FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : INSTITUTE OF ART DESIGN AND TECHNOLOGY (IADT) (REPRESENTED BY IBEC) - AND - A WORKER (REPRESENTED BY UNITE THE UNION) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Recommendation no. ADJ-00007844.
BACKGROUND:
2. This case concerns a claim by the Union on behalf of the Worker that he has been excluded from applying for a Senior Technical Officer post (STO) on a first filling.
The Employer denies this claim in its entirety and says that they have strictly adhered to the procedure as specified in the relevant Circular for all competition fillings.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 23 April 2018 the Adjudication Officer issued the following Recommendation:-
- “I am satisfied having read the documentation accompanying the submission that the respondent has fulfilled its obligation under Circular 13/2006 and were not oliged to appoint an internal candidate only.
I do not find the Claimant's claim well founded and it fails."
- “I am satisfied having read the documentation accompanying the submission that the respondent has fulfilled its obligation under Circular 13/2006 and were not oliged to appoint an internal candidate only.
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 29 May 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 2 August 2018.
DECISION:
Background to the Dispute
The Worker in the within appeal has been employed by the Institute of Art, Design & Technology (‘the Respondent’) since 1 April 1997. He was appointed as a Technical Officer on 1 October 2005. This is the Worker’s appeal from a Recommendation of an Adjudication Officer (ADJ-00007844, dated 23 April 2018) under section 13 of the Industrial Relations Act 1969. The Court received the Worker’s Notice of Appeal on 29 May 2018. It heard the appeal in Dublin on 2 August 2018.
The dispute between the Worker and the Respondent concerns their differing interpretations of two Circulars issued by the Department of Education and Science and addressed to the Directors of each of the Institutes of Technology etc: Circular 0013/2006 (“Arrangements for Technician Grades in the Institutes of Technology”) and Circular 0101/2007 (“Clarifications on implementation ofCL 0013/2006regarding the arrangements for Technician Grades in the Institutes of Technology”).
Circular 0013/2006 provides inter alia for a new career structure for technicians employed in the Institutes of Technology sector, comprising three grades: Technician; Technical Officer; and Senior Technical Officer. Paragraph 2.c of that Circular states as follows in relation to the Senior Technical Officer grade:
- “This will be the senior technical grade in the sector.
The qualifications required are a minimum of a Masters Degree and at least 5 years post qualification experience in a relevant environment and at an appropriate level.”
- “This will be the senior technical grade in the sector.
- “The first filling of these posts will be confined to an internal competition, which will be open to all current technicians with the minimum service requirement of 5 years for Senior Technical Officer. Competition will be by application and interview.
Ideally, each Institute should have at least one Senior Technical Officer post in each School or major functional area e.g. Computer Services, Estates, etc. within the Institute but this is dependent on the number of technicians currently within that School/Function, the School/Function structure, etc. Note: Terminology re structures on School/Dept/Function may vary from Institute to Institute.
Any posts that remain unfilled after this competition will be filled by public competition under the qualification criteria outlined above. No additional posts or funding will be allocated to institutes for these positions and all posts must come from within quota sanctioned from Dept of Education and Science.
Any vacancies that arise in the future for these posts will be filled by public competition.”
- “The first filling of these posts will be confined to an internal competition, which will be open to all current technicians with the minimum service requirement of 5 years for Senior Technical Officer. Competition will be by application and interview.
- “First Filling of Senior Technical Officer Posts
In the context of the first filling of the senior technical officer posts the following will apply (this will only apply to the first filling of existing posts)
(i) applicants must be current technicians in the Institute in which the application is being made; (ii) applicants must have 5 years post qualification experience; (iii) applicants must have a minimum of 3 years service in the Institute where the application is being made as of the closing date for receipt of applications for the posts and 2 years service in a comparable post in the same Institute, another Institute or university.
Note: any post not filled, in any Institute, having completed the above process will be advertised internally and will be open to all technicians in service on the closing date for receipt of applications for the post irrespective of service. Any post not filled having completed this process will be filled by public competition as for new posts.”
- “First Filling of Senior Technical Officer Posts
- “[T}he Institute is required to first advertise an STO post internally with the specified service requirements. If the post remains unfilled, the Institute must advertise internally for a second time but without the service requirements. If the post remains unfilled after these two steps, the post must be filled by public competition using the qualification and service requirements as per Section 2 of Circular 13/2006 …”.
Competitions Held by the Respondent to appoint Senior Technical Officers
Following the promulgation of Circular 0013/2016, the Respondent identified, in consultation with the Unions, a need for three Senior Technical Officer posts within the organisation.
An internal competition was advertised for first filling of three Senior Technical Officer posts in line with Circular 0101/2007 with the closing date of 17 June 2008 for applications. The competitions were as follows:
Post A: | End User Support Team (ICT) | Ref: 10/08 |
Post B: | Infrastructure Support Team (ICT) | Ref: 11/08 |
Post C: | End User Support Team (General Services) | Ref: 12/08 |
As per paragraph 1 of Circular 0101/2007, applications were invited from applicants who were currently employed as technicians within the Respondent Institute and who had attained 5 years’ post-qualification experience with a minimum of 3 years within the Respondentand2 in a comparable post within another Institute. There were no applicants for any of these posts and therefore no appointments were made.
As per its interpretation of Paragraph 1 of Circular 0101/2007, the Respondent took the view that it was required to advertise the same posts internally irrespective of service requirements. The same three posts (A,B, and C) were re-advertised internally with a closing date of 21 July 2008.
Post A: | End User Support Team (ICT) | Ref: 20/08 |
Post B: | Infrastructure Support Team (ICT) | Ref: 21/08 |
Post C: | End User Support Team (General Services) | Ref: 22/08 |
The only qualification requirement for these roles was to be current Technicians or Technical Officers with the Institute at the time of application.
The outcomes of the second internal round of these competitions were as follows:
Post A: | Ref: 20/08 | No applicants | No appointments |
Post B: | Ref: 21/08 | 2 applicants | 1 appointment |
Post C: | Ref: 22/08 | 2 applicants | No appointments |
The Worker was one of the two candidates who applied for Post C, both of whom were called for interview. Neither of the two interviewees was selected for appointment. Following the second internal round, both posts A and C remained open and therefore, in accordance with Circular 0101/2007 as interpreted by the Respondent, fell to be filled through public competition.
The Respondent advertised one Senior Technical Officer post (Ref: 25/13) by public competition with a closing date for applications of 30 August 2013. The stated qualification requirements for this post were a Master’s Degree and 5 years’ relevant post-qualification experience, as per Paragraph 2 of Circular 13/2006. No applicants were shortlisted for the post and therefore no appointments were made. The Worker did not apply for this role.
This post was re-advertised with a closing date of 3 April 2014 with the same qualifying criteria as above (Ref: 3/14). No applicants were shortlisted for interview and therefore no appointments were made.
The Union submits that the Respondent – as illustrated by the manner in which it proceeded to attempt to fill the thee Senior Technical Officer posts it had identified – has departed from the practice adopted generally by all other Institutes in the sector. According to the Union’s written submission: “Every Institute nationally has complied with [the Union’s understanding of Paragraph 1 of Circular 0101/2007] in that there have been no first fillings by external competition. This is not the case in IADT where they have attempted to recruit externally for first fillings.”
Discussion and Decision
The Court, having considered both Parties’ very detailed submissions, has determined that the issues that fall to be determined arising from the within appeal relate principally to the correct interpretation of certain provisions of Circular 0013/2006 and Circular 0101/2007, themselves the product of a Review Group to which the Unions and employers in the sector were party. Those issues are, therefore, by their nature, collective issues and not properly before the Court under Section 13(9) of the Industrial Relations Act 1969.
For the aforementioned reason, the appeal fails and the Recommendation of the Adjudication Officer is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
9 August 2018______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.