LCR22776

1. Appeal Of Adjudication Officer Decision No ADJ-00033023, CA-00043770-001

BACKGROUND:

2. The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 17 January 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 7 December 2022 the Adjudication Officer issued the following Recommendation:-

“Having carefully considered the submissions of both parties, I recommend as follows:

• 
  • In relation to the flaws in the shortlisting exercise, I find that an award of compensation is appropriate in all of the circumstances. Accordingly, I recommend that the Employer pay the Worker compensation in the amount of €5000.

  • In relation to the delay in investigating the Worker’s initial internal appeal, I find that an award of compensation is appropriate in all of the circumstances. Accordingly, I recommend that the Employer pay the Worker compensation in the amount of €5000.

  For the avoidance of doubt, I confirm that total compensation recommended to resolve this dispute is €10,000.”

DECISION:

The dispute before the Court arises from the conduct of an internal competition in 2020 for appointment to the position of Garda Driver in the Ministerial Pool.

The Worker applied was not shortlisted for interview. She raised a complaint as regards the conduct of the shortlisting process utilising procedures set down by the Commission for Public Service Appointments (‘the CPSA’). The CPSA is an independent statutory body which has responsibility for overseeing appointments to a wide range of positions in the Civil and Public Service. The CPSA ultimately issued findings and a report.

The Worker in this case makes two claims in her appeal to the Court:

Firstly, that there had been an extensive delay in completing an internal review of her complaint as regards the conduct of the competition. That internal review was undertaken in accordance with the procedures set out by the CPSA. She seeks compensation for the delay in completing the internal review initiated in accordance with the procedures set out by the CPSA.

Secondly, she contends that the CPSA processes which she followed had identified breaches of the statutory code and other failings of the recruitment / promotion process. She claims that she should receive compensation for those failings.

The Court has noted that the Parties have engaged fully with the processes laid down by the CPSA and that comprehensive findings and a report have issued from the CPSA, including as regards the conduct of the internal review. The Court does not see that it has a role in addressing the findings of the CPSA by way of reviewing those findings or the report of the CPSA in order to award a compensatory payment. It is, in the view of the Court, for the CPSA in exercise of its statutory functions to deal with any findings it makes in relation to a complaint made under the code of the CPSA.

The Court has noted that the result of the internal review carried out on foot of the Worker’s complaint under the CPSA code was not communicated to her for a period of months after she had made her original complaint. No submission has been made that the code of the CPSA or any collective agreement between the Parties directly makes provision for compensatory payments to Workers where the internal review stage of the CPSA procedure is the subject of delay. The Court notes that the CPSA has addressed this delay in its report. In any event, the Court is unclear as to the whether the impact of any such delay upon the Worker has been such as to justify a compensatory payment to her.

In all of the circumstances, the Court concludes that no case has been made out for the award of compensation on foot of the exercise by the CPSA of its statutory functions.

The Court notes in reaching its conclusions in respect of this series of events, that the CPSA has given guidance to the employer as regards the future conduct of recruitment and promotion competitions of the sort giving rise to the within dispute.

In all the circumstances the Court concludes that the appeal succeeds. The decision of the Adjudication Officer is, accordingly, set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
22 June 2023	Deputy Chairman