Worker

Employer

Anonymised Parties

Paramedic Supervisor

Health Service

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000249

06/05/2022

The Worker commenced employment with the Employer on 28th April 2003. At all relevant times, the Worker’s role was described as that of “Paramedic Supervisor”. On 6th May 2022, the Worker referred a dispute within the definition of the Act to the Commission. Following the positive election to engage with the same from the Employer, the matter proceeded to hearing. Said hearing was convened for, and finalised on, 27th January 2023 at the Commission’s Sligo offices.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side during the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.  

The Worker commenced employment in April 2003. At all relevant times his role was described as that of “Advanced Paramedic Supervisor”.

On 2nd March 2018, a colleague of the Worker’s issued a grievance in respect of the Worker. Thereafter, on 26th March 2018 a complaint issued from a user in respect of an entirely seperate incident that occurred three days earlier. On receipt of the same, the Employer elected to combine this complaint with this earlier grievance during their screening process. Following the same, the matters were forwarded for joint investigation with the colleague being referred to as “Complainant one” and the service user being referred to as “Complainant two”. While these matters were being investigated, the Complainant was placed on restricted “office duties”. While the Worker’s base rate of pay remained the same, he was unable to be assigned any premium pay rate or overtime rates.

Following the preliminary screening process, both matters proceeded to formal investigation. In respect of the grievance issued by the Worker’s colleague, this was withdrawn in September 2019. Regarding the second investigation, this proceeded through the Respondent internal procedure for such matters. Following numerous difficulties in contacting the Complainants to the matter, the process finalised and the Worker was returned to normal duties in early 2020.  

By submission, the Worker raised a number of issues in respect of the process adopted by the Employer in investigating these matters. Firstly, the Worker stated that he did not have sight of one set of complaint for over a year from the Employer’s receipt of the same. The Worker further submitted that artificially conjoining two individual, and completely separate complaints, had the effect of unnecessarily elongating the process. The Worker submitted that the Employer failed to dismiss the grievance in good time following the complainant’s failure to engage with the same. Finally, the Worker submitted that the Employer assigned a person who was not part of the investigating panel to engage with one of the complainants.

The Worker submitted that the combined effect of the foregoing was that he suffered a significant loss of earnings whilst being placed on restricted duties. He stated that as a consequence of the same he was effectively being penalised in respect of an ongoing investigation which ultimately proved his innocence.    

By response, the Employer denied that the allegation raised by the Worker.

The Employer submitted that on receipt of a complaint by a service user or a colleague, the employee is question may be placed on protective measures whilst an investigation is ongoing. When this occurred in the Worker’s case he was placed in an alternative role with the payment of his full salary, the advanced paramedic allowance, a shift allowance and a further allowance applicable to the Worker. They submitted that during the period the Worker was placed on protective measure he received all above-mentioned allowances and did not suffer any loss of earnings in respect during the investigation.

Regarding the allegations in respect of the delays, the Employer submitted that the investigation is handled by a separate function within the organisation and was outside of the control of the Worker’s local management. Nevertheless, they submitted that such processes are comprehensive by design and can take a significant period of time to finalise. In addition to the foregoing, they submitted that it was apparent that both complainants failed to properly engage with the process causing further, unavoidable delays in respect of the same.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The present dispute relates to two individual complaints made against the Worker. While neither of the complaints were upheld, and the Worker was not subject to any sanction on foot of the same, he submitted that he suffered financial loss whilst being placed on alternative duties. In addition to the foregoing, the Worker submitted that the process was subject to excessive delays, resulting in his being placed on alterative duties for a period of almost two years. The Worker’s submission was that these delays were caused by numerous procedural failures during the process and could have been avoided if the relevant internal procedures had been adhered to.

Regarding the first point, the Employer has submitted that when a complaint is received in regarding a Worker, the employee in question may be assigned alternative duties to allow an unencumbered investigation to take place. Whilst being assigned such alternative duties, the Worker is provided with full pay and allowances so as to ensure that they do not suffer any loss of earnings. In this regard, the Worker accepted that rationale for his being placed on alternative duties whilst he was engaging with the process. His issue is that the Employer’s failure to pay shift allowance and provide overtime during this period meant that he suffered an extensive loss of earnings and that he was, in effect, penalised during this period.

In this regard, it is apparent that this portion of the dispute relates to the position adopted by the Employer each time a person is placed on alternative duties. In such situation the Employer, as a rule, does not pay overtime rates or shift allowances. It was further submitted that this is a position adopted across Employer with no evidence of any deviation from this position.

In this regard, Section 13(2) of the Act provides that,

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

Having regard to submission of the Employer, it is apparent that any recommendation arising from this portion of the dispute will be connected to a body of workers. In such circumstances, it would be inappropriate to issue a recommendation in respect to the same.

In relation to the second portion of the dispute, the Worker has submitted that the process adopted to progress the complaints against him was deficient in several aspects. As a consequence of the same, he submitted that the process was subject to excessive delays and did not protect his rights as the respondent to an allegation. By response, the witnesses for the Employer submitted that such complaints are processed by another section within the organisation and they have no control over the duration of the same. Nonetheless, they submitted that such investigations are complex and require some time to finalise.

Notwithstanding the position of the witnesses for the Employer, it is common case that the process adopted in this matter took almost two years to be finalise. While it is accepted the process adopted by the Employer is thorough, this represents an extraordinary delay for any internal process. In addition to the same, I note that the process did not go through all steps during this period, rather it was finalised due to the non-participation of the complainant. During this period the Worker was placed on alternative, office based, duties in an entirely understandable state of anxiety. While I further accept that the non-participation of a Complainant can frustrate such an investigation and cause some delays, the Employer should utilise their procedures for the timely dismissal of such complaints. In this regard, the Employer has a dual duty of care in such investigation- a duty to the complainant and a duty to respondent. Having considered that totality of the evidence presented it is apparent that the Employer failed in their duty of care to the respondent to the complaint, the Worker. This failure relates both to the delay in finalising the process and the apparent lack of communication throughout the process.

Having regard to the foregoing, I recommend in favour of the Worker.

Internal Process, Dispute, Delay, Screening