ADJUDICATION OFFICER RECOMMENDATION
A Retired Employee
A Public Transport Provider
Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
The Worker was employed by the Employer as a bus driver from 10th June 2002 until 7th December 2018 when he retired on medical grounds.
Summary of Worker’s Case:
The Worker submits that on 8th August 2018 he was interviewed for a post of Automatic Vehicle Location Inspector (AVL Inspector). He was not successful in his application for appointment to one of the four vacancies and he contends that his non-appointment was manifestly unfair.
The Worker submits that he was not appointed to any of the four posts available, despite one of the successful applicants being from a clerical grade rather than driving grade; despite another having, in the Worker’s understanding, a poor disciplinary record; and despite another having less than a year’s service. The final successful candidate was, in the Worker’s estimation, appropriately appointed.
It is the Worker’s position that the questions asked at the interview of 8th August 2018 were predicated on the applicant having served as an Acting Inspector, which he was not, and which was not a requirement for the post.
It is the Worker’s position that, in addition, he was discriminated against in the appointment on medical grounds, having been absent on health grounds from March 2017.
The Worker submits that in the case of Medite Europe Ltd. V A Worker AD1483, the Labour Court stated that it “has consistently held, in cases as this, that its role is not to substitute its views on the respective merits of candidates for promotion for that of the designated decision makers. It is only where there is clear unfairness in the selection process or manifest irrationality in the result that the court could interfere with the outcome of such a process.”
The Worker seeks a recommendation that he be reinstated at the grade of AVL Inspector as of 31st October 2018.
At the hearing the Worker stated that he was absent from work from March 2017. His absence was as a result of him not being fit to drive a bus. In July 2018 the Worker learned that a position of AVL Inspector was available. He contacted the Employer and was told that the application process was closed. However, the Employer accepted that the Worker was not informed of the vacancy which was advertised in the depot, and the Worker was permitted to submit his application. He claims that at this stage everybody else had been interviewed.
On 8th August 2018 the Worker was interviewed by the same interview panel as the other candidates. The Employer subsequently wrote to the Worker informing him that he was not successful. The Worker asked for feedback which was given to him by two members of the interviewing panel. The Worker submits that he was told what went wrong but he was not provided with a scoring sheet / points etc. He contends that all questions related to the AVL Inspector’s job and these are irrelevant as there was no requirement to know the job. A successful candidate would be trained.
The Worker contends that it was pre-determined who will get the jobs even before the interviews took place.
Summary of Employer’s Case:
The Employer submits that the Complainant was employed as a driver from 10th June 2002 until 7th December 2018 when he retired on ill health grounds.
The Employer submits that the Worker’s attendance record for over the last three years is as follows: 2016 – 35 days illness absence, 2017 – 209 days illness absence and 2018 – 244 days illness absence.
The Employer submits that in July 2018 the Employer advertised a position of AVL Service Supervisor within the depot the Worker was employed at. Through his trade union the Worker made Management aware that he wished to be considered for the job. The Worker applied and was interviewed on 8th August 2018. Unfortunately, he was unsuccessful. The Worker was given feedback by the Regional HR Manager about his interview.
In December 2018 the Worker was retired on grounds of ill health by the Chief Medical Officer.
The Employer contends that the Worker’ application was given due consideration and was dealt with fairly through the normal process.
At the hearing, the Employer submitted that the job was advertised in July 2018. An interview panel of three was established. The Employer claimed that normally it would not accept late applications. However, an exception was made for the Worker who was on sick leave.
The Employer submits that there were 14-15 applicants, some of them were not called for the interview due to e.g. lack of experience or lack of qualifications. 10 applicants were interviewed, including the Worker, and four were successful.
The Employer noted that the following were taken into consideration and scored: qualifications, experience, absenteeism, disciplinary records. The Employer agreed that candidates were asked questions in relation to their experience in managing people i.e. had they acted up as managers. The Employer confirmed that there were no specific qualifications required. However, it was preferable that a successful candidate:
· Would have professional transport driver CPC;
· Would be a member of the Chartered Institute of Logistics and Transport;
· Would hold a “clean” licence;
· Would have some level of IT skill;
· Would have knowledge of routes;
· Would have knowledge of the business.
The Employer agreed that the Worker would have met these requirements.
Findings and Conclusions:
The dispute concerns the manner in which the Employer conducted a promotional competition for AVL Inspector positions in August 2018. The Worker claims that he was treated unfairly when he was unsuccessful in his application for promotion.
The Worker was one of ten applicants interviewed for four positions to be filled at that time. Following the publication of the results of the competition, the Worker did request feedback.
The parties confirmed that the Employer has a dispute resolution procedure that allows for the handling of all grievances at local level in the first instance.
In respect of recruitment and promotion process, SIPTU confirmed that it did not know whether the Employer has an internal appeal process in place. In that regard, the Employer informed that feedback is given to staff upon request. If a staff member is unsatisfied with the result, he/she can refer the matter to Central HR for further clarification.
SIPTU confirmed that the Worker did not invoke either the grievance procedure or the appeal procedure in respect of his unsuccessful promotion.
In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.
Recommendation: (strictly pertaining only to the facts of this Dispute):
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having considered the submissions of both parties to this dispute I do not recommend in favour of the Worker.
Dated: August 6th 2019
Workplace Relations Commission Adjudication Officer:
Promotion- Industrial Relations Act