ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00010109
A Fisheries Officer
A Government Body
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 17/04/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This Dispute involves a total of Four Fishery Officers (Associated Recommendations made) who have worked for the State for several years. The Claimant commenced work on June 2, 1995 He is based in Cork. On 11 August 2017, the Claimant referred his case to the WRC. He raised an objection to how the competition for a Promotional Post had been conducted in 2015. He submitted that the filling of the position had placed him at a disadvantage and he sought a fresh competition. The Employer rejected the claim and submitted that this chapter had closed at the service due to the outcome of a Binding Arbitration accepted by the parties.
Summary of Claimant’s Case:
The Claimant was represented by SIPTU. The Union outlined the case on behalf of the claimant. In July 2015, following a long gap in recruitment, the Employer advertised 4 promotional positions, two of which are relevant to this case. The minimum eligibility was two years’ service.
14 January,2014, Cross Stream Promotion
Please note that while eligibility for promotion competitions will no longer be restricted to service grades, the requirement that those participating in promotion competitions must have two or more years in the civil service remains.
Following on from the interview process, the Union contacted the employer and advised of the inconsistencies in service in respect of the successful candidate and sought that the appointment be put on hold.
The issue was subject of Arbitration in November, 2015. This resulted in a finding that the competition was defective on three grounds, but did not recommend that the existing competition be set aside.
The Union sought to follow up on this report and met with the Employer in May 2016, at which point the Employer sought to rely on the viewpoint that the Arbitration was of the binding variety. The Union had expressed a tacit acceptance of this point but submitted that the Report had strayed outside the Terms of Reference and had not resolved matters for the individuals concerned. After the process, the Union mentioned that the successful candidate had lived in one of the Interviewers home and had a defined conflict of interest
The Union requested that the 2015 competition be set aside and re run with a defined emphasis on the eligibility criteria. The Union also lodged a claim for compensation for the lack of fairness applied to the claimant’s application for the position.
The Claimant contended that his score card following the interview process was not impartial and was not reflective of his considerable experience. The Claimant had been offered a promotional position in 2007 but he had to turn down the offer due to location.
The Union concluded by detailing that the impact of the competition and the flawed appointment had had a seismic negative influence on the claimant .While new revised Recruitment procedures had followed , the claimant had been disadvantaged and excluded from a real promotional opportunity as the competition had not yielded a Panel of successful applicants .The process had been protracted and had now resulted in a deep fault line in staff relations which was causing long serving and loyal staff to consider their positions. The Union confirmed that Mediation had been attempted but had not been successful.
Summary of Employers ’s Case:
The Employer rejected the claim and submitted that the Adjudication had no foundation due to a pre-existing process. The Employer through the Director of Human Resources outlined the background to the Dispute. The Claimants were unhappy with the appointment of a colleague to a Promotional post in 2015.The parties agreed to Binding arbitration and were represented. The Arbitration report issued on 23 November 2015 and the employer complied with the recommendations.
The Employer employs 298 staff, incorporating three ranks on a regional formation. The Employer interviewed for the two promotional positions relevant to this case on 7 and 8 September, 2015. A three-person interview board was commissioned and no issues were raised in advance of the competition.
The Employer submitted an anonymised cumulative marking sheet which confirmed that the successful candidates scored 950/1400 and 940/1400 and were duly appointed.
Following the offer of promotion, the claimant took issue with one of the successful candidates. The Employer confirmed for the purposes of the hearing that the successful candidate was found not to have the pre-requisite two years’ service.
The parties agreed to binding arbitration, the claimant and his colleagues remained dissatisfied as the process did not disturb the appointment to the promotional position.
The Claimant and his colleagues raised a grievance in February 2016 which stated several serious concerns:
1 The pre-requisite two years had not been adhered to.
2 Lack of adherence to the advertisement for the position
3 Variance in marking outside normal variances standards.
The Employer responded on May 5,2016, and stated that binding arbitration had concluded that the appointment of the successful candidate should stand. The Employer would not accede to “set aside the appointment “given the presence of a legally binding contract. The Interview panel had been assembled in line with policy and marks had been applied fairly.
The Employer submitted that the claimants had referred the case to the WRC without exhausting the local Grievance procedure. The Employer confirmed that the Interview process had recently been updated and modernised through consultation and negotiation with the Unions.
The Employer submitted that binding arbitration had occurred in this case and it was inappropriate to continue the dispute based on an unfavourable outcome to the claimant. The Employer submitted that the adjudicator should refuse to hear the complaint.
The Employer went on to submit that the Grievance procedure had been halted at stage 2 and the referral to the WRC was premature. The sequential next step would have been to the Employers CEO. The Employer contended that the successful candidate had every right to apply for the position and succeed. The Protection of Employees (Fixed Term Work) Act, 2003 protects an employee from less favourable treatment based on employee status alone.
The Employer submitted that Ministerial sign off had recently followed on an updated recruitment process as a direct consequence of the Arbitration process.
The Employer delineated a distinction between continuous and reckonable service. The Employer confirmed the successful candidate was two months short of the eligibility criteria, but was not prepared to upset the appointment of the successful candidate to the position. The Employer understood that the claimant carried a residual disappointment surrounding the interview in 2015 but did not accept that the claimant had been treated unfairly or place at a disadvantage. The Employer sought a finding in its favour.
Findings and Conclusions:
I have considered both party’s submissions in this Dispute and I am mindful of the collective and genuine attempts already made by all parties to resolve this conflict. While I am respectful to the Binding arbitration process, I found it impossible to ignore the deep and residual hurt expressed by the claimant in this case. This hurt is current and immediate and has not dissipated over time. There is no doubt that the outcome of the 2015 interview process has been catastrophic and has had a detrimental effect on the claimants working life. I find that there are sufficient grounds for me to investigate the dispute.
I took some time to probe this only to discover that the Employer had entered the National Staffing Moratorium from a very low base and from a dearth in promotional opportunities. The promotional opportunities of 2015 were viewed as the proverbial “Oasis in the Desert “and it seemed to me that expectations of progression were raised. It was not lost on me that the claimant and his colleagues took pride in their work which ironically is grounded in rules and regulations and I can appreciate the variance from the standard criteria for interview hit the claimant and his colleagues extremely hard.
The Employer fully acknowledged that the shortfall in service was not detected prior to the Interview progressing. However, they took a long lens approach to the Dispute and took solace from the Ministerial sign off on significant modernisations on the recruitment practices. I appreciate that this guides best practice going forward, however, it has clearly not resolved the individual impasse presented at the hearing.
I realise that the Grievance procedure was parked by the Union pending the referral to the WRC and the Employer had an opportunity to object to the Adjudication in that vein. I understand that there were key changes at the Employer level which caused this facility for objection to be overlooked and I accept this as a genuine oversight.
On this occasion, I suggest that it is imperative that both parties pause to consider several practicalities.
1. The 2015 Competition was flawed. Three years have passed since this appointment and it is not equitable or just for the parties to continue to focus on one appointment as the sole irritant. This focus has the potential to damage the careers of loyal employees, who do not deserve it. The appointment has been made and should be accepted.
2. The Challenge is to construct a set of proposals to overcome and move on from this wrong on an equal opportunity basis.
3. The Employer is a Government body and while I understand that the Commission for Public Service Appointments does not appear to directly govern appointments, there may be an opportunity to work closer with this body to restore confidence in the recruitment process.
4. Optimal Staff Relations are everyone’s concerns and not the sole prerogative of the claimant and his colleagues. Assistance may be needed from all three ranks of the body, inclusive of Line Managers in a Facilitative process to restore a respectful working environment.
I have found merit in this Dispute
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
The Genesis of this issue arose from a dearth in recruitment and raised expectations that the applicants for the 2015 position were well placed for promotion. I believe that both issues need to factor into any possible resolution of the Dispute. During the hearing, the parties spent some time collaborating on the potential for a mutually acceptable way forward for the claimant and his colleagues. I acknowledge these efforts and make the following recommendation to the parties thus.
I recommend that the Employer moves immediately to advertise the current vacant promotional post and the pending vacancy. In addition, consideration should be given to advertising promotional opportunities in respect of the current “Works Projects “underway.
I recommend that a Panel should be formed from these competitions.
I recommend that the claimant is offered Interview Skills Training during his work and any other Coaching /Mentoring process which he identifies to assist in his preparation for interview.
I make these recommendations on an exceptional basis, due the intensity of this dispute and the clear need for closure. I see no basis for an award of financial compensation. The recommendation is made in full and final settlement.
Dated: 26 April 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle