LCR22946

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00040289 (CA-00052149-SC-00000544).

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 28 September 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969. This appeal was heard in conjunction with ADJ-00040289 (CA-00052149-SC00000545).

On 21 August 2023 the Adjudication Officer issued the following Recommendation:

“Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. In order to bring closure to this matter and in recognising the shortcomings on both sides of the dispute, a sum of €1500 compensation payable to the employee is recommended.”

DECISION:

This is an appeal by SIPTU on behalf of a worker of an Adjudication Officer’s Recommendation in relation to a complaint against his employer, the HSE.  The matter in dispute has its origins in an interview process for a paramedic position for which the employee was deemed unsuccessful. SIPTU, on behalf of the worker, contends that (i) the decision to fail the worker in the final examination process was erroneous, (ii) the assessment process was flawed and, (iii) the worker was denied a fair process in his subsequent efforts to have the matter addressed.

Summary position of the Worker

The worker commenced employment as a Student Paramedic with the HSE in January 2018 and in December 2018 he became an Emergency Medical Technician Trainee (Paramedic Internship). The worker was advised that he failed the final assessment process for that role in March 2020, and as a result could no longer proceed in the role. In April 2020, the worker took up another position with the HSE as an Intermediate Care Operative (ICO).  The worker was unhappy with the assessment process for the Emergency Medical Technician Trainee role. He tried to appeal that matter as there were technical issues during the final interview, which was held remotely, and issues with the marking system. His concerns were not addressed. In June 2020, the worker requested a review of the final exam process. On 30 October 2020, the worker lodged a formal grievance through the grievance procedure. He was advised that the college had been contacted, and the failure mark was upheld. The worker appealed that outcome and was advised that the technical issues during his interview were accepted, but that the interviewers were satisfied that there was enough evidence from the interview to determine that he did not meet the required standard. The worker submitted a stage 3 grievance in June 2021. The worker seeks an internal review off the process due to the lack of fair procedures and failure to properly review the process at the appropriate time. The worker says that he suffered a great financial loss as a result of not being offered a fair and reasonable opportunity to progress in his career. He seeks compensation for a loss of earnings and loss of opportunity

Summary position of the Employer

The HSE submits that the worker failed to pass various elements required to be deemed a competent autonomous practitioner at Paramedic level. Students must complete a portfolio of work and when the worker’s portfolio was reviewed in November 2019 several concerns were identified. His final exam was undertaken on 9 December 2019 and other deficiencies identified. The worker’s internship was extended for an 8-week period to allow him carry out work on his portfolio and to re-sit the final examination. Despite the additional time provided to him, the worker failed to demonstrate the standard required and therefore was unsuccessful in the student paramedic programme. The worker raised concerns about the examination process and communication issues during the final interview in June 2020 some three months after that process concluded. He expanded his complaint in June 2021 when he utilised Stage 3 of the grievance procedure to make serious allegations of bullying and intimidation by certain managers. He was advised to forward that complaint for screaming under the dignity at work policy. No such complaint was ever lodged by the worker.

The HSE accepts that aspects of the grievance process were challenging as the ability to have face to face meetings was limited because of restrictions in place due to the Covid-19 pandemic. Additionally, the HSE suffered a significant cyber-attack in May 2021 which limited access to electronic files until late July 2021.

The Court has given careful consideration to the oral and written submission of the parties.

The Court heard that the position sought by the employee is a highly skilled role which is performed having attained an approved educational standard. The worker in this case did not succeed in passing the assessment required to be deemed a competent autonomous practitioner in that role.  The worker contends that when he queried his exams results, he got nowhere, and his concerns were not addressed. The Court was told that the exam was conducted through the National Ambulance Service College and the marking system set by the external Regulator. While the worker may be unhappy with the results he achieved in the exam, it is not the role of this Court in industrial relations disputes to conduct an assessment of such a marking system.

The worker contends that arising from his failure to pass the assessment process, he has suffered significant loss of earnings and has been denied an opportunity to progress in his career. He seeks compensation for both loss of earnings and the loss of career opportunity. The Court had some difficulty with that position. As the Worker did not pass the assessment process for the paramedic role he was not appointed to the role, and so has no entitlement to receive any higher pay associated with that role. The Court cannot award compensation for loss of earnings, where no entitlement to such earnings arises.

Finally, the worker contends that he was denied a fair process in his efforts to have the issues that he raised addressed. A worker who submits a formal complaint under a grievance policy is entitled to have that matter dealt with in a timely fashion. It appears to the Court that the parties in this case both contributed to issues that arose in progressing the worker’s grievance.

The worker did not submit a complaint about the assessment process until three months after that process concluded. He later expanded that grievance to include other allegations but failed to utilise the Dignity and Work Policy to address those allegations when give the option to do so.

While the Covid-19 pandemic and the HSE cyber-attack may have posed administrative challenges in relation to accessing files and conducting face to face meetings, it was not made fully clear to the Court when and how each of the grievance hearings were conducted, or how the decision makers reached their decisions. 

The employer has a comprehensive grievance policy in place. There is an onus on both sides to progress matters to utilise that procedure properly and in a prompt fashion in an effort to address workplace issues when they arise. Having regard to the written and oral submissions, the Court concurs with the Adjudication Officer recommendation that this matter needs to be closed and that in order to bring closure to this matter - recognising shortcomings on both sides of the dispute - a sum of €1500 in compensation should be made to the worker.

The Recommendation from the Adjudication Officer is upheld. 

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
29 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.