ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00002357
Venue: Ashdown Park Hotel Gorey Co Wexford
Date of Adjudication Hearing: 30/01/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 13 of the Industrial Relations Act, 1969 following 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.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | Shane O Brien (Ambulance Paramedic) | Wexford Ambulance Station (Ambulance Service Provider) |
Representative | Tony Gregg Psychiatric Nurses Association, Michael Dixon | Elaine Anderson HSE, Brendan Crowley, Niamh Lacey National Ambulance Service |
Witnesses |
|
|
Background
The Complainant is employed as an Ambulance Paramedic since 1st November 1998. He has claimed that his employer has failed to have him appointed from a national selection panel to a vacant Operations Resource manager post.
Complainant’s Submission and Presentation:
In late 2011 a competition for Operations Resource Manager (ORM) was circulated. In January 2012 following a selection process a panel was set up and the Complainant was placed 22 out of 38. This panel was to cover vacancies occurring all over the country. Towards the end of 2015 he was notified of a vacancy which was eventually filled by the person placed 20th on the panel. He then knew that he was very close to getting a post and expressed an interest in any vacancy anywhere in the country. Over a period of months he engaged with a variety of managers in which he set out his understanding that there were vacancies around the country and his belief that posts were occupied by persons not qualified but put in place following expressions of interest. He became aware of vacancies in Dublin North Leinster, Cork, Limerick and Galway. He was informed that vacant posts would be offered to those wishing to transfer and remaining vacancies would then be offered to the panel. On 11th March 2016 he was advised that the panel of which he was a member was abolished. The National Recruitment Service had recommended that panels over three years in operation should be abolished. Other panels had not been abolished. He is aware that many on the first twenty on the panel were offered experiential assignments in ORM posts but were later regularised. He was aggrieved that others who were not qualified by national competition were put in acting posts. He raised this with his manager but was assured that he was not aware of anybody having been appointed to a permanent position other than those who were on the ORM panel. The Complainant has notified management that some opportunities had been filled in Dublin North Leinster without first being offered to those on the current panel. He is concerned that throughout his communications with management concerning opportunities there was no mention that the panel might be abolished. When the panel was formed it was unambiguous that this panel would be used to fill vacancies throughout the country. It stated that the panel will be used (not might) to fill the vacancies. He believes that he has been treated badly because some local managers were allowed to ignore the panel and make local arrangements to the exclusion of panel members. He has demonstrated commitment to seeking promotion. A legitimate expectation has been created that he would be offered an ORM post. He is seeking that he is assigned to one of the vacant ORM posts. |
Respondent’s Submission and Presentation:
In March 2016 the Complainant explained to his manager that he had an issue around the ORM panel and how vacancies were being filled. He was told by his manager that this panel that he had been a member of, was no longer live and that all panels three years or over in duration were closed. His panel had been created in 2012. There is a structural review being carried out on the Service and until such a time as this review is completed only critical posts will be filled. The panel that he was on is closed and will no longer be used to fill future vacancies. This matter was the subject of a WRC hearing on 16th August 2016 where it was agreed that the matter would be dealt with locally in the first instance under the Grievance Procedure. A Stage 2 hearing took place on 16th September 2016. The Complainant was not satisfied the outcome and appealed to Stage 3. The appeal was not upheld. This matter was then referred to the WRC. The Respondent is satisfied that the Complainant has been treated fairly.
They stated that no permanent posts were filled outside the panel. They reviewed the list of examples given by the Complainant and advised that none of these were ORM posts. They advised that a new panel is being set up.
This complaint is rejected.
Findings
I note that the Complainant had been on the ORM panel and that all ORM posts had been filled from that panel.
I note the conflict of evidence regarding the terminology of will or may be filled.
I note that discretionary role of the Respondent.
I note that it was accepted that certain acting posts were filled locally however I find that all permanent posts were filled from the panel.
I note the examples cited by the Complainant were temporary posts and that the permanent posts were filled from the panel.
I note that all panels including the one that the Complainant was on was abolished because it was over three years in duration.
I note that a new panel will be established in 2017 from which all permanent posts will be filled.
I find that just because he was 22nd on the panel and the person on 20th had been offered a post doesn’t mean that he was two places away from a post. Persons placed 1 to 20 who had declined posts offered to them remain on that panel.
I note that conflict over part time posts may be temporary posts.
I note the conflict of evidence on what happened in practice. I find that it is a fact that all permanent posts were filled from the panel.
I find that it is a fact that a new panel will be established in 2017 and that all permanent posts will be filled from that panel.
I find that the Complainant is free to apply for selection to the new panel which will be filled in 2017 hopefully.
Recommendation:
Section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the dispute.
I recommend that the Complainant accepts that the panel has been abolished.
I recommend that the Complainant accepts that a new panel will be established this year.
I recommend that the Complainant accepts that ORM posts will be filled from this new panel.
I recommend that he should apply for selection to this panel and that matters should take its course.
I recommend that he accepts that it is not within my remit to assign him to one of the vacant ORM posts.
Eugene Hanly
Adjudication Officer
Dated: 24/03/2017