ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001224

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 06/05/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Complainant’s Submission and Presentation:

1. The Complainant was employed by the Respondent in the position of Engineer Technician Grade 1 from April 2002. In September 2015 the Complainant transferred to another employer on secondment.

2. In May 2012 the complainant applied for the positions of Executive Engineer and Senior Executive Engineer with the Respondent.

3. He was not shortlisted for interview and brought a claim to the Labour Relations Commission on the grounds that the Respondent did not apply the provisions of Circular LG (P) 13-05 which is headed “Amendment of Engineering Qualifications” and enables candidates with experience gained prior to graduation to compete for engineering posts. A level 8 qualification is the appropriate level of qualification for engineering posts.

4. When the Complainant commenced employment with the Respondent he held a Level 7 qualification, a diploma in Civil Engineering.

5. In 2011 he obtained a Level 8 qualification namely a Degree in Civil Engineering from Dundalk IT. Since then he went on to obtain a further post graduate Diploma in 2013 and a Masters from Sligo IT in 2014.

6. A decision in the previous case was given on the 7^th of August 2014 under reference R-143054-IR-14.

7. The Rights Commissioner found that

   “the Complainant was advised a number of times in correspondence from the Respondent that experience gained prior to or after graduation was taken into account in considering his application. Therefore I find that the Respondent did not interpret the circular incorrectly in his case”.

   1. The final sentence of that decision by the Rights Commissioner was

   “I recommend that to bring some finality to this dispute that the Respondent clarify that the Complainants experience and qualifications deem him eligible to be considered for engineer posts above graduate entry level”.

8. Evidence was given at this hearing that this clarification had not been provided by the Respondent. No evidence was given as to the reason for this. The recommendation of the Rights Commissioner was not appealed. Similarly, no evidence was given as to what efforts the Complainant took to follow up with the Respondent on issuing the clarification as recommended.

9. The facts of the claim brought in 2014 are similar to that of the claim before me for adjudication. In March 2015, the Claimant applied for a position of Executive Engineer with the Respondent. He filled out the required application form.

10. The application form in its unfilled format ran to eight pages. The application form at Section 2 required the Complainant to set out a brief summary of his experience. The application form defined this as

    “experience which complies with the essential requirements for the position should be marked with an (*)”.

    1. Section 4 required him to set out a brief description (including dates) of his experience of engineering work.   The form went on to state

    “There is a requirement to have at least five years’ experience work including for a period of not less than two years’ experience in civil engineering work”

    1. Section 5 required him to set out a brief description (including dates) of his technical training and experience and administrative experience.
    2. Section 6 required him to set out any other relevant information in support of his application.
    3. The application form set out

    “in the event of a short listing exercise being employed, an expert board will examine the application forms and assess them against pre-determined criteria based on the requirements of the position. It is therefore in your own interest to provide a detailed and accurate account of your qualifications/experience on the application form”.

    1. The Complainant did not request details of the predetermined criteria before he completed the application form.
    2. There was further reference to the pre-determined criteria based on the requirements of the position in section 7 of the Respondents information pack.
    3. On the 5^th May 2015, the Complainant received a reply to his application. The reply was in a standardised letter format from the SEO HR of the Respondent. It was agreed between the parties at the hearing that a similar letter was sent to all unsuccessful candidates at the shortlisting stage.
    4. The letter stated:

    Each candidate must have at least five years satisfactory experience of engineering works including for a period of not less than two years, satisfactory experience in civil engineering work.

    As you do not meet the requirements, I regret to advise that I am unable to consider your application further.

    1. The Complainant did not accept this decision as he considered that he had 20 years’ experience in engineering works. He appealed the decision not to shortlist him for the posts advertised.
    2. The Complainant was advised that the decision not to short list him was made following a full consideration of his application form and an assessment of his full career experience to date.
    3. The Claimant submitted that the Respondent refused to accept the experience gained by him as a technician and its relevance to the position of engineer.
    4. The Complainant confirmed that the application form in 2015 was a similar form to the one he completed in 2012.
    5. The Complainant also gave evidence that he had no fore knowledge of the areas that he was marked on at the shortlisting stage.

     

     

Respondent’s Submission and Presentation:

2. The Respondent referred to the same correspondence as the Complainant had in his submission.
3. The Respondent’s submission was that the recommendation from the Rights Commissioner in 2014 did not provide him with an automatic entitlement to be considered for executive engineer posts. The recommendation stated that that the Respondent clarify the Complainant’s experience and qualifications deed him eligible to be considered for engineering posts above “graduate entry level” [emphasis added].
4. The Respondent’s position was that the complaint was manifestly ill-founded and was based on the Complainant’s reading words into the recommendation which were “quite simply not there”.
5. The Respondent confirmed that all applicants were equally assessed with regard to the relevant eligibility requirements. It confirmed that the shortlisting process was carried out by the most senior serving engineer with the Respondent and also the HR manager.
6. The Respondent set out four areas where an examination of the Complainant’s career experience was considered and found not to be sufficient for the role. These were:

1. Design and preparation of contract documents, tendering and appointment of successful contractors and managing the construction phase of projects

2. Preparation of Part A planning documentation, liaising with and presenting to elected members of the County Council as well as the government departments that fund the projects (i.e. infrastructure projects such as roads, water services, housing and environment)

3. Familiarity with public work contacts, establishment of frameworks and the procurement appointment and supervision of architects, quantity surveyors, mechanical and engineering consultants.

4. Preparation of road programmes, estimates, budgetary management, dealing with elected members and managing emergencies.

   2. The Respondent set out that on the basis of the evidence provided by the Complainant in his application form, it was deemed that he did not demonstrate that he possessed experience in the areas outlined at 2.4 (i) to 2.4 (iii) above.
   3. The Respondent acknowledged that the Complainant had certain experience of managing projects in the water services area at area level, however the evidence of this contained in his application form was limited and not at the wider level required for the post of Executive Engineer.     
   4. The Respondent’s position was that the Rights Commissioner’s recommendation did not provide the Complainant with an automatic entitlement to be considered for the grade of an Executive Engineer.
   5. The Respondent confirmed that the letter of the 5^th May 2015 was similar to the letter the Complainant would have received in 2012 following in his earlier application for an engineering role.
   6. The Respondent confirmed in evidence that this was a standard letter that was sent to the 11 unsuccessful candidates that were deemed not qualified in the 2015 application process.
   7. Evidence was given that of these 11 candidates, 4 were technicians,1 was an executive engineer and 1 was a graduate engineer.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

3. I have considered the written and oral submissions of both parties and having considered all aspects of the case.
4. I reviewed the application form that the Complainant was required to complete. I note that the role was a generalist role.
5. The application form set out that the applicants would be assessed against pre-determined criteria. These criteria were not identified in the form.
6. My role is not to decide on the merits of the Complainant for the role. I cannot substitute my views on the merit of candidates for those of the designated decision makers.

I find that the Respondent did consider the Complainant’s application for the role and ultimately found that his experience was not sufficient experience vis-a- vis its predetermined criteria.

3. It was regrettable that the details of analysis of his experience was only imparted to the Complainant at the hearing of the case.
4. Taking into account the earlier case brought by the Complainant, the use of a generic letter to notify the Complainant of his unsuccessful application was not helpful to the relationship between the parties.
5. The fact that the Respondent had not provided the recommended confirmation as set out in the earlier case, didn’t help matters either.
6. However, if the Complainant had asked for feedback as to why his experience did not meet the required standard, rather than assume that it was a breach of the circular, he would have received this information at an earlier juncture.
7. I can understand the Claimant’s disappointment at not making the interview stage of the application process, however I find that the criteria set out in circular LG (P) 13-05 was applied to the Complainant’s application correctly.
8. My recommendation is that the complaint is not well founded. However, I further recommend that the Respondent disclose to the Complainant the scoring of his application form to allow him to gain this information even at this late stage.

Dated: 15^th July 2016