LCR22669

1. Appeal Of Adjudication Officer Decision No ADJ-00033129.


BACKGROUND:

2. WORKER'S ARGUMENTS:

• The Worker referred a dispute under Section 13 of the Industrial Relations Act, 1969 to the WRC, alleging unfairness in a promotion competition advertised in 2019.

• The Worker states that as a result of misleading or wrong information he lost out in terms of income, position and reputation.

EMPLOYERS ARGUMENTS:

• The Worker failed to exhaust internal procedures in relation to the issue he raisedspecific.

• The procedures set out in the CPSA code are the applicable procedures. they failed to exhaust this procedure.

The Employer appealed the recommendation of the Adjudication Officer on 22 July 2022, in accordance with S13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 27 October 2022. The following is the decision of the Court:



DECISION:

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

The Claimant contends that he withdrew from a promotion competition before interview because he was given to understand that the location of the promotional posts would be in Dublin. He was resident with his family in Monaghan at the material time. He contends that the employer misled him in the competition because in the out-turn, while the majority of successful candidates were assigned to posts in Dublin, a significant proportion of them were assigned to locations other than Dublin. The actions of the employer resulted in his withdrawal from the competition and a likely consequent loss of earnings on promotion.

He contended that had he been successful in the competition he withdrew from, he would have benefited in the amount of €129,000 in the years to his retirement and taking account of pension losses. He claims compensation in that amount.

The employer rejects the claims of the worker. The employer submits that it is a condition of the employment of the Claimant that, in common with all gardai, he is liable to be re-located on promotion. In addition, the employer contended that the Claimant had made a complaint in accordance with the arrangements pertaining to promotion competitions, and whereas a first instance decision made in accordance with the structure of the Commission on Public Service Appointments (CPSA) found against the Claimant, he made no appeal of that decision.

The Claimant contends that the original circular and information relating to the promotional posts identified Dublin as the location of the posts. He further contends that a colleague was advised on 8^th November 2019 as follows:

• “The allocation and location of positions are dependent on operational needs and are at the sole discretion of the Executive Director ICT. This will vary and evolve in line with such operational neds.

  That said it is envisaged that the majority of positions will be Dublin based in Garda HQ and any positions outside of HQ will be determined on a case by case basis.”

In the event the majority of the posts were located in Dublin and a minority outside Dublin.

It is undisputed that the Claimant became aware of the communication to a colleague of 8^th September 2019 and that he withdrew his candidature on 20^th November 2019.

The court cannot ascribe to the communication of 8^th November 2019 the meaning that all promotional posts would be located in Dublin and has no clarity as to how such a meaning was drawn by the Claimant. It is clear to the Court that the employer in that communication clearly indicated a possibility that at least some of the posts would be located outside Dublin. The Court regards the communication of 8^th November as a fair indicator of events as they ultimately transpired.

In those circumstances, the Court recommends that the Claimant accept that he was aware, or should have been aware, prior to the withdrawal of his candidacy that there was at least a reasonable prospect of some posts being located outside of Dublin and that a contention that the contrary was the case is unsustainable.

In all of the circumstances the Court does not recommend concession of the Claim.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SL	______________________
04 November 2022	Chairman