LCR22467

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

HSE NATIONAL AMBULANCE SERVICE SOUTH

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1. Appeal Of Adjudication Officer Decision NoS:Appeal of Adjudication Officer Decision No: ADJ-00025262 ADJ-0025264 CA-00032026

BACKGROUND:

2. This matter was referred to an Adjudication Officer for investigation and Recommendation. SIPTU on behalf of a Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 26 May 2021 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 7 September 2021.


UNION'S ARGUMENTS:

3. 1. The Worker wholly disputes the information presented in a reference as unfounded and untrue.

2. The Worker would have been promoted into a Supervisory role if the unsupported reference was not authored.

3. In trying to remedy this issue at local level, the Worker found no genuine engagement from the Employer to try and resolve his disputed position.

EMPLOYER'S ARGUMENTS:

4. 1. The recruitment process was fair and compliant with procedures at all stages.

2. Management is satisfied that a fair and accurate reference was provided.

3. All offers made are conditional on further requirements, reference checking, health assessment and Garda vetting which was clearly stated in all correspondence.

DECISION :

This is an appeal by SIPTU of an Adjudication Officer’s Recommendation ADJ-00025262 and ADJ-00025264 on behalf of a Paramedic with the HSE National Ambulance Service. The matter before the Court relates to the offer of a promotional position which was subsequently withdrawn due to an unsatisfactory reference.

The Adjudication Officer recommended that historical issues be expunged from the workers file and that, as a gesture of goodwill and without causing a precedent, the employer pay €2,000 in compensation for a flaw and delays in the process.

SIPTU submitted to the Court that the Claimant was successful in applying for a promotional role, which was withdrawn because of a number of inaccuracies in an internal reference provided by a manager who was not familiar with the Claimants work.

The Claimant strongly disputes the accuracy of information provided in that reference, which seriously disadvantaged him and prevented him from being placed into a promotional role. The Claimants supervisor was never asked to provide a reference. Instead, references were sought from his line manager, who declined to provide a reference, and his line manager’s manager, who provided the unsatisfactory reference.

Although the Claimant raised his concerns about the accuracy of the reference with the recruiting body, having liaised with Management, the recruiting body confirmed the reference remained unsatisfactory.

A formal appeal was rejected on the grounds that correct procedures were followed and any matters relating to the accuracy or relevance of details given in references were beyond the scope of the recruiting body. When the claimant attempted to instigate a grievance with his employer, this was not progressed.

SIPTU submitted that the Claimant strongly disputes the content of the reference. He was denied an opportunity to provide an alternative referee and was pushed from pillar to post for six months while attempting to have this issue resolved. But for the offending reference, the Claimant would have been appointed to a supervisory role. The Claimant seeks to have this situation remedied by being appointed into a supervisory role.

Management submitted that the matter before the Court concerns the integrity of the recruitment process and in this case adherence to the process was observed at all stages.

The recruitment process was managed under the remit of the HSE Health Business Services (HBS), which follows the Commission for Public Service Appointments Code of Practice on appointment to positions in the Civil and Public Service.

The offer made to the claimant was conditional on three further requirements, reference checking, health assessment and Garda vetting, which were clearly stated in all correspondence during the process. The process required that one reference be provided by the applicant’s employer, which cannot be provided by someone at supervisor level.

In the Claimant’s case, his line manager was approached but declined to give a reference. The reference provided by a more senior line manager did not recommend the Claimant for the promotional post and, in line with standard procedures under the Commission for Public Service Appointments Code of Practice, the offer was withdrawn.

Management submitted that the referee fully stands over the reference provided, particularly in relation to the skills and qualities required for a supervisory role.

The recruitment process does not allow a candidate to replace one reference with another until such time they obtain a more favourable one. Furthermore, the independent review conducted by the recruiting body found that the recruitment process was fair and compliant with procedures at all stages.

The Claimant was not facilitated with a grievance investigation into his complaint as matters relating to recruitment and promotional appointments are more properly addressed through the separate appeals mechanisms available under the recruitment procedure.

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

The core issue at the centre of this appeal relates to disputed information contained in a reference. The Claimant strongly disputes the accuracy of information provided in that reference, while management is satisfied that a fair and accurate reference was provided.

The Court notes that the Claimant utilised the procedures available to him to seek a formal review by the recruiting body of the decision to withdraw the offer of a promotional position.

The accuracy of details given in the disputed reference was beyond the scope of that review and the Claimant was denied an opportunity to progress a grievance through internal procedures. In these circumstances, the failure of management to engage with the Claimant about his issues or process his grievance is a matter of concern to the Court.

While offers made to successful candidates are clearly conditional on further requirements, Management acknowledged that the timeline between appointing successful candidates to promotional panels and the subsequent checking of references at a later date can give rise to issues where a candidate may develop an expectation to be appointed to a role.

The Court notes the commitment given by Management at the hearing that, without prejudice to the outcome of any future promotional competitions, any references relating to the Claimant’s current employment will be assessed on a current rather than historical basis.

In light of the above, the Court recommends that the employer confirm to the Claimant that all historical issues, as referred to in the disputed reference document, are expunged from his file. In addition, having regard to the particular circumstances of this case, the Court recommends that as a goodwill gesture a once-off payment of €2,000 in compensation should be paid to the Claimant in full and final settlement.

The Court finds that the Claimant’s claim to be appointed into a supervisory role cannot succeed and the appeal fails. The Recommendation of the Adjudication Officer is varied accordingly.

The Court so Recommends.

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nurney, Court Secretary.