FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTHERN AREA (REPRESENTED BY BARRY O BRIEN) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of A Rights Commissioners Recommendation No. R-038923-IR-05/PO'B
BACKGROUND:
2. The issue involves a dispute by the Claimant that she was unfairly treated by the employer during an interview process for a promotional position, which allowed a candidate to be interviewed for two positions during the one interview, CNM1 and CNM2. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 4th July, 2006, the Rights Commissioner issued his recommendation as follows:
- “The practice of interviewing for more than one position at a time, while it has its obvious operational and time management merits, may lead to candidates believing some individuals have got an unfair advantage in the interview process. It is not common or best practice to interview for more than one position at a time and I recommend the respondent ceases this practice in the future”.
- On the 19th July, 2006 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969 on the grounds that the Rights Commissioner omitted to rule on compensation for stress and damage to the Claimant. The Union is seeking compensation in the sum of €7,000 and an apology from the HSE. A Labour Court hearing took place on the 28th February, 2007.
- On the 19th July, 2006 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969 on the grounds that the Rights Commissioner omitted to rule on compensation for stress and damage to the Claimant. The Union is seeking compensation in the sum of €7,000 and an apology from the HSE. A Labour Court hearing took place on the 28th February, 2007.
UNION'S ARGUMENTS:
3.1 The fact that the HSE contended and defended the legitimacy of a simultaneous interview process for two separate promotional posts is a disadvantage to the claimant and this process damaged the claimant at a very important stage of her career development.
2. The Union contends that this interview system is unprecedented and therefore this was negligence on behalf of the HSE and caused the claimant harm. Furthermore it is not recommended or referenced in any HSE documents despite references in Appendix 5 (given to the Court) regarding recruitment principles on probity, best practices or transparent fair appointments.
3. The Union contends that it will never know if the claimant's results would have differed if the interview process was fair, however it is certain that the dual/simultaneous interview process was unfair and should not have occurred.
4. The HSE has done nothing to safe-guard against this re-occurrence and is in breach of their own policy
- Circular 10/71
- The Commissioner for Public Services Appointments
- Code of Practice on Recruitment to the HSE and natural justice.
MANAGEMENT'S ARGUMENTS:
4.1 The HSE is satisfied that the interviews for the posts of CNM1 and CNM2 were conducted in a transparent manner with all candidates, including the claimant, who was treated equally and fairly. This is the position for all interviews conducted by the HSE South.
2. The practice where the interview board would conduct an interview to assess candidates' suitability in respect of multiple posts would have occurred from time to time and would have been conducted consistent with normal practice.
3. The HSE is satisfied that the claimant has been treated fairly and equitably and requests the Court to uphold the Right Commissioner's Recommendation.
4. The HSE has undertaken to give full regard to the Rights Commissioner's Recommendation.
DECISION:
Having considered the views of the parties expressed in their oral and written submissions, the Court does not accept that the procedures carried out during the interview of Candidate “A” disadvantaged Candidate “B” (the appellant) and does not accept that she was treated unfairly. Therefore, the Court does not find in favour of the claim for compensation as sought by the claimant.
The Court notes that the HSE Southern Area has given a commitment for the future not to hold an interview for the purposes of selecting candidates for more than one competition at a time.
In conclusion, the Court does not find in favour of the appeal and upholds the Rights Commissioner’s recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st_March, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.