Complainant

Respondent

Parties

Cornelius O'Sullivan

National Forensic Mental Health Service

Representatives

Peter Hughes Psychiatric Nurses Association

Valerie Madigan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00028833-001

04/06/2019

The Complainant was employed by the Respondent since March 2000 as a staff nurse working in the Psychiatric Services.  Resulting from his employment he had a number of grievances where he believed he was treated in a manner contrary to the Respondents’ guidelines and best practice, as well as accepted custom and practice in the sector. He contended that he was passed over for promotional opportunities on several occasions when he was the most experienced person for the post and he believed the reason for this treatment was that he was being penalised because he had performed the functions of an employee representative.

The Respondent is a National Health Service provider and specifically in this instance dealing with Mental Health Services. The Respondent denied the allegations and submitted that the Complainant was dealt with reasonably in relation to all matters. 

The Complainant commenced employment with the Respondent as a staff nurse in March 2000 but left to take up a Deputy Nursing Officer post in another location some six months later.  Prior to that the Complainant had emigrated to the UK in 1989 to train as a Psychiatric Nurse and had worked in a number of clinical and managerial positions in the UK until he returned to Ireland in March 2000.  The Complainant worked in the Deputy Nursing Officer post until he was offered a Nursing Officer post in the first location and re-joined the staff of that location twelve months after his initial departure.  Soon after, the Complainant became an active union member and was instrumental in bringing about a number of changes within the service.  Over the years the Complainant had brought a number of cases to the Rights Commissioner, Workplace Relations Commission and Labour Court which, he submitted, had caused some difficulties between him and members of hospital management, thus leading to an acrimonious relationship developing over time. 

The Complainant submitted that in 2015, he attended an interview where he was placed on a panel in July 2015 for upcoming CNM3 posts.  He submitted that subsequent to this the following occurred:

·       14th December 2016 – An email was circulated to Clinical Nurse Manager 1’s and CNM2’s with an attachment requesting expressions of interest for an acting panel for ADON positions which had eligibility criteria. 

·       The Complainant, having reviewed the eligibility criteria, did not apply as he did not have a level 8 qualification.

·       In April 2017, the Complainant became aware that another employee was redeployed to the Allocations Office as an acting CNM3 and made enquiries as to why he had not been approached, as he had been placed higher on the same interview panel. 

·       9th May 2017 – An email was received from the National Recruitment Service informing him that the interview panel he was on was to expire that day, 14 months earlier than had been the practice in the Mental Health Services up to that date.  The Complainant submitted that interview panels are usually expired after three years. 

·       29th June 2017 – The Complainant sent an email to the Director of Nursing enquiring why he had not been asked to work as the acting CNM3 and no response was received.

·       30th June 2017 – The Complainant sent an email to the Director of Nursing regarding the expression of interest for acting ADON that was circulated in December 2016 asking to be placed on the acting ADON panel as he was aware none of the managers on the panel met the eligibility criteria circulated and no interviews had taken place.

·       The Complainant also sent an email to the Director of Nursing enquiring why a Community Nurse had been asked to shadow staff in Allocations with a view to him providing cover.  No response was received.

·       17th September 2017 – The Complainant sent an email to the Director of Nursing, again enquiring why a Community Nurse was acting into a managerial position and why he was being omitted from acting up in the Nursing Administration Office. 

·       22nd September 2017 – The Director of Nursing responded to an earlier email, possibly from the 17th September, informing the Complainant they were using lists of people from three panels to act up in the office.  The Complainant responded to the Director of Nursing’s earlier email making reference to his email of the 30th June, asking what panels he was referring to, as he had been placed on a CNM3 panel, but again he received no response.

·       25th March 2018 – The Complainant wrote to the Director of Nursing requesting a meeting under stage 1 of the Grievance Procedure to address a number of grievances he had been unable to resolve.

·       29th March 2018 – The Complainant received a letter from the Acting Assistant Director of Nursing and another ADON inviting him to a meeting on the 5th April 2018 under stage 1 of the Grievance Procedure. 

·       7th April 2018 – The Complainant received the response from the meeting held on the 5th April.

·       30th May 2018 – The Complainant received a letter from the Director of Nursing inviting him to an interview on the 14th June 2018 for a temporary CNM3 post for which he had applied. 

·       26th June 2018 – The Complainant received a letter from the Director of Nursing dated  21st June 2018 informing him that he had been unsuccessful in his interview for the temporary Clinical Nurse Manager 3 post.  The Complainant emailed the Director of Nursing appealing the decision of the interview panel as he did not believe he had received an impartial interview and interview guidelines had not been complied with.

·       28th June 2018 – The Complainant wrote to the Director of Nursing requesting a meeting under stage 2 of the Grievance Procedure to appeal the decision made under stage 1 which he believed did not adequately address his complaints.

·       24th July 2018 - The Complainant received correspondence offering a meeting under stage 2 of the Grievance Procedure on the 31st July 2018, however the meeting was subsequently rescheduled. 

·       8th August 2018 – The stage 2 meeting took place between the Complainant, the Director of Nursing, another acting ADON and the PNA representative, the response to this was received a couple of days later.

·       August 2018 – The Director of Nursing responded to the Complainants’ email dated 26th June, informing him his request for a review of the temporary CNM3 interview had ended up in his junk mail folder.

·       14th August 2018 – The Complainant responded to this email stating his displeasure at the delay and requested that the issue be expedited.

·       17th August 2018 – The Complainant received an email from the Director of Nursing advising him he had sought advice on the process regarding interview appeals from HR and the National Recruitment Service.

·       20th August 2018 – The Complainant wrote to the Director of Nursing informing him his letter dated 8th August was not a true reflection of what was discussed at the Stage 2 Grievance Meeting held on the 8th August and while some of his grievances had been addressed, there were serious matters outstanding and that he would now appeal the outstanding grievances under stage 3 of the Grievance Procedure.

·       25th August 2018 – The Complainant received a letter dated 20th August from the Director of Nursing requesting further information about his complaint on the interview process to which the complainant obliged.

·       11th September 2018 – The Complainant received a letter from the Director of Nursing advising him that his complaint regarding this temporary CNM3 interview had been referred to the Chair of the interview panel.

·       29th August 2018 – The Complainant wrote to the National Industrial Relations Manager requesting a meeting under stage 3 of the Grievance Procedure.

·       13th September 2018 – The Complainant attended a meeting under stage 3 of the Grievance Procedure at which he was represented by the PNA.  The meeting was conducted by the Employee Relations Manager and another member of the Employee Relations staff. 

·       12th October 2018 – The Complainant wrote again to the Director of Nursing dated the 8th  October 2018 seeking clarification on his complaint regarding the interview process for the temporary CNM3 post. 

·       12th October 2018 – The Complainant received correspondence from the Employee Relations Manager dated the 10th October informing him that she had requested a full review from the Director of Nursing of the points raised in his stage 3 Grievance meeting on the 13th September.  This letter was accompanied by a letter from the Director of Nursing dated the 8th October with his response where he referenced the Complainant as the PNA Branch Secretary and suggested his motivation was financial compensation.

·       17th October 2018 – The Complainant wrote to the Director of Nursing expressing his disbelief that it was inappropriate for the Director of Nursing to be conducting a review of the interview he had held and advising him he was now seeking the assistance of the Commission for Public Service Appointments.

·       18th October 2018 – The Complainant sent an email to the Employee Relations Manager requesting a meeting to address the points raised by the Director of Nursing in his letter dated the 8th October 2018.  He also send an email to the Employee Relations Manager requesting a review of the temporary CNM3 interview following advice from the Public Service Appointments Commission.

·       26th October 2018 – The Complainant received correspondence from the Director of Nursing dated the 22nd October informing him that he was conducting an informal review of his complaint regarding the temporary CM3 post interview.  The Complainant responded, once again stating his frustration at the delays. 

·       24th February 2019 – The Complainant wrote to the Employee Relations Manager advising that he did not believe his grievances had been addressed and he would seek the assistance of the WRC Adjudication Service. 

·       24th February 2019 – The Complainant wrote to the Employee Relations Manager informing her that he was referring the matter to the WRC. 

·       14th March 2019 – A letter was received from the Director of Nursing informing him that the review of his interview for the temporary CM3 post, had been completed. 

The Complainants’ Grievances:

Issue Number 1

The Complainant attended an interview for a permanent CNM3 post with the service in June 2015 which was conducted by the Director of Nursing and an Assistant Director of Nursing, both employees of the service, which, the Complainant submitted, is contrary to the organisations guidelines for conducting structured interviews.  The Complainant submitted that those guidelines state: “When developing an interview board, the following principles should always apply.  Interview boards should consist of three people; 

·       An internal expert

·       An external clinical expert (external to the location, not the organisation)

·       An independent Chairperson (external to the location …)

Also, it is crucial that interviewers are aware that they, like everyone, have biases (perhaps so inherent that they are not aware of them) and they should not let them effect their conduct and decision making during the interview process.  Interviewers must be objective and maintain an open mind over the course of the whole interview.  The time during the interview is to be spent gathering evidence in relation to the candidates’ skills and abilities; time is dedicated to evaluating candidates after the interview.  Board members should also be aware of the dangers of making judgements based on whether the person appeals to or is similar to them, e.g., as regards, age, gender, background, experience etc, particularly in light of international candidates”. 

The Complainant did not feel that the interview gave sufficient weight to his substantial experience in the UK, which although it had been prior to 2000, was considerable.  However, because the Complainant was panelled and he was aware that there were a number of positions arising over the next three years, he submitted that he decided not to appeal the decision of the interview because he believed he would ultimately receive a position over the course of the next three years.  The Complainant submitted that this proved costly to him when he received notification that the panel on which he was listed was to expire some 14 months earlier than had been the accepted practice in the service up to that time. 

Issue Number 2

In December 2016, an expression of interest was circulated to all managers in the service via email with attached eligibility criteria.  Having reviewed the criteria, the Complainant did not apply as he did not have the necessary qualifications.  However, over the next number of weeks, the Complainant became aware that a panel of nursing managers had been formed to act in the position of ADON, although no interviews had been conducted.  Over the next few months, the Complainant was informed of the makeup of this panel, and it became apparent to him that no one on this panel met the eligibility criteria that had been included with the expressions of interest and so he wrote to his Director of Nursing to request that his name be added to the panel of nurse managers who would be working in an acting capacity as ADON’s.  However, the Director of Nursing refused his request which he believed to be unreasonable as he had abided by the content of the email circulated in December 2016 and did not believe he should be penalised for abiding by the content of that email. 

Issue Number 3

In April 2017 the Complainant became aware that one of his colleagues had been redeployed to work in the Allocations Department as an acting CNM3.  This employee had done the same CNM3 interviews in 2015 as the Complainant but had been panelled lower on the panel than the Complainant.  The custom and practice in the service is that staff who are successfully panelled for positions, are called upon to act in the positions they were successfully panelled in.  The Complainant wrote to the Director of Nursing enquiring as to why he had been passed over for this position despite being placed higher on the panel.  The Director of Nursing responded claiming that the employee in question had been given his position from the acting ADON panel which had been formed from the expressions of interest circulated in 2016.  The Complainant submitted that neither he nor the employee appointed to the acting CNM3 post met the criteria to apply for that position.  Furthermore, the Complainant submitted that the Director of Nursing’s response did not make sense as the post was an acting CNM3 post, not an ADON post, and the Complainant believed that he had been placed higher on the panel for CNM3 positions and that therefore he should have been at least approached to see if he was interested in the post.  

Issue Number 4

Subsequent to the Complainants’ enquiry regarding acting up in the CNM3 post, he also became aware that the Director of Nursing had also placed a Community Mental Health Nurse in an acting CNM3 post in the Allocations Department, again ignoring his position on the panel and accepted custom and practice.  The Complainant found this appointment particularly upsetting as a Community Mental Health Nurse is generally not a member of the management structure and he viewed this as a deliberate attempt to exclude him from acting up in the Allocations Office.

Issue Number 5

In June 2018 the Complainant again attended an interview, this time for a temporary CNM3 position and again found the interview panel to be in breach of the organisation’s guidelines regarding the makeup of the interview board.  The interview board on this occasion consisted of the Director of Nursing and a different ADON who was also an employee of the same service, again contrary to the guidelines already mentioned.  The Complainant submitted that he did not believe that he was interviewed in an impartial and fair manner and that the interview process was not applied to him in a manner consistent with what was laid out in the supplementary guidelines.  The Complainant drew attention to section 2 of the Commission for Public Service Appointments Guidelines, where they address the recruitment principles by which the interview process should be guided.

·       Principle 1 – The Complainant submitted that principle 1 insists that acceptable standards of probity are adhered to and submitted that he did not believe he was treated with impartiality or fairness on this occasion as he had a complaint against one of the interviewers, ie the Director of Nursing, under the Dignity at Work Policy, as well as recent complaints made against another of the interviewers, neither of which had been addressed at the time of the interview.  The Director of Nursing had also stated in a meeting that the Complainants’ CV was a work of fiction, clearly demonstrating that it was not possible for the Complainant to receive an impartial interview. A complaint lodged under the Dignity at Work Policy regarding the Director of Nursing’s’ comments about the Complainants’ CV being a work of fiction, has since been upheld following an investigation by the organisation. 

·       Principle 2 – The Complainant submitted that principle 2 asks that appointments are made on merit and stated that he did not believe that he was interviewed/assessed in a fair manner that took into account his significant experience in the UK compared to the other candidates. 

·       Principle 4 – The Complainant stated that principle 4 states that the appointment process must be applied with consistency, however he stated his experience in the UK was disregarded and he was asked to provide more recent examples, contrary to the guidelines supplied by the National Recruitment Service, which state that he should provide his best examples.  This placed him at a disadvantage to other candidates who had less experience, but experience that was more recent.  The Complainant submitted that the supplementary question guidelines state that he must give the best examples of where he has demonstrated a skill or quality, however he was not allowed to do this at interview because the examples supplied on the application form were disregarded and when he was asked to give another example, again this was rejected as it was from his time in the UK.  He submitted that he was then asked for another more recent example which unfairly disadvantaged him.  He stated that he tried to address this in the interview by stating the NRS guidelines however the interviewer then decided to proceed without giving any opportunity to give an example at all.  The Complainant stated that this disadvantaged him by giving an opportunity to other candidates with significantly less experience than him because of the fact that their experience is more recent, even if not as broad.  The Complainant submitted that in light of this experience he appealed the interview board decision and after a protracted process where he attempted to have his interview reviewed by an impartial process, he received a final decision from a review he took no part in, where the investigators made no effort to find out the nature of his complaint.  However, the Complainant submitted that it was comments made by the Director of Nursing, in a meeting on the 23rd August 2018, where he stated twice that the Complainants’ CV was a work of fiction, which convinced him that he had never received an impartial interview conducted by that Director of Nursing.  The Complainant submitted that this incident had since been investigated as part of a separate Dignity at Work complaint against the Director of Nursing and that his complaint was upheld, however no remedial action was taken since his complaint was upheld, notwithstanding that these comments demonstrated an unacceptable animosity towards the Complainant. 

The Complainant outlined that he suffered considerable reputational damage and financial loss as well as vital experience which would have assisted him in future interviews had he been given the opportunity to act in higher positions.  He pointed to the fact that the two other employees, who were given the acting positions as acting CNM3, had since been given permanent positions in the posts they had acted into, which he believed demonstrated how vital such experience can be when later applying for higher permanent positions. 

Finally, the Complainant submitted that he believed that the only reason he had been treated in a less favourable manner to his colleagues, was because of his union involvement, as the Director of Nursing had not given any other plausible answer as to why he ignored the Complainants’ requests as well as custom and practice for him to be given opportunities to act into higher posts within the service.  The Complainant asked the WRC to consider what had been represented as reasonable proof that victimisation occurred and decide what redress should be given to recognise this victimisation if accepted by the Workplace Relation to compensate the Complainant as well as to prevent further incidents of victimisation of union representatives within that service. 

The Respondent submitted that the Complainant is employed with the Respondent since the 7th March 2000 and as a CNM2 with the Mental Health Service since the 1st November 2001.  The Complainant carried out the role of local PNA representative in the Mental Health Service from the outset and at the date of the hearing was seconded on full time release as a union official since the 22nd November 2021. 

By way of background the Respondent submitted that the Complainant lodged a complaint under the organisations Dignity at Work Policy 2009 on the 28th August 2018.  On the basis of this it was agreed by those parties at the initial hearing regarding the case, which was scheduled on the 15th October 2019 that the hearing would be postponed as some of the issues raised may be resolved during the Dignity at Work investigation.  The investigation report was completed on the 5th November 2020 following an investigation. 

The Respondent submitted that on the 28th August the complaint submitted a Dignity at Work complaint to an Assistant National Director of Services and that the complaint lodged was on the grounds that the Complainant felt that he had been victimised because of his role as staff/union representative with the PNA.  In accordance with the Dignity at Work Policy, an independent preliminary screening process of the complaint was undertaken.  The independent person responsible for the screening of the complaint deemed that the complaint did meet the threshold of what could possibly be construed as an affront to one’s dignity at work.  As a result, a Dignity at Work investigation was commissioned by the Head of Service and all such investigations are managed independently at National level.  The Complainant consented to this process and agreed a terms of reference and on this basis the investigation commenced.  Allegations and complaints 1 and 2 under the Dignity of Work complaint were as follows:

1.       Refused permission to leave hospital ground in his capacity as staff rep on several occasions.

2.       Email of the 10th December 2015.  Email outlining union responsibilities were impacting on CNM2 duties.

The Respondent submitted that the investigation team found on the balance of probabilities that the complaints/allegations 1 and 2, were not found to have occurred.  In summary the Respondent concluded that the complaint/allegation that the Complainant was penalised for having performed the functions of an employee representative have been dealt with under the Dignity at Work investigation. 

This complaint related to a complaint of penalisation which the Complainant believed was because of his position as an employee representative.  The Complainant stated that he believed the only reason he was treated in a less favourable manner to his colleagues was because of his union involvement and that the Director of Nursing had not given any other plausible answer as to why he ignored the Complainants’ requests as well as custom and practice for him to be given opportunities to act into higher positions within the local service.  No other specific evidence was given at hearing linking the treatment of the Complainant in relation to promotional opportunities with his union representative role in relation to the matter of victimisation. 

The Respondents’ position was that this matter was already dealt with by way of an investigation under the Dignity at Work Policy.  I noted that the matters referred to by the Complainant related to the fact that he was passed over for promotional opportunities on several occasions when, he alleged, he was the most experienced person for the post.  However, I noted that the investigation under the Dignity at Work looked into two matters, one being the refusal of permission to leave the hospital grounds in his capacity as staff representative and the second in relation to an email of the 10th December 2015 outlining union responsibilities and the fact that they were impacting on his CNM2 duties.  I noted that the outcome of the investigation was that it was found that on the balance of probabilities those matters had not occurred.

While I appreciate that the matters considered under the Dignity at Work investigation above were dealt with by way of an internal investigation, I do not concur with the Respondent’s position that the complaint submitted to the WRC had been addressed in that process.  Rather I am of the view that the Complainant raised two different matters to demonstrate that he was being penalised for being an employee representative.  Under the Dignity at Work process, he raised a complaint of victimisation associated with his trade union role and cited 2 examples i.e. (i) refusal of permission to leave the hospital grounds in his capacity of representative and (ii) the email of 10th December 2015 outlining his union responsibilities and their impact on his nursing role.  Under the instant complaint the Complainant has again raised the issue of penalisation but on this occasion, he cited the fact that he was passed over for promotion by way of example.

The complaint before the WRC related to the allegation that the Complainant was passed over for promotion on several occasions and that this was due to his activities as a union representative.  It would have been helpful had the Respondent asked the Director of Nursing to attend to give direct evidence in relation to competitions run under his remit, however, in the absence of that information, it is difficult to draw a conclusion as to the motivation for the treatment of the Complainant in relation to those competitions.  While I have concern about the behaviour of the Respondent in relation to those competitions I have not been provided with clear evidence by the Complainant of a link between his treatment in relation to those competitions and the fact that the Complainant was a union representative.  It is not sufficient to state that there was unfair treatment and that he was a trade union representative.  There must be a clear link between one and the other and that link has not been established by the Complainant. In that context, I find that the Complainant was not penalised under the Employees (Provision of Information & Consultation) Act, 2006 and therefore, his complaint was not well founded.

It is my decision that this complaint was not well founded.

Penalisation, staff representative, information and consultation