ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001489

Dispute for Resolution:

Date of Adjudication Hearing: 10th August 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Summary of Trade Union Case:

TEEU said the Complainant is currently working for the Respondent as a Maintenance Foreman at a named location since November 2008.   Prior to this he worked as a Maintenance Electrician in the same area, he became Acting Maintenance Foreman in April 2006 and was confirmed permanent in that position in 2008.

TEEU said that throughout the years the Respondent has, on many occasions asked the Complainant to work in an Acting Role of Maintenance within his Area which he did.   He also has 14 plus years experience in all on-call areas.

TEEU said that on 19^th December 2014, the Respondent advertised for the position of Maintenance Foreman in a named hospital.   This advertisement had a closing date of 5^th January 2015.   TEEU that the timing of this advertisement is questionable as approval for the position was given in January 2014.   They said that as the hospital closes for 7 days during the Christmas period the result is that anyone interested in applying for the job had only 7 day to apply.   The Trade Union said that this is a clear breach of 2.4 of the Code of Practice, Appointment to Positions in the Civil and Public Service.

TEEU said the Respondent’s interview guidelines clearly state the make-up of an interview board must consist of:

1. An internal clinical expert

2. An external clinical expert     -and-

3. An independent chairperson

TEEU said the Interview Board must also be at least 2 grades above the vacant position.

When the Complainant arrived for his interview on 19^th February 2015, he was surprised to note that the Respondent did not adhere to their own guidelines as the external clinical expert was a Foreman working under the Maintenance Manager who was also works in the same area.

As the interview continued the Complainant noticed inconsistencies as the Panel did not ask him about education or experience in accordance with the structured interview guidelines.   He said this denied him the opportunity to potentially be hired on his merits, which he said is in breach of 2.2 of the Code of Practice and is also in breach of the Public Service Management Service Act 2004.   He said that some of the questions asked of him had no reference whatsoever to the job, i.e. how much concrete does it take to make a footpath.

On 25^th February 2015, the Complainant was informed that he was unsuccessful in his application and also that he was unsuccessful in making the Panel for future positions.   He said this is very hard to understand as he is currently working as a Maintenance Foreman.

The Trade Union said it is their belief based on the treatment the Complainant received he was afforded basic fairness of procedures under natural justice.

TEEU said it is quite clear that the interview was set up to promote one person irrespective of qualifications or knowledge, they said it was botched from the beginning in relation to the way it was advertised and the make up of the Interview Panel.   They said that the Interview Panel did not have the knowledge to conduct this type of interview and had a clear bias against the Complainant shown in the questions asked of him along with the avoidance of his qualifications.

TEEU said that since being informed of his unsuccessful interview the Complainant feels belittled and demoralised.

TEEU said they are seeking the removal of any record of his unsuccessful interview from the Complainant’s employee records and were also seeking that a lump sum payment be paid by the Respondent to him for the way he was treated in this matter.

TEEU referred to Rights Commissioner Recommendation IR19020/JH in support of their position.

Initially the Complainant said that he did engage in the Appeals Process, that he wrote to and spoke with the named Campaign Manager and was led to believe he did not have a case for appeal and accordingly he withdrew his appeal.   However following the Respondent’s submissions the Complainant confirmed that the Campaign Manager never told him that he did not have a case for appeal and never suggested or proposed that he should withdraw his appeal.

Summary of Respondent’s Position:

The Respondent was rejecting and denying the complaint.

The Respondent submitted the following chronology of events:

31^st January 2014:     Request from the named Service to the National Recruitment Service (NRS) to    

                                     fill the position of Maintenance Foreman

16^th July 2014:           The Recruitment process for Maintenance was assigned to a Campaign      

(6 months later)         Manager Ref No: …...   The Campaign build commenced, job specification

                                     was built and agreed with the Service

12^th Dec 2014:           The recruitment process was launched and advertised with associated

(5 months later)         documents, information, application form and job specification.   The closing  

                                    date for applications was one month later, 5^th January 2015.

31^st Dec 2014:             The Complainant submitted his completed application

28^th Jan 2015:             The Complainant’s application went through eligibility check and he was  

                                       deemed eligible to proceed to the next stage, i.e. interview.

6^th Feb 2015:               Invitation to interview along with Candidate Preparation Interview Booklet was  

                                    issued to the Complainant.

                                     The Interview Board members were briefed as to their responsibilities under  

                                     the Code of Practice, so that they would familiarise themselves with the job  

                                     specifications, selection criteria, interview structure and format and follow the  

                                     approach to questioning laid down in the Interview Guide.

19^th Feb 2015:           The Complainant attended for interview and was afforded a 35 minute  

                                     Interview, the same as all other candidates.

25^th Feb 2015:          The interview result letter and marking sheet were issued to the Complainant,  

                                     this letter also informed him that he was unsuccessful in securing a place on  

                                     the Panel for Maintenance Foreman in the named area.

26^th May 2015:           The Regional Secretary of TEEU sent a letter to the NRS Operations

                                     Manager raising concerns in relation to the recruitment process as it applied to  

                                     the Complainant.

25^th Aug 2015:           The Operations Manager of NRS responded to the TEEU

(3 months later)

25^th Nov 20115:       A conciliation conference was convened by the WRC between the parties.

The Respondent said that the Public Appointments Commission (PAC) licenced the NRS to conduct recruitment under the 2004 Act and they sent them a Code of Practice that they (NRS) must comply with as part of that licensing.   This Code of Practice provides that they must have as Appeals System.   They said that all candidates are informed at the outset of this right of appeal and how to exercise it; it is included in the information pack provided to all candidates.   The Respondent said that the Complainant never appealed in accordance with this procedure.

The Respondent submitted copies of emails sent in respect of the question of an appeal by the Complainant as follows:

No 1. Email of 4^th March 2016 at 9.52 from the Complainant to the Campaign Manager which states:

“Hi (name),

I (Complainant) Candidate 1D NRS (number) Request an informal review of my interview on Thursday 19 December at (named location) For Foreman post at (named location).”

1. . Email of 5^th March 2015 at 11.38 from Campaign Manager to Complainant in response which states:

“Dear (Complainant)

Thank you for you your email.

The email below does not state what you are appealing on.   This is not an appeal.   You will need to state your reasons for the appeal.   Maybe you might like to give me a call on my number below to discuss.”

1. .   Email of 5^th March 2015 at 17.28 from the Complainant to the Campaign Manager which states:

“HI (name),

After reviewing my interview notes again for foreman post at (named location), I (Complainant) withdraw my request for informal review of interview held on Thursday 19 February 2015.   Thank you for your help on this matter.”

1. .   Email of 13^th March 2015 at 12.03 from the Campaign Manager to the Complainant, which states:

“Dear (Complainant),

Thank you for your email.   Unfortunately you are outside of the timeframe for an informal review and also outside the timeframe for the formal review.   However I will try to address the concerns that you have outlined.

"In your email you state that you were requesting a “total review of the way I was marked on all questions from start to finish of interview….feedback on question asked and the way they were marked.”

As Campaign Manager I can outline the details of the marking process.   The purpose of the interview is to assess information/evidence presented by candidates throughout the interview against a set of behavioural indicators (confidential to the Campaign).   Only the information/ evidence presented during the interview is taken into account for the purpose of scoring.   An interview is an assessment of the skills, knowledge and experience a candidate presents at interview.   I wish to advise you that an interview briefing which addressed fully how the interview was to be carried out occurred for this campaign in advance of the interview date.   As part of this, the managers who took part on the interview board designed a set of professional knowledge questions and they also designed model answers.   This was the question set that was asked to all candidates.   The Interview board measured the evidence you presented at interview and awarded you a score which they considered was appropriate to the evidence you demonstrated throughout the interview.   Any evidence cited at interview was scored.   The application form is used as a guide for questioning and does not carry any score.

You also stated “Why was I not asked at the start of the interview about my education or my work experience to date.”

It was stated in the interview preparation material that one of the board members would ask you to “briefly talk about your, education or experience to date.”   While this is not stated in the interview notes I can confirm upon review of the other candidates that you were treated the same way as they were, i.e. the Chairperson’s introduction was the same.

For your own information a review does not require the board or myself to meet with a candidate.   A review will reconvene the board following the issuing of all relevant documentation to each member.   This does not occur in person.

I hope this clarifies some of your concerns, however if you wish to contact me my mobile number is below.   In the meantime I wish you well in your career.

The Respondent also included a copy of their letter of 5^th August 2015 to the Complainant’s full-time TEEU Official from the Acting Operations Manager of the NRS of the Respondent, which states:

“I refer to you letter of 26^th May 2015, regarding the above matter.

The National Recruitment Service of the (Respondent) recruit under licence and is subject to the provisions of the Public Service Management (Recruitment & Appointments) Act and is regulated by the Commission for Public Service Appointments (CPSA), this Code of Practice is available…..

I have reviewed the recruitment process for this particular campaign (number and details} and I am satisfied that the recruitment process was carried out in line with the CPSA Code of Practice.

In relation to your specific query regarding (the Complainant and another named person) I would like to make the following observations:

(The Complainant) did not did not seek a review under the Code of Practice)

(The other named person) sought a Formal Review under Section 8 of the Code of Practice and this Review was conducted as per the guidelines laid down by the CPSA Code of Practice.   The Review investigated the recruitment process and (that person’s) candidature and engagement during this recruitment process.   The findings of this Review under Section 8 of the Code of Practice were conveyed to (that person) on 7^th May 2015 and I am satisfied that due process was followed in this case.

I hope that I have addressed your query and that the issue is resolved to your satisfaction with the information provided above.”

In relation to some of the points made by the Complainant the Respondent submitted the following.

They said it was not always possible for interview boards to be at least two grades above the vacant position, as there would not always be such grades of persons available.

In relation to the delay in advertising and filling the job after the sanction was granted that this happened from time to time for business or financial reasons.  

The Respondent reiterated that the only avenue of appeal was the one advised to the Complainant at the beginning of the process and he did not avail of this.

The Respondent rejected in the strongest terms the (initial) submission by the Complainant that the named Campaign Manager had advised him that he did not have a case for appeal and that this was why he withdrew his appeal; however as noted above the Complainant withdrew that assertion.

The Respondent said that the Complainant was treated no less favourably than any of the other candidates – he was afforded fair procedures and due process.   The Respondent said that the claim/complaint was not well founded and that it should be rejected.

Findings and Recommendation:  

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

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that the Complainant was made aware in writing of his right to appeal any decision of the Interview Board at the beginning of the recruitment drive.   This fact is not in dispute and indeed it is confirmed by him initially seeking to avail of this right.   In this respect I note the following: by email of 4^th March 2015 at 9.52 the Complainant stated that he was requesting “an informal review of interview held on Thursday 19 February 2015”.   However on the following day, 5^th March 2015 at 17.28 he sent a further email withdrawing his appeal in which he stated “After reviewing my interview notes again for……….I…..withdraw my request for an informal review of interview held on Thursday 19 February 2015.”   I note that the Complainant confirmed at the Hearing that no one from NRS or the Respondent had suggested to him or advised him to withdraw his informal review / appeal.   Accordingly, I must take this correspondence at face value and that the Complainant withdrew his appeal “after reviewing his interview notes again” and for no other reason.   The Complainant did not re-enter his appeal again within the time limits laid down for such appeals.

This foregoing means that the Complainant did not exercise his internal right of appeal against the decision of which he complains.   On those grounds alone I must and do reject the claim/complaint.   It is very well established in industrial relations practice that an employee must exercise and fully exhaust all internal avenues, processes or procedures available to them before referring claims/complaints to the WRC (previously the LRC) and plainly the Complainant did not do that.   While this finding is of itself sufficient to dispose of the matter in the interests of completeness I am addressing the other issues raised by the Complainant and TEEU.

In relation to the time lapse between the approval for the position and advertising of it, 11 months is a long time to wait to advertise for the filling of the position.   However I can accept, and know it to be the case, that this does happen from time to time for financial and business reasons.   In addition I cannot see, nor was any evidence presented to me that the Complainant was in any way disadvantaged by this delay.   The submissions in that respect are rejected by me.

In relation to the time period of 17 days given for applications for the job and the fact that many employees are on 7 days closedown holidays over the Christmas period, only allowing 10 days for interested persons to apply, I accept that this could potentially prove an obstacle to applications to some people, however it is equally true that people may be and are on holidays at all times of the year.   Perhaps the Respondent and in particular NRS should take into account the Christmas break in setting deadlines of applications for vacancies in the future.   However plainly this period did not present any problem to the Complainant as he applied for interview in good time and was interviewed.     Clearly the Complainant was not disadvantaged in any way by this deadline for application and accordingly I must also reject this element of the claim/complaint.

In relation to the persons selected to sit on the Interview Board, I accept, as submitted by the Respondent, that it is not always possible to have persons who are at least two grades above the vacant position.   I note that the position advertised was for Maintenance Foreman and I fully accept that the persons selected to conduct the interview were appropriate to interviewing for such a position.   Again I can see no evidence whatsoever that the Complainant was disadvantaged in any way by the persons selected to serve on the Interview Board.

In relation to the questions asked at the interview, it was stated by the Respondent that the same questions were asked of all interviewees and this was not disputed by the Complainant or TEEU.  

I note that the Complainant did not challenge the marks awarded to him, nor was any submission made to me in that respect by the Complainant or TEEU.

The Complainant in the written submission said “It is quite clear that the interview was set up to promote one individual irrespective of qualifications or knowledge”.   I was presented with no evidence to support this contention and I note that those attending for interview would not be known to those setting up the Interview Campaign (the NRS).   This submission is rejected by me.m

I am satisfied that the Recruitment Campaign and the Interview involved in the instant case, was conducted in full accordance with the Code of Practice as set by CPSA and practice for such matters and in a manner that was fair and impartial and in particular that the Complainant was not treated in a way that disadvantaged him or treated him unfairly.  In discussion at the hearing the NRS stated that they cannot remove the result of the process from their records, I accept that this is the case.

For all the foregoing reasons I do not see merit in the claim and it is rejected by me. Notwithstanding the foregoing and to alleviate the concerns of the Complainant I recommend that the Respondent remove any reference to his interview from the Complainant’s personnel file.  

I so recommend.

Sean Reilly, Adjudication Officer

Dated: 17^th November 2016