Complainant

Respondent

Parties

Jimmy McElwaine

Health Service Executive / National Ambulance Service (NAS)

Representatives

  In person

Emily Mahon HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00069991-001

14/03/2025

The Complainant alleges that the terms and conditions of his contract of employment were changed, and he did not receive a notification of this in writing in advance of the change being affected, in breach of section 5 of the Terms of Employment (Information Act) 1994 (TEIA)

The Complainant gave the following evidence under Oath:

1.       He works as a paramedic in the Northwest region of the National Ambulance Service (NAS.)

2.       Until October 2024 it was a term and condition of his employment contract that he, and all NAS staff, were entitled to apply for and be considered for a transfer of work location. Until October 2024 that process was that one would apply to join a transfer list and once on that list it was not necessary to reapply to be considered for a transfer. One would only be removed from the list if they asked. He wanted a transfer. He had applied and believed that he was on the transfer list.

3.       In March 2025 he discovered that the previous October (2024) when he was on annual leave, that the system of adding one’s name to a transfer list was changed, whereby if one wished to be considered for a transfer one needed to apply and reapply on a regular basis, whenever the HSE invited staff to apply. He was not aware that a change had occurred or that because he had not applied again to join the transfer list that he would be automatically removed from the list. This - not knowing - resulted in him not applying and then not being considered for two transfer positions that became available between October 2024 and May 2025 when two NAS paramedics who were junior to him were transferred to locations that he would have chosen.

4.       He contends that the failure by his employer to advise him in writing of this change in policy, was a change to the terms and conditions of his employment and was in breach of section 5 of the TEIA.

Cross examination

5.       Under cross examination he accepts that all staff, including him received a text message on 7 October 2024 which contained a link to an advisory note, which stated that from then on; to be eligible for a transfer, all staff were required to apply to join the transfer list during a window of time. He complained that he did not receive an email or letter advising him of the change of system or policy. He also does not accept that he received a later text on 11 October 2024 advising him of the change. He said he did not read about the change in the staff newsletter. He did not hear about the change from his work colleagues.  He said that the reason that he did not open the link on 7 October 2024 was because he was on annual leave at the time. He accepts that he did not open it when he returned to work. The reason that he overlooked it was because the text messaging system is more for operational matters, not about changes to his contract of employment. He should have got an email or a letter.

6.       He accepts that his trade union, SIPTU, agreed - by way of a collective bargaining agreement – to the change of policy. However, the Complainant was not informed of this change of policy in writing either by the HSE/ NAS or by SIPTU. 

7.       It was only when other NAS staff were transferred in March 2025 that he realised that the procedure had been changed without his knowledge or agreement and these two NAS staff, who were junior to him, obtained transfers that he would have agreed to.

The representative/ witness on behalf of the HSE/ NAS made submissions and gave evidence under Oath as follows:

1.       There was no change to the Complainant’s contractual terms.

2.       What changed in October 2024 was a process or a policy of dealing with applications by NAS staff to transfer to a different work location.

3.       The Complainant received a text on 7 October 2024 which was contained a link which clearly stated that the process to obtain a transfer had changed and the right join the transfer list was limited to those who applied.

4.       The new arrangement arose because of a Collective Bargaining Agreement that was agreed with the Complainant’s trade union, SIPTU.

5.       The Complainant cannot opt out of what was agreed on his behalf or seek to unravel a change that has been collectively agreed nationally.

6.       The system of communication between NAS management and all staff is via a text messaging system called SADIAN. The Complainant accepts that he received the text on 7 October 2024 and says that he didn’t open the link because he was on holidays. Had the Complainant opened the link either then or when he returned to work from annual leave, he would have discovered that to be considered for a transfer, he would need to apply each time the invitation to apply was offered to staff.

7.       The invitation to apply was first sent to all staff on 7 October 2024. It was published in the newsletter. All staff knew about it. The Complainant did not apply.  

8.       The reason for the change in process (which is not something that is part of the employment contract) was because some staff who had applied for transfers and were on the old list, no longer wished to be transferred so their inclusion on a list was out of date and inaccurate. This constituted a GDPR breach. For this reason, regular updating of lists, to reflect only those employees who actively were seeking a transfer, became necessary.

9.       All the colleagues of the Complainant knew about the change.

10.   They did not email all staff individually because they had texted them via SAIDAN. This was the accepted and normal means for management to communicate with all NAS staff. Even if the terms of contract included the transfer policy process, a written text meets the TEIA requirement of section 5 (1) of TEIA that the change be notified “in writing” at the latest on the day before the change is affected.

This complaint concerns three connected issues:

(a)    Does a process - of determining eligibility for transfer to a different work location for NAS employees form part of the written statement of terms and conditions of employment within the meaning of section 3 of the TEIA?

(b)    If it does, and a change is made, was the Complainant informed of the change in writing by management sending him a text on 7 October 2024 of the change?

(c)     If a change to contractual terms is affected by a collective bargaining agreement (signed by a trade union of which the Complainant is a member) and his contract refers to collective bargaining agreements which bind the employee, does section 5 of the TEIA preclude him from mounting a complaint that his contract terms were changed without his agreement.

I answer the above questions as follows:

(a)    I do not accept the Respondent’s argument that a change - to how his right to seek a transfer of work location - is processed, does not constitute a term or condition of his contract of employment. The transfer process is set out in a work policy. Policies are expressly referred to in the Complainant’s contract as policies that the Complainant was obliged to comply with. In other employment rights adjudications, the Respondent often relies on work policies as being terms that are incorporated within employment contracts of NAS employees. Until October 2024 the policy to seek a transfer was done by applying to join a transfer list. From October 2024 that process was changed.   If there is a right to be considered for a transfer, which no party disputes, the process of how that application is conducted is how that the right is exercised. Therefore, any change to that process is not merely a procedural change it is a process whereby a substantive right may be accessed.

(b)    The Complainant accepts that he received a text on 7 October 2024 which contained a link which advised of the change – “This (transfer) policy has been renewed, and it is important to note that all grades encompassed by the transfer policy must make a new application.”  The Complainant’s evidence was that he did not open the text at that point because he was on annual leave. I am satisfied that on his return from annual leave he still could have opened the link and applied. The failure by him to open the text on his return to work, was the reason that he was not on notice of the change.

(c)     However more fundamentally is whether section 5 of the TEIA applied at all to the facts of this case given that the Complainant accepts that his trade union, SIPTU, reached a collective bargaining agreement with Respondent management to allow this change to be applied to all NAS staff before the change took place.

The Complainant’s contract (dated 7.1.2020) incorporates collective bargaining agreements. It states (at para 27) “Your terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the Health Service Executive.” From this I am satisfied that the collective bargaining agreement that was entered into between the Respondent and NAS in respect of change to the transfer application process was part of the Complainant’s terms and conditions of his employment within the meaning of section 3 (m) of the TEIA.

Section 5, subsection 1, of TEIA requires that whenever a change to a section 3 (statement of employment terms)  is made that the employer shall notify the employee in writing of the nature and date of the change as soon as possible and not later than the day on which the change took place (which in this case, all parties agree was on 7 October 2024.)

However, Section 5 subsection 2 states that the subsection 1 will not apply if the change to the statement occurs because of statute, statutory instrument, a registered employment agreement or regulation order or any other laws or collective agreement.

As the change that occurred to his contract (in statutory language his section 3 statement) this change arose on foot of an agreement that was collectively agreed between Respondent management and the Complainant’s trade union, I am obliged therefore to find that Section 5 (1) does not apply and the Respondent was not obliged to notify the Complainant in writing of the change that occurred to his contract.

For the reasons set out above I am satisfied that this complaint is not well founded.

This complaint is not well founded

Section 5 of TEIA 1994 – Collective Bargaining Agreement