ADJ-00008045

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008045

Complaint(s):

Date of Adjudication Hearing: 04/08/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 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.

Background:

The Complainant is a recently qualified Paramedic, having transferred her service as a Psychiatric Nurse with the Respondent. The Complainant sought an incremental credit for prior service but this was rejected by the Respondent.

The parties agreed that the Complaint was to be considered under the Industrial relations Act, 1969 for recommendation by the Adjudicator.

Summary of Complainant’s Case:

The Complainant qualified as a Psychiatric Nurse in 1994 where she served as a Nurse in the UK and Ireland. She joined the Respondent’s organisation in 2002, and in 2015 she transferred to be trained as a Paramedic where she successfully qualified and was appointed as a Paramedic in February 2017.

When she commenced her training, she was placed on a salary grade of New Entrant at a rate of €25,447 per annum, where the maximum of the scale as a Paramedic is €36,640. Upon qualification as a Paramedic she was placed on a salary of €28,412 per annum. The Complainant argued that if she was in a nursing grade she would now be in receipt of €46,254 per annum.

The Complainant is seeking an incremental credit for her prior service as a Nurse in the UK and Ireland.

The Complainant advised that she was informed by other Paramedics that they had received incremental credit recognition for previous service in the public service.

The Complainant submitted that prior to taking up the position of Trainee Paramedic she sought clarification on the incremental credit from the Respondent in August 2015. In September 2015, she was advised by the Respondent in accordance with circular CERS 20/1/15, and a Labour Court Recommendation (AD06101) that she did not qualify for the incremental credit.

The Complainant has submitted that in accordance with Section 3 of the Respondent’s guidelines on Terms and Conditions of Employment, issued in March 2017, she is entitled to the incremental credit for her previous nursing experience. The Complainant advised that Section 3- Incremental Credit and Starting Pay on Promotion, of the Terms and Conditions of employment, states as follows:

Incremental Credit.

Section A- General Principles

• New appointees to any grade start at the minimum scale. Incremental credit will be applied for recognised relevant service in Ireland and abroad (Department of Health Circular 2/2011). Incremental credit is normally granted on appointment, in respect of previous experience in the Civil Service, local authorities, health service and other public service bodies and statutory agencies. The provision is not affected by a break in service.

On that basis, the Complainant maintained that she was entitled to Incremental Credit where she should be placed on the top of the scale for Paramedic, and where such payment should be backdated. She further argued that at least three other comparators existed where Paramedics who formally worked as a Ward Attendant, a former Nurse, and a former Care Attendant were given incremental credits. The Complainant argued there were many more examples of comparators. The Complainant also submitted that a EU judgement referred to in Circular letter 005/2015 indicated that she had an entitlement for an incremental credit.

Summary of Respondent’s Case:

The Respondent argued that the Complainant did not qualify for an Incremental Credit on the basis the entry grade for Paramedic was subject to a national agreement between SIPTU and UNITE. This agreement stipulated the entry grade and associate salary, and that this collective agreement had been maintained by the parties. The Respondent acknowledged that a number of Paramedics may have received an incremental credit but this was by exception and erroneously applied as a result of the complexity of pay grades across the sector, and where some 11 different pay rolls exist that impacts on Paramedic wages.

The Respondent further raised a preliminary issue in relation to the collective agreement regarding entry level to Paramedic Grades. It argued that the Complainant was represented by the PNA which was not recognised for collective bargaining purposes related to Paramedics. SIPTU and UNITE trade Unions are the Unions recognised for Paramedics. The Respondent therefore argued that the PNA’s claim was an attempt to dislodge an established collective issue that has been recognised by the Labour Court, and where the Labour Court has made a significant number of determinations that upholds the national agreement. The Respondent therefore maintained that the issue of transferability of salary upon changing grades or work streams to the Paramedic service is subject to a collective issue, and that any changes would require national discussions at the National Joint Council. It argued that the Complainant, through its Union the PNA, was attempting to change these arrangements.

The Respondent also argued that the Complainant had not progressed a formal grievance through the agreed grievance procedures and had she done so the matter regarding the collective agreement would have been dealt with at the grievance stage.

In response to the substantive issue, the Respondent maintained that the Complainant formerly worked as a Psychiatric Nurse and applied to become a Qualified Paramedic through open competition and was successful in both the open recruitment process and subsequent training, such that they were appointed to the position of   Paramedic with the Respondent’s   Ambulance Service. When the Complainant was qualified as a Paramedic she was moved to the second point of the pay scale. Upon appointment to the position of Paramedic the Complainant was provided with a contract where one of the terms of that contract was that she was placed on the minimum point of the EMT pay scale, a pay scale which is nationally agreed as the starting point for Paramedics irrespective of background or service.   The Respondent argued that at least one ex-nurse joins the Paramedic service per course and they are treated in the same way as the Complainant.

The Respondent advised that Complainant was dissatisfied with this decision at the time, and the decision was reviewed upon which time the Complainant was advised that she had been placed on the correct scale in keeping with the agreed policy for appointment of existing staff to entry grade jobs, which her appointed to the Paramedic position was deemed to be an entry grade. The Respondent maintained that the Complainant’s previous work record is not open to the incremental credits process applied in other areas of its ambulance service.

The Respondent further argued that the claim for incremental credit for a Paramedic can only apply for previous service as a Paramedic, and this position has been supported on numerous past queries on this issue, where this position is clear, and where it has been communicated on a number of occasions to other applications for an incremental credit. The Respondent submitted a letter that referred to a similar claim in April 2014, and where it relied on Labour Court Determinations AD0753, AD 06101 and LRC20117 which supported its position.

Specifically, the Respondent presented that the move from Nursing to Paramedic was a change of career and not a promotion. All applicants, including those coming from other posts within the Respondent’s organisation have to undergo training for this new career. Accordingly, as no prior experience in the grade applies, the Complainant is not entitled to move beyond the first point at commencement of her training. She was moved to the second point when she qualified, and where she would also benefit from other allowances. Furthermore, the Respondent argued that if it were to concede on this claim it would amount to a cost increasing claim that it could not afford as a result of an unknown quantity of claims that would follow. On that basis, the Respondent maintained it was a collective issue that was subject to the agreement set out above that is nationally applied. Any changes to this agreement would require a far wider national focus and as such is not an appropriate complaint between an employee and employer pursuant to the IR Acts.

Accordingly, the Respondent argued that the claim is without merit, and that the current situation and the Respondent’s decision not to concede to the claim is supported in Labour Court Decisions. Furthermore it argued that the claim is an attempt to destabilise a clear national position of terms and conditions which if conceded would amount to a cost increasing claim that is precluded under the terms of the Public Service Agreement 2010

Findings and Recommendation:

Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

Having heard the evidence presented by the parties I understand on the one hand the Complainant had an expectation under Section 3 of the Respondent’s Guidelines on Terms and Conditions of Employment that she may have been entitled to an incremental credit. However, on the other hand the entry level for Paramedics appears to be subject to a national agreement between the Respondent and SIPTU and UNITE Trade Unions, and where this agreement has been recognised by various Labour Court decisions as presented to the hearing within. The Labour Court has recognised that the grade of EMT became an entry grade for the Respondent’s Ambulance Service, the service that the Complainant joined from a nursing career, and as such that is the grade and salary that should apply to the Complainant in this case. Equally I am of the view that should this claim be recommended it would amount to a cost increasing claim; and as recommended by the Labour Court (LRC20717) such cost increasing claims are precluded. In addition, the precedent by the Labour Court in AD1579 dated 13^th November 2015 acknowledged the incremental credit can only apply where roles within the Ambulance Service are comparable. In this case the Claimant does not have comparable experience to the EMT entry grade. I am therefore of the opinion that the Complainant was properly appointed by the Respondent to the right scale.

Based on the cases presented, and the juris prudence set by the Labour Court, I do not find in favour of the Complainant and recommend no changes regarding the pay and grade that the Complainant was appointed to within the Paramedic service.

Dated:   14^th September 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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