Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Self-Represented

Mr Brian Joyce IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003540

11/12/2024

This matter came before the WRC dated 11/12/2024 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The specific complaint falls under a trade dispute that the Worker would like investigated.    The Worker claims she has attempted utilise the company grievance procedures but she was unable to resolve the issue to her satisfaction and she has requested the assistance of the WRC. 

The aforesaid dispute was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 09/04/2025.  

The background to this dispute relates to a position for which the Worker applied and for which she was shortlisted and interviewed and for which she was subsequently informed that she did not have the necessary educational qualifications for the job, and she was then offered an uplift to a Grade V.  The position for which she had applied was a Grade VI and she was informed she could not jump two grades from a Grade IV to a Grade VI.

The Worker is employed as an HR Administrator at all material times.   The Worker works 35 hours per week for which she is paid €3,000.00 gross per fortnight.   

The Employer is a national service provider of a specific service. 

The outcome sought by the Worker is that she is retrospectively appointed to the Grade VI post, which she asserts she successfully applied for, effective from 12th October 2023.   The Worker further seeks that corresponding emoluments are applied retrospectively from October 2023. 

The Employer respectfully requests that the Worker’s claim is taken without merit. 

Both parties provided helpful written submissions in advance of hearing for which I am grateful. 

Overview of written submission

The Worker submits she is employed in the Human Resources Department in [redacted] at Grade V level.  Following a recruitment campaign, she was successful in a competition for a Grade VI post. However, to date she has not been appointed to that role and submits she believes she has been treated unfairly.

In August 2023, the post for a HR Generalist Grade VI was advertised both externally and internally.

The Worker submits she applied for the role and was successful at interview.  A while after the interviews the Worker submits she was approached by the Chief People Officer (CPO) at that time, who informed her she could not be promoted to Grade VI as she didn’t have a relevant third level qualification and she couldn’t jump two grades, therefore she could not be promoted to a Grade VI, although she was currently in this role.  However, he could give her a Grade V.  The Worker submits she reviewed the job advertisement, and nowhere does it state that a third level qualification is required. Furthermore, there was no reference to any requirements that applicants must at a Grade V level.  The Worker submits she raised her objections to this decision but to no avail. 

The Worker submits that in the course of her role as HR Administrator she discovered a number of Admin staff who were regraded, in particular one staff member who was promoted from a Grade V to a Grade VII.

The Worker initially raised matters informally and approached the CPO who then left the organisation and was replaced by an interim CPO.  The Worker raised matters with the Director who referred her back to the interim CPO.   The Worker submits there was a follow-up meeting with the Director on 20 May 2024 during the Worker submits she was told that she would have to wait as there were changes taking place in the senior management team.    

The Worker then initiated a formal grievance on 9 July 2024 in line with the grievance policy the first meeting of which take place on 22 July at which the Worker was accompanied by a colleague for support.  The Worker was notified there would be a delay in processing the formal grievance as the Director was commencing annual leave and it would have to be discussed with him. 

The Worker submits there was a further delay as she required surgery, and she returned to work on 21 October 2024 looking for an update on 22 October 2024.  The Worker submits a meeting took place on 30 October 2024 with the interim CPO and he proposed a different Grade VI role for which she could apply.  The Worker submits she sought an update on 8 November 2024 and the interim CPO advised her verbally that there would be no promotions happening in HR until the issues in the HR Department are resolved.

The Worker submits she had a legitimate expectation to be promoted after successfully completing all the phases of the selection process and the job spec for the role is what she is already doing.  The Worker submits the Employer has not implemented a fair and transparent grievance mechanism in relation to resolving her grievance.  The Worker submits that when she escalated the grievance from informal to formal it appeared that the interim CPO was indifferent to both the grievance and the grievance procedures as evidenced by the delay in scheduling initial grievance meeting; no note taker at the meeting; no outcome communicated to her until she filed case at WRC; no information provided to her on the appeals process; outcome communicated to her did not address her grievance. 

The Worker at hearing submits she has spent 10 years in HR, and she has been involved in the training of staff and has seen a number of HR managers come and go.  The Worker submits she has shared her knowledge, and she is particularly good on systems.  The Worker submits she wouldn’t have applied for the job if she had known what the necessary qualification was and that she has an HR Administrator Diploma from Pitman Training.  The Worker submits she never got a letter she never got it in writing that she hadn’t been successful, and she believes she should have been treated better, and she was not being taken seriously.  The Worker submits she was expecting official responses, and she didn’t get them.  The Worker submits she was already doing the original role and that she always bridged the gap. 

The Employer submits in August 2023, they advertised a HR Generalist Grade VI role.  An essential requirement for this role was a ‘Qualification or equivalent in Human Resources or similar discipline, CIPD qualification desirable’.

On 22 August 2023, the Worker applied for this role.   The Complainant was invited by the then Chief People Officer, to attend an interview for this role on 31 August 2023.  Following a successful interview, on 12 September 2023 the CPO instructed payroll to move the Complainant up one grade, to a Grade V HR Administrator, effective from 2 October 2023. 

The Employer was not aware of any further issue on this matter until the Worker approached the Director in late February 2024 to discuss her dissatisfaction with not having been promoted to a Grade VI.  The Director advised that he would look into the matter and in the meantime the CPO had left. 

The Worker raised a formal grievance on Tuesday 9 July 2024 and the interim CPO emailed the Worker on Thursday 18 July acknowledging receipt and requesting that the Worker accept the email as formal notification of that receipt and requesting that she diary a meeting that suited both and to forward any supporting documentation 24 hours in advance.  The Worker scheduled the meeting for her formal grievance on 22 July at which she was accompanied by a friend in the role of representation.  The interim CPO shared a record of the meeting and the Worker made amendments which were noted and agreed.  The Worker was advised that no decision or option could be explored without the approval of the Director due to the potential budgetary / financial implications. 

The Director was an annual leave from 15 July to 12 August 2024.

The Worker was on certified sick leave from 12 August to 09 October. 

The Employer submits that on return to work on 22 October the Worker requested an update, and a meeting took place on 25 October with the interim CPO to discuss possible options to resolve the matter. 

This included a proposed (draft) Grade VI role, which if approved she could apply for, or, potentially looking at an incremental increase for her current role.   The interim CPO outlined both proposals would be subject to discussions and approval with the Director.  On 30 October, the Worker emailed the interim CPO to confirm she would not be pursuing any of the options raised and wished to continue her grievance which was based on the Grade VI role she applied for in September 2023.  

On 08 and 12 November, the Worker requested an update to her grievance, the interim CPO acknowledged each of her emails and confirmed no decision had been made and that more time was required to consider potential solutions. 

On 25 November 2024, the interim CPO met with the Worker to inform her that that due to the work that is currently required to get the Human Resource function operating up to where it needs to be, there would be no review of grades or salary in the short to medium term.

On 02 December, the Worker emailed the interim CPO outlining her disappointment that her grievance has not been addressed in a timely manner and advising she will be referring the matter to the WRC.  On 05 December 2024, the interim CPO replied outlining the steps that had been taken thus far to resolve the grievance.  The Worker lodged her complaint with the WRC on 11 December.

It is the Employer’s position that the Worker, applied and interviewed for a role that was two grades above her current position and for which she did not meet the qualification criteria.  In consideration of this, and the desire to see the Complainant progress in her career, a decision was made to offer the Worker an increase from Grade IV to a Grade V in her current role of HR Administrator.  The Worker was not satisfied about this outcome and thus utilised the Employer’s grievance procedures.

It was dealt with initially, informally by the former Chief People Officer and then formally by the Interim Chief People Officer.  At all times, the Employer acted in accordance with fair procedures, as set out in the Company’s Grievance and Disciplinary Policy, in line with the Code of Practice of Grievance and Disciplinary Procedures (SI 146 of 2000) and the principles of natural justice.

It was and continues to be the Employer’s position that this issue be resolved informally and locally, given the close working relationship between the Complainant and the interim CPO but the Employer respects the Worker’s right to refer this matter to the WRC.

In further reference to ADJ-00030334, where the Adjudication Officer determined: “There is no evidence that the respondent failed to follow fair and proper procedures in the course of processing the grievance, only that the procedures applied failed to produce an outcome acceptable to the complainant.”

The Employer submits the same instance applies herein with this claim, which is the Worker was unhappy with the outcome of the grievance process, not that the process itself was flawed.

The Worker remains in employment with the Employer as a Grade V Administrator in HR.  The Employer would like to note that the Worker is a valued employee who is key to the ongoing HR operations within the organisation.

The Employer at hearing submits that for the Worker to say she was not being taken seriously is an overreach and that they both operate well together in an informal and causal basis, and he wants to protect that relationship.  The Employer submits there was a crisis situation in HR at the time and the Worker knows that and that the main focus was trying to keep the lights on.  The Employer submits the Worker is a strong member of the team and it is unfortunate that this has happened. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Having listened to both parties in this dispute it quickly became apparent that even though there was at the very least a gap of mutual understanding on certain matters, there was a commendable level of willingness to engage on both sides.  Attention was drawn to the relatively informal voluntary nature of the process and to my role in attempting to resolve a dispute and recommend a way forward that is fair and reasonable to both parties and to facilitate the parties in reaching a way forward particularly in circumstances where the employment relationship continues. 

I explained my role as that of evaluating and establishing if the internal procedures used by the Employer conformed to the generally accepted standards of fairness and objectivity that would normally be used in such cases and assess whether processes have complied with the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures S.I. 146 of 2000. 

I note the selection process at the heart of this dispute took place in late August early September 2023 and it was not until late April 2024 (22 April 2024 according to the Worker’s written submission) the Worker raised her dissatisfaction with the Director by which time the CPO with whom she had previously raised it and who had dealt with the matter initially had left and no longer worked there.  I note the Worker initiated a formal grievance on 9 July 2024. 

I note the Worker asserts the processing of her grievance took 115 days and at first glance I did find this to constitute an inordinate amount of time.  However, I note the Worker was on certified sick leave from 12 August to 09 October which is 58 days and from what I understand did not return to work until 22 October at which time she sought an update, and a meeting followed on 25 October to discuss possible resolutions.  I am of the view it would be unfair to solely attribute all the delay to the employer in circumstances whereby it is reasonable to infer that the process stalled and went into abeyance while the Worker was on sick leave. 

Notwithstanding, there were shortcomings in the manner in which the grievance was processed, and I am not satisfied the grievance policy was adhered to in terms of response times and in particular with the requirement to provide written responses.  I accept there seemed to be a level of attrition at senior level and a number of changes happening within the senior management team all of which contributed to the shortcomings in the conduct of the grievance process, but the foregoing factors resulted in a degree of unfairness to the Worker. 

However, I note also the Employer submits there was correspondence between the Worker and the CPO who had initially dealt with this matter that was submitted to the WRC but had not been provided to the Employer thus further impeding the conduct of the investigation.  I note the Worker submits there was no information provided to her on the appeals process.  Conversely, I note the Worker had access to the policy and it may be argued that she would have been aware that she could have submitted an appeal letter within 5 working days of receiving the outcome of her grievance if she was dissatisfied with the outcome as set out in the policy.   

It is not in dispute the Worker was not amenable to the proposed solution put forward by the Employer at the meeting on 25 October and she communicated that accordingly to the Employer on 30 October.  The proposed solution was a draft Grade V1 role tailored to the Worker’s skills and experience and subject to approval.  The second option was looking at an uplift for her in her current role and this was rejected also by the Worker.  I note the Worker reaffirmed that her grievance was based on the Grade VI role she asserts she had applied for, was shortlisted, was interviewed and was successful in, back in September 2023 on which I will comment below.

The HR Grade VI Role advertised 2023 provided under Eligibility Criteria as follows:

Applicants must by the closing date of application have the following:

Essential:

Qualification or equivalent in Human Resources or similar discipline, CIPD qualification desirable.

It is not in dispute the Worker applied for the job, and she was shortlisted on the basis of her application although she does not appear to have the essential qualification based on the Employer’s position on the matter.  The Worker does have a Pitman Training HR Administrator Diploma but that is apparently not what the Employer had in mind.  I am of the view this fundamental lacuna in the essential requirements for the job should have been identified and highlighted by the person screening the application forms when the Worker’s application form was screened which begs the question of whether there was any screening undertaken. 

When an applicant is shortlisted for interview on the basis of their application for a job it immediately creates a situation in which an applicant’s expectations are raised.   

I am of the view “qualification or equivalent in Human Resources or similar discipline” as an indicator of an essential eligibility criterion is a nebulous concept which in this case was clearly misleading.  The Worker submits that nowhere in the vacancy notice does it state that a Third Level qualification is required.     

I strongly recommend the Employer undertake a review of its vacancy notices to ensure unequivocal and unambiguous clarity in respect of the essential eligibility for a role.  Regarding educational qualifications I recommend the notice sets out whether the requirement is a Third Level qualification and if so, the notice should set out the relevant FETAC level that is required thus dispelling any doubt for a prospective candidate as to what the requirements are. 

Having regard to the phrase “or similar discipline” I am of the view this also needs clarification.  I fully accept that it may not be possible to provide an exhaustive list of all relevant courses but at the very least a few examples should be provided in vacancy notices in the future. 

I recommend the Employer re-visit the proposed HR Workforce Planning Lead Grade VI role and ascertain whether or not this can be considered a viable proposition.    

In the event this is now a viable proposition it does not need to be stated but for completeness I will address the matter of the essential eligibility criteria for this specific role because on the draft vacancy notice they appear to be the same as the initial role at the heart of this dispute.

For the avoidance of doubt I fully accept any consideration of amending the essential criteria for any role is matter solely within the remit on an employer and is not a matter on which I will make a recommendation.  I draw the Employer’s attention to this matter in order to avoid a recurrence of disputes similar to this dispute in the future in situations where applicants deem themselves eligible to apply and are deemed eligible for shortlisting and are interviewed and are subsequently found not to have been eligible in the first place. 

Finally, I respectfully suggest that the Employer review the annual leave entitlement set out in the aforementioned vacancy HR Workforce Planning Lead Grade VI namely 30 days as I note in the 2023 HR Generalist Grade VI role the annual leave entitlement set out as 25 days annual leave. 

I suggest this solely for the purposes of ensuring clarity for potential applicants and for the avoidance of future claims when that which is set out in the vacancy notice is not that which is intended. 

On the merits of this dispute, I recommend in favour of the Worker. 

Taking into consideration all the circumstances set out above I recommend hereunder. 

Eligibility criteria; essential educational qualifications;