Complainant

Respondent

Anonymised Parties

A Paramedic

An Ambulance Service

Representatives

Ted Kenny SIPTU Health Division

HSE Employee Relations Section

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-00023445-001

22/11/2018

The Complainant commenced employment on 1 August 2008 with the Respondent, who runs an ambulance service. The Complainant was employed as a paramedic.

In 2014, the Complainant applied for a temporary post (a permanent pause which was being filled on a temporary basis) as Lead Emergency Medical Technician (LEMT). The Complainant was successful in his application and was placed at number three on a panel. However, as there were three positions vacant at the time, the Complainant was appointed, to the role of LEMT, on 2 June 2014.

The Complainant has occupied this position since June 2014. In recent months, due to LEMT shortages, two further ambulance stations have been added to the Complainant’s workload/responsibilities.

In submitting his complaint under the Industrial Relations Act, 1969, the Complainant is seeking a recommendation that he be made permanent in his current LEMT role.

It was submitted on behalf of the Complainant, by his Trade Union representative, that when he was appointed as LEMT in June 2014, the Complainant did not receive a contract for the position. He was subsequently provided with a contract in 2016, which was backdated to June 2014. It is contended on behalf of the Complainant that, once he has over 12 months in the position, he should be made permanent by default.

The Complainant’s Trade Union representatives submitted that the issue of LEMT panels and recruitment has been the subject to extensive negotiations between employers and trade unions at national level. It was submitted that in May 2003, a review of the Ambulance Service was conducted and a ratio of 1 LEMT to every 5 paramedics (EMTs) was agreed.

It was further submitted that, since then, various panels have been in place. However, during the downturn in the economy in 2008, the existing panel, at that time, was extended because there was a moratorium on recruitment. It was further contended that the Trade Unions successfully negotiated with the HSE that the panel would be kept in place because if the embargo on recruitment wasn’t in place this panel would be exhausted.

However, it was further submitted that the Trade Union was informed, in 2017, that the panel would have to cease on foot of National Recruitment instructions from the Commission for Public Service Appointments (CPSA) that the LEMT panel and all such panels would have to be disbanded as they had been in existence for more than eight years.

The Complainant’s Trade Union representative submitted that they (the Trade Unions) contested this at the WRC. It was stated that arising out of the WRC hearing, the matter went to adjudication with an independent facilitator, who ruled that the panels should be scrapped. However, the independent facilitator did recognise that there were individuals in the system that were doing a job over a number of years and that he would not rule on these because, as individuals, they have the right to contest the issues under the industrial relations machinery of the state, i.e. the WRC or the Labour Court.

In conclusion, it was submitted, on behalf of the Complainant, that he had been in the position for a considerable amount of time and that this should be taken into account by making his position permanent. It was further contended that there is a clear need to fill this position and the failure by the Respondent to do this from the panels, prior to they being disbanded, was no fault of the Complainant’s. Therefore, it is contended that he shouldn’t be disadvantaged as a result.

The Trade Union representative also submitted that the fact the Complainant was in his position for nearly 2 years prior to getting a contract should also be taken into account.

Background:

The Respondent submitted that a Stage 2 Hearing into the Complainant’s grievance was held on 28 November 2018. It was stated that the Complainant’s grievance was not upheld for the following reasons:

1.       “Management and SIPTU referred the filling of LEMTs to the WRC. It was agreed that the existing panel would be terminated and a new competition commenced to permanently fill posts.

2.       This WRC process allowed for remuneration to occur.

3.       The Fixed Term Work Act refers to employees with temporary status, which is not the case as you [the Complainant] are a permanent employee”

According to the Respondent’s evidence, the Complainant did not proceed to a Stage 3 grievance hearing but, instead, lodged a complaint with the WRC on 22 November 2018.

The Respondent’s Position:

The Respondent stated that the methodology applying to the filling of LEMT positions is encompassed by a number of collective agreements between the HSE and SIPTU.

The Respondent further stated that the Hughes Report of 21 May 2003, which followed on foot of a review carried out in accordance with Clause 9 of an independent adjudication report issued by the Labour Relations Commission in 2001, remains a collective agreement between the National Ambulance Service (NAS) and SIPTU Trade Union. It was stated that this confirms the ratio of LEMTs to EMTs as 1:5. According to the Respondent, this agreement has applicability across all ambulance services and is both a collective and a national agreement.

The Respondent then went on to refer to a number of processes which have significance in relation to the Complainant’s claim.

The first of those processes is the NAS – SIPTU Conciliation Process (2016 – 2017). According to the Respondent, on foot of a referral to the WRC from SIPTU regarding recruitment within NAS, a conciliation process was convened on 7 July 2016.

It was stated that, at conciliation, management confirmed that the Commission for Public Service Appointments (CPSA) is the governing body on all matters relating to recruitment within and across all HSE services, including the National Ambulance Service (NAS) and the HSE’s recruitment licence is contingent on full compliance with the CPSA Codes of Practice.

According to the Respondent, the recruitment requirements and obligations were previously clarified and confirmed to all services by the HSE’s National Director of HR in correspondence dated 25 May 2016.

On foot of the CPSA’s recommendations, NAS commenced the implementation of a recruitment strategy which will allow for the regular scheduling of recruitment processes to meet the ongoing service demands of the ambulance service. This strategy will be based on a funded workforce plan model wherein upcoming retirements etc may be considered in the context of workforce planning.

According to the Respondent, it was confirmed that, as part of the ambulance services recruitment processes, all existing NAS panels held by the National Recruitment Service (NRS) were being reviewed in the context of the CPSA’s recommendation that any/all recruitment panels should be expired or discontinued after a period of three years.

It was stated that NAS management confirmed that, in conjunction with the NRS, a recruitment strategy to allow for the planning schedule recruitment of a variety of posts within the NAS was being implemented and that, in accordance with the CPSC guidelines, a recruitment panel in place for in excess of three years will be discontinued/expired.

According to the Respondent’s evidence, it was confirmed that, as part of the budgeted funded workforce plans, all new and approved posts will be notified to the NRS who it was confirmed will have the capacity to run new campaigns and new panels will be established to fill any future approved vacancies, in accordance with CPSA guidelines and recruitment licence requirements.

The second process referred to by the Respondent related to the Adjudication Process in the WRC in 2017. In this regard, it was stated that the issue of recruitment panels was also the subject of a reconvened adjudication hearing on 22 May 2017, which was attended by both NAS and SIPTU. It was stated that the HSE, in a formal response, dated 20 June 2017, to the Adjudication Chairman, confirmed a number of matters, including, the   expiration of all recruitment panels and that future appointments would be made by way of new recruitment competitions from which approved and funded vacancies will be filled in accordance with the recommendation of the workforce capacity review into NAS and in compliance with CPSA best practice guidelines governing recruitment processes.

According to the Respondent’s evidence, on 11 August 2017, the matter of the closure of old LEMT panels was the subject of a further collective agreement between NAS Management and SIPTU under the auspices of the WRC. It was stated that the detail of this collective agreement was designed to expedite recruitment process to enable the permanent filling of vacant LEMT posts and ambulance officer posts and that this was confirmed to SIPTU by letter dated 14 August 201.

The next aspect referred to by the Respondent related to the Expiration of NAS Panels in accordance with the CPSA Guidelines. The Respondent submitted that a number of NAS panels were expired in the context of the following factors:

·         The HSE’s recruitment licence and CPSA guidelines require that recruitment processes have as wide a selection process as possible with no room for the inference of restrictive practices or reliance on utilisation of legacy panels including panels in excess of three years old.

·         Under the Code of Practice, candidates are entitled to appeal any part of the appointment process that they feel is unfair or has been applied unfairly to them and complaints may be progressed under the legislative provisions of the Public Service Management (Recruitment and Appointments) Act 2004.

·         Permanent vacancies will be filled by transfers in line with the collectively agreed National Transfer Policy for ambulance personnel and any remaining vacant posts shall then be subject to recruitment approval processes requiring National Director sign off prior to the commencement of a recruitment campaign to be conducted by NRS.

·         Ongoing adherence to both CPSA guidelines and recruitment licence criteria will assist the HSE and NAS in ensuring compliance with all employment legislation, statutes and provisions.

·         The Complainant’s grievance is as a direct consequence of management’s adherence to the terms of collective agreements reached under the auspices of the WRC with SIPTU regarding the expiration of old recruitment panels and a new collectively agreed recruitment process to expedite the permanent filling of vacant LEMT posts.

·         In the context of the exigencies of the services, the priority of ambulance management is the filling of current vacant LEMT posts by reference to the newly formed National LEMT panel in circumstances where the provisions of the collective agreement of August 2017 confirm that “based on the agreement of the parties at Adjudication to the closure of old L:EMT channels (which are over 8 years old); HSE NAS through the assistance of HSE HBS Recruitment shall immediately expedite the recruitment process for the permanent filling of vacant LEMT and ambulance officer Vacancies”.

In addition to the above, the Respondent stated that the issue of the filling of vacant positions within the Ambulance Service has also been the subject of recent Third-Party referrals by SIPTU to the WRC. In this regard, the Respondent made reference to a recent WRC Adjudication case, which was further appealed to the Labour Court. The Respondent stated that the outcome of this case, both in the original recommendation from the Adjudication Officer and the subsequent Labour Court appeal, supported management’s position with regard to the rules governing the operation of recruitment panels within the HSE.

Conclusion:

In concluding their submission, the Respondent stated that the HSE, in the context of collective agreements reached with SIPTU, under the auspices of the WRC, are committed to the filling of all approved LEMT vacancies by the utilisation of the current National LEMT panel and adherence to the terms of the collective agreement.

The Respondent submitted that the Complainant is a permanent HSE employee and his substantive post is that of EMT in the National Ambulance Service. The Respondent further stated that the post in which the Complainant currently acts is remunerated in accordance with agreements reached with SIPTU and that he continues to carry out the assigned duties pending the permanent filling of the post.

The Respondent further submitted that the Complainant’s current appointment, as confirmed to him in correspondence dated 24 January 2019, is: “made on a specified purpose basis arising from the provisions of Circular 17/2013 and shall be for the purposes of covering the aforementioned post and will cease on 26 May 2019 or when the permanent appointment is made, whichever is sooner.”

The Respondent also confirmed that, upon completion of this appointment, the Complainant will revert to his substantive grade and his original terms and conditions.   According to the Respondent, the Complainant confirmed his acceptance of the terms/conditions of his temporary appointment on 28 January 2019.

The Respondent reiterated its position that the filling of LEMT positions is the subject of a collective national agreement with SIPTU, which confirms that the filling of all approved vacant LEMT posts within NAS will be by reference to and utilisation of the current National LEMT Panel.

The Respondent submitted that they are not in a position to both concede SIPTU’s individual claim, seeking the regularisation of the Complainant into a particular LEMT post, while at the same time seeking to honour the terms of the collective national agreement between the parties regarding the collectively agreed methodology applying to the filling of all approved LEMT positions across NAS.

In conclusion, the Respondent stated that the Complainant’s claim has collective application and consequences across the wider National Ambulance services in circumstances where LEMT posts are currently being filled by temporary specific purpose contracts pending permanent appointments.

Consequently, the Respondent stated that concession of this local claim for regularisation will in effect set aside the terms and provisions of the national collective agreement. On that basis, the Respondent sought a favourable determination of this matter.

I have given careful and detailed consideration to the submissions and contributions made by both sides in relation to this claim. In this regard, I note the strong case put forward, on his behalf, by the Complainant’s Trade Union representative. In particular, I note the submissions to the effect that this is a stand-alone case which has nothing to do with National Agreements.

The Complainant’s case is clearly based on the fact that he has, at the time of the Hearing, been holding down his current LEMT position for almost 5 years, albeit on a temporary contract, and, as a result, his position should now be regularised on a permanent basis. It is further noted that, during his time holding down this position, no evidence has been adduced which would suggest that there have been any issues with the Complainant’s performance of his duties in that role. In addition, I note that the Complainant’s responsibilities have been increased, with the addition of two further depots being assigned to him.

I note the points made in relation to the fact that, at the time is of his appointment in 2014, he was not provided with the contract of employment and that this only materialised two years later, when it was backdated to 2014.

While the submission made on behalf of the Complainant is not without merit on an individual basis, I must take cognisance of the equally strong submission made by and on behalf of the Respondent. Their central contention is that to regularise the Complainant’s current position, on an individual basis, would have significant and serious impact on collective agreements at national level and also on nationally agreed recruitment processes and frameworks.

Consequently, in a context where the concession of an individual claim, irrespective of its relative merits, has the potential to undermine national collective agreements and where very specific and detailed rules/regulations are in place in relation to recruitment on a national level, I do not believe I am in a position to recommend that the Complainant be regularised in his current position.

In this regard, I am also influenced by the WRC claim, [ADJ 8234], wherein the detail of the claim was similar to that of the within case. In the above referenced case, the Adjudication Officer reached a similar conclusion to that set out in my considerations above. I also note that in the above case, the Labour Court, on appeal, confirmed the Adjudication Officer’s original recommendation with regard to the operation of recruitment panels.

Therefore, taking all of the above into consideration, I find that I am not in a position to uphold the Complainant’s claim or to recommend the regularisation in his current position.

The above finding is based on giving precedent to the national/collective position over that of the individual. However, notwithstanding the fact that I believe that to be the correct position to take, I have significant sympathy for the Complainant and the current position he finds himself in. During the course of the Hearing, it became apparent that the Complainant may not be in a position to compete for permanent LEMT posts, be it the one he currently holds in a temporary capacity or indeed others. For some reason, which the Complainant appears unaware of and which the Respondent’s representative on the day was not in a position to provide clarification on, it appears that when the Complainant’s current temporary, specified purpose contract ceases on 26 May 2019, he will not be eligible to compete in recruitment competitions in relation to the permanent filling of LEMT posts and must, therefore, revert to his substantive position as an EMT.

In a context where he has held down the position for almost 5 years during which his performance has not been queried and his responsibilities have been increased, it seems somewhat   surprising that the Complainant would not be considered as an appropriate or suitable candidate to compete in a recruitment campaign for this or similar positions on a permanent basis. At minimum, I believe it is incumbent upon NAS management to engage with the Complainant to explain and, if possible, address any impediments there may currently exist which would exclude him from competing, in open competition, for permanent LEMT posts as they arise in the future. Given the fast approaching cessation of his current contract, I am strongly of the view that this engagement should take place before that contract comes to an end.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that I am unable to issue the favourable recommendation sought by the Complainant in relation to the regularisation of his current position.

However, I do recommend that the Respondent, as a matter of priority, engages with the Complainant with a view to explaining and, if possible addressing any impediment that may currently exist which might prevent him from competing, in open competition, for upcoming permanent LEMT positions within the service.

Industrial Relations Act