ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047133

Parties:

Complaint:

Date of Adjudication Hearing:  16/01/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complaint is that, having paid the Complainant an Advanced Paramedic allowance for three pay periods following his appointment to a new position, the Respondent then withdrew the allowance.  The Complainant stated that this resulted in a reduction/deduction of €10,120 from his wages.

Summary of Complainant’s Case:

The Complainant gave written and oral submissions summarised as follows:

November 8th 2021: Commenced employment with the National Ambulance Service (NAS). Appointed as Education and Competency Assurance Officer, assigned to NAS College Tallaght. Appointed to top increment of for HSE Grade VI Officer due to previous service with Dublin Fire Brigade (2001-2021).

June 2022: Seconded by agreement to NAS College Tullamore in same role Jan 2023 (approx.): Applied for role of Grade VI Emerging Threat Team Operations Manager as advertised by NAS. Competition was conducted by CPL Recruitment on behalf of the NAS.

March 27 2023: As part of the process, I received an email from hsecontracting@cpl.ie, requesting clarification on three points from NAS Human resources. One of the three questions was if the Advanced Paramedic allowance would carry to my new role. On the same afternoon I received confirmation via email from NAS HR that the allowance would carry to the new role.

April 11 2023: I commenced role as Emerging Threat Team Operations Manager assigned to Wicklow/South East region.

April 13: AP allowance paid in salary

April 27: AP allowance paid in salary

May 11: AP allowance paid in salary

May 22: Received a phone call from UM (NAS HR) informing me that the AP allowance should not have been paid. In this call, Ms. M acknowledged that an administrative error had been made by NAS HR.

May 23: Received email outlining removal of AP allowance.

May 31: Internal grievance procedure initiated (Stage one with Assistant Chief Ambulance Officer BG). Grievance not upheld

June 8: Stage two grievance heard (Chief Ambulance Officer RW). Grievance not upheld

June 9: Application for Stage three grievance submitted. I outlined my views that this should not be heard by NAS HR staff, as I felt there was conflict of interest. My view was that this should be heard by HSE HR. This was not in my opinion taken into consideration.

June 21: Stage three grievance heard (EM), Employee relations manager, NAS, formerly NAS HR). Grievance not upheld.

July 26 (approx.): Grievance submitted for review to WRC.

Aug 10: WRC acknowledged complaint.

The Complainant stated that he was happy in his new role and does not wish to return to his previous role.  He was called upon on occasions to carry out some of the previous duties as Advanced Paramedic.  He is at a significant loss of earnings which is impacting on his personal circumstances.  He was specifically told the allowance would be carried over to his new role. 

Summary of Respondent’s Case:

The complainant is a Grade VI (clerical/admin) in the National Ambulance Service (NAS), an operational division of the Health Service Executive (HSE) and has a dispute under section 6 of the Payment of Wages Act 1991.

He was initially appointed to the HSE on the 8th November 2021 as an Ambulance Officer Education and Competency Assurance (Grade Code: 6122), a clinical role that requires the employee to hold an Advanced Paramedic qualification and be registered with the Pre-Hospital Emergency Care Council. This role attracts the payment of a clinical/qualification allowance referred to as the Advanced Paramedic Allowance of €10,551 per annum (01/10/2023 Department of Health Salary Scale), due to the clinical grading and the delivery of advanced clinical patient care.

On the 11th April 2023, Mr Coleman commenced a clerical/admin role, following successfully securing a place on the panel for Grade VI, NAS Emerging Threat Operations Manager (Grade Code: 0574).

Mr Coleman’s dispute relates to the ceasing of the Advanced Paramedic Allowance from the 30th April 2023, as notified to him in email correspondence on the 23rd May 2023.

It is the HSE’s position that Mr Coleman knowingly took a reduction in pay when he chose to remain in the new position, once he was informed by NAS HR on the 23rd May 2023, that the position would not attract a clinical/qualification allowance.

Mr Coleman was successful in the competition for the Grade VI position and was offered a post with a commencement date of 11th April 2023 and his contract was issued accordingly with a starting salary of €64,212, the 2nd LSI on the Grade VI salary scale (Grade Code 0574) which incorporated his current point of scale.

Communication was received on the 27th March 2023 by NAS HR from the Complainant on behalf of CPL who were carrying out the recruitment process for this campaign. Clarification was sought in relation to starting pay on appointment and whether he would retain the Advanced Paramedic Allowance. The response issued back from NAS HR was “yes, you keep the allowance as per job spec”. This was clearly an error by NAS HR and was discovered by the General Manager for HR in May 2023.

Within the HSE, clerical/admin roles do not attract nor are approved by the Department of Health to attract qualification allowances nor stipulate the retention nor application of allowances in the job specification.

On the 22nd May 2023, the General Manager – HR, telephoned Mr Coleman to explain the terms and conditions of his current role and that he could not retain the Advanced Paramedic Allowance. The error had gone unnoticed for a number of weeks and Mr Coleman had continued to receive the Advanced Paramedic Allowance in error for two pay periods.

The Complainant received a total of €622.83 by way of advanced paramedic allowance that he was no longer entitled to. To date this money has not been deducted from his salary.

During the telephone conversation on the 22nd May 2023, Mr Coleman expressed concerns in relation to whether or not he would have accepted the new position if he had been aware that he would not retain the qualification allowance.

As a remedy, NAS HR wrote to Mr Coleman on the 23rd May 2023 (refer to Appendix 6) and offered him the option of returning to his previous position as an Ambulance Officer, Education and Competency Assurance that would attract the Advanced Paramedic Allowance, as his former position had not been filled yet. The communication also gave written notice that the Advanced Paramedic Allowance would cease with effect from the 30th April 2023, to prevent an overpayment.

Also as part of a separate employee relations process, the current NAS Ambulance Officers including those in the position of Education and Competency Assurance, were in the process of undergoing a job evaluation process and the results were imminent. However only those who were in the position on the date of the job evaluation outcome would receive the benefits of any possible upgrade. The communication of the 23rd May 2023 from NAS HR, further offered to ensure the Complainant’s inclusion in this process if he opted to return to his previous position.

Following some correspondence regarding a possible return to his old role, on May 31st 2023, a reminder email was issued by NAS HR stating “I refer to my emails below, can you confirm if you wish to proceed to return to your former ECAO role and re-join the Job Evaluation Scheme list as the result of this scheme is imminent and we will be required to transfer you into this position before the result is announced.”

The Complainant lodged a Stage 1 grievance heard on the 31st May 2023. The dispute related to the removal of the Advanced Paramedic Allowance and what he considered a lack of consultation. This grievance was not upheld.

A stage 2 grievance was issued on the 6th June 2023 and not upheld stating, “It is acknowledged that the advice from HR regarding continuation of AP allowance back to CPL was an error, and because of this error, you were offered to return to your substantive post prior to taking up the new role, in Education Manager. After careful consideration, you declined this offer and opted to remain in post, Grade VI, NAS Emerging Threat Operations Manager. In accordance with the Grievance Policy and after careful consideration I must inform you that I cannot uphold your Grievance. The new role is an administration role and as such, Clinical allowances i.e. AP allowance are not applicable to this role.”

A stage 3 grievance hearing was held on the 21st June 2023 with a decision issued on the 29th June 2023. It was determined at this stage that the Complainant’s colleagues who held the same role as Grade VI Emerging Threat Operations Manager whom were also qualified Advanced Paramedics, were not in receipt of the allowance as per the terms and conditions set out for clerical/admin positions within the HSE and in fact had the allowance incorporated into their starting pay.

At this stage, the Complainant was on the maximum of the Grade VI admin salary scale therefore, no further pay could be awarded nor could the loss of the Advanced Paramedic Allowance be incorporated into his salary as had been applied to his colleagues. He has already received the full financial benefits of incremental credit from the 8th November 2021 when he first joined the HSE and placed on the maximum of the Ambulance Officer Salary Scale.

It was apparent that NAS HR endeavoured to remedy the initial error on the 22nd May 2023, when he was incorrectly informed that he could retain the Advanced Paramedic Allowance whilst undertaking a clerical/admin role. The offer of returning him to his former position and restoring his financial status was put to him, but he declined on the 31st May 2023.

The Complainant’s dispute relates to a reduction in wages following the ceasing of an entitlement to a qualification allowance from the 11th April 2023 due to him taking up a new role that does not attract same, therefore falling outside of the scope of the Act. At no time has the HSE deducted monies from him for which he is entitled to.

In this case, for the Complainant to succeed, he must establish that the Advanced Paramedic Allowance was “properly payable” to him during the relevant period in order to establish that the non-payment of the Advanced Paramedic Allowance was a “deduction” within the meaning of section 5(6) of the Act.

It is evident from the foregoing sections of this submission that the Advanced Paramedic Allowance was not “properly payable” to the Complainant during the relevant period (with effect from the 11th April 2023). He was paid all of the components of his wages to which he was entitled. There was no deduction from his wages and therefore the HSE was not in breach of any of its obligations under the Act of 1991.

Findings and Conclusions:

The circumstances where the Complainant was first told the advanced paramedic allowance would apply to his new position, and then it was withdrawn is an unfortunate and regrettable situation which has had a negative financial impact upon the Complainant.  He was clearly told that the allowance would apply and then he received it for 3 pay periods.  The Respondent has not sought to recoup the amount and this is commendable.  The fact as presented by the Respondent is that the AP allowance does not apply to the Grade to which the Complainant was appointed.  The Respondent stated that the allowance is applicable to Operations Staff not Admin staff.  I note the Complainant is sometimes called upon to perform some operations duties, and if this is the case, then some accommodation may be possible and the Respondent may consider opening up some discussions on this issue.   However, in the instant case before me, the complaint was submitted under the Payment of Wages Act 1991 and it is to this piece of legislation I must address my findings and decision.

Section 5 (6) of the Act provides:   

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the evidence and findings above, I have decided that the complaint is not well founded.

Dated:  29th February 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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