mental Health Nursing. This meeting took place on December 6th, 2021. The Area DON was accompanied at this meeting by her representative, Ms. Anne Burke, INMO.

3. The essence of the complainant’s grievance relates to a decision of the Area Director to overturn the complainant’s decision in relation to payment of higher duty payment to a staff nurse for a period of undertaking higher level duties as an Addiction Counsellor. The complainant contends that there was no funding for this post, that the decision to grant payment was contrary to the respondent’s policies set out in varying circulars, and that long recognised recruitment regulations were ignored.

The complainant contends that the actions of the Area Director amounts to an undermining of her role.

4. The Area Director in response contends that it was the complainant who made the original decision to place the staff nurse into the role of Addiction Counsellor, that she was aware of the qualifications held by the individual in question and that the post was filled in accordance with the procedures which the complainant contends are now being breached by the Area Director.

5. I have given careful consideration to the issues arising in this case. The issues involved are complex and there is no doubt that the continuance of the long standing grievance is a cause of strain within the nurse management ranks of the region’s Mental Health Services.

6. I do not uphold the appeal of the complainant. I do so as I am satisfied that it is absolutely within the remit of a superior officer, in this case the Area Director to modify or overturn an earlier decision of another manger, where a matter is being appealed under the grievance process. This is not an undermining of the earlier decision taken by somebody looking totally anew at a matter. I do not regard such a decision as in any way undermining either the earlier decision taken by the complainant, or in any way reflecting on how the complainant undertakes her duties and carries out her role and responsibilities as an ADON.

7. The issues relating to availability of resources, methodology of appointment etc., are not in my view appropriate to a grievance process. It is my view and recommendation that issues relating to how such matters are dealt with be addressed at service level, with the involvement, assistance and advice of the Head of Service, HR.

8. As outlined earlier, I am concerned at the negative impact, that the continuance of this grievance is having on working relationships within the senior management team of the region’s Mental Health Services.

In this regard, I am recommending that a process of mediation be entered into with a view to working towards a resolution of all work related complaints arising between the complainant and the Area Director.

Conclusions.

4.  The grievance of the complainant was processed by the respondent in accordance with the terms and provisions of the respondent ‘s Grievance Procedures.

5. In the context of the Stage 3 Determination, which did not uphold the Grievance of the complainant, the decision maker stated “I am concerned at the negative impact that the continuance of this grievance is having on working relationships within the senior management team of the region’s Mental Health Services”.

6. The decision maker in the context of the conclusion of the Stage 3 process and the above commentary, made the following recommendation, “In this regard, I am recommending that a process of mediation be entered into with a view to working towards a resolution of all work-related complaints arising between the complainant and the Area Director”.

7. From the perspective of the respondent as the employer a process of mediation remains available to the parties in the context of and with a view to “working towards a resolution of all work-related complaints arising between the complainant and the Area Director.

8. The complainant in the context of this adjudication process/hearing views mediation between the parties as a non-adversarial approach and methodology in seeking a resolution of all work related complaints arising between the parties.

The respondent ‘s representative was adamant that the employer complied in full with their grievance procedure – he asserted that Mr. X met the criteria for higher duty allowances and this was upheld by Mr. D who conducted the most recent grievance appeal  - he did not uphold the complainant’s grievance. The representative stated that Mr. X was covering the post of a substantive postholder – an Addiction Counsellor and consequently met the criteria required to benefit from the higher duty allowance. The employer was satisfied that Mr. X had a full caseload and consequently his grievance had been upheld. It was advanced that the recruitment of Addiction Counsellors was challenging and that they were in short supply .It was submitted that arising from the respondent’s failure to implement the outcome of Mr. X’s grievance by paying him the allowance , Mr. X had now referred the non-implementation of his grievance to the WRC. It was submitted that the payment of the allowance could happen if the complainant completed the appropriate documentation for the salaries dept.

I have reviewed the submissions of the parties and the evidence presented at the hearing. I am satisfied that the respondent observed their own procedures in processing the complainant’s grievance and I find nothing perverse in the findings of Mr. D. The respondent’s grievance procedure   is tried and tested and the subject of agreement between the respondent and the trade unions representing health service personnel. I note that Mr. X articulated his third grievance as “A concerted and sustained attempt to diminish my qualifications as addiction counsellor in providing a professional service of addiction counselling to the adult mental health team in the region since February 2017”. I do not accept the complainant’s contention that the procedure is prescriptive and should have precluded the complainant from raising the matter of payment of the higher duty allowance during the processing of his grievance The complainant was afforded an opportunity to give her opinion on his entitlement or otherwise to the higher duty allowance and the respective positions of both parties were considered by Mr. D.  Furthermore, I do not accept that the finding against the complainant undermined her authority. The grievance process has escalating stages and I find no cogent reasoning for the complainant’s unwillingness to accept the finding of Mr. D and move on.  Additionally, I find no cogent reasoning was presented by the respondent’s side to justify their failure to invoke managerial prerogative and instruct the relevant personnel to process the payment for Mr. X. I note the concerns of the respondent regarding the challenges in recruiting personnel as Addiction Counsellors. In order to bring closure to the matter of payment of the higher duty allowance – which is at the core of this dispute -  I recommend that the  necessary paperwork be completed   to make the appropriate payment.

It is clear that relations between the 2 parties – the complainant and the Area Director - are polarised and strained and that this  dysfunctional working environment is impacting on both individuals, their subordinates   and inevitably  service recipients. I recommend that both individuals engage in a mediated process with a view to normalising relations between them and creating a workable relationship that transcends past conflicts and prioritises the delivery of a proactive service for service users.