INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr Nash
1. (A) The non- selection of the worker in a recent promotional contest for a Director post within FAS and (B) The retainment of the worker's duties.
2. The dispute concerns a worker who has been employed by FAS and previously (ANCO) for over 33 years. He is currently employed as a Grade 5 Manager in the Services to Business Division (STB). The Union claims that the worker has been subjected to unfair treatment by the employer as a direct result of the following:
(A) the employer's failure to promote the claimant from Grade 5 Manager to Grade 4 Director in the STB Division of FAS and in so doing recognising the Grade 4 role that the claimant has practised for 9 years.
(B) The removal of duties, which the claimant has carried out for over 9 years in the STB Division.
FAS rejected the claims. In October, 2004 the claimant applied for the post of Director, a number of which were advertised at Grade 4 Director level. He was unsuccessful in the competition. The Union sought a meeting with Management in April, 2005 to discuss the claimant's dissatisfaction with the outcome of the interview process. Management's responses were not acceptable to the Union. It sought to refer the issues in dispute to a Rights Commissioner for investigation but the Employer objected to such a referral. On the 27th June, 2005 the Union referred a complaint to the Labour Court under Section 20 (1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held on the 14th September, 2005.
3. 1..Claim A. The claimant has directed and managed the Excellence Through People (ETP) Quality Training Standard (along with other duties) from its inception to its current successful state. FAS has not recognised his contribution as it has failed to reward the claimant with a Director post, the duties of which he has clearly carried out and demonstrated his suitability for in interview and over the last 9 years, in practical terms. The claimant is more than qualified and experienced to conduct a Director role within FAS and has been doing so for many years.
3. Notwithstanding the claimant's duties and responsibilities and exceptional educational qualifications, he did not make the short-list for the Director competition, yet his service as a Manager in FAS is greater than the four successful Director candidates combined.
4. While recognising that service is not the critical determinant in promotional competitions, the Union questions the findings of the interview panel which stated that he did not have the breath or depth to be a Director even though he has 26 years Managerial experience.The requirements/duties in the job description for the Director posts were being performed by the claimant yet he was not successful or short-listed for the Director posts. The claimant sought the promotional competition scores on an unnamed basis but his request was not acceded to. The claimant also requested the interview notes from the interview panel but was told these were unavailable and were destroyed.
5.Claim B.The claimant's duties which he performed to a very high standard for many years have been largely overtaken by the newly appointed Director in STB with responsibility for ETP. Normally as per proper Industrial Relations Process the status quo would be maintained with regard to disputed duties/ area of responsibility etc. This was not adhered to. The claimant's role has been greatly undermined and his job and area of responsibility within FAS is being undermined.
4.Claim A.The interview panel (comprised of 2 Assistant Directors General and one outside independent member) made a considered decision to appoint some candidates and not to appoint others. That is their duty and responsibility and their decision is final..
2. In this case it is not clear that a third party would have the prerogative or want to take on the responsibility of second guessing the outcome of a legitimate selection process.
3. The claimant scrutinised the selection process and related documents and sought to raise technical issues with a view to challenging the selection decision. The reality is that these issues do not affect the legitimate outcome of the selection process.
4. The claimant sought to dispute the scores attributed to him by the panel. However it was explained to him that the same scoring approach was used for all candidates. The claimant's disappointment at not being selected as a Director Grade 4 is regrettable. However, the interview panel's legitimate decision must stand.
5.Claim B. In relation to the 'retention of duties' the reality is that FAS determines what duties are or not appropriate for any given Manager. No employee has proprietorial rights over any FAS programme or area of work within FAS. For the purposes of his day to day work as a Grade 5 Manager the claimant reports to a Director of STB, who has the authority and responsibility for managing STB staff including those in the ETP section. The claimant has a valuable contribution to make within this area
In its first claim the Union has, in effect, asked the Court to conclude that the claimant should have succeeded in a competition for appointment to a promotional post of Director. In so doing the Union has pointed to the notable and impressive range of skills, commitment and experience which the claimant has demonstrated over his 33 years service with FAS.
The appointments giving rise to this dispute were filled following a process of assessment and interview by a designated board in accordance with the normal practice of FAS. In a number of similar cases in the past the Court has taken the view that in the absence of clear evidence of unfairness in the competition, or manifest irrationality in the result, it will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board.
In this case the notes of the interviews were destroyed, as was then the normal practice of the employer. In the Court's view this was not a desirable practice and it is noted that this has since been discontinued. It is accepted that an error may have occurred in the score given to the claimant under one heading in his Interview Assessment Report. This error was, however, replicated in the case of other candidates. Consequently, it did not materially affect his final ranking in the competition.
However, these and other procedural defects highlighted by the Union were not of such gravity or significance, when taken in the context of the process as a whole, as to vitiate the competition or render its result irrational or unsustainable.
In these circumstances, and while acknowledging the claimant's sense of grievance, the Court can see no basis upon which it could recommend any alteration in the results of the disputed competition or that the claimant be promoted by designation.
In this claim the Union disputes the decision of the Director of the relevant section to reorganise functions hitherto performed by the claimant. In the Court's view the allocation of duties and functions within FAS is primarily the prerogative of management and is not an area in which the Court can interfere. However, the Court would recommend that any reorganisation be undertaken with tact and sensitivity and that full regard be had to the significant contribution which the claimant has made to the development of the area in which he now works.
Signed on behalf of the Labour Court
4th October, 2005______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.