LCR21842

• The Worker sought to challenge this decision. However, he did not attend the second scheduled day of hearing before the WRC Adjudication Officer. He explained that he had not done so because he was subject to a ‘fitness to practice’ process by the relevant professional body, the Pre-Hospital Emergency Care Council, (PHECC) in relation to the two incidents. The Adjudication Officer had issued a finding, in September 2016, that the case had fallen for want of prosecution. The Labour Court had deferred dealing with the appeal in 2016 until the PHECC process was completed. It was accepted by both parties that there was now no outstanding aspect to that process, that the Worker had been ‘censured’ for his behaviour and remains registered to practice as an Advance Paramedic.

  The Employer confirmed that, in accordance with the HSE disciplinary process, the final written warning imposed by the Dismissals Appeal Committee had lapsed after 12 months. The Union sought on the Worker’s behalf that the two penalties still current, the reduction in grade and the location transfer, be rescinded. The Employer opposed this submission.

UNION ARGUMENTS:

1. The HSE'sprocedures state that the 'key objective is to assist the employee to maintain the required standards, rather than impose penalties'. The demotion decision was purely punitive and, therefore, inappropriate and, as a result, it amounted to a breach of the procedures.
2. The Worker had accepted responsibility for his actions but the penalties are disproportionate.
3. No objective basis exists for the Worker's re-location or continued exclusion from supervisory roles for an indeterminate period.

1. The NAS views the incidents involving the Worker as being very serious. The outcome of the internal disciplinary process was a decision to dismiss him. However, the Employer accepted the outcome of the dismissal appeal and believes that this should be confirmed.The outcome of the PHECC proceedings shows wrongdoing and adds confirmation to the sanction imposed by the employer.
2. There are three requirements to operate as an Advanced Paramedic namely training, registration and authorisation by the Employer. The Medical Director of the NAS, who exercises this authorisation for the Service, had authorised the Worker to practice as a basic grade Paramedic only.
3. The decision to utilise the WRC and the Court in this case amounts to an attempt to appeal an appeal, contrary to the HSE’s agreed procedures. The Employer’s view is that the worker has exhausted the agreed appeals process.

The Union made the case that in imposing a demotion on the Worker, the Employer had breached its own procedures. The Court notes that the use of the procedures was imperfect in terms of the length of time that it took to bring the case to finality. It seems odd to the Court that the Worker was left to continue his full range of duties for four months after complaints were received yet, subsequently, the Employer determined that the worker was not fit to remain in employment, before this outcome was varied by an appeals body. However, the Court is satisfied that the HSE procedures used are fair and thorough and, moreover, that, once they commenced, they were used in a fair and balanced fashion by the Employer in this case. In particular, the Court notes that an appeal was available to the Worker. This appeal was utilised by him and this resulted in a reduced penalty. While it was not what the Employer had sought, the penalty was accepted by the Employer.

In light of the above, the only issues for the Court to consider are whether the demotion of the Worker should continue and also whether there is a case for locating the Worker back in his original place of work.

The Court notes the assurance of the Employer that the Worker is eligible to apply for promotion opportunities. In principle, therefore, the Employer accepts that the Worker need not remain in the grade to which he was demoted for the remainder of his career.

It was acknowledged in the course of the hearing that the Worker meets two of the required criteria to work as an Advanced Paramedic, namely he has the training and he is registered. The third criterion is that the Worker must be authorised to work at this level by his employer, in effect by his employer’s Medical Director. The Court was unable to ascertain what process, if any, is used by the Medical Director in determining the Worker’s suitability for authorisation or, indeed, what criteria, if any, are used to make this determination.

In the view of the Court, it is essential that a transparent and fair process should be in place, within which there should be clear criteria against which the Worker’s clinical competence can be assessed to determine his suitability for authorisation to return to the role of Advanced Paramedic and, if applicable, that any perceived deficiencies are identified so that they might be addressed.

The Court recommends that discussion should take place between the Worker’s Union and the Employer with a view to agreeing a review process and criteria and that the parties should aim to complete these discussions within six months of the date of this recommendation. In this way, the Worker will have a clear idea of what is required of him and the Employer can be satisfied that the Worker meets any necessary criteria before re-instating him to his previous role as an Advanced Paramedic. For the sake of absolute clarity, it follows from this Recommendation that if the Worker meets the necessary criteria, he should then be restored to his previous grade and, indeed, that he should remain as a Paramedic until such time as he is deemed to have met the criteria.

On the question of location, the Court was advised that there is a third party whose situation could be impacted upon by any recommendation of the Court. The Court suggests that the Union and Employer engage on this matter to determine if an outcome can be achieved that is satisfactory to all parties.

Signed on behalf of the Labour Court




MK______________________
4 December 2018Tom Geraghty
Deputy Chairman


NOTE

Enquiries concerning this Decision should be addressed to Mary Kehoe, Court Secretary.