Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019898-001

19/06/2018

An Ambulance Paramedic is seeking that his place of seniority to be re-set to the start date of his training rather than the date upon which he started to work as a paramedic. He further seeks that his place of seniority to be reset on national database and that his right to be transferred reflects his position of seniority.

The Complainant qualified as a paramedic in 2006 and qualified as an advanced paramedic in 2016.

In 2005 following an interview the Complainant was recommended for the position of trainee paramedic. His training for this position was due to start in January 2006. In March 2004 the Claimant’s son, then aged 5 had been diagnosed with an aggressive brain tumour. The child was unwell throughout 2004/05. Soon after the Complainant’s appointment as a trainee paramedic in 2005 he was approached by the then Acting chief ambulance officer who, in light of the Claimant’s son’s poor health, recommended to the Complainant that he delay the commencement of his training in order that he could be at home.

The Complainant was reluctant to accept this suggestion. He was in denial as to his son’s deteriorating health and he wanted to take up the training as he had planned. However, based on the assurance given to the Complainant by the Acting-up chief ambulance officer, that his training would simply be deferred and that there would be no negative consequences of such a deferral, the Complainant accepted this and delayed the commencement of his training.

The Complainant’s son died in February 2006 aged seven.

The Complainant took up his training on the next available course, that being in July 2006. However, he later found out that the consequence of him delaying the training meant that he was treated as having a later start date. This meant that the other eight paramedics that he should have started with in January 2006 were all treated as more senior to him, even though had he started the course with them and as he was placed no. 3 on the panel, he would have been senior to them.

This late start date has had consequences in relation to the right to transfer and in particular it currently prevents the Complainant from being eligible to obtain a position close to home. This fact has particular relevance now because his domestic obligations have recently greatly increased. His other son is under medical investigation, both his sister and brother have recently died of cancer and he is now responsible for the care of his niece (his deceased sister’s child).

Had he known of the detriment to him in terms of losing seniority and the rights to transfer that are consequent on seniority, despite the difficulty that was facing him and his family in January 2006, he would not have delayed the training. The then Acting up chief ambulance officer assured him in good faith at the time that he would suffer no detriment from delaying the training and it is accepted now by the then Acting up chief ambulance officer that he gave such an assurance.

The Complainant brought a grievance under the HSE grievance policy in February 2018. He sought that his start date be amended to reflect his planned training commencement date as opposed to when he actually started. His stage 1 and 2 grievance meetings were not upheld.

Following a stage 3 meeting in March 2018 the Complainant’s grievance was upheld in full. The recommendation was that the Complainant’s start date be rectified to reflect the date of 23 January 2006, that is the date upon which he should have started training.

However rather than implement this finding the matter was then referred to the Transfer Policy Oversight Body.

The Complainant submits that this is not in keeping with the grievance procedure set out in the Respondent’s grievance procedures. A finding at a stage 3 grievance hearing must be either upheld or dismissed. If upheld it must be implemented. If not upheld it may be referred to a third party, namely the WRC. There is no provision in the Respondent’s grievance procedure for a Stage 3 finding to be referred to another body for consideration. Indeed, it is suggested that the wording of the stage 3 finding detailed in the letter dated 3 April 2018, did not constitute an invitation by the decision maker for the TPOB to revisit the issue.

The letter states “In the matter of the Complainant’s grievance, I uphold his grievance…and would be grateful if you would give effect to this determination.”

The basis as to why the grievance finding was referred by the Stage 3 decision maker to the Transfer Policy Oversight Body is unclear. This is a union/management body set up to deal with transfer issues. It might have been that the decision wished merely to keep the Transfer Policy Oversight Body informed as to his decision. But in any event the TPOB treated the referral as being an invitation to consider and redecide the issue, which it did and its decision was to reverse the decision taken at the Stage 3 grievance meeting.

The Complainant contend that the TPOB should not have treated his grievance as an application under the 2015 transfer policy, that his right to a transfer arose out of the error in his start date. It is this date that requires rectification, not a consideration of his circumstances under the 2015 transfer policy. If the date is rectified to reflect a start date of January as opposed to July 2006, then the right to a transfer will flow from that. The Complainant contends that his start date should be changed because it was never his idea to delay his training, he did it reluctantly at the behest of the then Acting up chief ambulance officer and did so on the basis that he would not suffer any detriment by doing so.

In conclusion the Complainant submits that the finding made at the Stage 3 grievance meeting should be adopted and implemented, namely that the Complainant’s start date be rectified to reflect the date upon which he should have commenced his training, namely 23 January 2006.

The current Assistant Chief Ambulance Officer represented the Respondent at the Adjudication hearing and requested an adjournment. He understood that an application had been made to the WRC a week before the hearing seeking an adjournment, in order to prepare the case in circumstances where the complaint had been sent to the wrong person/ address.

On the basis of this the correspondence in the Adj. file was considered by the Adjudication Officer.

From the correspondence it is apparent that a Respondent representative not present at the Adjudication hearing, had written to the WRC stating that had the complaint been addressed to the appropriate person (HR as opposed to the Complainant’s line manager) and that had it been sent to the correct person they would have objected to the matter being dealt with under the Industrial Relations Act. However, no request was made to the WRC to adjourn the hearing in advance of same and that being the case, the adjournment application at the hearing, was refused by the Adjudication Officer. The matter then proceeded.

The position of the Respondent was that the Transfer Policy Oversight Group considered the grievance raised by the Complainant and while it sympathised with the Complainant, the transfer policy in place since 2015, only permits transfers on compassionate grounds where the personal or family circumstance is current. This did not apply to the Complainant and the application to transfer was denied.

It was accepted by the Respondent at the hearing that the representations made in 2006 to the Complainant by the then Acting up chief ambulance officer were met with initial resistance from the Complainant. It is accepted that but for this entreaty the Complainant’s start date would have been January 2006 which would have affected his right to transfer today. It is accepted that he was given assurances that no detriment would occur to him as a result of the delay in start. Lastly it is accepted that the 8 colleagues of the Complainant who would be affected by a change in the Complainant’s seniority ranking are agreeable to this occurring.

It is not denied that the Respondent’s grievance procedure does not permit a stage 3 finding to be anything other upheld or rejected. If it is upheld the finding is to be implemented. It is not denied that the grievance procedure does not permit a stage 3 finding to be referred onto another body and for that body to alter the finding.

I am confined to the grievance procedure in place within the Respondent organisation that has been agreed between unions and management.

If a grievance is raised the stages of hearing are a stage one hearing, a stage 2 hearing and stage 3 hearing. If a grievance is upheld under a stage 3 hearing, it is to be implemented. If it is not upheld, the employee has a right to seek an adjudication by third party (either a Rights Commissioner, Labour Relations Commission or the Equality Tribunal) i.e. the Workplace Relations Commission.

There is no provision in the grievance process whereby a stage 3 finding can be referred to another body for consideration. For this to be accepted would be a poor precedent, which would run the risk of undermining the various stages in the grievance procedure that have been agreed.

In this case a stage 3 finding was made. It should not have been referred to the TPOB, nor should the TPOB accepted it as being something upon which they were entitled to adjudicate upon.

I am satisfied that the decision that was reached at the Stage 3 hearing was a sound decision, both in substance and procedurally. I do not accept that the reversal of that decision was procedurally appropriate and I recommend that the decision of the TPOB be set aside and the Stage 3 decision be given effect to.

I find that the Stage 3 hearing was dealt appropriately by the decision maker. He considered relevant issues: that it was only on foot of the 2006 entreaty by the Respondent that the start date was delayed; that this had unintended consequence (of the Complainant seniority being lowered) and that the unfair treatment that flowed from that required a remedy. Conversely the TPOB decision was confined to an interpretation of the 2015 transfer regulations, which was not appropriate given the grievance that was raised in the first case.

In the light of any ambiguity I recommend that the Respondent’s register/national database be rectified to reflect the Complainant’s start date as being 23 January 2006 and that his position of seniority reflects that date and that his right to a transfer also reflect that new date. I note that no claim is being made in respect of any pay increase and consequently I make no such award.