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FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OFFICE OF PUBLIC WORKS
- AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1. Appeal of Adjudication Officer’s Decision No’s: ADJ-00030147 CA-00040213-001
The Appellant is obliged to follow the process set out in the Code for referring a grievance to a third party. The Code states as follows:-
The Employer submits the Code refers to conciliation services as the appropriate avenue for resolving matters. It states that, in conjunction with the definition of “worker” which excludes State employees such as the Appellant, the Labour Court does not have jurisdiction to deal with the appeal. SIPTU, on behalf of the Appellant, rejects the Employer’s assertion that the Labour Court does not have jurisdiction to deal with this appeal. It submits that the Appellant is a Public Servant not a Civil Servant. Furthermore, the Employer has set a precedent by attending the Labour Court in the past in relation to individual grievances. The Employer fully cooperated with the processing of the Appellant’s grievance in this case and attended the Adjudication Officer’s hearing into the matter at the WRC. The preliminary issue in relation to jurisdiction was raised at that hearing The Adjudication Officer issued a finding in relation to the preliminary matter and proceeded to investigate the matter. Discussion and Finding - Preliminary matter The Court can only investigate a dispute which statutorily is a “trade dispute” as defined in Section (3) of the Industrial Relations Act 1946 as follows:
The Employer contends that the Appellant does not come within the definition of a “worker” as defined under section 23 of the Industrial Relations Act 1990 and submits that the Labour Court does not have jurisdiction to deal with the within appeal. Having considered the positions of both sides the Court notes the following: The Employer confirmed to the Court that the Appellant is a State Industrial Employee and not a Civil Servant. The Employer confirmed that the Joint Industrial Council for State Employees Code of Practice on Grievance Procedures is the appropriate mechanism for resolution of workplace disputes and that no other grievance process or avenue of redress was available to the Appellant in this case. Those procedures provide for referral of matters to the Labour Court. While the Employer submits that the Conciliation Services of the WRC is usually the first port of call to address individual workplace issues, it accepts that historically the employer has attended the Labour Courtin in relation to such matters. In this case, the Employer fully engaged with the processing of the Appellant’s grievance and willingly attended the Adjudication Officer’s hearing into the matter at the WRC. On the basis of the oral and written submissions made, the Court is satisfied that the Appellant is a “worker” for the purposes of the Industrial Relations Act 1990. In such circumstances, the Court finds that it has jurisdiction to investigate the matter and the Appellant has the right to have his appeal heard. The Substantive Claim before the Court SIPTU Position The Appellant has 41 years’ service with the OPW and in 2020 applied for the position of Foreperson Grade 3. The Appellant claims that he was unfairly treated by his employer when he was unsuccessful in securing a promotion following a selection process. The criteria for the role stated that candidates would be placed in order of merit “based on the comparative depth and breadth of their experience, practical nature of their experience, level, and significance of achievement...”. SIPTU submits that the marks awarded to the Appellant were unfair and not a true reflection of his performance over four decades. The Interview Board failed to consider the Appellant’s written application, or his expertise and competencies as required. The Interview Board failed to apply the appropriate weighting to the competencies outlined in the selection process. Furthermore, the appeal process failed to take account of the selection criteria outlined to the Appellant before the interview process. No consideration was given to the fact that the two candidates placed above the Appellant on the panel had recently completed their apprenticeships and so could not have achieved the competencies required to fulfil the post. The Appellant seeks that the Court find the complaint to be well founded and seeks that the Court recommend that the employer apply the appropriate grading differential on a “a red circled personal to holder basis” between his current grade and that of the contested Foreperson Grade 3 position. Employer position The Employer rejects that the Appellant was unfairly treated during a promotion selection process. To the contrary, the Appellant was placed third on the reserve panel, and is currently placed second on the panel. The Employer submits that the interview process was conducted in a fair, objective, and transparent manner, in line with the OPW Industrial Staff Selection Process. The Appellant was treated fairly and in a manner consistent with all other applicants, having been allocated marks based on his interview performance. Marks were awarded on the basis of the candidate’s performance at interview. The Appellant appealed the outcome of the interview process. That appeal was conducted by the Head of HR who satisfied himself that that the Interview Board had adopted a consistent approach in respect of the marks awarded to each interviewee. The appeal outcome letter stated:
The Appellant submits that a promotion competition in which he was a participant was flawed in so far as the Interview Board failed to take full account of his application and question him on areas of his particular expertise which were relevant to the post in question. The Appellant contends that the interview panel should have asked him about particular areas of his expertise but failed to do so. The Employer submits that the Appellant participated in a competency-based interview, where marks were awarded on the basis of a candidate’s performance at interview. The Court cannot, on the basis of the oral and written submissions made at the hearing, find a basis for concluding that the procedures employed by the Interview Board were unfair to the Appellant or was structured in such a way as to disadvantage him vis-a-vis other candidates. The Court has consistently taken the view that it cannot substitute its views on the merits of candidates for promotion for those of the nominated interview board. Hence, in the absence of irregularity in the selection process, or irrationality in the result, the Court cannot intervene. In this case there is no suggestion of irregularity in the selection process nor is there any evidence upon which the Court could conclude that the result of the selection process was irrational. In these circumstances the Court is satisfied that the conclusion reached by the Adjudication Officer was correct and that her recommendation is reasonable.
NOTE Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary. |
