ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00039152
Parties:
| Complainant | Respondent |
Anonymised Parties | A worker | A Government Agency |
Representatives | David Field, Forsa | Management |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969. | CA – 00050547 - 001 | 10th May 2022. |
Date of Adjudication Hearing: 21/02/2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute(s) 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.
Background:
The worker has been in the employment of the employer for over 38 years. This complaint submitted under section 13 of the Industrial Relations Act, 1969 was received by the Workplace Relations Commission on 10th May 2022. |
Summary of Complainant’s Case:
The worker submitted his application for a Grade VIII position within the section he had worked in for many years. The competition was managed in compliance with the Code of Practice prepared by the Commission for Public Service Appointments (CPSA) and in line with his home department guidelines re the filling of posts at Grade VIII and above.
The worker was informed on 18th April 2019 that his application was successful, he had placed number 13 on the panel of successful applicants.
On the 24th April 2020 the worker was informed that in relation to a specific vacancy (CHODSKWW/18/34) he was the highest placed candidate in the order of merit and would be proceeding to the next step of the process.
On 28th February 2020 the worker was asked for his permission to contact his referees.
On 4th June 2020 the worker was informed by HR that they would be unable to proceed due to an unsatisfactory reference, the worker was given the opportunity to submit a letter of rebuttal by 11th June 2020.
The worker submitted his letter of rebuttal on 11th June 2020.
The worker submitted the names of two more referees on 20th July 2020 following a request from HR to do so.
On 28th September 2020 the worker received notification that his rebuttal had been refused and offered no opportunity to appeal this decision under Code of Practice section 7 of the Commission for Public Service Appointments (CPSA).
The matter was then referred to the Workplace Relations Commission.
On 5th February 2021 the employer’s representative informed the WRC that she would be seeking to exhaust the internal mechanisms to resolve the issue in the first instance.
On 15th July 2021 the employer’s representative arranged to meet with the worker and his FORSA representative and proposed the following format in seeking resolution.
An independent review of the case subject to agreement on Terms of Reference and the selection of the independent reviewer.
On 20th December 2021 the worker and his Forsa representative received the Final Report from the independent reviewer. The reviewer had made a few recommendations.
On 23rd December 2021 the worker and his Forsa representative informed the employers representative that they were in a position to accept the report and recommendations from the independent reviewer.
On 23rd December 2021 the representative for the employer wrote “A decision will now be drafted for approval and will revert to advise when finalised”.
On 5th January 2022 the worker’s Forsa representative contacted the employer seeking an update. He was informed that the person who was dealing with the issue on behalf of the employer had moved to another section and that the Head of HR was now looking after the issue.
On 10th January 2022 the worker’s Forsa representative contacted the Head of HR looking for an update.
On 19th January 2022 the worker’s Forsa representative contacted the Head of HR following no reply to his email of 10th January 2022.
On 20th January 2022 the Head of HR replied and advised: “I am unclear as to the full position on this matter as this report in this format was not accepted by the (name redacted). I am seeking further advice and will revert ASAP”
From the above chronology of events, the case has been ongoing for a considerable amount of time and has caused concern and stress for the worker. The chronology of events gives an understanding of the steps that the worker must take to address a wrong that he had to endure further to a reference, which was based on opinion rather the fact saw him being removed from the panel from which he interviewed It is worth noting that the worker wrote a rebuttal and provided a further number of alternative references for consideration by the employer in early June 2020 however it was not until late September 2020 that he was informed that his rebuttal was unsuccessful and subsequently there was no right to appeal. On said bases that case was referred to the WRC by Forsa, Forsa was approached by the employer to see could the case be resolved by using an independent person. This was acceptable by Forsa.
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Summary of Respondent’s Case:
Background. The matter before the Adjudicator is a trade dispute between a staff member and their Employer, the dispute relates to section 13 of the Industrial Relations Act 1969. The complainant was interviewed and placed on a promotional panel for Grade VIII, following an unsatisfactory reference the offer of a promotional post was withdrawn.
Summary of disputed issues by ComplainantThe offending reference should be immediately removed from complainant’s file.
The complainant should not suffer any monetary loss or status as a result of HR refusal to restore him to Grade Vlll, Management Administration.
The complainant should be paid the sum of €3,000 gross by way of compensation for the delay in addressing the issues raised, and the distress caused to him.
Employers’ response.The reference was given by the Manager who did not wish to withdraw the reference as it reflected her opinion, having worked with the complainant for a number of years. The reference on file is for that specific post and does not encroach on other or future references. In relation to Grade VIII, the complainant was on a panel and had not been appointed therefore should not be appointed to a role he did not hold. The Grade VIII panel on which the complaint was placed has closed and is not live. The employer has not intentionally delayed addressing the issues raised by the complainant. There are supports available for employees via the employee assistance programme or occupational health department should it be felt there is a need to avail of those services. |
Findings and Conclusions:
On 4th June 2020 the worker was notified that the employer was unwilling to proceed with his application due to receipt of an unsatisfactory reference. This was challenged by the worker and the process of looking at the worker’s grievance took until 20th January 2022 – this is far too long a period. I note that the suggestion of an independent reviewer came from the employer and was accepted by the worker and his representative. There then followed a very thorough review that culminated with the issuing of a comprehensive report on the matter, such report contained recommendations in line with the terms of reference agreed. It is now my recommendation that the findings and recommendations contained within the report are fully and completely implemented. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
It is now my recommendation that the findings and recommendations contained within the report are fully and completely implemented. |
Dated: 2nd March 2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
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