FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL AMBULANCE SERVICE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Decision No. ADJ-00018323.
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 18th April 2019 the Adjudication Officer issued the following Recommendation:-
- “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 permanentLEMTpositions within the service.”
A Labour Court hearing took place on 19th November 2019.
DECISION:
This is an appeal by the Union on behalf of a Paramedic/Emergency Medical Technician of an Adjudication Officer’s Recommendation ADJ-00018323 which held against his claim for regularisation in the role as Paramedic Supervisor/Leading Emergency Medical Technician (LEMT).
On 5th May 2014, the Claimant applied for an “Expressions of Interest” position as LEMT which was advertised“for experiential purposes”. He was successfully appointed to the panel and was appointed to the position on 2nd June 2014. At the time he did not receive a written contract of employment. From 28th July 2016 until 24th January 2018, he was furnished with a series of specified purpose contracts with termination dates, stating that the contracts were specified purpose contracts arising from the provisions of Circular 17/2013 and were for the purpose of covering the LEMT post and that the contract would ceases on a specified date or whenever a permanent appointment was made, whichever was sooner.
The Claimant’s last specified purpose contract dated 24th January 2019 stated that it“was made on a specified purpose basis arising from the provisions of Circular 17/2013 and shall be for the purpose of covering the aforementioned post and will cease on the 26th May 2019 or when the permanent appointment is made, whichever is the sooner.”
The Union noted that after five years in the role, when the Claimant’s contract as an LEMT was not renewed, he was returned to the role of Paramedic/ Emergency Medical Technician on 26thMay 2019. It submitted that Management had not adhered to its own rules in relation to temporary appointments. Under the Haddington Road Agreement, it was agreed to regularise a large number of persons who had been acting up. HSE HR Circular 17/2013 and 01/2018 outlined the method of doing so. These Circulars provided that temporary assignments to a higher post should be for no longer than twelve months, beyond that it should only be in exceptional circumstances.
The Union stated that the Claimant had been appointed to the LEMT position following the retirement of a named colleague. He said that the position was permanently vacant for the five years he was in the role and remains vacant.
It was management’s position that the Claimant was in a specified role that came to an end when it was collectively agreed with SIPTU to close Paramedic Supervisors/LEMT panels and that such posts would be permanently filled by way of competition, which has occurred, since April 2019, resulting in 76 appointments. It stated that unfortunately as the Claimant was not successful in the open recruitment process in late 2018, he was therefore not offered a permanent post.
Management referred to the correspondence given to the Claimant on 24th January 2019 with his last specified purpose contract which stated that“upon completion of this appointment you will revert to your substantive grade and to your original terms and conditions”, which occurred in April 2019. Management noted that the Claimant confirmed his acceptance of the terms/ conditions of his temporary appointment on 28th January 2019.
Management referred to the Commission for Public Service Appointments (CPSA), which is the governing body on all matters relating to recruitment within and across all HSE services including the national ambulance service and said that the HSE’s recruitment licence is contingent on full compliance with the CPSA Codes of practice. Management stated that in accordance with CPSA guidelines any recruitment panels in place for in excess of 3 years would be discontinued/expired.
Management stated that at an adjudication hearing on 22nd May 2017, the expiration of old recruitment panels was agreed with the Unions and that future appointments would be made by way of new recruitment competitions from which approved and funded vacancies would be filled in accordance with the recommendations of the workforce capacity review into National Ambulance Services and in compliance with CPSA best practice guidelines governing recruitment processes.
It stated that on 11th 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 and the details of this collective agreement designed to expedite a recruitment process to enable the permanent filling of vacant LEMT posts and ambulance officer posts was confirmed to SIPTU by letter dated 14th August 2017. Therefore, management were of the view that the Claimant’s grievance arose as a direct consequence of its 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. Finally, management stated that the claim has collective application and consequences across the wider National Ambulance Service.
Having considered the oral and written submissions of both parties, the Court notes that the terms of the August 2017 agreement related to the closure of the old recruitment panels and their replacement by open competitions. The Court notes that the Claimant was not on a panel but was in an ongoing temporary position to a higher grade for five years, contrary to the terms of Circular 17/2013. In such circumstances, it would not have been unreasonable for the Claimant to have had an expectation of being retained in that role on a permanent basis, yet, he was unsuccessful in the open competition. However, the Court is not in a position to overturn the CPSA rules governing recruitment processes and recommend in favour of the Claimant’s claim.
Having regard to the particular circumstances including the significant length of the temporary appointments and the fact that the Claimant never received feedback as to why he was not successful on the panel, contrary to the Code of Practice, the Court recommends that management should engage with him in a spirit of positivity and co-operation to assist him in better understanding his prospects in relation to future panels/appointments. Furthermore, the Court recommends that management should engage with the Claimant and his Union to agree appropriate supports for him in that regard and should address any possible barriers to his application for future roles within the Service.
The Court is cognisant of the fact that 75% of the Claimant’s service in the National Ambulance Service has been at the higher level LEMT post and since May 2019 has had to revert to a lower grade. This was despite the stipulation in Circular 17/2013 that service in the higher grade should be temporary and should not exceed 12 months except in exceptional circumstances. No such exceptional circumstances were put to the Court. In all the circumstances of this case, in addition to the above recommendation, the Court recommends that a once-off payment of €3,000 in compensation should be paid to the Claimant in full and final settlement.
The Court finds that the Claimant’s claim for regularisation in the LEMT post cannot succeed and the appeal fails. The Recommendation of the Adjudication Officer is varied accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
04 December, 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.