ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00012018
A Staff Nurse
A Health Service Provider
Psychiatric Nurses' Association
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 26/06/2018
Workplace Relations Commission Adjudication Officer: Enda Murphy
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker is employed by the Employer as a psychiatric nurse and was assigned to the Female Unit of a Psychiatric Hospital. This dispute concerns the Worker’s claim that the Employer arbitrarily extended her probation period by 12 months contrary to internal policy/guidelines and that there were significant and unnecessary delays in addressing her grievance under the internal Grievance Procedures.
Summary of Worker’ Case:
The Worker commenced employment with the Employer as a psychiatric nurse on 11 January, 2016. She worked without incident until 2 December, 2016 when she brought issues of concern to her immediate supervisor as she was duty bound to do so under the Code of Professional Conduct and Ethics for Registered Nurses and Midwifes. The Worker’s immediate supervisor decided to refer her to a more senior manager (i.e. Assistant Director of Nursing - ADON) rather than address the concerns himself.
Upon meeting with the ADON, instead of finding a manager willing to listen to her concerns, the Worker found that she was the person under scrutiny and became upset as the ADON questioned her ability to work at the designated hospital. There was no attempt to address any of the concerns the Worker had wished to bring to her attention and it appeared that there was an attempt to manage the complainant rather than the complaint.
On 10 December, 2016, the Worker was informed that her probation was to be extended for a further 12 months with no reason being given and this occurred during an informal conversation with the ADON while the Worker was in her office collecting patient’s money.
On 26 April, 2017, the Worker received a letter from the Employer to confirm that her probation had been extended by a further 12 months. The Worker met with the ADON on 30 April, 2017 and sought reasons why her probation had been extended and again no reasons were given that would meet the Employer’s internal guidelines on probation.
On 4 May, 2017, the Worker’s representative requested the matter be heard under Stage 1 of the Employer’s Grievance Procedures. On 28 May, 2017, the Worker attended a meeting with the ADON under Stage 1 of the Grievance Procedure where it was explained that there were no disciplinary or performance issues raised with her since she commenced employment on 11 January, 2016 and that it was grossly unfair to extend her probation for a further 12 months a mere four weeks before she would have become a permanent employee. It was further highlighted to the ADON that had there been any performance related issues these should have been addressed during the previous year and a performance management plan put in place with the agreement of all parties to enable her to complete her probation successfully.
On 29 May, 2017, the Worker’s representative received an e-mail from the ADON informing him that she was standing by her original decision to extend the Worker’s period of probation. The Worker contends that the extension of her probation was arbitrary with no evidence of any performance management or periodic assessments.
On 1 June, 2017, at the behest of the Worker, her representative wrote to the Acting Director of Nursing, requesting a meeting at Stage 2 of the Employer’s Grievance Procedures, to which no acknowledgement was received.
On 29 June, 2017, the Worker sent correspondence to the Employer’s Employee Relations Manager (which was copied to the Acting Area Director of Nursing) requesting a meeting under Stage 3 of the Employer’s Grievance Procedures as there had been no response to the request for a meeting under Stage 2. The Acting Area Director of Nursing subsequently contacted the Employer’s Employee Relations Manager to say that he was happy to hear the Worker’s grievance at Stage 2. The Worker expressed her dissatisfaction to the Employer with the process to date and eventually agreed to a Stage 2 hearing with the Acting Area Director of Nursing.
On 13 July, 2017, the Worker met with the Acting Area Director of Nursing in a Stage 2 grievance meeting and correspondence was received from him on 18 July, 2017 to confirm that he was upholding the original decision by the ADON to extend her period of probation. Despite the claims made by the Acting Area Director of Nursing in this correspondence that the Worker was having difficulties in her role and there was no evidence of any difficulty until she saw fit to express some concerns she had about how the unit was being manager.
On 21 July, 2017, the Worker informed the Employee Relations Manager that she wished to request a meeting under Stage 3 of the Employer’s Grievance Procedures.
On 3 August, 2017, a meeting was held under Sage 3 of the Employer’s Grievance Procedures. During this meeting, the Worker again emphasised she was never the subject of any disciplinary matters or had any areas of her performance criticised. The Worker also stated that she had never received any periodic reviews and this is borne out by the fact that there was no documentary evidence as required under the Employer’s Disciplinary Procedures.
Following a request for access to her personnel records, the Worker was able to ascertain that on the same date as her Stage 3 meeting, correspondence was sent to the Acting Area Director of Nursing from the Employee Relations Manager requesting documentation supporting the decision to extend her probation period. On 22 August, 2017, further correspondence was sent to the Acting Area Director of Nursing from the Employee Relations Manager again requesting the aforementioned information.
On 8 September, 2017, the Worker received a letter from the Employee Relations Manager ending her period of probation and confirming her appointment to a permanent position of staff nurse. The Worker was very happy to have this distressing matter put behind her and hoped to progress in her career until she received a copy of a letter dated 11 September, 2017 from the Acting Area Director of Nursing from the Employee Relations Manager refusing to accept the decision of the Stage 3 Grievance meeting.
The Worker submits that the Acting Area Director of Nursing in refusing to accept the Stage 3 Grievance decision of the Employer’s hr department displayed a blatant disregard for the accepted practice and procedures.
The Worker further submits that there were significant and unnecessary delays in having her grievances heard under the internal Grievance Procedures which she believes were orchestrated to frustrate the process.
Finally, the Worker contends that the extension of the probation period disqualified her from applying for a career break.
Summary of Employer’s Case:
The Worker raised a grievance in relation to the extension of her probationary period as per the internal Grievance Procedures. During her probation the Worker was assigned to the Female Unit of a Psychiatric Hospital. The Worker’s supervisor (CNM2) noted interpersonal difficulties with colleagues and negativity towards the patients. The CNM2 commenced a performance management process to review and support the Worker. The Worker was subsequently observed to be visibly upset at work and she advised the CNM2 that she did not like nursing and wished to leave the profession. Informal professional and clinical supervision was commenced and a review of the work rota was conducted with task allocation. A transfer to another unit that was less stressful was considered and the Worker was advised of the Employer’s Staff Support Scheme.
The CNM2 advised his line manager about the situation and the Worker was seen by the ADON. The Worker presented unhappy, tearful, feeling stressed and considered she was doing more work than her colleagues. She wanted to leave nursing but felt under pressure from her mother to stay. The ADON encouraged the Worker to go to the Occupational Health Department. The Worker agreed and was moved to another less stressful unit. An appointment with Occupational Health was made for 13 December, 2016 and the Worker was to continue clinical supervision. The Worker indicated that she was happy with, and felt supported, by this plan.
On 10 December, 2016, the ADON met with the Worker who had spoken to Occupational Health and reported feeling happier working in the new unit. She asked the ADON for a reference as her probation report was due for review and it was discussed and agreed to extend the probation period for 12 months. The ADON and the CNM2 concluded that the Worker was having difficulty with nursing generally as a career choice but felt family pressure to continue. The Worker seemed to misconstrue senior clinician’s difference in professional opinion as not being listened to.
On 30 April, 2017, the ADON received an e-mail from the Worker stating that she had received a letter from the Employer advising her of the extension to her probation period. The Worker indicated her annoyance as she felt the probation period would preclude her from applying for a leave of absence. At this date, she considered the extension period to her probation was too long. The Worker indicated she felt discriminated and victimised but was unable to present any substantive evidence to support these allegations. Both the CNM2 and the ADON were sincerely surprised by this change in position by the ADON.
On 1 June, 2017, The Workers representative took a Stage 2 Grievance on her behalf. At the Stage 2 hearing on 13 July, 2017, the Worker indicated her grievance was based on the extension to her probation period without basis – the extension was too long and she did not receive clarification on why the probation was extended. The ADON confirmed that the probation period was to ensure that the individual established their suitability to their role, to demonstrate a capability to do their job, to complete this satisfactorily and to conduct themselves appropriately in the workplace.
The Stage 2 hearing concluded that the Worker was having personal, practical and professional difficulties with her role at the time of the extension and she was being supported by the CNM2 and the ADON. The Area Director of Nursing (DON) noted that there had not been a series of formal reviews scheduled/documented as per internal procedures but the Worker was fully aware of the reasons for the extension. There was no evidence of discriminatory behaviour or victimisation.
The Stage 2 hearing found that the probation period extension could end forthwith and all parties were informed on 18 July, 2017. The Worker additionally raised the issue of a career break, an application for post graduate funding and a letter of support for a mortgage. As these were conflicting priorities, the Worker was advised to consider the same and revert accordingly.
A Stage 3 Grievance hearing was subsequently conducted by the Employee Relations Manager on 3 August, 2018 and the Worker’s grievance was upheld on the following basis:
· Fair Procedures not adhered to;
· No performance issues addressed;
· No clarification provided in respect of the reason for extending probation.
The Employer confirmed that the Worker’s application for a career break has been granted and her career break commenced on 10 August, 2018.
Findings and Conclusions:
The core issue giving rise to the dispute in the instant case relates to the Employer’s decision to extend the Worker’s period of probation by a further 12 months after it was due to expire in January, 2017.
The Worker contends that the Employer took the decision to extend the probationary period without any disciplinary or performance issues having been brought to her attention. The Worker also contends that there was a failure by the Employer to adhere to fair procedures in relation to the manner in which her subsequent grievance in relation to this matter was dealt with under the internal Grievance Procedures.
The Worker commenced employment with the Employer as a psychiatric nurse on 11 January, 2016 and was required to complete a 12 month probationary period. I am satisfied that the Employer did not raise any performance or disciplinary related issues with the Worker prior to 2 December, 2016 when she brought some issues of concern, of her own volition, to the attention of her immediate supervisor. The Worker subsequently had a meeting with the Assistant Director of Nursing (ADON) on 10 December, 2016 to discuss these issues of concern and it is clear that certain issues were raised regarding her suitability for the role. This interaction between the Worker and the ADON resulted in a decision being taken by the Employer, which was communicated to her on this date, to extend her probationary period a further 12 months.
I note that the Employer was obliged under its established internal procedures for the management of the probationary process to conduct regular progress reviews with the Worker, to keep a formal record of any performance assessments carried out and to put in place a performance management plan to address any performance related issues which may have arisen. It is clear that the Employer failed to follow its established internal procedures in relation to the management of the Worker’s probationary period during the initial 11 months of her employment.
I find that the decision to extend the Worker’s probationary period was taken in an arbitrary manner and that the reasons for doing so were not discussed or clearly communicated to her at the material time. I also find it reprehensible that the Employer did not communicate this decision in writing to the Worker until 26 April, 2017.
I also find that there were certain procedural flaws in relation to the manner in which the Employer dealt with the Worker’s grievance under its established internal Grievance procedures. In this regard, I am satisfied that there were unexplained and unreasonable delays in the scheduling of meetings at the various Stages of the grievance process which were invoked by the Worker.
I also note that the Employer’s decision to extend the Worker’s probationary period was overturned by the decision maker (i.e. the Employee Relations Manager) following the completion of her Stage 3 Grievance. The decision maker also decided that the Worker should be appointed into the permanent position of Staff Nurse on the conclusion of her one-year probationary period. I find it inexplicable that the outcome of the Stage 3 grievance was not accepted by the Employer and that the decision arising within was not given effect at that juncture.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the parties accept the decision of the Stage 3 Grievance which held that the Worker should be appointed to the position of Staff Nurse on the conclusion of her one-year probationary period (which was due to expire on 10 January, 2017).
I also recommend that the Employer pay the Worker a sum of €750 (seven hundred and fifty euro) in compensation for the distress arising from its failure to effectively manage the Worker’s probationary period in accordance with its established procedures and for the procedural failures that occurred in progressing her dispute through the internal dispute resolution procedures.
Dated: 19 October 2018
Workplace Relations Commission Adjudication Officer: Enda Murphy
Industrial Relations Act 1969 – Trade Dispute – Section 13 – Probation – Internal dispute resolution procedures - Compensation