FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN BUS - AND - A WORKER (SIPTU) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Outcome of investigation into selection process for promotion.
BACKGROUND:
2. The case before the Court concerns a claim by the Union on behalf of its member in relation to the outcome of an investigation into the Company's promotion selection process. The Claimant has been employed by the Company as a bus driver for a period of thirty years. In 2006, the Claimant entered into a competition for a promotion to the post of inspector however he was unsuccessful in the selection process and did not receive the promotion. The Claimant was unhappy with the outcome of the promotion selection process and he asked for feedback from the Company. He subsequently raised further grievances with the Company which led to the carrying out of an internal investigation into the selection process. The internal investigation concluded in the filing of a report which was provided to the Claimant. The Claimant remained dissatisfied and did not accept the findings of the report. The Company then agreed to an external independent investigation of the selection process which was carried out by an independent third-party investigator. The Claimant did not agree with the conclusion of the external independent investigation and, through the Union, requested the issue to be referred to the Labour Relations Commission for further investigation. The Company rejected the Union's proposal, maintaining that all internal and external avenues had already been exhausted in this instance.
On the 6th April, 2011 the Claimant referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 20th September, 2011. The Claimant agreed to be bound by the Court’s Recommendation.
UNION'S ARGUMENTS:
3. 1. The Claimant was unfairly treated by the Company throughout the entire process.
2. The Union contends that an alleged culture of nepotism exists within the Company and further contends that trade union representatives are viewed more favourably in relation to appointments and promotions.
3. The terms of reference of the external investigation, albeit agreed by the Claimant, were too narrow and did not allow for a complete investigation.
COMPANY'S ARGUMENTS:
4. 1. The Claimant was fairly treated at every stage of the promotion selection process.
2.The Claimant throughout the Company's internal and external investigations, was treated in an equitable manner which was entirely in accordance with an agreed terms of reference.
3.The Company has exhausted every mechanism in trying to address the Claimant's grievances.
RECOMMENDATION:
- The case before the Court was referred by a worker under Section 20(1) of the Industrial Relations Act, 1969, and concerns his grievance over the selection and recruitment process to Inspector Grade, following his application for the position in 2006.
The Claimant’s Case
The Union on behalf of the Claimant held that the process was unfair on the grounds that there was a culture of unfairness in the Company whereby family members of management and supervisors and trade union representatives were preferred over other candidates for promotional positions. Furthermore, the Claimant contended that the adverse relationship he had with the Administration Manager in his Depot influenced the selection decision not to progress his application to the final stage of the process.
Thirdly, the Claimant contended that the existence of an accident report on his personnel file that the Claimant had been involved in, and which occurred in 2000, adversely affected his chances of success in the selection process. He submitted that after the selection process was completed both his Depot Administration Manager and the Human Resources Manager made reference to this accident, which was classified as a ‘non-culpable’ accident. These references, he submitted, were an indication of the unfair way he was treated in the competition.
The Union on behalf of the Claimant also submitted that the Claimant was not given an opportunity to examine the documents associated with the selection process as the Company had destroyed the documents.
Furthermore, the Union held that the Company was in breach of its own procedures by not allowing the Claimant to progress his appeal of the external independent investigator’s report to the Rights Commissioner’s Service, thereby compelling him to refer his case under section 20(1) of the Industrial Relations Act, 1969.
The Company’s Case
The Company disputed the allegations made and indicated that on receipt of his complaint it carried out an internal investigation of the process. This investigation did not uphold his complaints. As he was dissatisfied with the findings, the Company instigated a further comprehensive investigation to be carried out by an external independent investigator. This investigation concluded that, while it was clear that the Claimant was regarded as a strong candidate with an impressive work performance record, there was no proof whatever to support his contentions regarding the exercise of fairness in the promotion process. The Company denied any knowledge of references to the ‘non-culpable’ accident being made after the process was completed, however, in any event it submitted that ‘non-culpable’ accident reports are not submitted to a selection panel and consequently no member of the selection panel had any knowledge of the existence of such an accident report in respect of the Claimant.
Findings of the Court
Having carefully considered the written and oral submissions of both sides along with the comprehensive documentation supplied, the Court can find no evidence of unfairness in the selection process for the appointments to Inspector Grade in 2006/2007. The Court concludes as follows on the various issues submitted:- The Court does not accept that a culture of unfairness existed in the Company involving family members and trade union representatives. The Court notes the exercise carried out by the internal investigator into the competition in question which showed that of the 435 applicants for the position, 96 people progressed to the final stage of the process and 34 were finally selected. Of the latter, three were related to serving managers/supervisors while a further two were related to retired managers/supervisors. Three of the 34 selected had been trade union representatives. The Court is not satisfied in the scheme of things that these figures demonstrate any bias, particularly considering the background and culture of the Company in question.
- The Court notes that at the express request of the Claimant his own Depot Administration Manager was not involved in the interview process as was provided for in the procedures, therefore, the Claimant was interviewed by a Manager from another Depot. Furthermore, while the Human Resources Manager was involved in the logistics of setting up the various stages of the interview/selection process he was not involved in shortlising candidates and/or in the decision-making process. Therefore, the Court is satisfied that whether or not remarks were made about the accident which occurred in 2000 by both the above mentioned Managers following the competition, neither was involved in the decision-making process.
- The Court is satisfied that the existence of the ‘non-culpable’ accident report did not form any part of the interview/selection process. Furthermore, the Court notes that while the external independent investigator held that the absence of policy guidelines on the presence of such a report on a worker’s personnel file could lead to an allegation of unfairness, he found in this case that“no content of a prejudicial nature was found”in the report.
- The Court notes that the Claimant first raised his concerns over the fairness or otherwise of the competition in May 2008, some eleven months after the process had been completed, he then received feedback on 22nd May 2008 from the Employee Relations Manager on how well he had fared in the process. On 11th August 2008 the Claimant outline in writing the reasons why he felt he was not successful in his application for promotion. This was responded to by the Employee Relations Manager on 26th September 2008. It was almost nine months later before the Claimant made further representations to management saying he was still dissatisfied with the process and that he intended to go on hunger strike to vent his grievance. Management at that point instigated its internal investigation which was eventually followed up by the external independent investigation. The Company submitted that as it had had no response to its letter of 26th September 2008, it then proceeded in January 2009 (18 months after the positions had been filled) to follow its “Record Management Policy” and destroyed records associated with unsuccessful candidates. The Court is satisfied that in circumstances where there was no activity in relation to the Claimant’s grievance following the 26th September 2008 letter and indeed there was none until almost nine months later, there was no reason why it should not follow its own record management policy and destroy the records. The Court is of the view that no inference can be drawn from destroying the records at that stage.
In all the circumstances of this case the Court does not find that the Claimant was treated unfairly throughout the promotion process for Inspector in 2006/2007 and accordingly does not find in favour of the Claimant’s claims. The Court is of the view that the Company made every effort to deal with his grievance through its procedures. However, the Court accepts the Union’s contention that there was an onus on the Company to allow the Claimant to progress his appeal of the external independent investigator’s report to the Rights Commissioner’s Service in accordance with its agreed procedures. Accordingly, the Court recommends that in future such an approach should be adopted.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th September 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.