ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00022813
A Limited Company
David Miskell Irish Nurses and Midwives Organisation
Complaint/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: 04/10/2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
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.
Summary of Complainant’s Case:
This hearing is under the provisions of the Industrial Relations Acts and is in respect of Ms RC, represented by the Irish Nurses and Midwives Organisation, and her employer, The respondent.
It is claimed that Ms RC has been treated unreasonably and unfairly by her employer in respect of a Trust in Care investigation conducted by her employer.
There are a number of actions sought as redress, including the awarding of a significant compensatory sum to Ms RC and the immediate deployment back to her original work location
Ms RC is a registered general nurse (RGN) employed by the respondent. The respondent are funded under section 38 of the Health Act and provide residential and community care and support to persons with an intellectual disability. Ms RC commenced employment with the respondent as a care worker in 1997. In 2002, she completed her RGN training and in November 2003 was employed as a part-time nurse for the same employer, based in a town in Wicklow. She commenced full-time employment in 2004. Further to the policy of de-congregation of learning disability settings, Ms RC was successful in internal competition to take a place at VL in a town in Wicklow in 2015. This house caters for persons with a severe to profound disability, some of whom may express behaviours that challenge. There are both nursing and social care worker grades employed in the house, and they report to a Client Services Manager (CSM) and Deputy Client Services Manager, who cover more than one community setting.
In 2014, Ms RC had reached an agreement with the service in regard to her rostering arrangement. (appendix 1) This was following a change in the shift structure in the service. As her husband is employed in the same service as a Community Support Worker, and one of their own children has a disability requiring constant parental support, this required them to work on opposite shifts. This agreement was achieved and recorded in 2014. This system worked well for Ms RC and her husband, without inhibiting provision of service.
On November 23rd, 2017, Ms RC lodged a grievance in regard to a member of staff, expressing her concern that this person had been making disrespectful and derogatory remarks about her to other work colleagues. Whilst the grievance was acknowledged on November 27th, indicating that it would be dealt with under the Dignity at Work policy, it was never addressed, nor were Ms RC’s concerns investigated. The staff member was aware that Ms RC had lodged the grievance.
On 26th January 2018, Ms RC was at work and was telephoned by her husband to advise that allegations had been made against him and that he was being placed on paid leave. He did not know the nature of the allegations. Later in that shift, Ms RC was met by her CSM, Ms EG in the workplace and asked if she had spoken to her husband. Ms RC did not seek to know any details of any allegations, and there ensued a discussion as to how shifts might be covered. On the following day, Ms RC was phoned at home by her Senior Service Manager Ms SH. She was advised that there was an allegation against her, although there was no detail given. She was not advised as to the nature of the allegation, but was advised that she was being put on paid leave, and that the employer would have to contact the Gardai. Despite being asked on more than one occasion, Ms SH declined to advise as to the nature of the allegation. On January 29th, Ms SH attended a staff meeting where she stated that ‘this unprofessional barbaric behaviour stops now’ and advised the staff that there may be media interest. Already the subjects of the allegations had been taken off the roster. (appendix 2)
It transpired that five staff members were suspended pending investigation and the employer issued an internal email on January 31st, seeking applications for the now vacant posts. On February 6th, the fact that five persons were suspended was broadcast by all major media outlets and the local newspaper even carried details of the actual allegations. At this point, Ms RC had received no correspondence from the employer, and was still unaware of the nature of the allegations. Nonetheless, the CEO of the respondent, Mr EK made several public pronouncements on the allegations. Ms RC first received correspondence containing the allegations in a letter dated February 12th. A preliminary screening under Trust in Care was not held until March 8th, and Ms RC was informed on April 6th that the matter would go to full investigation. (appendix 3 & 4)
An investigation was initiated against five staff members under the Trust in Care policy. The person who lodged the allegations was the colleague about whom Ms RC had lodged a grievance previously. Ms RC asserted that the complaint was vexatious.
The appropriate action for the employer would have been to fully adhere to the provisions of the Trust in Care Policy, which exists to protect vulnerable service users and to address potential issues of abusive interactions in health care settings. This requires the manager receiving the complaint to maintain confidentiality as far as possible and immediately notify the staff member against whom allegations have been made of those allegations and the details of the allegations. They should also be advised of their rights to representation. They should have been advised as to the nature and purpose of the preliminary screening. Protective measures should have been put in place, including providing an appropriate level of supervision, or in the absence of the same, putting the staff member off pay, pending the outcome of the investigation. The view of the staff member should be sought in such circumstances as to appropriate intermediate action. In respect of the conduct of the employer, they did not adhere to their obligation to inform Ms RC in the first instance, they did not explore alternatives to placing her off pay nor did they discuss with her any potential alternatives. The nature of the allegations could have allowed alternatives to have been applied, whilst protecting client safety. They did not protect her confidentiality and advertised a vacancy pertinent to her before they had even advised her of the nature of the allegations. The employer had also made public pronouncements in respect of the allegations, again before Ms RC herself knew the nature of them.
Ms RC remained on paid leave for the duration of the investigation. The investigation was completed on June 27th, 2018. Ms RC met with management on July 13th, where she was informed of this. The investigation concluded that the allegations were unfounded, allegations of abuse were not corroborated, and no unsafe practices were found to be in use. The period between January 26th and this was the most difficult in Ms RC’s life. Originally not knowing what she was being accused of, the implication of a criminal investigation, having a media spotlight upon the service and the ensuing commentary, the knowledge that, in a small town where her neighbours and friends knew she was not attending work leading to assumptions as to why, the knowledge that her employer had prejudged her, manifested itself detrimentally in regard to her life. She became reclusive and her home life was in turmoil. Her children were affected, being aware of ‘being talked about’ and not being invited to social events. The family did not take holidays and lived in isolation.
Ms RC was advised that she would be welcome back to work. There were no recommendations regarding the deployment of staff elsewhere. Despite the investigation finding that there was no case for her to answer, she was advised that herself and the other subjects of the investigation would not be returning to VL. Mr EK advised the staff team on August 9th that no allegations of abuse had been corroborated and no unsafe practices were found to be in use. He added that Ms RC and the other staff members would not be returning to VL. This became a matter of dispute between Ms RC and her employer, and the matter was referred to the WRC. (appendix 5,6,7,8,9)
A conciliation conference took place in November 2018, but the matter remained unresolved. Ms RC’s claim was subsequently referred to the workplace adjudication service. Ms RC was assigned to VV which is 26km from XX. Ms RC commenced this allocation under protest. She indicated that to not let her return to her substantive place of work would reinforce an assumption of implied guilt. In the interim, one of the subjects of the allegations, who was an acting Client Service Manager at the time of the allegations was reallocated to VL at her substantive grade of staff nurse (she has since left the service). Of the five persons who were the subject of the investigation, two have retired, one was back working at VL prior to leaving the service and two, Ms RC and a Community Support Worker, who happens to be her husband, have been redeployed under protest. (appendix 10)
Since her deployment to VV, there have been eleven rosters issued. In November and December of 2018, Ms RC did not feature on the roster, as they had been completed before she had commenced there. Since then there have been ten rosters issued and on seven of those occasions she has had to accommodate her roster to ensure the service need is met and attempt to accommodate her home requirements. This has been very stressful, as she does not know from one month to the next the logistical arrangements for ensuring her child has appropriate supports. In addition, the burden of having an additional travel time of an hour per day has required Ms RC to make difficult adjustments in regard to the support of their child. Ms RC continues to commute to Location A (appendix 11)
The respondent have the Trust in Care policy at the core of the services they provide. Indeed, the High Court have ruled that the Trust in Care policy forms part of the contractual terms of the employee. (Appendix 12) Accordingly, the employer does not have capacity to vary from such obligations. In applying such to allegations made, they failed to protect Ms RC’s rights under this policy. The preliminary screening did not take place until over a month after the allegations were first raised, whilst commentary had been made to various media outlets. Indeed, Ms RC was the last to know of the nature of the allegations. The decision to suspend was premature, and pending any preliminary screening, reasonable safeguards could have been put in place to protect service users, without suspending Ms RC. In acting in the way they did, the employer implied a prejudicial attitude against Ms RC. Her rights as an employee and access to fair procedure have been entirely undermined by her employer
The employer commented overtly and by implication regarding the allegations, both to the media and to other staff members. This betrayed a level of prejudice existent in respect of the allegations, and crucially, implied guilt. Despite being cleared of any wrong-doing, the employer saw fit to redeploy Ms RC subsequent to the investigation. There was no recommendation that suggested this. In doing so, the employer has only reinforced a sense that Ms RC is being penalised. In addition, the transfer has had an unreasonable effect on her home life, requiring Ms RC and her family to seek greater assistance in provision of support to her child. It is sought that Ms RC is allowed to immediately return to her substantive workplace of VL and that the employer issues a formal statement indicating that the allegations have been robustly investigated and the persons accused have been exonerated
Ms RC formally lodged a complaint in regard to a colleague in November 2017. This was never investigated. This person then made unfounded allegations against Ms RC, which were not upheld. Ms RC indicated that she felt the allegations were vexatious. The employer has done nothing to determine the facts about this, and in their failure, have exposed Ms RC to rumour and innuendo in her workplace and community.
Ms RC had a pre-existing and formal agreement with her employer in regard to her rostering arrangement. Since the redeployment, this agreement has not been adhered to, and this behaviour has compounded the difficulties presented to Ms RC and her family. It is sought that the employer fully adhere to the provisions of the existing rostering agreement.
There is a cumulative effect of the above, which warrants a compensatory sum. As shown, Ms RC has been treated in a pre-judicious manner and abominably by her employer. In regard to a previous Workplace Adjudication, upheld by the Labour Court, where the employer had failed to protect an employee’s integrity when there was media coverage of an issue, the award was €10000. (Appendix 13) In regard to the extra travel time and distance as a result of the forced redeployment, this can be estimated to be worth €15000. For the other failures of the employer regarding their failure to adhere to, or indeed show any fairness to Ms RC through their own policies, be it Dignity at Work or Trust in Care, and the effect that these have had upon her, a sum of no less than €35000 is not unreasonable. The aggregate sum of €60,000 is an entirely reasonable figure in such circumstances.
Up until January 2017, Ms RC was a stalwart professional, happy in her work and a respected member of staff of many years’ standing at the respondent. Following the allegations made against her, her life fell apart. Ms RC, an advocate of the client of the protection of the client recognises the protections that have to be put in place and diligently supports the same. However, her employer disregarded her own rights and good name in their media-reactive, ill-considered and incompetent application of policy. Her name was impugned and to this day, the employer does not seem to understand the effect that their actions and failings have had on her and her family. Notwithstanding what she has had to endure, this is compounded by the continued position of the employer in not letting her back to her original workplace. This implies an unfair sense of enduring guilt and suggests that there may be no smoke without fire.
Ms RC has lost nearly two years of her life as a result of this and is still picking up the pieces. She cannot retrieve that time, and no amount of compensation will do that. In the circumstances, the sum sought is entirely reasonable and fair.
We respectfully request a recommendation in our favour.
Summary of Respondent’s Case:
The respondent, is a voluntary organisation that is registered as a charity with the Revenue Commissioners. It provides a wide range of services to adults with intellectual disabilities in a number of locations. It aims to empower people with the necessary skills to live full and satisfying lives as equal citizens of their local communities.
The respondent is constituted as a company limited by guarantee and is also a registered housing association. Referrals are made by the Health Service Executive. The respondent is funded by the Health Service Executive, the Department of Education & Skills and voluntary donations.
TMs RC, has been employed by the respondent since 17 November, 2003 as a Staff Nurse.
She was initially assigned to work in the respondent’s GV and HL locations (see page 1, clause 4 of her contract of employment at Tab 2); both of which are located in a town in Co. Wicklow. She has since worked at the respondent’s VL and VV locations.
The Complainant remains an employee of the respondent to date.
The Complainant’s trade union, the Irish Nurses and Midwives Organisation (INMO), has apparently referred this matter to the WRC under section 13 of the Industrial Relations Act 1969. The union’s letter to the WRC dated 16 June 2019 (see Tab 1) states that:
“The Complainant was employed at a specific location with a local agreement since 2014, whereby her attendance was coordinated with her partner to manage their childcare commitments. In practice the local agreement meant that the Complainant and her partner are not rostered to work together on the same days. She cooperated with an internal investigation relating to patient care in the respondent's Organisation throughout 2018. The outcome of the investigation is that the Complainant is not guilty of any charges.
“However, the respondent insisted that the Complainant move location to VV Centre, whereby her roster and childcare arrangement were complicated causing extreme hardship to her and her family. She objected to this move but was required to cooperate under protest.”
This dispute was referred to the Conciliation Services of the WRC. A meeting took place on the 19th November 2018. The respondent argued that the dispute did not lend itself to resolution by conciliation and they would attend an Adjudication Hearing at the WRC.
“The Complainant was required to cooperate under protest. In the interim, the respondent has continued to provoke this dispute by refusing to observe the local agreement that existed since 2014. This has caused extreme distress to the Complainant and her family.”
There are a number of significant factual inaccuracies in the union’s letter
PART B: FACTUAL BACKGROUND
The 2014 Temporary Rostering Arrangement
In 2014, a temporary rostering agreement was concluded with the Complainant and her partner (see letter to Mr. YC at Tab 3). The effect of the agreement was that, while working in the GV and HL locations, the Complainant and Mr. YC would be rostered on opposite shifts to accommodate their family work/life balance. The arrangement was recorded in a letter to Mr. YC (Tab 3). That letter stated:
“We wish to confirm your decision to accept the roster re configuration proposal under the following agreement;
That you and your partner Staff Nurse Ms RC when working in the locations; GV and HL will be rostered to work the proposed long day shifts, opposite each other, the agreement will be honoured to facilitate you both to work opposite shifts on the roster which is to accommodate family work/ life balance.
There may be rare occasions such like; severe staff shortages or unplanned staff absence or a client emergency that may result in Management being unable to roster you to work on opposite shifts however if these circumstances arise, it will be brought to your attention in advance and the circumstances fully explained and discussed and agreed.
It is proposed that this agreement will commence on the implementation of the reconfiguration of the roster and this agreement will be reviewed after 6 months to evaluate the arrangement.”
Transfer to VL and Later Investigation
In September 2015, the Complainant was assigned to work in VL. Although the 2014 rostering arrangement was expressed as only applying to the GV and HL locations, the respondent continued to accommodate Ms RC and her spouse by rostering their shifts at opposite times.
In 2018, an investigation (conducted by an independent expert) was undertaken under the respondent’s Trust in Care Policy into (i) specific allegations against five staff employed at VL and (ii) general allegations of inappropriate practices at the said location. The Complainant was one of the five employees in question.
The investigator found that none of the specific allegations could be substantiated (see report at Tab 9). However, he also found that:
• "[A] culture that new staff described as unwelcoming, close-minded and dominated by the experienced group of staff who had transferred from HL and who were described by all staff interviewed as a clique" (Finding 5.25).
• "The approach of the core staff group was described as institutionalised" (Finding 5.26).
• "[A]n institutionalised workforce unwilling to adapt or change" (Finding 5.30).
• "As well as the lack of staff development and preparation for a different ethos and way of working at VL, no consideration seems to have been given to the blend of staff .... This was perhaps exacerbated by the length of time this group had worked together. They were considered a clique" (Conclusion 6.5).
The investigation recommended that:
"The staff complement of VL should be reviewed with immediate effect and steps taken to ensure a balance among skills, qualifications and experience. Consideration of experience should include the range of career learning, ie, staff with experience in more than one cluster of residences" (Recommendation 7.1.1).
Following on from the above-mentioned report, findings and recommendations, a number of staff were assigned to new working locations in July 2018.
Transfer to VV
The Complainant was among the staff who were transferred. It has been repeatedly explained to the respondent and her trade union that the transfer is not a disciplinary measure but was required in order to implement the recommendations arising out of the investigation. Such moves are specifically authorised in clause 4 of the respondent’s contract of employment (Tab 2) which provides that she "may be required, from time to time, to work at any other premises as the Employer may require". It is noted that the Complainant had been moved previously in 2015.
The Complainant was asked to indicate any work location preference she had, but she did not to do so. She was assigned to the VV location, which is in a town in Co. Wicklow approximately 20km from Arklow. She has now been working at that location since 6 November 2018.
Current Rostering Arrangements
The INMO letter of 16 June 2019 to the WRC (Tab 1) asserts that the respondent is refusing to observe the 2014 rostering agreement. That is simply not true. Whilst the 2014 arrangement was initially intended to be temporary and expressly only related to employment at GV and HL, the respondent continues to roster Ms RC and her spouse on opposite shifts as far as practicable. The respondent has every intention of continuing to do so.
An analysis of the rosters of the Complainant and her spouse for the period January-July 2019 (see Tabs 4, 5 and 6) indicates that there was no day in that seven-month period on which they both worked. There were two days in the relevant seven months on which they were both rostered to work. However, the Complainant called in sick on both of those dates; 28 March and 10 June 2019.
The reality is that, contrary to the union’s assertion, the respondent is not refusing to observe any local agreement regarding the Complainant and her spouse and cannot therefore be causing any distress to her or to her family.
PART C: SUBMISSIONS
The respondent respectfully submits that:
It has been notified by the WRC that this matter is being dealt with under section 13 of the Industrial Relations Act 1969. The respondent notes that subsection (2) of that section provides that:
“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”
The respondent therefore respectfully submits that the instant matter, which relates to “hours or times of work” is not properly before the WRC.
Even if the matter is deemed to properly be before the WRC, the respondent has, as a matter of fact, continued to honour the arrangement entered into with the Complainant and her husband in 2014.
The Complainant has not, however, utilised the internal the respondent’s grievance procedure and so has not exhausted internal procedures before referring this matter to the WRC; despite invitations to do so. It is submitted that she should have done so and any recommendation in her favour at this juncture would simply encourage trade unions to ignore established internal procedures (as the INMO has done in this instance). It should be noted at this juncture that the INMO’s referral letter is entirely incorrect when it asserts that the “Respondent argued [at conciliation] that the dispute did not lend itself to resolution by conciliation”. Rather, the respondent engaged in conciliation but expressed the view that the matter should have been addressed via the internal grievance procedure before being referred to the WRC. The respondent still holds that view and remains open to either (a) engaging in discussions at local level or (b) facilitating the use of the internal grievance procedure.
The respondent had no alternative other than to transfer certain staff members following on from the findings and recommendations contained in the investigation report. It was contractually entitled to so transfer the Complainant. In that regard, the respondent notes the recommendations of the Labour Court in decisions LCR1575, AD13101 and AD061 (all of which relate to redeployment and are reproduced at Tab 7).
A similar matter came before the WRC in 2016 (ADJ-00000647 – see Tab 8). It is submitted that the respondent in the instant matter is conducting itself in a manner that is at least consistent with the recommendation of the Adjudication Officer in that case.
Findings and Conclusions:
The complainant’s contract of employment states “Initially you will be required to work at the employer’s premises at GV day Services and HL Co. Wicklow but may be required, from time to time, to work at other premises as the employer may require. You will be given as much notice of any such change of place of work as is reasonably practicable. You will be required to report to the Unit Manger or delegated authority at the specific location.”
The worker and her husband both work for the respondent. They have a child with special needs. They requested that they would not be rostered to work at the same time. By letter dated the 24th June, 2014 addressed to the worker’s husband the respondent agreed “ That you and your partner Staff nurse… when working in the locations GV and HL will be rostered to work the proposed long day shifts opposite each other, the agreement will be honoured to facilitate you both to work opposite shifts on the roster which is to accommodate family work/life balance.”
Following an investigation into alleged abuse, the allegations against the worker and her husband were deemed to be unfounded. However, other concerns were raised by the investigator about a ‘clique’. The worker was one of five in the clique. I accept that the respondent’s primary obligations are to its services users, who are vulnerable individuals and in that regard are perfectly entitled to act on the investigator’s recommendations. They engaged with the worker in relation to her preferred location. However, she did not fully participate in that process. In light of that, the respondent moved her to what they deemed to be the most suitable location. In doing so, they made sure to honour the agreement entered into in June, 2014. The worker did not invoke the respondent’s grievance procedure prior to filing her dispute with the WRC.
In all of the circumstances I make the following recommendations:
1. The complainant should invoke the respondent grievance procedure in relation to the issue the subject matter of this complaint.
2. The complainant should be furnished with evidence of the date, time, place and content of the statement published in relation to the out come of the investigation. If there is any doubt about its publication, it should be republished.
3. The Respondent should continue to honour the agreement entered into in June, 2014, where possible.
4. At some future date, should a position become available at the workers original venue, she should be offered the opportunity to apply for same.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
In all of the circumstances I make the following recommendations:
1. The complainant should invoke the respondent grievance in relation to the issue the subject matter of this complaint.
2. The complainant should be furnished with evidence of the date, time place and content of that the statement published in relation to the outcome of the investigation. If there is any doubt about its publication, it should be republished.
3. The Respondent should continue to honour the agreement entered into in June,2014, where possible.
4. At some future date, should a position become available at the workers original venue she should be offered the opportunity to apply for same.
Dated: 27th November, 2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly