LCR22252

1.Upgrading and regularisation at the higher grade of Paramedic Supervisor

BACKGROUND:

2.This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 30 August 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place in a Virtual Court Room on 9 September 2020.

UNION’S ARGUMENTS:

3. 1. The Union claims that the Claimant carried out the higher duties from 2010-2018 and should be upgraded accordingly with retrospection payable.

2. The Union maintains that it was generally accepted that the Claimant was the Acting Paramedic Supervisor. He carried out the duties of a Supervisor and wore the appropriate uniform.

3. The Union also claims that the length of time the Claimant was acting in the higher position meets the criteria for regularisation under HSE HR Circular 017/2013.


EMPLOYER'S ARGUMENTS:

4. 1.TheEmployer maintains that (with the exception of a 3-month period of secondment in 2011) the Claimant had not been asked to carry out the duties of a Paramedic Supervisor.

2. In recognition of the duration of the grievance, the Employer made an offer, without prejudice, as a goodwill gesture of €2,527, in an attempt to dispose of the matter.

3. The Employer claims that the nature of this grievance is cost increasing and would involve creating an additional post not within the approved financial resources for the service.

RECOMMENDATION:

The matter before the Court concerns a claim by the Union on behalf of a Claimant, who commenced as a Paramedic in 2002, was promoted to Advanced Paramedic in 2009 and is now is seeking to be upgraded and regularised as a Paramedic Supervisor. The Union claimed that he has been incorrectly graded as an Advanced Paramedic as it alleged that he was acting up in the supervisory role from 2010 to 2018. It claims that the appropriate salary scale should have been paid to him for that period.

This case has been jointly referred to the Court under section 26(1) of the Industrial Relations Act 1990. The Court notes that management declined to attend a hearing before an Adjudication Officer in accordance with section 13 of the Industrial Relations Act, 1969 and instead opted to attend conciliation at the WRC in relation to the Claimant’s grievance which was raised in January 2019. The Court is aware of the HSE’s Grievance Procedure which provides for access to the Adjudication Service of the WRC in the event of a grievance not been resolved at Stage 4. Management declined that route in this case, thereby failing to observe its procedures in dealing with the Claimant’s claim. The Court emphasises the need for both parties to engage within the terms of its procedures in relation to any grievances which arise.

In 2015 the Union on behalf of the Claimant invoked Stage 3 of the Grievance Procedure, a decision was issued to him on 11^thDecember 2015 which held that he was not acting in the higher post of Paramedic Supervisor, except for a three-month period from 28^thMarch 2011 until 5^thJune 2011, when he was remunerated at the higher rate of pay. He did not proceed to Stage 4 under the grievance procedure. Moreover, at that time, he did not seek to be regularised in accordance with Circular 017/2013, “Regularisation of Acting Posts”. Management also, did not seek to have him regularised under that Circular, for which funding would have been available, had it been successful.

The Union re-activated the grievance again in January 2019. At a meeting with management on 26^thFebruary 2019, the Union claimed that the Claimant had been carrying out duties in addition to his substantive post of Advanced Paramedic, however, Ambulance management confirmed to him that he had not been requested and/or approved to carry out those duties for the period from December 2015 (the conclusion of the Stage 3 process) to 9^thApril 2018. However, it decided to offer him a gesture of goodwill payment on a without prejudice basis of €2,527.00 gross in full and final settlement of the claim. This offer was rejected by the Claimant, who argued that the claim was not about the money but about the failure to recognise and respect his role as a Paramedic Supervisor since 2010.

The Union argued that the Claimant has acquired the key skills, knowledge, qualification and competencies of a Paramedic Supervisor which he had carried out for eight years and management have never requested him to desist from carrying out those duties and accordingly should be regularised as such.

The Claimant had since been appointed in an acting role as Ambulance Officer Grade VI.

Management stated that the Claimant had not been carrying out the role of Paramedic Supervisor (except for the three-month period in 2011), therefore he was not covered by the criteria under Circular 017/2013 governing the Regularisation of Acting Posts. He did not appeal that decision. However, the Claimant persisted that he continued to carry out the duties of a Paramedic Supervisor. Management then performed a check on the matter with Ambulance Managers whom the Claimant advised were aware that he was undertaking the duties and acting as a Paramedic Supervisor. The responses confirmed that they were not aware of the position; there were no variation orders to that effect; it was not reflected on his file; that he assisted the Paramedic Supervisor in their duties and that he was a very conscientious team member, always proactive in his role, however, none stated that he had been placed in an acting Paramedic Supervisor role.

The Court has given careful consideration to the submissions of both parties.
The Court notes the lack of progression to pursue the Claimant’s grievance following the 11^thDecember 2015 decision by management and his failure to seek to be regularised under Circular 017/2013. It is clear to the Court that the Claimant was seconded to the West Cork region for a three-month period in 2011 and placed in an acting Paramedic Supervisor role. It is also clear that the Complainant was of the understanding that he was carrying out duties associated with the higher role for a very long time and is aggrieved that his role has not been recognised as such. However, as the Court has been presented with a conflict of views on the issue and has not been provided with any proof to demonstrate that he was requested and/or approved to carry out the duties of a Paramedic Supervisor for the period in question, it is not in a position to recommend in his favour.

The Court notes that the Claimant is held in high esteem by management and in recognition of his skills and abilities the Claimant has since not only been successfully placed on the panel for a Paramedic Supervisor vacancy, but he has also been successfully placed on a higher grade, Ambulance Officer Grade VI and furthermore, he has been placed in an acting position in that latter higher grade since September 2020.

The Court finds it significant that management, while not accepting his contention, and on a without prejudice and without precedent basis, has offered a gesture of goodwill payment to attempt to resolve this issue. In all the circumstances of this case, the Court recommends that that payment should be increased to €5,000 in compensation, to be accepted in full and final settlement of the matter.

This Recommendation is made in the unique circumstances of this case and on the basis that it will not be relied upon or quoted as a precedent in any other case.

The Court Recommends.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
DC	______________________
14 September 2020	Deputy Chairman