Complainant

Respondent

Parties

Lovers  Pamire

Health Service Executive

Representatives

Anne Burke Irish Nurses and Midwives Organisation

 Paul Hume Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060681-001

21/12/2023

The claimant was employed as a Staff Nurse with the respondent from the 31st.January 2022 to the 24th.July 2023.It was submitted that when   he was dismissed that the claimant had in excess of one year’s service and that the respondent had failed to observe correct procedures when terminating the claimant’s employment. It was advanced that his performance appraisals were conducted  inconsistently and that the respondent failed to conduct an investigation into the allegations of underperformance against him .It was further submitted that the respondent failed to observe the provisions of the claimant’s contract of employment in relation to shortfalls in professional  practice. The respondent while acknowledging some deficits with respect to the probation reviews of the claimant , submitted that they had taken the right decision in the interest of patient safety.

The respondent set out an overview of the claimant’s employment history – the claimant commenced as a Pre-Reg Staff Nurse at Hospital A on the 31st.Jan. 2022 and accepted a specific purpose contract to the 30th.January 2024.

It was submitted that as part of his employment contract the claimant was required to serve a probationary period and underwent reviews at 3 months, 6 months and 9 months .The reviews were carried out by  his line manager at that time who held the position of CNM 2.It was submitted that the claimant was assessed under 7 competencies

Attendance

Knowledge

Communication and Interpersonal Skills

Leadership

Patient focus

Teamwork and

 Planning and Organising.

The rankings of good, satisfactory and less than satisfactory  were applied to the competencies.

It was submitted that at the first 3 monthly review the claimant scored good in 2 competencies , satisfactory in the remaining 5  with additional advice on ways to improve.

The claimant’s review at 6 months scored good in 5 competencies and satisfactory in 2.

In his 9 month review , the claimant ranked good in 2 competencies , satisfactory in 3 and less than satisfactory in 2.It was advanced that the CNM2 explained to the claimant the incidents that had led to him being ranked less than satisfactory in Knowledge and Patient Focus.

The respondent’s representative set out the time line of events  and advised that the 3 month probation assessment took place on the 13th.August 2022 and the 6 month probation took place on

the 10th.Jan. 2023.At this time the CNM2 noted that the claimant had improved steadily since his previous review , that he was more settled and working well on the nursing team.

The CNM 2 was reminded to complete the 9 month assessment on the 27th.Feb. 2023 – the assessment was conducted on the 24th.April 2023 and  it was submitted that the “ probation assessment “ did not take place before this date as the claimant was on a Performance Improvement Plan arising from 2 medication errors. It was submitted that “ Like the 6 month assessment the claimant ranked satisfactory on Leadership , Teamwork , Planning and Organising and less than satisfactory in Knowledge and Patent Focus…..The CNM2 had to explain to the claimant the incidents which led to him scoring less than satisfactory in Knowledge and Patient Focus and the claimant understood the reasons for same”.

It was submitted that the claimant declined to sign his probation assessment as he felt the 9 month probation should reflect nursing practise from the day he started. The claimant stated that during one incident (patient in urinary retention ) that his action was to observe and he handed this over to the day staff. He also stated that it was a busy time after checking patients and he needed to document and handover to staff.

The claimant was invited to a meeting on the 28th.April 2023 to review his probation assessments   – the claimant could not attend  because his INMO rep was not available. Further dates were discussed – the INMO suggested the 22ndMay and the meeting proceeded .Later that day , the claimant  was issued a letter notifying him that “after careful consideration and in the interest of patient safety , his contract was terminated”. The INMO appealed the decision but the appeal was not upheld. It was submitted that the termination decision was upheld due to “ clinical incidents referred to during the 3rd probation review posed a real and serious risk to patient health , welfare and safety and that the claimant did not demonstrate appropriate insight , understanding and willingness to learn/engage”.

It  was contended that the claimant failed his probation and was not suitable to fulfil the role independently as a Staff Nurse in an acute hospital setting.

At the hearing the respondents representative submitted that extending the claimant’s probation was not an option. It was submitted that the employer had been advised that probation cannot be extended and a High Court decision of 2 years ago had determined that probation was a means to assess a staff member for permanent employment. It was contended that nursing management were tasked with assessing the claimant’s suitability as a safe practitioner and there was no discretion on the matter. It was advanced that extending probation was inappropriate where someone is not a safe practitioner.

It was submitted that the reviews of the claimant had been done in conjunction with the managers on the ward and that there were multiple issues raised that indicated the claimant was not a safe practitioner. It was submitted that the employer had followed their own procedures and their only transgressions related to timelines.

It was submitted that the respondent had tried to set up meetings with the claimant in April and  May –  it was advanced that the respondent was relying on their probationary policy .It was submitted that the respondent had done everything to allow the claimant qualify as a safe practitioner.

The union set out a chronology of the claimant’s employment history -It was submitted that the claimant ‘s employment exceeded one year and his employment was terminated post the completion of his probationary period. It was submitted that the claimant  commenced work as a Pre Registration Nurse on the 31st.Jan. 2022 and that he transitioned seamlessly without a new contract issuing – to a position as registered General Nurse on the 11th.May 2022.

It was submitted that the claimant had 2 successful probation assessment within his first year of employment on the 13th.Aug 2022 and the 10th.Jan. 2023.It was advanced that the employer raised a number of performance related issues with the claimant under the heading of the 9 month Probation Assessment and that following a meeting on the 22nd.May 2023 between the claimant , the INMO and Nursing Management ,the claimant was notified that his employment would be terminated on the basis that “ you have failed to demonstrate suitability and the required standard of performance required for Staff Nurse”.

The union lodged an appeal on behalf of the claimant – but it was not upheld. The claimant took up a new nursing position within 2 weeks of his employment being terminated  with another employer.

It was submitted that the respondent’s Disciplinary Procedure  specifically address how matters of poor performance should be addressed.

It was submitted that the claimant’s contract of employment  provides for a 1 year probationary period with an opportunity to extend same and that the contract provides for the utilisation of disciplinary procedures where there are shortfalls in work standards.

It was submitted that the claimant’s contract of  employment provided for the seamless move from adaption nurse grade to staff Nurse grade with the probation period commencing on the 11thMay 2022 and ending on the 10th.May 2023.It was submitted that it would have been completely reasonable for the employer to extend the probationary period “ particularly given that it was only the final assessment of 3 which the claimant failed”. It was submitted that the employer is obliged to address performance deficits through its internal procedures but failed to  so.

It was submitted that the claimant secured a score of no less than satisfactory in respect of clinical performance in his first 2 assessments . It was submitted that the probation assessments were not conducted in a timely manner  and it  was advanced that in the context of the outcome of the claimant’s third assessment , the employer never attempted to support the claimant by managing the underperformance and utilising the standard Performance Improvement Plan as would be the  norm for Nurses and Midwives through out the employment where performance issues arose. It was submitted  that the Appeals Officer had accepted that the probation assessments were not conducted in a timely manner and this amounted to confirmation that the claimant was disadvantaged in terms of having a reasonable timeframe to improve his performance.

The union argued that the termination of the claimant’s employment was comprehended as an unfair dismissal on the basis that his employment was terminated 74 days post completion of his one year probationary period. It was further contended that the termination of employment was wholly unfair as the respondent was non- compliant in adhering to the post probation disciplinary procedure.

It was submitted that there was no substantial grounds to warrant such a drastic measure as dismissal and that the employer was wholly unreasonable and hasty in their decision to do so. It was submitted that the employer should have conducted an investigation into the allegations of underperformance in accordance with the respondent’s disciplinary process. It was submitted that the actions of the respondent were unreasonable and disproportionate and that the employer had opportunities to implement greater supports for the claimant and extend the probationary period in order to maximise the learning opportunities.

The union invoked the provisions of the following cases in support of their contention of unfair dismissal  and appropriate remedies:

ADJ-00024009 , ADJ-00036824   and UD 184/90 EAT 27Nov.1990.

The union  sought redress of 4 weeks pay.

At the hearing the union insisted that there had been no amendments to the respondent’s disciplinary procedure which would allow for the actions of the respondent in dismissing the claimant. It was submitted that the  respondent had failed to observe due process and fair procedures .The review assessments had not been carried out in a timely manner and this had been accepted by the respondent. If the employer had acted in a timely manner , it was argued that the outcome of the process could have been different. The dismissal had been effected after the claimant had completed his one year probation and the decision to terminate was taken 74 days after completing a year in employment. It was acknowledged that an employer has a right to raise issues about competency but it was submitted that this had to be seen through the lens of what supports had been put in place .It was submitted that it was not reasonable for the employer to act on foot of one assessment. It was submitted that any alterations to the disciplinary procedures would have to be the subject of national negotiations between the parties. It was submitted that the claimant’s dismissal could not be construed as anything other than unfair.It was open to the respondent to put a PIP in place following the meeting of the 27th.April.It was submitted that the employer should have looked at the totality of the claimant’s performance and not focus solely on his last assessment. They had not raised issues of significant concern at the meetings.

It was submitted that the employer had already made a decision that the claimant’s probation had expired and this was a complaint under Unfair Dismissals legislation. The claimant had served the required probationary period.

It was submitted that the employer’s efforts to arrange a meeting were hurried and with unnecessary haste and that the meeting was entirely focused on the claimant’s last assessment. The employer had exceeded the time limits for raising performance issues when they sought to signal them. It was submitted that this demonstrates a lack of reasonableness on the part of the respondent. There was plenty of opportunity to put measures in place to deal with any performance issues. It  was submitted that the respondent was obliged to manage the claimant’s issues in a timely manner , that they had failed to do so and this rendered the dismissal unfair.

Neither party presented witness evidence during the hearing.

The following post hearing submissions were furnished by the parties

Respondent:

“Further to a WRC hearing on the 17th May, Ms. Eimear O’Shea, Rights Commissioner who heard the case asked if the following two pieces of information could be sent to her:

 1. Information re Probation I have attached Orientation Booklet nurses receive and is completed prior to their 3 month Probation Assessment Review. I have also attached a copy of Lovers Contract which was Appendix A of the Hospitals submission and his Probation Assessments were Appendix D, E and F respectively.

 2. Rights Commissioner asked if Lovers Probation could be extended past 1 year. 2 I am attaching a copy of HR Memo 008-2023 re European Union (Transparent and Predictable Working Conditions) Regulations 2022 which I refer to pg. 4 B. Maximum Duration of Probationary Period – which states the following:

 “ The Regulations provide that the Probationary period of a public servant shall not exceed 12 months. The only time this can be extended is if an employee is absent from work on statutory leave and the employer can extend for that duration eg. Maternity Leave, Parental Leave, Carer’s Leave, Paternity, Parents Leave. The new legislation does not affect the standard probationary period of 12 months which currently applies. However, an employer can no longer exercise discretion to extend probationary period beyond 12 months for any reason other than to take account of their absence on statutory leave as per list above.”

Complainant  :

 “I refer to your correspondence hereunder and at the outset I express my appreciation for your patience in awaiting the INMO response to the Employer’s supplementary submission. Unfortunately, I have been on unscheduled leave for a number of weeks. In response to the two points set out by Ms.L  below and the attachments therein, it is our firm position that in the context that this claim was referred and heard under the Unfair Dismissal Act , that matters related to the probation period, extensions or otherwise, do not and must not supersede the fact that Mr Pamire was dismissed 74 days post the completion of his probationary period and that the actions of the Employer therein must be considered as being wholly unreasonable. In such circumstances, the Employer was obliged to utilise the Employer’s own Disciplinary Procedure to address alleged performance issues rather than having dismissed the claimant. Therefore, we rely on all arguments set out in our substantive submission in addition to the arguments advanced during the course of  the Adjudication hearing. Thank you for your attention to this correspondence”.

I have considered the submissions and presentations made by the  respective parties.While I acknowledge the post hearing  submissions of the respondent with respect to the reference in the European Union (Transparent and Predictable Working Conditions )Regulations 22 which precludes the extension of probation beyond 12 months , the obligation to observe timelines in relation to probation rests with the respondent .The respondent failed to meet those timelines with respect to the 3 performance reviews   and dismissed  the claimant 74 days following the expiry of his probationary period – without reference to the panoply of rights he had by this time acquired under the respondent’s disciplinary procedure. No investigation was carried out , the escalating procedure under the disciplinary code was not implemented and the claimant was denied his rights under natural justice. At the time of termination of employment  , the claimant was entitled to rely on the provisions of his contract which specify the application of the disciplinary procedure for failure to achieve “high standards of work practise and patient/client care”.The failure by the respondent to observe their own procedures rendered the dismissal procedurally unfair .The Labour Court has consistently determined that employees with short service are entitled to the protections set out in SI 146/2000.In all of the circumstances I am upholding the complaint of unfair dismissal.

I require the respondent to pay the claimant compensation of 4 weeks remuneration