AD8954

Labour Court Database __________________________________________________________________________________ File Number: CD89455 Case Number: AD8954 Section / Act: S13(9) Parties: EOLAS - and - A WORKER

Subject:
Appeal by a worker against Rights Commissioner's Recommendation No. B.C. 83/89, dated 5th April, 1989.

Recommendation:
5. 1. It is clear that as a result of discussions between the
claimant and the Personnel Director in 1985 and 1986 and between
the claimant and the Chief Executive in 1987, the claimant had
reasonable expectations of promotion to Principal Scientific
Officer. It is the Court's view that these expectations did not
equate to an entitlement, as a guarantee of promotion was not
within the authority of the Personnel Officer and the undertaking
of the Chief Executive was in the context of the Annual Review.


Accordingly, the Court does not uphold the Rights Commissioner's
recommendation but decides that Eolas should increase its offer to
the claimant to #10,000 in full and final settlement of all
aspects of his claim.

The Court so decides.

Division: CHAIRMAN Mr Collins Mr Devine

Text of Document__________________________________________________________________

CD89455 APPEAL DECISION NO. AD5489

INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)


PARTIES: EOLAS

and

A WORKER

SUBJECT:
1. Appeal by a worker against Rights Commissioner's
Recommendation No. B.C. 83/89, dated 5th April, 1989.

BACKGROUND:
2. The worker was employed in the Institute for Industrial
Research and Standards when the organisation merged with the
National Board for Science and Technology and became known as
Eolas. He was employed as an Industrial Relations Officer and was
responsible to the Personnel Director. His grade was that of
Senior Scientific Officer. Following the retirement of the
Personnel Director in 1988, the position of Personnel Manager was
advertised for competition, confined to eligible employees of the
Board. The worker competed for this post but another candidate
was appointed to the position. The worker contended that he
should have been appointed to the position as he was the more
suitable candidate. He brought his complaint to a Rights
Commissioner who's findings and recommendation are as follows -

"Findings

Having investigated the matter and having given full and
careful consideration to the points made by both parties I
have come to the following conclusions:

1. I note that the worker is not seeking the upturning of
the decision already made to appoint another candidate.
What the worker is seeking is a regrading of his position
and compensation for the frustration of his legitimate
expectations.

2. It is not my role to determine the relative merits of one
candidate as against another.


3. However, I must confirm my view that the worker's
experience is a most formidable one and is of such a
character as would qualify him for consideration for the
position of personnel manager.

4. In the final analysis management must have reserved to it
the right to make the more appropriate appointment.

5. This right is not totally free standing since it places
an obligation on senior management to have followed the
correct procedures in coming to its decision.

6. While I cannot quite understand the justification for the
change in the wording of the advertisement in 1988 as
against the wording of earlier advertisements nonetheless
I am satisfied that management did observe correct
procedures in the selection of the most suitable
candidate.

7. I can understand the worker's frustrations since it was
not excessive for him to have come to the conclusion at
the time it became known that the vacancy of personnel
manager was going to arise that he would stand more than
an even chance of being appointed to the position given
the role he had carried within the organisation for a
number of years and also to very wide and deep experience
he possessed in broad personnel management.

8. I note that the worker now feels humiliated and
demoralised through his failure to be appointed to the
position in question. I can understand the extent of his
frustration but I feel he is letting his disappointment
get the better of him.

.Recommendation

In the light of the above I must uphold the right of
management to make its own decision as to who will fill
internal vacancies provided that proper procedures are
established and complied with. Since I have no reason to
come to any conclusion other than proper procedures were
followed on this occasion and that each of the two candidates
was fairly interviewed I must leave intact the decision made
by senior management to appoint another candidate.

As a rider I would urge the management of Eolas to go some
way to repair the injury which the worker understands himself
to have suffered by redrafting his job description in order
to encompass such other duties as would fully avail of the
undeniable high quality of experience and commitment which he
possesses. I would suggest that this task be embarked upon


as early as possible and completed not later than three
months from the date of this recommendation. On the other
hand should the worker wish to sever his connection with
Eolas I would urge that management relax the time limit for
such application since I fully accept the worker's contention
that had he known that he was not going to be appointed to
the position in question he would then have made application
within the time limit of November 1st."

Note The worker was named in this recommendation.

The worker opted for retirement and left the organisation on 7th
April 1989. He applied to have his position upgraded to Principal
Scientific officer before retiring. The upgrading was refused and
the worker again took his complaint to a Rights Commissioner. The
Rights Commissioner in Recommendation No. B.C. 83/89 dated 5th
April 1989, stated as follows -

"Having investigated the matter and having given full and
careful consideration to the points made by both parties, I
have come to the following conclusions:

1. I am satisfied that an agreement existed in April, 1986
to elevate the worker to Principal Scientific Officer
grade.

2. In coming to this conclusion I am influenced
particularly by the letter of 18th December 1988 from
the ex Personnel Director.

3. The question of the embargo is a complex one and I must
note that in the years since 1986 a number of promotions
have taken place each year regardless of any alleged
impact of the embargo.

.Recommendation

In the light of the above, I recommend that Eolas promote the
worker to the Principal Scientific Officer grade effective
from 1st April, 1986."

Note: Both the worker and the ex Personnel Director were named in
this Recommendation.

Management in Eolas did not accept this Recommendation. The
worker appealed it in June 1989, on the grounds that his promotion
should be effective from 1st April 1985 i.e. one year earlier.
The Labour Court heard the appeal on 18th July 1989.


WORKER'S ARGUMENTS:
3. 1. It was a long established practice in the Institute for
Industrial Research and Standards to have an annual review of
staff with a view to promotions or regradings where management
considered that such were necessary or advisable. The
operative date of such regradings was 1st April each year.
This was in line with what happened in many other State
agencies. The usual basis was job performance or
restructuring of duties for various reasons. Heads of
departments would make submissions to the Chief Executive for
consideration by him and, if he thought necessary, by the
Management Committee.

2. In 1983, the worker reached the maximum of the Senior
Scientific Officer grade. The following year be submitted a
written application to the Personnel Director for upgrading to
the Principal Scientific Officer grade. He renewed this
application in 1985, on the basis of job performance and the
fact that in the sister organisation, An Foras Taluntais, with
which parity of pay existed for professional grades, a
comparable job was graded at the higher level. In his 1985
review the worker was informed by the Personnel Director that
the case he had made was put forward to the acting Chief
Executive, with the Personnel Director's support and had been
accepted. He was also informed that it had been decided that
no professional upgradings would be made that year, in view of
the fact that a new Chief Executive was to be appointed.
Therefore, his upgrading would have to wait another year.
Later that same year two professional staff were upgraded
(details of the Personnel Department record of all regradings
in 1985, including the professional staff referred to,
supplied).

3. The Personnel Director, at the 1986 annual review, took up
the matter of the worker's regrading with the new Chief
Executive, on the basis that it had been accepted the previous
year. The worker was then informed by the Personnel Director
that he would be regraded in the review. A short time later
he was advised that the decision had been reversed. The
Personnel Director assured the worker that he would pursue his
upgrading in the 1987 annual review. During his discussions
with the Personnel Director and Chief Executive in January
1987, about additional responsibility, the worker's regrading
was again discussed. The Chief Executive agreed to approve
the regrading, if the Personnel Director put forward a
favourable recommendation at the annual review in April 1987.
No annual review took place in 1987 because of the Government
embargo on recruitment and promotions.


4. In applying for upgrading on the basis of what occurred at
annual reviews in previous years, the worker pointed out that
there were many examples of people who had been upgraded over
the years, at annual reviews. In reply, the worker was
advised that the facts he had put forward were not disputed
but that his request could not be acceded to. (details
supplied).

5. It is stated in the Personnel Manager's letter of 13th
June 1989 (details supplied) that the dispute was dealt with
in the previous Rights Commissioner's Recommendation. This is
incorrect, as the same case would not be heard a second time,
especially after such a short period.

6. The worker was invited to meet the Personnel Manager and
explore possible avenues to reach an acceptable solution. An
offer of #6,000 in full settlement was made to him.
Management in making that offer determined that the worker had
a claim.

COMPANY'S ARGUMENTS:
4. 1. Management's view is that Recommendation No. 83/89 is in
conflict with Recommendation No. 404/88. In the findings of
404/88 the Rights Commissioner noted that the worker was not
seeking the upturning of the decision to appoint another
candidate but was seeking the regrading of his position and
compensation for the frustration of his legitimate
expectations. In Recommendation 404/88 the Rights
Commissioner urged Management to go some way to repair the
injury which the worker understands himself to have suffered,
by redrafting his job description. He also stated that should
the worker wish to sever his connections with the
organisation, the time limit for his early retirement
application should be relaxed. Management accepted
Recommendation 404/88 and accordingly, the worker opted to
retire on 7th April 1989, rather than pursue upgrading. The
subsequent claim to retrospective upgrading is in Management's
view an attempt by the worker to get the best of both options.

2. In Recommendation No. 83/89 the Rights Commissioner was
particularly influenced by the Ex-Personnel Director's letter.
The then Chief Executive of I.I.R.S., (who is not with Eolas)
refutes that any agreement was ever reached to promote the
worker and states that any communication of such a decision
was without his authority.

3. There is no substantive written case on record concerning
the worker's promotion as would be normal in such
circumstances. The claim of comparability with An Foras
Taluntais would not be conceded by Eolas Management because of


substantially different promotion patterns in that
organisation. The grade held by the second ranking Personnel
Officer in An Foras Taluntais was on a personal basis and not
related to his position in the organisation. In 1986, in
I.I.R.S., out of a total professional staff of 235, only 47
were at Principal Scientific Officer level, while in An Foras
Taluntais, out of 240 professional staff, 98 were at Principal
Research Officer level. The total staff numbers for I.I.R.S.
was 599 as compared to 1170 in An Foras Taluntais. The career
grade for professional officers in I.I.R.S., now Eolas, is
Senior Scientific Officer which is the worker's former grade.

4. The worker had at no time until 30th January 1989, raised
the matter of his promotion grievance and in his letter of
that date (details supplied) he acknowledges his acceptance of
the position at January 1987, in relation to his promotion,
i.e. that the earliest he could hope for a review of his
position was April 1987.

5. On 27th March 1987, the Government issued a directive
regarding promotions in the Public Service. Management are
bound by that except in exceptional cases. No review of the
worker's grade took place in 1987 and it cannot be inferred
that following such a review a promotion would have ensued.

6. Recommendation 83/89 poses serious difficulties for
Management as it imposed an on-going pension and gratuity
commitment arising out of implementing Recommendation 404/88.
Had the worker taken option one, his post would have been
reviewed and he would have continued in employment, but he
rejected this course of action.


DECISION:
5. 1. It is clear that as a result of discussions between the
claimant and the Personnel Director in 1985 and 1986 and between
the claimant and the Chief Executive in 1987, the claimant had
reasonable expectations of promotion to Principal Scientific
Officer. It is the Court's view that these expectations did not
equate to an entitlement, as a guarantee of promotion was not
within the authority of the Personnel Officer and the undertaking
of the Chief Executive was in the context of the Annual Review.


Accordingly, the Court does not uphold the Rights Commissioner's
recommendation but decides that Eolas should increase its offer to
the claimant to #10,000 in full and final settlement of all
aspects of his claim.

The Court so decides.
~

Signed on behalf of the Labour Court

Kevin Heffernan
_________________________
10th August, 1989 Chairman.
A.McG/J.C.