ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001779
Dispute for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969
5th February 2016
Date of Adjudication Hearing: 11th May 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Respondent was not present or represented at the Hearing, they did send an email letter which is covered in the section for their submission.
Summary of Complainant’s Submission:
The Trade Union said the Complainant is a Trainee Ambulance Paramedic and a separated mother of 2 children. She sought a placement within an hour from her home in a named location, but instead was assigned to a base in a location that is a 3 hour return journey from her home. The Complainant regards this assignment as anti-family, unsafe and without any regard of her personal circumstances and obligations. As a result, the Complainant was unable to take up this assignment so that she could complete her training. The Complainant has a permanent contract of employment with the Respondent since 18th March 2014 as an Intermediate Care Operative and neither was she allowed to return to her previous post, as a result she is currently ‘in limbo’ with no income.
The Trade Union said in February 2012, the Complainant completed her training as an Emergency Medical Technician (EMT) at her own expense. On 13th August 2012, she was first employed by the Respondent via an Agency as a Call-Taker. During this period, she maintained her clinical skills by doing voluntary placements on her days off. She was first employed by the Respondent in a named location, but was later re-assigned to another location from July 1013 to February 2014, when she was directed to return to the first location.
On 18th March 2014, the Complainant accepted a permanent contract of employment with the Respondent as an Intermediate Care Operative (ICO) located in a named Region and her assigned station was in a named location. On 26th June 2014 the Complainant was requested by the Control Manager to return to her original location as a dispatcher to alleviate staff shortages and she remained there until 22nd March 2015.
The Complainant separated from her husband in January 2015.
The Complainant acquired a letter of comfort from Human Resources regarding perpetuation of Intermediate Care Operative permanent contract on acceptance to Student Paramedic Programme, should ICO fail to complete full paramedic training programme. On Friday 18th December 2015 on successful completion of final exams she was due to progress to Paramedic Intern and she was told verbally that she was to be assigned to a named Ambulance Station as an Intern Paramedic commencing 4th January 2016; no contract of employment was provided.
Due to her personal circumstances, the Complainant raised concerns about her ability to manage this placement and she was referred to the Regional Operations Manager, whom she immediately contacted by telephone; he referred her to the Operational Resource Manager. She then contacted the Operational Resource Manager and informed his of her concerns, he told her he would discuss the matter with the Acting Operational Resource Manager and would see what could be done. Later that day the Complainant contacted the Educational Manager regarding her position and she was referred to the HR Manager, she sent him an email. Having then waited for a response and indeed her Paramedic Intern Contract, over the following days, the Complainant sent a reminder email on 29th December 2015. On receiving a reply that he was ‘out of the office’, the Complainant then sent an email to the Director.
On 30th December 2015, the Complainant received a telephone call from the Operational Resource Manager at the location she had been assigned to; while he was very courteous and understanding, he seemed to know nothing about her case, despite the Operational Resource Manager stating that he would be contacting him, and indeed she was being contacted as a routine call regarding her proposed shifts in the proposed location. The Complainant again sent an email to the Director.
On 31st December 2015, the Complainant was contacted by Workforce Planning who gave her details of her proposed shifts. She informed of her problems in accepting the assignment and that she might have to return to her ICO post. She was wished well and told of an imminent ICO vacancy in her own area due to the retirement of a named person. The Complainant received and responded to contact from the Director. Later that day the Complainant received a telephone call from the Acting Operational Resource Manager to inform her that if she did not attend for her allocated shifts at the proposed location, she would be subject to disciplinary action. She forwarded this information by email to the Director.
The Trade Union said that as of 3rd January 2016, the following was the position:
- The Complainant’s Student Paramedic contract was due to expire that day
- She had not been given a new contract for her intern paramedic course
- No one had constructively engaged with the Complainant in relation to her problems except to tell her to do as instructed
- All of this was while being contracted as a permanent Respondent staff member in the position of Intermediate Care Officer (ICO)
The Complainant then wrote to the previous point of contact within the HR Department seeking to return to the post of an ICO. She received an acknowledgement from a named HR Officer (now a Payroll Officer) stating the correspondence was being passed on to the HR Department.
The Trade Union said that following a number of other emails, the Complainant received an email from a named doctor, effectively telling her that:
- She had no choice, she had to report to the named location or be deemed to have left the service
- She could not return to her ICO Post
- The training costs could be recouped from her
As her efforts to resolve her concerns were unsuccessful and as a result she referred her dispute to the Adjudication Service of the WRC.
On 7th March 2016, the Complainant was met by the HR Manager, who provided her with the opportunity to set out her case. The HR Manager responded by letter on 2nd May and clarified the position which appeared to be that:
- The Complainant may return to her position as a Paramedic Intern, but in the same location as previously proposed
- If she does not accept this assignment she is liable to be pursued for fees relating to her training
- She may return to her ICO position in a named location, which is 2.5 drive away and also be liable for fees.
The Trade Union said the Complainant’s current position is that she is a single mother of 2 young children. Her Mother, who has been of assistance to her in the past, is a renal dialysis patient who is also dependent on her and is currently recovering from hip surgery. She lives in a named location. She realises and accepts that a reasonable commute of up to an hour may be necessary in her role now and into the future. However, any greater commute renders her unable to carry out her responsibilities.
The Complainant also recognises that the vagaries of the paramedic role can result in the working roster being inadvertently extended due to call outs late in shifts. This is unavoidable, but further exacerbates the challenges and dangers of a lengthy commute to work. She has successfully completed her academic training and is anxious to proceed to complete her internship, however the Respondent are placing conditions on her that she is unable to comply with.
The Trade Union said that the conditions being imposed by the Respondent have denied the Complainant the opportunity to complete her paramedic training and her subsequent attempts to return to work as an ICO were blocked by management. The most recent proposals advanced by the HR Manager are impossible for her to accept.
The Trade Union said that at the same time the Complainant and her colleagues have identified a range of vacant positions within a one hour drive of her home, they said these paramedic posts are currently being filled by overtime working, yet the Respondent insists that the service needs, the service priority, requires her assignment to the proposed location, when an equal or greater service need can be identified for several named areas easily within a one hour drive from her home.
The Trade Union provided detailed information in relation to vacancies that they said existed within a one hour drive of the Complainant’s home. They said there were 9 stations within a one hour drive of her home and there were at least 6 whole time positions unfilled in the area. They also said the position in the proposed location to which she was assigned had not been filled in the interim, which would lead to questions as to how urgent the filling of it was/is.
The Trade Union sought a recommendation that the Complainant be facilitated with an assignment as an Intern Paramedic at a location within one hour commuting distance of her home.
Summary of Respondent’s Position:
The Respondent was not present or represented at the Hearing. The following letter was received by email on 11th May 2016 (the date of the Hearing), although it appears to have been sent the previous day (10th May 2016).
“As per our ‘phone conversation earlier this morning, I have spoken with (a named person), Chief Ambulance Officer, HR, regarding the above case. We would like to advise that the (Respondent) will not be attending tomorrows hearing regarding (the Complainant).
The (Respondent) cannot attend tomorrow as they object to an investigation as per Section 13 of the Acts. The (Respondent) cannot attend. The (Respondent) have not been afforded correct notice of this matter despite advising the WRC, which has unfortunately caused administrative difficulties.
The matter is currently under review internally whereby we await a reply from the individual and cannot engage at the WRC with an un-recognised association.”
Findings and Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13(3) of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
The Respondent was not in attendance at the Hearing, the email from them sent on the day before the Hearing, but only received on the date of the Hearing is quoted above, and the following is the position in relation to the matters raised in that correspondence.
The complaint was received by the WRC on 5th February 2016. In accordance with normal practice receipt of the complaint was acknowledged to the Complainant’s Representative by the WRC by letter on 9th February 2016. On the same date of 9th February 2016, a copy of the Complaint Form along with the standard letter was sent to the Respondent at their national address as provided by the Complainant along with the standard letter sent in all such cases, this letter stated, inter alia:
“Under Section 36(1) of the Industrial Relations Act 1990, any party has the right to object to an investigation of this/these disputes by an Adjudicator. ……….
Please indicate whether you wish to object to an investigation by an Adjudication Officer by completing the enclosed form and returning it to Information and Customer Services, Workplace Relations Commission, O’Brien Road, Carlow, within 21 days of the date of this letter.
Failure to reply to this enquiry form within the period specified will be regarded as consent to an Adjudicator under Section 13 of the Industrial Relations Act 1969, and the dispute will proceed for a hearing on the earliest date.
The standard form for reply was included with the letter, which contained the name and address to which it was to be sent and the two options of an objection or not objecting to an investigation by an Adjudicator.
The Respondent would be very familiar with this process, being a frequent user of the services of the WRC.
In accordance with the date on this letter any objection by the Respondent to an investigation would require to be received by 1st March 2016 and no such objection was received by the WRC.
However a response was received from the Respondent by letter dated 31st March 2016, received on 1st April 2016. This signed letter from the Respondent did not contain any objection by the Respondent to an investigation by an Adjudicator; rather it acknowledged receipt of the correspondence from the WRC, quoting the two reference numbers of the case and stating that the normal recipient of this correspondence should be a named person, with address for that person provided. That person was written to by the WRC on 15th April 2016, acknowledging receipt of the correspondence.
The WRC wrote to both parties by letter of 19th April 2016 informing them of the Hearing on 11th May 2016. As noted above the next and only response was the one quoted from above received on the date of the Hearing, 11th May 2016, but apparently sent the day before, 10th May 2016.
It is apparent from the facts recited above that the Respondent was informed by letter of 9th February 2016 from the WRC of the dispute and was specifically informed of their right to object to an investigation and the time limits for lodging such an objection; there is no doubt or question that the Respondent received this correspondence as they acknowledged in writing that they did receive it. There was also further correspondence with the Respondent from the WRC by letter of 15th April 2016. However no objection to an investigation was lodged by the Respondent at any stage until the email letter received on the date of the Hearing, 11th May 2016, more than 3 months after the date of the letter from WRC informing them of the matter.
No objection by the Respondent to an investigation by an Adjudicator of the dispute was received with the time limits for lodging such objections and accordingly the Complainant is entitled to have her case heard and I will be so doing.
In addition I do not understand the comment made by the Respondent in their email received on the day of the hearing that they “cannot engage at the WRC with an un-recognised association. The Trade Union that represented the Complainant at the Hearing is a trade union that is fully recognised by the Respondent and has appeared in front of me many times representing employees of the Respondent in the presence of the Respondent, without any such issue arising.
It is regrettable that the Respondent choose not to attend at the Hearing to make their case, respond to submissions made by or on behalf of the Complainant, or offer a defence directly to me, nor did they send any written submissions, this means that I only have the uncontested evidence and submissions of the Respondent to rely upon in these matter.
Based on the uncontested evidence of the Complainant I see considerable merit in the claim and it is upheld in full by me.
I recommend as full and final settlement of the matter that the Respondent facilitate the Complainant with an assignment as an Intern Paramedic at a location within a one hour commuting distance of her home within 5 weeks of the date of this recommendation and I further recommend that the Respondent enter into immediate negotiations with the Complainant and/or her Trade Union to agree the details of this.
I so recommend.
Dated: 27 July 2016