ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00021540
Public Transport Provider
National Bus & Rail Union
Complaint/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: 18/11/2019
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
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. This hearing was held, with the agreement of all parties, in tandem with ADJ-0001538, , involving the same employer and where the same relevant set of facts and issues in dispute pertained.
This is a dispute between an employee of a public transport provider regarding his unsuccessful application for a promotion position. He claims he was treated unfairly both in the manner of the filling of a promotional position as well in the follow-up procedures, where he claims he was not given proper feedback nor allowed to utilise the grievance procedure. The Respondent claims that the selection process for the promotion positions were carried out in a fair and consistent manner.
Summary of Worker’s Case:
The worker is an unsuccessful candidate for promotion in the company. He submits that he had more than the requisite attributes for the job in that he had previously been an acting supervisor. He has the required computer literacy skills, an intimate knowledge of the company’s operational procedures and a third level degree.
When he was informed he didn’t get the position, he sought to appeal the decision but the employer refused to facilitate him. However, he was told he could apply for a feedback session. When he presented himself for this feedback session he submits that the employer refused to allow him ask questions regarding the process and outcome. He also enquired of the employer as how to pursue a grievance on his issue but was refused the right to do so. The worker also put in a data request seeking his interview notes but was told that they had disappeared.
In parallel with the above dispute the worker made a complaint under the Protected Disclosures Act, 2014 regarding issues with local management. The worker claims that in the latter process internal auditors found significant shortcomings in relation to the implementation of HR procedures and the application of GDPR requirements.
In conclusion, the worker submits that he had a legitimate expectation that the selection process and follow-up procedures would be transparent, fair and equitable but that was not his experience and he was therefore denied natural justice and fairness.
Summary of Employer’s Case:
A national competition was held for specialised supervisory positions in the company. Twelve internal candidates from an initial pool of thirty-four candidates were selected for interview. The employer submits that a standard list of interview questions directly related to the new positions were used in the interviews. The employer claims that 4 unsuccessful candidates requested feedback and that this was facilitated on a confidential basis to the interviewee only. The employer claims that the interview notes, in this instance, were inadvertently shredded some time after the feedback sessions.
The employer submits that the selection process for the promotional positions were carried out in a fair and consistent manner as with similar positions in other locations within the company. The employer wishes the following points to be noted:
· The promotional position in question is a new role and function with a specific skill set.
· The successful candidates at the location in dispute are performing well, according to measurable data recognised by a regulatory body.
· The employer exhibited WRC ADJ-00019605 where a worker in the same competition for the promotional position in dispute was unsuccessful when he claimed that his non-appointment was unfair.
· The Employer contends that the recruitment and selection process for the position in dispute was conducted fairly and in keeping with the standard selection process conducted by the company at a national level.
Findings and Conclusions:
It is not my role in making this recommendation to decide who is the most meritorious candidate in a promotional competition, and this was made clear to both parties during the hearing. My role is to decide if the disaffected worker was treated unfairly, as he claims, or whether the whole process was carried out in a fair and consistent manner, as asserted by the employer.
It must be stated that this is not an investigation into the internal national competition per se which was advertised nationally by the employer but is instead an investigation as to how the selection process and follow-up procedures were experienced by one individual in a specific location.
In deciding as to whether an individual was treated fairly in an interview or selection process it is essential that records be kept of the decision-making process in order that it may be seen to be open and transparent to the individual involved. The employer was not able to produce these notes for the worker in this dispute, because it is claimed that they had been inadvertently shredded. This may well be the case, but it is now well established across the employment rights spectrum that there is a strict responsibility on employers to retain such notes to show that the selection process was carried out in an equitable, fair and transparent manner. The absence of such notes does not mean that the selection process for the promotional positions was unfair, however, what I do conclude is that the absence of such notes rendered the feedback session somewhat meaningless. The fact that the worker was not allowed to make a grievance of the issue or be allowed to appeal the unsuccessful application further, points to clear unfair treatment.
The employer exhibited ADJ-00019606 where the WRC found in a similar dispute regarding the promotional competition in that the worker’s claim of unfair non-appointment was rejected. Previous industrial relations decisions do not in themselves create precedent, but they can be called upon to give guidance in what are, on the face of it, similar issues in dispute at the same company.
The WRC recommendation presented by the employer can be distinguished on some fundamental points:
· The Adjudication Officer clearly found that the worker could not sustain a case because he had not utilised either the grievance procedure or the appeal procedure in respect of the worker’s unsuccessful promotion. This did not pertain in this instance where the employer did not dispute the fact that the worker was not allowed to appeal or utilise the existing grievance procedure.
· The Adjudication Officer’s recommendation reports that the employer submitted that a set of questions that are scored and available to the employee were used. However, such notes were shredded in this instance.
· The Adjudication Officer’s findings confirmed that the employer position was that previous experience as an inspector was required for the position, whilst in this instance the worker was told it was not a requirement for the position. This points to an inconsistent approach by the employer in the selection process and fundamentally weakens the argument that the there was a standard national approach to procedures and requirements.
In conclusion, my role is not to determine whether one candidate should have been selected over another, but whether the worker concerned was treated in a fair reasonable manner both in the selection process and in the follow-up procedures. The failure of the employer to retain the interview notes, the unsatisfactory feedback session, the refusal to allow the worker to utilise the grievance procedure and a seemingly inconsistent national approach both to procedures and requirements of the position, lead to no other deduction but to find that the worker in this dispute was treated unfairly. I recommend that the employer should pay the worker €2000.00 for being the subject of unfair treatment after applying for a promotional position.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer should pay the worker €2000.00 for being the subject of unfair treatment after applying for a promotional position.
Dated: 10th December 2019
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Industrial Relations, Promotion,