Worker

Employer

Anonymised Parties

A Nurse

A Healthcare Provider

Representatives

  Psychiatric Nurses Association

Employee Relations Rep

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002716

04/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002717

04/06/2024

The worker successfully secured a position but has not been allowed to take up this position over a year and submits there is breach of contract and failures to comply with redeployment policy.

The worker submits that he was successful on a panel for a CNM2 position at Location X and commenced employment there June 2023.  He also was successful for a different panel for another CNM2 position at a different location (Location Y) and was offered a position on 21/10/2023.  The worker accepted the position for the CNM2 position at Location Y and the worker’s supervisor Mr A provided a reference in line with procedures.  However, a month later Mr A advised on 11/12/2023 that he would not be releasing the worker to take up the position until there was a backfill for the position that the worker would vacate.  Mr A also inaccurately communicated that the worker was engaging in a transfer which was not correct.  In January 2024 Mr A sent correspondence to the worker knowing he was on paternity leave advising the worker to return to his role in Location X. 

There was further exchange of correspondence between them, whereby, despite the worker having taken up his position at Location Y in January 2024 he was then directed by Ms B, to return to Location X and it was threatened that a return would avoid progression of the matter which the worker deemed as a threat.  The worker raised a grievance on 09/02/2024 with Mr C who is now in an acting position for Mr A.  It should be noted that Mr A has been allowed to vacate his post in Location X but prevented the worker from vacating the worker’s post.  The grievance was not upheld and the worker appealed this decision on 25/04/2024 and it was appealed to Ms B who had issued the instruction to the worker to return to Location X.  Ms B had been asked to recuse herself but would not.  The worker’s grievance was not upheld and a further appeal took place on 17/05/2024 with Mr D which was again not upheld. 

It was submitted that the worker had every right to apply for positions and as per his contract gave appropriate notice to his supervisor regarding his intention to leave.  The employer discarded procedures by writing to the worker while he was out on statutory leave and made allegations that were known to be false including that the worker was engaging in a transfer.  The grievance process was conducted by person(s) who should have recused themselves as they had been involved in the early stages of the dispute.  The worker is left in a position whereby he is attached to Location Y which he accepted in December 2023 but he has to work at Location X.  Circular 001/2015 outlines that employees should be released to “start work in their new post four weeks from the date of job offer”.  Furthermore, at least two other workers at Location X have been released including Mr A who prevented the worker leaving.  Finally, it was submitted that the employer failed to progress the worker’s dispute ‘under protest, in line with the appropriate procedure under Principles.

The employer submits that it was not possible to allow the worker to be released from Location X owing to effective governance and to minimize clinical risk as there is a necessity for a CNM2 to be retained in Location X and it has a greater need than Location Y.  The worker appealed the decision taken in line with the grievance policy and his grievances were not upheld.  The decision of the employer is that a worker cannot vacate their post without their line manager’s approval and that providing a reference is not the same as a line manager giving their approval. 

It was submitted that Circular 001/2015 could not apply owing to clinical risk and also a memo dated 17/07/2024 regarding Pay & Number Strategy which it was confirmed was not a circular.  The grievances were not upheld as no starting date was agreed and the worker should not have vacated his post.  The worker’s signed contract of employment also outlines his understanding of the employer’s procedures and there was no breach of the worker’s rights and the management of the dispute was in line with the employer’s procedures.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The worker successfully secured a CNM2 position at Location X and commenced same in June 2023.  He was also successful for a different CNM2 position at Location Y and was due to commence in January 2024.  To date he has not been allowed to take up this post.  The employer submits the worker cannot be released as there is clinical risk and governance issues regarding filling posts.  It was not disputed that others have been released.  The worker submits that the employer is in breach of Circular 001/2015 and the employer submits they are in compliant with procedures including Pay & Number Strategy.

I have been struck by what appears to be lack of sense of urgency to allow the worker to take up the position despite other workers allowed to leave.  It is clear that this has caused significant upset to the worker, not only because of the failures to allow the worker to take up his position but more because of the failures to engage in a positive meaningful way with the worker.

Owing to the very unique circumstances of this dispute and the manner in which this dispute was managed, I recommend as follows:

Firstly, taking into consideration the clinical needs of the organization, the worker and employer should  work together as  a matter of urgency, to allow the worker to take up his position at Location Y which he secured in December 2023; as no sense of urgency has been evident to date.

The employer should review their procedures to ensure that workers are given greater clarity regarding release dates when they secure a position, in line with Circular 001/2015 and other appropriate policies and procedures; which was clearly absent in this instant dispute.

Line managers should maintain honest communication and the employer’s policies updated to ensure that all parties have a clear understanding of what provision of a reference means including that a worker might not be released from their post; which was clearly absent in this instant dispute.

The 2004 Grievance and Disciplinary policy should be updated to reflect inter alia that those hearing grievances should consider recusing themselves, where necessary, in line with normal policies and procedures.  There was no evidence in this instant case that any consideration was given to the appropriateness of some parties hearing the grievance.

Line managers should be reminded of their responsibilities, obligations and appropriateness when making contact with workers who are on statutory leave; which was absent in this dispute.

Finally, the unique circumstance of this dispute highlights the lack of urgency, empathy, poor communication and at times hostility towards a worker who had successfully secured a position from a panel.  Due to such unique circumstances and the distress caused most of which could have been avoided I recommend that the employer pay the worker €750.

The worker submits that he was successful on a panel for a CNM2 position at Location X and commenced employment there June 2023.  He also was successful for a different panel for another CNM2 position at a different location (Location Y) and was offered a position on 21/10/2023.  The worker accepted the position for the CNM2 position at Location Y and the worker’s supervisor Mr A provided a reference in line with procedures.  However, a month later Mr A advised on 11/12/2023 that he would not be releasing the worker to take up the position until there was a backfill for the position that the worker would vacate.  Mr A also inaccurately communicated that the worker was engaging in a transfer which was not correct.  In January 2024 Mr A sent correspondence to the worker knowing he was on paternity leave advising the worker to return to his role in Location X. 

There was further exchange of correspondence between them, whereby, despite the worker having taken up his position at Location Y in January 2024 he was then directed by Ms B, to return to Location X and it was threatened that a return would avoid progression of the matter which the worker deemed as a threat.  The worker raised a grievance on 09/02/2024 with Mr C who is now in an acting position for Mr A.  It should be noted that Mr A has been allowed to vacate his post in Location X but prevented the worker from vacating the worker’s post.  The grievance was not upheld and the worker appealed this decision on 25/04/2024 and it was appealed to Ms B who had issued the instruction to the worker to return to Location X.  Ms B had been asked to recuse herself but would not.  The worker’s grievance was not upheld and a further appeal took place on 17/05/2024 with Mr D which was again not upheld. 

It was submitted that the worker had every right to apply for positions and as per his contract gave appropriate notice to his supervisor regarding his intention to leave.  The employer discarded procedures by writing to the worker while he was out on statutory leave and made allegations that were known to be false including that the worker was engaging in a transfer.  The grievance process was conducted by person(s) who should have recused themselves as they had been involved in the early stages of the dispute.  The worker is left in a position whereby he is attached to Location Y which he accepted in December 2023 but he has to work at Location X.  Circular 001/2015 outlines that employees should be released to “start work in their new post four weeks from the date of job offer”.  Furthermore, at least two other workers at Location X have been released including Mr A who prevented the worker leaving.  Finally, it was submitted that the employer failed to progress the worker’s dispute ‘under protest, in line with the appropriate procedure under Principles.

The employer submits that it was not possible to allow the worker to be released from Location X owing to effective governance and to minimize clinical risk as there is a necessity for a CNM2 to be retained in Location X and it has a greater need than Location Y.  The worker appealed the decision taken in line with the grievance policy and his grievances were not upheld.  The decision of the employer is that a worker cannot vacate their post without their line manager’s approval and that providing a reference is not the same as a line manager giving their approval. 

It was submitted that Circular 001/2015 could not apply owing to clinical risk and also a memo dated 17/07/2024 regarding Pay & Number Strategy which it was confirmed was not a circular.  The grievances were not upheld as no starting date was agreed and the worker should not have vacated his post.  The worker’s signed contract of employment also outlines his understanding of the employer’s procedures and there was no breach of the worker’s rights and the management of the dispute was in line with the employer’s procedures.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The matters arising from dispute IR - SC - 00002717  have been addressed in IR - SC – 00002716, and therefore I recommend that no further action is required in this instant dispute.

IR - SC – 00002716

Owing to the very unique circumstances of this dispute and the manner in which this dispute was managed, I recommend as follows:

Firstly, taking into consideration the clinical needs of the organization, the worker and employer should  work together as  a matter of urgency, to allow the worker to take up his position at Location Y which he secured in December 2023; as no sense of urgency has been evident to date.

The employer should review their procedures to ensure that workers are given greater clarity regarding release dates when they secure a position, in line with Circular 001/2015 and other appropriate policies and procedures; which was clearly absent in this instant dispute.

Line managers should maintain honest communication and the employer’s policies updated to ensure that all parties have a clear understanding of what provision of a reference means including that a worker might not be released from their post; which was clearly absent in this instant dispute.

The 2004 Grievance and Disciplinary policy should be updated to reflect inter alia that those hearing grievances should consider recusing themselves, where necessary, in line with normal policies and procedures.  There was no evidence in this instant case that any consideration was given to the appropriateness of some parties hearing the grievance.

Line managers should be reminded of their responsibilities, obligations and appropriateness when making contact with workers who are on statutory leave; which was absent in this dispute.

Finally, the unique circumstance of this dispute highlights the lack of urgency, empathy, poor communication and at times hostility towards a worker who had successfully secured a position from a panel.  Due to such unique circumstances and the distress caused most of which could have been avoided I recommend that the employer pay the worker €750.

IR - SC - 00002717

The matters arising from dispute IR - SC - 00002717  have been addressed in IR - SC – 00002716, and therefore I recommend that no further action is required in this instant dispute.

Panel, risk,  grievance,  recuse, fairness, industrial relations act