FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FÁS - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr Nash |
1. Promotional competition, sick leave entitlements and victimisation.
BACKGROUND:
2. The worker in this case applied for the position of Manager - Staff Relations Grade 6 within the organisation. He felt that he was a strong candidate for the position due to his qualifications and periods of acting up in the position. The worker was unsuccessful at the interview. The dispute before the Court relates to the alleged unfair treatment of the worker by FÁS on the following grounds:
- Claim A.Outcome of Interview
FÁS has failed to promote the worker from Grade 7 Assistant Manager to Grade 6 Manager in the Staff Relations/Human Resources Dept. He claimed that he was the most suitable candidate for such promotion. The Union is seeking that the worker be paid the appropriate Grade 6 salary effective from 20th December, 2004 (date of appointment of other candidate).
Claim B.Sick Leave
The worker is claiming that his period of sick leave from December, 2004 to May 2005 should be disregarded on grounds that it was work related, thereby restoring his full sick leave entitlements.
Claim C.Victimisation
The worker claimed that he was victimised by being afforded less favourable treatment in respect of the competition and in respect of attempting to pursue his grievances. The worker is seeking compensatory award as considered appropriate by the Labour Court.
UNION'S ARGUMENTS:
3.1Claim A.Outcome of Interview
The worker having gained considerable experience in Industrial Relations H.R. in the private sector and has a very impressive academic qualifications i.e. B.B.S. in Human Resources/Industrial Relations, a M.B.S. in Human Resources/Industrial Relations felt that he was the right person for the position.
2. The worker has acted up in the position of Grade 6 Manager in the Staff Relations Department in May and June of 2004, and again from September to December, 2004.
3. The worker was put under pressure just before the interview by a remark made by the HR/Staff Relations Director, and that the comments amounted to victimisation and placed an undue onus and burden on him.
4. When the worker requested a copy of the interview notes he was informed that aFÁS Director, a member of the interview panel had destroyed their specific notes following the interview, notwithstanding that, following an Equality Tribunal (not this case) FÁS had been ordered to refrain from destroying interview notes and to keep all future interview notes. There was also a question surrounding notes that were made available to the worker.
Claim B.Sick Leave-
1. The worker was forced into utilising his sick leave pay benefit payment of almost 5 months through no fault of his own.
2. The worker's Medical doctor and FÁS's Medical doctor both state that his illness was brought on by work related stress andFÁSare clearly negligent in not facilitating the worker's return to work in a much more expeditious fashion than the five months it took.
3. If FÁS had found early, suitable alternative placement, the worker would not have utilised anywhere near five months sick leave benefit, which will undoubtedly come against him over the next three years should he be unlucky to suffer further illness within that time i.e. his benefit would only be paid at half pay as opposed to full pay for the first six months.
Claim C.Victimisation
1. The worker has been victimised by FÁS as he has been treated less favourably than other employees and applicants before and after the Grade 6 competition.
2. The worker was unnecessarily delayed from his return to work by Management's unwanted interference in the case before and after it has been referred to the person in charge. This exacerbated the worker's personal suffering.
3. The worker was treated very unfavourably in respect of his medical situation and FÁS's handling of privileged medical information
4. Since his return to work the worker has continued to be treated less favourably with regard to his current work arrangements and facilities.
5. FÁS are continuing to send correspondence in respect of the worker's situation to other parties without his consent or approval.
ORGANISATION'S ARGUMENTS:
4.1Claim A.Outcome of Interview
The position of Manager Staff Relations was advertised in accord with established FÁS procedures. The selection process was carried out by an interview panel which included an independent member from outside FÁS. The panel recommended the appointment of one applicant and also recommended a reserve candidate. The worker was unsuccessful in either appointment.
2. There is nothing in the selection process itself which could possibly support an allegation of unfair treatment.
3. The worker felt that he was a strong candidate for the position, however at interview he did not demonstrate that he was the person for the job
4. There is no basis whatsoever for the claim that he was treated unfairly in respect of the promotional competition.
Claim B.Sick Leave
1. The worker was not treated unfairly in respect of sick leave entitlement as he claims. He was treated in accord with the Sick Leave Regulations. During his period of sick leave the worker was paid his full salary and suffered no loss of pay. He was treated in the same way as other employees and in accord with the terms of the FÁS Sick Leave Regulations.
2. This is an unrealistic claim, if conceded it would create a precedent which would be cited by other staff members to the eventual detriment of the FÁS Sick Leave Regulations as a whole.
Claim C.Victimisation
1. Every effort was made by FÁS and the HR/Staff Relations Director to facilitate the worker's request for transfer at his grade.
2. The allegations of victimisation based on an offer of the first available alternative vacancy at his grade (which happened to be in the North East) is not sustainable.
3. The allegations of victimisation due to an alleged remark by the HR/Staff Relations Director prior to the interview selection process is based on a misquote and is equally not sustainable.
RECOMMENDATION:
General
The Court wishes to express its concern at the failure of the parties to resolve the issues giving rise to this referral through internal procedures. Each of the issues raised affect one worker and are individual in character. The Court is a forum of last resort and its services should not be detained in dealing with issues which can and should be resolved internally by skilled and experienced industrial relations practitioners on both sides. If internal practices and procedures are inadequate or incapable of fulfilling the role for which they were intended they should be reviewed.
The Court would urge both sides to review their internal procedures so as to ensure that they operate so as to avoid the necessity for similar issues being referred to the Court in the future.
In respect of the claims now before it the Court recommends as follows:
Claim A – Outcome of Interview.
In its first claim the Union has, in effect, asked the Court to conclude that the worker should have succeeded in a competition for appointment to a promotional post of Director. In so doing the Union has pointed to the notable and impressive range of skills, commitment and experience which the worker has demonstrated in the course of his service with FÁS.
The appointments giving rise to this dispute were filled following a process of assessment and interview by a designated board in accordance with the normal practice of FÁS. In a number of similar cases in the past the Court has taken the view that in the absence of clear evidence of unfairness in the competition, or manifest irrationality in the result, it will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board.
In this case some interview notes were destroyed following the interview. In the Court’s view this was regrettable. However, these and other procedural defects highlighted by the Union were not of such gravity or significance, when taken in the context of the process as a whole, as to vitiate the competition nor render its result irrational or unsustainable.
In these circumstance, and while acknowledging the worker's sense of grievance, the Court can see no basis upon which it could recommend any alteration in the results of the disputed competition or that the worker be promoted by designation.
Claim B – Sick Leave
The Court does not recommend any departure from the terms of the normal sick-pay scheme in this case.
Claim C - Victimisation
The Court notes that serious issues were raised on behalf of the worker in respect of his treatment in matters arising from the issue raised in Claim A. While the Court has not reached a concluded view on the validity of these complaints , it is of the view that they warrant further investigation internally. The Court recommends that these matters be processed further through internal procedures and that if necessary an external facilitator should be engaged to assist in dealing with the complaints and in seeking a mutually acceptable basis upon which they could be resolved.
Acting Up Allowance.
The Court notes that the Organisation has agreed to deal with the claim for an allowance for the period from September to 20th December, 2004.
Signed on behalf of the Labour Court
Kevin Duffy
26th September, 2005______________________
JBChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.