Complainant

Respondent

Parties

Deirdre Howley

St. James's Hospital

Representatives

Self-represented 

Shóna Ryan, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048621-001

11/02/2022

The complainant resigned on the 15th August 2021 and claims constructive dismissal; the respondent denies the claim.

The complainant worked as a ‘Clinical Nurse Manager 2 Cancer Genetics’ between the 2nd December 2019 and the 15th August 2021, when she resigned.

The complainant outlined that she was interviewed for the role in July 2019. She specifically raised with the interview panel that her registration was in the children’s division, and not the general division. The interview panel informed her that this would not be a problem. The complainant asked whether there were HR issues in the department, and she was informed that there were, but she would be able to progress to other roles.

The complainant submitted emails where she explained that her registration with the NMBI was delayed because her registration was not as a general nurse, but in the children division. The complainant had to avail of the ‘group 2 application process’ and submit the documentation of her qualifications. On the 2nd October 2019, the complainant emailed the respondent with the ‘happy news’ that her registration with the NMBI had been processed. The forwarded NMBI acknowledgement was explicit that the registration in Ireland related to ‘Children’s nursing’.

The complainant moved her family to Ireland and commenced the role in December 2019. At the outset of the Covid-19 pandemic, she was redeployed to a role directly dealing with the consequences of the pandemic. The complainant applied for a CNS position in malignant melanoma on the 30th July 2020.

On the 11th August 2020, the complainant was contacted by Ms Slattery to say that her registration was not ‘in keeping’ with the respondent policy. The complainant outlined that she has worked with child and adult patients in cancer, clinical genetics and neurodevelopmental disorders, as well as cardiac genetics.

The complainant had discussions with senior nursing management. She learnt that a ward nursing role in a children’s hospital would be a lower role. She was encouraged to apply for her own role on a permanent basis, which she did. The amended job description referred to a ‘Registered Nurse’ as opposed to a ‘Registered General Nurse’.

The complainant applied for a ‘nurse informaticist’ role February 2021 and despite being shortlisted and given an interview date, she was removed from consideration the day before the interview. She asked whether this was because of her registration; no answer was given.

On the 15th March 2021, the Director of Nursing emailed to say ‘The [respondent] nursing role profiles will remain unchanged and will continue to require registered general nurses on the NMBI registered. Therefore you are not eligible for any other nursing role in the hospital with your current registration.’

The complainant went part-time in her current role in May 2021, but it was clear that she could not progress to any other role. She took on another part-time role. In 2022, the complainant returned to the UK and had employed alternative employment by the time she referred the complaint.

The respondent outlined that to work for the hospital, a nurse must be a registered general nurse. The complainant did not have this registration and was recruited as an oversight. It was a requirement in all adult acute hospitals in Ireland that a nurse is RGN qualified. The Director of Nursing became aware of this following the complainant’s internal application. The Director of Nursing held that the complainant could not advance to any other role than her current one.

The respondent amended the complainant’s job profile in December 2020 to retain her in employment. It offered that the complainant could apply for administrative roles in the hospital.

The respondent outlined that it had met its contractual obligations to the complainant. It engaged with the complainant regarding the provision of a permanent contract. The complainant did not raise a grievance.

The complainant qualified in nursing in 2012 and has worked in adult and children nursing roles since then. She is published academically, and her CV cites the following publications:

·       Microduplications at the pseudoautosomal SHOX locus in autism spectrum disorders and related neurodevelopmental conditions

·       The impact of panel size on the yield of genetic testing in hyperthophic cardiomyopathy: a systemic review

·       Six-year follow-up study of combined type ADHD from childhood to young adulthood: Predictors of functional impairment and comorbid symptoms

·       Clinical service use as people with Attention Deficit Hyperactivity Disorder transition into adolescence and adulthood: a prospective longitudinal study.

The complainant is an accomplished nursing professional with an established clinical and research pedigree. It was clear in this case that the complainant was entirely professional and proficient in the discharge of her functions as a nurse. There is no question that she performed every duty asked of her at the respondent hospital with 100% competence and application.

The complainant’s career advancement has been explicitly blocked by the respondent. Per the email of the 15th March 2021, the complainant’s application for an alternative role would not even be considered for any other nursing role. She was scheduled for interview for one suitable role, but this was withdrawn.  

The first conflict of evidence was what was said at the interview in July 2019. The complainant was clear that she said that she was a Children’s nurse. This was denied by the respondent. First, it was clear from the complainant’s CV that this was her registration in the UK. She did not have a general registration in the UK. Second, the complainant’s approach at every meeting and email was to be fully upfront. There is no question that she disguised anything. I find as fact that the interview panel knew that the complainant was a registered Children’s nurse.

I note the emails exchanged by the parties between July and October 2019. The complainant’s registration was delayed precisely because she was not RGN (she had to avail of process 2 and not an automatic registration). The registration provided by the NMBI was explicit that the complainant was a Children’s Nurse. The complainant’s registration was up there in lights.

Throughout this adjudication, I asked the respondent to provide any document that stated that a nurse was required to be RGN, from any of the Department of Health, the HSE or the respondent. No such document was provided to me.

I also note that the respondent had no issue in redeploying the complainant to address its needs at the outset of the Covid-19 pandemic. Of course, the complainant did so, in line with her contract of employment and her professionalism.

The complainant gave evidence of a difficult interpersonal work environment in her team. The respondent had informed her of this on her recruitment, but with the proviso that she could move elsewhere. Later, the complainant’s room for manoeuvre was significantly curtailed.

Having made these findings, the question is whether the complainant has met the test for constructive dismissal.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

Application of the law to the facts

At the start of her employment, it was clear to the respondent that the complainant’s registration was that of a Children’s nurse, as confirmed by the NMBI registration. The complainant was entirely professional in the discharge of her functions. It is an unusual aspect of this case that the complainant asked whether there were interpersonal issues in the team she was joining; she was told that there were, but she would have the chance to move on. The complainant gave evidence of those issues. She outlined that when she sought to move on, her room for manoeuvre was severely curtailed.

The respondent gave evidence of why a RGN qualification was required. I accept that there are many roles where this is a requirement. This, however, is a matter to assess as part of any application process. The respondent goes further than this: the complainant was not entitled to even apply for any other nursing role because of her registration. She sought to apply for a role in early 2022 and was listed for interview. Her application was withdrawn simply because of the RGN issue, without any regard to the complainant’s actual skillset or qualifications.

Given that the respondent had recruited the complainant on the basis of her qualifications and registration, and she was performing roles in an exemplary fashion, the withdrawal of this opportunity was a repudiatory breach of contract. The complainant could have been red-circled and allow apply for any position she was qualified for.

I find that the complainant was entirely correct to consider herself to have been dismissed as of the date of resignation. She had no place else to go. This was a nursing professional prevented from the opportunity to progress. The complainant was clear and articulate in presenting her case; the respondent email of the 15th March 2021 was clear that the complainant would not progress.

In assessing loss, I note that the complainant had reduced her hours with the respondent and secured part-time employment elsewhere. She then re-located back to the UK with obvious financial loss. She obtained employment in the UK.

Having found that the complainant was unfairly dismissed, I find that €12,000 is just and equitable compensation. This takes account of the part-time employment obtained by the complainant in lieu of the full-time role at the respondent. Undoubtedly, the complainant incurred significant financial loss and sought to protect her position and that of her family.

CA-00049261-001

For the above reasons, I decide that the respondent unfairly dismissed the complainant, and the respondent shall pay to the complainant redress of €12,000.

Unfair Dismissals Act / nursing registration