Complainant

Respondent

Parties

Michael Flannery

Health Services Executive  

Representatives

Not represented

Not represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040723-001

02/11/2020

The complainant is a paramedic supervisor in the NAS.  This complaint arises from the application of Department of Health Circular 04/2019, dated March 8th 2019.  The details of this circular were communicated to HSE senior managers on March 25th 2019 in HSE HR Circular 10/2019.  These circulars, on the “Application of additional increments awarded in relation to New Entrants under the Public Services Stability Agreement 2018-2020,” were effective from March 1st 2019 and were relevant to employees such as nurses and paramedics in entry level roles who had not progressed to supervisory positions.  The objective of the changes to the incremental pay scales of the affected employees was to “unwind” the pay cuts imposed in 2010 by the Financial Emergency Measures in the Public Interest (FEMPI) legislation.  In the “Frequently Asked Questions” guideline attached to HSE HR Circular 10/2019, the mechanism of the change is described as follows:

“A new entrant will effectively skip points 4 and point 8 on the new entrant scale.  In the first year, because some new entrants will be higher than point 4 or point 8 it is a little more complicated but essentially means that for new entrants on points 3 – 5 they will benefit from 1 additional increment (2 in total:  1 normal and 1 additional) and for those new entrants on point 6 and above, they benefit from 2 additional increments (3 in total:  1 normal and 2 additional).”

In February 2019, the complainant received confirmation that he would be promoted to the role of paramedic supervisor.  If he had remained as a paramedic, he would have received his next increment in October 2019.  Because the date of his promotion, he was no longer in an entry level role when he would have been due his next increment in October 2019, and he was excluded from the benefit of this circular.  His complaint is that if the circular had been disclosed to him, he could have delayed his promotion and been eligible for the benefit of the additional increments.  He complains that he has lost earnings through what he claims is a lack of transparency.

Time Limit for Submitting a Complaint

The complainant became aware of the impact of the circulars on his salary around October 2019.  He submitted this complaint to the WRC on November 2nd 2020, outside the six month time limit prescribed at section 41(6) of the Workplace Relations Act 2015.  It would appear that it is also outside the 12 month time limit provided at section 41(8) of the Act.

In a letter to the WRC on November 17th 2020, the complainant set out the time-line of events from October 2019 until November 2020, a timeline which incorporated the onset of the Covid-19 pandemic and his efforts to seek clarification from the NAS payroll department, his line manager and his SIPTU representative about how to proceed.  Having considered the issue of the delay, I have decided to accept the complainant’s assertion that it was only in June 2020, when he was informed by his line manager that his complaint would not be considered under the HSE’s Grievance Procedure, that he realised that it was open to him to submit a complaint to the WRC.  He then consulted a solicitor and, following some confusion regarding the option of an investigation or a hearing by an adjudicator, he submitted this complaint in November 2020.  I have concluded therefore, that the complaint has been submitted on time and I will proceed with my enquiry.     

In February 2018, the complainant was interviewed for the position he now holds, of paramedic supervisor with the NAS.  Almost a year later, in January 2019, he was informed that the HSE was about to commence the process of offering the jobs, based on expressions of interest in locations where vacancies had to be filled.  The complainant was required to express a preference, in order of priority, of vacancies in the locations where he wanted to be appointed.  He sent back his preferences and on February 20th 2019, he was asked to provide evidence of previous service as a paramedic supervisor (he had none), with details of his start date, length of service, point on the salary scale and the date that his incremental increase applied.  The complainant submitted the documents, and, on February 28th 2019, he received an email congratulating him on being recommended for the job of paramedic supervisor.  The following month, he received a contract confirming his permanent appointment in the role of paramedic supervisor commencing on April 8th 2019.

In February 2019, when he indicated his preferred location for his promotion to the job of paramedic supervisor, the complainant couldn’t have known about the circulars which were issued in March 2019.  At the hearing of this complaint, he said that if he had been aware of the impact of the circulars, he wouldn’t have submitted his preferences and he wouldn’t have accepted a contract as a supervisor.  He claims that people who didn’t do well in the competition for promotion are now paid more than him.

Six months into the new role, in October 2019, the complainant said that he became aware that paramedics who had the same or less service than him were on higher wages than him.  He discovered that this was the effect of the application of Circular HSE HR 10/2019.

Paragraph 5 of the Department of Health Circular 04/2019 states that the document should be “brought to the attention of all HR Managers, payroll staff and all employees of the HSE, section 38 agencies and the NCSAs.”  The complainant said that he was never informed about the existence of the circulars or the effect they would have on his potential earnings and his seniority.  As a result, he said that he was not in full possession of the facts when, in February 2019, he was asked to express an interest in locations where there were vacancies for paramedic supervisors.  He said that he accepted his second preferred location of Mulranny and he was then removed from the panel.  His salary on promotion was €35,488.  If he had been made aware of the existence of the circulars, he said that he would have been in a far better position to make an informed choice of staying on the paramedic supervisors’ panel, he would have received his increment as a paramedic and he would be earning €37,518.

As an example of the effect of not being informed about the circulars, on July 14th 2020, the complainant was offered his first choice panel position as a paramedic supervisor in Castlebar.  If he had taken up the job in Castlebar, he would be on an annual salary of €37,333.  If he doesn’t take the job, a person with no experience as a supervisor and perhaps with less experience as a paramedic will be appointed to the role and will be on a salary of €40,994. 

Accepting that his wages have been paid in accordance with the rules in Circular 10/71, the complainant argued that he cannot look for something that he doesn’t know exists.  He said that the process was not transparent.

Resolution Sought

The complainant wants the “relevant departments” in the HSE to acknowledge that they were aware of the existence of the Department of Health Circular 04/2019 and HSE HR Circular 10/2019.

He wants the “relevant departments” to acknowledge that, as a paramedic, he should have been made aware of the existence of the circulars and the implications for him as a paramedic.  He claims that there was no mention of the circulars at the pre-contract or final contract stage of his appointment to the role of paramedic supervisor.

He wants an acknowledgement that, as a result of not being informed of the existence of the circulars, he was not in full possession of the facts when he selected his preferred work location in February 2019 and that there was a lack of transparency in the contract process.

The complainant wants an acknowledgement that, due to a lack of transparency, he was “adversely affected in my ability to make a clear decision and as a result suffered and continues to suffer a loss of earnings.”

The respondent’s position is that this complaint relates to the complainant’s dissatisfaction with a collective matter, which is the implementation and effect of a national pay agreement, set out in Department of Health and HSE circulars related to the unwinding of the FEMPI cuts.  It is the respondent’s position that there has been no breach of the Payment of Wages Act 1991 in respect of the complainant’s wages.

Background

The complainant commenced with the NAS as a paramedic on March 21st 2011.  In accordance with the Department of Health Circular 2/2011, as a new entrant grade, his salary was subject to a 10% reduction on new entrant pay scales.  The paramedic supervisor post was not subject to this deduction.

Having competed in a national competition in 2018, the complainant was appointed as a paramedic supervisor on April 8th 2019.  The respondent’s submission points out that the appointment of 60 of the 76 candidates who applied for promotion in 2018 were delayed.  Interviews scheduled for February and March 2018 were cancelled due to adverse weather and the panel was delayed from going live in 2018 due to the maternity leave of a number of candidates, with the result that the appointments were delayed until 2019.

In accordance with Department of Health Circular 10/71, on promotion, the normal rule applied to the complainant’s salary; when he was promoted in April 2019, he moved from point seven of the paramedic scale, €33,564, to point five of the paramedic supervisor’s scale, €35,448. 

In 2020, when he made enquiries about why his salary was less than colleagues who had not been promoted, or who had less service than him, he was informed that this was a result of the implementation of national agreements on incremental pay restoration, and that it was not a matter that was individual to his salary.  He was informed that the circular on new entrant pay restoration was specific to entry grades and, that it did not apply to him because his current role of paramedic supervisor was not an entry grade.

As this claim relates to the complainant’s dissatisfaction with the implementation of the national pay agreements as set out in Department of Health Circular 4/2019 and HSE HR Circular 10/2019, related to the unwinding of the FEMPI cuts, it is the respondent’s position that there has been no wrongdoing pursuant to the Payment of Wages Act.

Management Position

The position of the NAS is that there has been no deduction in the complainant’s salary and no breach of section 5 of the Payment of Wages Act.  They assume that the complainant’s case is based on an assertion that, in breach of section 5(6) of the Act, he is being paid less than what is normally due.  The employer’s position is that the complainant’s salary has not been reduced, there is no deficiency in his wages, and he is paid in accordance with his contract of employment, which reflects Department of Health salary scales.

At the hearing, Ms Mahon said that the purpose of the 2019 circulars was to address new entrants’ pay, meaning the pay of employees in entry-level roles.  The effect was that, when an employee’s next increment was due, they went up two points instead of one, and, in this way, the cuts imposed by FEMPI were undone to some extent.  Ms Mahon said that for a paramedic supervisor, the increments are of a higher value and the consolidated rate of pay increases significantly on promotion.

Conclusion

The respondent’s position is that the matter submitted here for adjudication is a collective industrial relations grievance.  Ms Mahon referred to the decision of the Labour Court in HSE DML Midland Area and A Worker[1], which was considered by the Court under the Industrial Relations Act 1969.  In that case, the circumstances of which are the same as the complainant’s circumstances, the Court found against the employee, noting that he was not in a new entrant grade.  As a result of promotion, the complainant is also not in a new entrant grade and he does not qualify for the application of circulars 4/2019 or 10/2019.

In the respondent’s submission, Ms Mahon said that they have concerns about the complainant presenting his claim based on the premise that “if” he had not taken the promotion when he did, or “if” he had been promoted at a later date, he would be on a higher rate of pay.  Ms Mahon said that, to apply this logic “would require the public sector to discard all its pay scales which are interlinked and to replace them with new ones which have no overlap.”  She said that the complainant has also disregarded the fact that he accepted a promotional position, signed a new contract which clearly stated the new salary and with more scope overall for pay increases, far in excess of the salary of a paramedic.

If he had not been promoted and remained as a paramedic, the complainant would have received his next increment in October 2019, moving him to the eighth point of the paramedic scale.  Instead, on promotion, he moved to the fifth point of the supervisor’s scale, €35,448 and he is now on the seventh point of that scale, €39,373, plus a shift allowance of one sixth of annual earnings.  It is the respondent’s case that the complainant has not suffered a loss of earnings.

The issue of how incremental adjustments were applied in practice to the unwinding of the FEMPI cuts was examined again in 2020, resulting in HSE Circular 44/20.  This was based on an earlier circular from the Department of Public Expenditure and Reform, Circular 2/2020 which provided clarity on the application of the earlier circulars to new entrants in 2020.  This later circular reiterated that no adjustment applied to employees who were not in new entrant grades.

A second example of how the Labour Court dealt with a collective matter was provided in the decision of the Court in The National Ambulance Service and SIPTU[2].  The outcome here was a rejection of a pay claim, that, like the claim under consideration here, was also affected by the application of the FEMPI legislation.

The respondent said that it is not in a position to address the complainant’s claim as it is covered by circular and public sector pay agreements which are, by their nature, collective.  Different outcomes will emerge for different grades of employees.  As the relevant circulars apply to incremental credit and are specific to employees in entry level grades, they do not apply to the complainant.

Concluding her submission, Ms Mahon said that the 2019 circulars were not designed to disenfranchise anyone, but to bring employees back into the normal pay process after FEMPI.  She said that the complainant applied for a supervisory position and he was promoted and is in receipt of a higher rate of pay.  She said that he was offered the job he wanted in the place he selected, and that he has had no loss, but significant gains.  If the delays associated with bad weather and people being on maternity leave had not occurred, the complainant would have been promoted a year earlier and the circulars would not have been an issue.

Ms Mahon asked me to recognise the primacy of the national pay agreements and to find that this complaint should not be adjudicated on under the Payment of Wages Act 1991. 

At the hearing of this complaint, I spent a considerable amount of time examining the impact of the 2019 circulars, and finding out how they affected the complainant in the circumstances he was in, having accepted a promotion to the role of paramedic supervisor in March 2019.  I have a clear understanding of the timing issue; if he had been promoted after he became eligible for his increment in October 2019, he would have been placed on a higher point on the supervisor’s pay scale, and he would have been paid €37,518.  Instead, when he was promoted in April 2019, he was placed on the fifth point of the paramedic scale, and paid €35,448.  I understand also that, if the delays in 2018 had not occurred, the complainant would have been promoted sooner, and the issue of the March 2019 circulars would not have arisen.

It seems to me that part of the complainant’s grievance is related to the fact that some of his colleagues who have less service than him or who were not placed as high on the panel of successful candidates for the supervisor’s job, have benefited from the timing issue.  This occurs because they were promoted after the complainant and they remained in the pool of entry level employees for longer.  By this accident of timing, they benefited from the impact of the March 2019 circulars.  It might appear that there is some unfairness in this, but I am absolutely satisfied that no unfairness was intended, and neither was there any intention that one group of employees should have an advantage over other employees.

It is absolutely clear that, in February 2019, when he selected Mulranny as his preferred location, the complainant could not have known about the March 2019 circulars and the effect they would have on the pay of employees in entry level grades.  The Department of Health circular was issued on March 8th and the HSE HR circular was issued on March 25th.  It is reasonable to assume therefore, that, when the complainant was offered his contract for the position of paramedic supervisor, the HSE circular may not have been published.  I accept that, by the time he was due to start in his new position on April 8th 2019, the circulars had been issued, and the respondent acknowledged that they were not brought to his attention.

The terms set out in the circulars were agreed between the respondent and the complainant’s union and he could have taken an interest in the negotiations being conducted on his behalf.  The complainant said that he is confident that he could have stayed on the panel and been promoted.  Aside from this, even if the circulars had been issued to the complainant, it is my view that it would have been wrong to offer him an option to de-select himself for promotion in Mulranny, so that he could wait until he received his increment in October 2019, and then start in his new role on a higher salary.  In my view, it is not reasonable, nor is it the function of a HR department, to engineer a situation so that an employee can benefit from a timing issue related to a pay mechanism, in circumstances where there is a role to be filled currently and where the employee will benefit from being promoted.  The fact that some employees did benefit is not relevant; the complainant was at all times paid what he was due.

At the conclusion of the hearing on November 26th 2021, I set out my views to the complainant that the issue he has asked me to adjudicate on is not about a breach of the Payment of Wages Act, but is a grievance which has already been decided on by the Labour Court in LCR 22318.  Having considered the matter carefully again, and having examined the written submissions presented by both sides, I have concluded that, in respect of the complainant’s promotion to the position of paramedic supervisor in April 2019, there has been no breach of section 5 of the Payment of Wages Act 1991.

For the reasons set out above, I decide that this complaint is not well-founded.

Timing of an increment, promotion