Worker

Employer

Anonymised Parties

A Paramedic

A Health Service

Representatives

Self-represented

Self-represented/Internal

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 - 00002254

20/02/2024

This is a dispute involving an allegation of a lack of clarity around the terms of a ‘temporary’ assignment to a specialist team based in a new location, in particular in relation to the duration of the assignment, whether the Worker’s initial base location remains his base for the purpose of calculating travel and subsistence (T&S), how opportunities with respect to training and how application for other roles which occur (either lateral or promotion) are handled, as they arise.

The Worker has raised the issue of T&S.

He has further raised the issue of a loss of opportunity in relation to a training course, and its consequent implications for future promotion, in that field.

The Worker submits that he works as a frontline advanced paramedic with the [Employer Name redacted] and his substantive post is the ambulance base in [Name/Location Redacted] Hospital.

He submits that he is currently working in a temporary capacity since October 2022 in [Location redacted] as part of a national initiative [‘P’] which aims to keep people over 65, who ring 999, out of hospital if possible and help them find alternative care.

This temporary role sought interested persons for a one-year commitment with possible extension (Ref 1). The Worker is seeking the right to claim for daily travel and subsistence while away from his substantive post to his [Location redacted] post.

The Worker submits that his claim arises due to an internal competition in April 2023 seeking expression of interest from staff from his substantive post region who wish to be trained as assistant tutors (Ref 2). [‘P’] staff were not prevented from applying.

The Worker submits that the long-term benefit of such a role is full tutor and subsequent permanent promotion opportunities within the teaching role. He submits that the main block of teaching training broadly aligned with his [‘P’] year ending, so concern should not have existed on his absence. He submits that a relief advanced paramedic exists in [Named Location] to cover him, if needed. The [‘P’] job description says on the last page that it is only a guide and not intended to be descriptive or restrictive (Ref 1).

The Worker submits that he secured number 2 on this panel but was refused the subsequent training due to being in his current temporary post. He further submits that he was also refused the opportunity to even consider accepting and return to his substantive post or postpone and stay on [‘P’]. It was advised the training panel remains live for 2 years (under one year left) to be called up for training if back in substantive post and a training opportunity arises (ref 3).

The Worker submits that while management documents make several references to secondment, there is no internal secondment policy covering [‘P’] and that he understands it to be a reassignment. He submits Stage 1 + 2 grievance outcome cites HR opinion that the Worker did not  expect travel and subsistence and note his commitment (Ref 4). He also did not expect to be blocked from taking up a tutor training opportunity. Stage 3 grievance outcome suggests the Worker can, at any stage, discuss a return to his former role (Ref 5). The Worker questions why he was not given the opportunity to discuss taking up, or postponing, this training course?

He submits that the course is now gone, and no one can predict if his panel will be called upon again or even expunged within its remaining lifetime. The Worker submits that he feels management prevented him from even considering taking up, or declining, this assistant tutor training offer. The Worker submits that he feels this makes his current temporary [‘P’] position a mandatory one and so should be able to claim daily travel and subsistence for every day he has been on [‘P’] (subject to equivalent daily subsistence already claimed for normal out-of-base duties).

The travel claim would be return mileage (16km) to his nearest main town and return public transport from there to [Location redacted] (€20.00). The Worker submits that he lives closer to [new temporary Location redacted] than from his substantive post – so, his claim is from home. The daily subsistence claim is currently €42.99 / day.

He submits that these training, and ultimately career, opportunities arrive unannounced and can take any number of years to surface again. The alternative is to decline temporary experience-building posts to management benefit and indefinitely wait for a tutor training opportunity competition.

The Worker submits that nothing in the [‘P’] expression of interest said he could not leave within the year. He submits that another colleague [in his new temporary location] returned to their substantive ambulance post after seven months. He submits, that in his case, leaving for training would have been temporary.

The Worker submits that an advanced paramedic colleague on the same helicopter as him was refused the same assistant tutor training opportunity as him, despite being 12 years in their temporary (albeit fulltime) helicopter role, which only became permanent this year. He therefore submits that the time spent committing to re-assignments is irrelevant (Ref 6).

On recent hearing of a [‘P’] advanced paramedic [in another location] who was about to leave to a permanent tutor role (Ref 7), the Worker submits that he sought to leave [‘P’]. Current discussions with management reveal General Manager support is forthcoming on his ability to take up future training opportunities if he stays on [‘P’]. However, he submits that the Training Office refuse, so the difficulties continue (Ref 8).

In conclusion, the Worker seeks the right to claim for daily travel and subsistence, as described, for every day on [new temporary location], [‘P’] by virtue of managements’ non-voluntary approach in preventing him taking up Assistant Tutor training while on [‘P’].

The Worker is employed as a paramedic (holds a qualification as an advanced paramedic) in the Employer, an operational division of a [Name Redacted].

The Worker was initially appointed to the national health service on 18th December 2000 and has a dispute under s. 13 of the IR Act 1969.

An Expression of Interest (EOI) was issued to the panel on 2nd September 2022 seeking to fill roles in the [‘P’] Model of Care [Location redacted]. The Worker applied for same and was offered a role, which he accepted, and commenced in the [Location Redaction] Operational Division, on 17th October, 2022.

The Worker’s dispute has two elements, the first relates to his reassignment to [‘P’] in [Location Redacted] whereby he is seeking travel and subsistence payments since his reassignment to [‘P’] on 17th October 2022. Secondly, the Worker is aggrieved that he was not released to attend an internal training programme referred to as the Assistant Tutor Programme.

It is the [Name Redacted]’s position that the Worker applied and was successful in undertaking a reassignment to [‘P’], and in doing so was assigned to [Location Redacted], which became his new based for the period of the [‘P’] Service. Therefore, no travel or subsistence is payable for the duration of his reassignment. Secondly, any release to undertake training to become an Assistant Tutor was and continues to be dependent on operational and service requirements.

Background

The Worker’s substantive post is that of a Paramedic (Advance Paramedic Qualified) based in [Location redacted].

On 2nd September 2022, an email was issued by HR advising that a role within [‘P’] Model of Care had arisen in [Location redacted]. Staff members who wished to express an interest in same were given a timeline in which to do so.

The Worker expressed an interest in the position advertised, attended a skills match interview and was subsequently placed on the panel. [The Worker was informed via email on 2nd September 2022 (Appendix 2)]

The Worker accepted a reassignment to [‘P’] operating from [Location redacted]. An email issued on 6th October from the Employer to the Worker on 6th October 2022, confirming an agreed start date of 17th October 2022.

The Employer submits that, initially, the length of the [‘P’] project, and associated funding, was for one year after which time practitioners would revert to their substantive position and duties. However, it was noted in the Job Specification for the role within the [‘P’] team that the project may extend beyond one year (Appendix 3).

The Worker currently remains assigned to the [‘P’] team as an Advanced Paramedic which is confirmed by his recent timesheet return (Appendix 4) but is free to return to his substantive role in [Location redacted] at any time.

It was the intention of [Name Redacted] to establish a new Student Paramedic Training Facility in [Location redacted] in September 2023. However, due to lack of funding, and the current moratorium on recruitment, the training facility did not open. There is no future plan to do so.

The Worker initiated the grievance procedure in August 2023 and a Stage 3 decision was issued on 28th March 2024 (Appendix 5).

The Worker submitted his complaint to the WRC on 16th February 2024, which was in advance of any hearing or outcome of his grievance at Stage 3.

It is submitted that there are essentially two elements to this claim, the first relating to the acceptance of a reassignment to a new role within the Respondent Employer, within the [‘P’] team and a claim for travel and subsistence while undertaking this reassignment and the second relation to the Worker’s belief that he should be released from duty while working as a member of the [‘P’] team, to attend a training programme to qualify as an Assistant Tutor.

The Employer submits that as the Worker accepted and subsequently took up the role as an Advanced Paramedic with the [‘P’] team on 17th October 2022, thus his new base for the duration of his reassignment became [(new) Location redacted]. Therefore, it is the [Name Redacted]’s position that he is not entitled to claim travel and/or subsistence to travel to and from [(new) Location redacted].

It is further submitted that DPENDR Circulars 11/82, 05/2015 and 13/2019 (Appendix 6, 7, & 8) are the guiding documents on the criteria and application of travel and subsistence payments within the public and civil service. It is submitted, that travel, and subsistence is not intended to be a source of profit or to cover all costs – it will only be paid for necessary absences from an employee’s work base where expenses have been incurred and provided all conditions have been satisfied.

It is submitted that the Worker is not precluded from claiming subsistence while away from his reassigned base in [(new) Location redacted] while responding to calls and in keeping with the [Name Redacted]’s National Financial Regulations (NFR’s) noting that a daily allowance is payable for any absence at any place within 8 kilometres of the officer’s home or normal place of work, of 5 hours or more. Time spent at base, or travelling to and from work is not reckonable.

The Employer’s submissions set out Circular 11/82, General Rules 4. It further sets out NFR’s Travel and Subsistence B-4 (exhibited at  Appendix 9).

It is submitted that the Worker received €2,396.83 in subsistence payments, for absences away from his base, while on duty – this pertained to the period 21st March 2023 – 29th April 2024.

It is submitted that in anticipation of the opening of a new College facility in [Location Redacted] in September 2023, an EOI was issued via Internal Memorandum in April 2023 to form a panel for PHECC registered practitioners interested in pursuing PHECC Assistant Tutor Qualification and Development. The Memo Noted that “We are currently expanding our pool of tutors within the [Area redacted] regions. While the primary reason for this is to facilitate the operation of a new National Service College in [Location redacted], successful candidates in this process may become part of local ECAT faculty in both the [Area redacted] regions (Appendix 10).”

It is submitted that the role of Assistant Tutor is not a promotional opportunity but an opportunity to gain additional skills. The training programme consists of a secondment to a [Name redacted] education facility for a period of between eight and twelve weeks with the potential to lead to a qualification as an Assistant Tutor.

It is submitted that given the time commitment and lengthy release of staff from their normal frontline duties, it is not always possible to release a staff member to attend training in order of their panel placement, and arrangements are usually made between all parties to release at a later stage.

It is submitted that at all times, the Worker has been given the opportunity to step back from the [‘P’] team and return to his substantive role as a Paramedic where he can then be released to attend any upcoming training programme.

Conclusion

It is submitted that the position is very clear in relation to the granting of travel and subsistence and is directly guided and governed by the [Name redacted] NPR’s, DPER Circular 11/82, 05/2015 and 13/2019.

It refers to instances where T&S is not payable, under the Circular, and particularly emphasises NFR B4-section 2.1.1., which sets out that T&S is not applicable where employees are travelling to take up duty on their first appointment to the [Name redacted] or travelling after first appointment to take up a new post.

The Employer submits that it does not have authority to award any pay, travel or subsistence that is not in line with the applicable Circulars. It submits that any sanction to make a payment that is in direct contravention with the NFR’s, will result in an overpayment to the employee.

It submits that [new Location redacted] became the Worker’s new base upon his acceptance of a reassignment to the [‘P’] team as per document exhibited at Appendix 1. It is submitted that the Worker is not entitled to be paid T&S for travelling to and from his normal place of work.

It is submitted that a decision to award T&S in this case may also have a knock-on effect on other public sector workers who applied for and accepted a reassignment to another role or location, on a temporary basis.

It is submitted that while a panel to undertake Assistant Tutor training is formed by order of merit based on skills match, it must be noted that the duties of an Assistant Tutor is not an approved position, promotional opportunity nor governed by recruitment license. It is submitted that from time to time, it is not possible to release a staff member to attend a training programme in order of their panel placement, due to service needs.

It is submitted that release to attend any training programme to acquire new skills is dependent upon operational and service requirements, and the [Name Redacted] must ensure that the release of staff from front line duty to attend training, does not impact patient led services or ambulance resources. The [‘P’] team operates as a multidisciplinary team and the absence of an PA, would render the team deficient.

The Worker has been informed in writing that he can step back from the [‘P’] team at any time and return to his substantive role as a Paramedic (Advanced Paramedic Qualified), where he can then be released to attend any upcoming training programme.

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

There were substantial written and oral submissions provided.

I find that T&S is not applicable in this instance, in line with the applicable Circulars and NFRs, as the [new Location Redacted] became the Worker’s new base for what should have been a specified duration, under specified terms, in compliance with, inter alia, the requirements of employment law.

I find that the Worker should have been provided with clarity by his Employer when that role was advertised, and again when he took it up, as to the parameters of the role – location, duration, terms of employment governing any extension etc. – including any restrictions which would apply for the duration of the role, or for an initial period as set out, within the role.

The Employer asserts on the one hand that the new role is at a new base; and simultaneously asserts that the term of the assignment is indefinite/to be confirmed, subject to funding. That is unsatisfactory from an employment rights perspective with regard to the clarity to which any employee is entitled with respect to the terms and conditions of his/her employment, especially if by virtue of participating in the programme, the Worker is subject to restrictions imposed by the Employer which were not clarified at the point of advertisement, application or acceptance.

It is also worthy of note that something being characterised as ‘a pilot programme’ of unspecified duration, or a project being subject to external or centralised funding decisions, do not absolve an employer from the requirements on it, to give reality to the statutory and contractual employment law rights of its employees. The lack is additionally alarming in relation to a large, national, public employer.

The Employer asserted that the Worker has been informed in writing that he can step back from the [‘P’] team at any time and return to his substantive role as a Paramedic (Advanced Paramedic Qualified), where he can then be released to attend any upcoming training programme. However, there was a delay before that offer/clarification was made, and it was only made subsequent to him raising a grievance. The delay prevented him from availing of the training course; and there is no indication as to whether or when another one will be run due to various external factors outlined above. As a result, the Worker has suffered the loss of an opportunity to which the Employer has asserted he has access.

The Employer asserted that employees could not be released from the [‘P’] team as it would leave an operation gap (and also a gap in an established team). The Adjudication Officer, at the hearing, enquired of the Employer, on foot of that, as to what would occur if an employee were to take protected leave such as maternity leave; or what protocol the Employer has in place for dealing with a situation whereby an employee gave the Employer four weeks’ notice of his/her intent to exercise his/her right to take carer’s leave in respect of an ill/dying parent, the Employer’s response was that had not happened to date. It had no system/protocol in place. In relation to maternity, it cited that there were very few female members of the team. Those responses are inadequate. Again, simply because something is called a ‘pilot’ programme or is dependent on centralised or externalised funding, that does not exonerate an employer from its statutory employment rights duties. It is required to resource such programmes fully, in compliance with the requirements of employment law, not simply on a skeleton basis.

I recommend for the Worker.

I recommend that the Employer pay the Worker €3,500 in full and final settlement of this dispute.

I find that there was a lack of clarity provided to the Worker, and a delay in providing that clarity resulting in a consequent loss of opportunity for him.

I recommend that in its information booklets (setting out the terms of an advertised ‘temporary’ role such as this one) going forward, the Employer provide clarity as to the terms and conditions, duration and restrictions (or otherwise) of accepting a position including in relation to any optional extension an employee may apply to undertake – this has to be done in line with the full requirements of employment law, the employees’ existing employment law contracts and any applicable national agreements that may be in place.

I further recommend that the Employer provide clarity, in its information booklets (setting out the terms of an advertised role such as this one), as to which location constitutes the Worker’s substantive base (i.e. is this a secondment), and whether a Worker is free to return to his/her substantive base (if it is deemed to be the former location), at any time.

I am also clearly highlighting to the Employer that it is required to comply with the full rigours of employment law, with regard to funding such programmes, and I further recommend it give consideration to that in relation to its policies re: protected and statutory leave for employees on such assignments/secondments going forward.

Secondment; T&S; Release back to substantive base; Training programme; Operational Needs; Pilot Programme; External/Centralised Funding;