Worker

Employer

Anonymised Parties

A Paramedic

An Ambulance Service

Representatives

Worker Representative

Employer Representative

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 - 00000577

22/08/2022

This complaint concerns the Employer’s failure to apply the Respondent’s Covid Redeployment Policy (hereafter referred to as “the Policy”) to the Worker

The Complainant is a paramedic who, due to a health condition, was immune compromised when the Covid 19 pandemic emergency began in March 2020.

A policy which was introduced by the Respondent in March 2020 (the Policy)

It is the Worker’s contention that he came within the meaning of the Policy. Furthermore it is contended that his line manager in March, April and June 2020 accepted that he came within the terms of the Policy and that he was redeployed from working as a paramedic to a different post.

The Worker claims that he was redeployed to a different work location and under the terms of the Policy the benefits that he had been entitled to prior to his redeployment, should have travelled with him intact to the post he held following his redeployment, whereas three specific benefits that he enjoyed prior to his move were denied to him following his move.

The specific benefits were: payment of a Sunday Premium, payment of a shift allowance and payment of subsistence from his former work location.

The representative for the Complainant contends that the Policy protects the terms and conditions of the employment enjoyed by the Worker, prior to the redeployment, to whatever position they are redeployed to and these terms and conditions are protected - by the Policy – from being diluted or lessened.

The Employer contends that the Worker was never redeployed and did not come within the terms of the Policy.

The evidence of the Employer was as follows:

-          Even though it is accepted that the Worker’s line manager described in correspondence the Worker’s change of duties in March 2020 as a “redeployment”, it was in fact a reassignment not a redeployment. This language was incorrect but cannot be relied upon as an admission by the Employer that he was redeployed or that he came within the wording of the Policy.

-          The wording of the March 2020 Policy was clear – where workers, of what was then deemed to be “non-essential services,” were redeployed to an essential service – the terms of their former contract travelled with them and were not lessened.

-          However the Complainant was an essential worker and remained an essential worker. The Ambulance Service that he worked for was an essential service. Indeed the ambulance service was one of the most important essential front line services during the pandemic, particularly during the early days of the pandemic. Under the redeployment policy workers were redeployed to the ambulance service, they were not redeployed from that service. The Worker was reassigned within that service. He was transferred to a different location but remained working within the ambulance service.

-          Due to his health conditions the Employer accepted the advice of the Worker’s Medical Consultant which was accepted by the Employers Occupational Health Advisors, that due to his health condition the exposure of the Worker to front line ambulance work, in treating patients with Covid 19 would create too great a risk to his health. His request to do other work within the service was accepted. He was transferred to a support station close to his home where he managed the provision of PPE and medical supplies to the ambulance service. This was as vital work as his previous work as a paramedic. The work location changed from being 60 km from his home to 7 km from his home. This arrangement was put in place arising from his request and to protect him from exposure to Covid 19.

-          The Worker was not redeployed, rather he was reassigned within the service and his terms and conditions did travel with him but benefits that were performance related (ie that he only was paid a Sunday premium if he worked a Sunday; he was only paid subsistence if he was away from his work base for a certain time period; he only received a shift allowance if he did a long shift) no longer pertained because in his reassigned role he was not required to work Sundays, his work base changed to the station close to his home (not his former station 60 km away) and subsistence was calculated when he travelled from his current not his former work base – and he was not required to do long shifts  from which a shift allowance arose.

-          In his new post the Worker was paid subsistence if he travelled beyond 8km from his current work base but the Complainant was seeking subsistence based on him travelling from his former work station – where he was no longer based.

-          The Employer submitted that the Policy did not apply to the Worker because as a reassigned – and not redeployed worker – he did not come within the terms of the Policy. As a reassigned worker the entitlements to Sunday Premium, a shift allowance and subsistence operated on the basis of what was required in his current as opposed to what he received in his pre-Covid position.

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

I have considered the terms of the Policy. In this respect I am obliged to consider the version of the policy that was in place at the time that the decision in respect of his grievance complaint (brought in June 2020) was made by the Employer in 19 August 2020.

While there was a delay in issuing the Stage 3 outcome, I have been advised by the Worker and his representative that they do not take issue in respect of this delay for the purpose of this recommendation and instead wish to confine the complaint to the substantive matter – ie did the Worker come within the meaning of the Policy.

The March 2020 Policy states as follows:

3.3 In order to deal with the effect of Covid 19 infection there may be a requirement for some or all identified non-essential services to be cancelled or postponed. Employees in positions that are curtailed or temporarily suspended (non-essential services) will be deemed available to be redeployed to assist in other essential service areas that are experiencing staffing shortages.

3.4 Employees most at risk of contracting Covid 19 at the workplace (eg age 60 years or over, have a long term medical condition, immune supressed, pregnant) will be assigned to non-direct contact areas.

It is clear from the above section that redeployment under this Policy was to allow the health service draw employees away from non-essential services and redeploy them in positions that were essential in order to battle the rising infection of Covid 19 within the State from March 2020.

This was part of a suite of emergency measures that were put in place at this time.

Paragraph 3.4 deals with the reassignment of duties within services that continued after March 2020, for workers who were vulnerable to infection. This is not the same as redeployment under section 3.3.

I do not accept the Worker’s contention that he was redeployed within the meaning of the Policy. It matters not if his line manager used language that described him as being redeployed because that would not bind the parties. What matters is the wording of the Policy that was in place when the decision was taken, ie August 2020. I am advised that the March 2020 Policy version pertained at this time.

This Policy was to allow the transfer of staff from non-essential services to essential services within the Health Service and where such a redeployment occurred, pay benefits were maintained, although it should be noted that section 5 of the March 2020 Policy only refers to payroll being operated by the pre-pandemic payroll department and coded on the usual timesheets, as opposed to specifically dealing with terms of the employment eg pay premiums, shift allowances and subsistence rates.

Nonetheless, even if the terms did travel intact in cases of redeployed staff, I am satisfied that the Worker was reassigned and was not redeployed and therefore he did not come within the terms of the Policy.

As a reassigned worker the Employer was correct to determine that the Worker’s subsistence rates was calculated from the work base that he operated from, as opposed to his pre-pandemic work base. The Employer were also correct to determine that the Worker was only entitled to Sunday pay premium if he was required to work on a Sunday, which he was not. The Employer was also correct to determine that the Worker was entitled to a shift allowance only if he worked long shift (which he did not, as he was only obliged to work Monday to Friday 9-5pm in his new post.)

For the reasons set out above I am satisfied that the Worker was not redeployed in March 2020 and consequently did not come within the terms of the Respondent’s Covid Redeployment Policy as asserted in this dispute.

I find this complaint to be not well founded.

Covid Redeployment Policy – Redeployment of Reassignment - Terms and conditions of employment