FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WICKLOW COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Recommendation No. ADJ-00004120.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 15 March 2017 the Adjudication Officer issued the following Recommendation:-
- The facts of the case are that the Claimant commenced employment with the respondent as part of the graduate programme on a specific salary of €28,344.00 per annum on the 11 May 2015. He applied to positions in September 2015 and January 2016. Therefore he did not have the basic two years satisfactory service requirement as one the reasons for his lack of eligibility for the post he qualified for. Also as the Claimant is seeking compensation for not being able to compete for posts he is not eligible for. This would set an absurd precedent if conceded.
I do not find the claim well founded and it fails.
The Union on behalf of the Claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 19 April 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 8 June 2017.
DECISION:
This is an appeal by an employee against the Recommendation of an Adjudication Officer CA-00005873, ADJ-00004120 in his claim under Section 13 (9) of the Industrial Relations Act, 1969. The Union on behalf of the Claimant submitted that he was denied the opportunity to compete for promotions in competitions for Senior Staff Officer Grade VI and Administrative Officer Grade VII positions.
The Union submitted that given that the Claimant was on a fixed-term graduate programme at Grade IV with the Council and further given his experience at grades significantly higher with the London Borough of Tower Hamlets (1996 – 2001) he was well qualified to compete for the positions at both Grades VI and VII.
The Council stated that following the success of two employees in a nationwide competition for Senior Executive Officer (Grade VIII) positions, two vacancies needed to be filled in the Council. Therefore in January 2016 it advertised competitions for Grade VI and VII posts by confined competition to eligible candidates within the Common Recruitment Pool (CRP). This restricted eligibility to compete in competitions is confined to individuals who were either existing staff or who had specific work experience in listed member organisations of the CRP, as agreed with LGMA and IMPACT in the 1970s. Essentially it is a confined agreement in relation to organisations comprehended by that agreement providing a certain number of positions at Grades V, VI and VII for members of the CRP with the remaining proportion of competitions for those grades are open to the public generally. The current ratio of CRP versus open competition is 4:1.
The Council submitted that due to the backfilling requirements there were at most two Grade VII level positions to be filled in January 2016. On that basis there was no obligation on it to fill the vacancies by open competition as only every fifth vacancy under the agreement is filled by open competition. Therefore it took the view that to establish an open panel would be costly, administratively intensive and ultimately wasteful expenditure of public funds. Furthermore, it would be unfair to candidates from an open competition as anyone appointed to such a panel would never be granted a position from it as the lifetime of the panel is one year. The Council submitted that it was also understood that the establishment of dual panels was not uniform practice in the local authority sector notwithstanding Circular 14/2007 which applies the above agreement.
The Union submitted that at no point in the recruitment process did the Council state that the positions advertised were confined to candidates from the CRP. It sought compensation for the loss of opportunity to secure a permanent position with the Council.
The Claimant had also applied for a Grade IV post advertised in September 2015 and he was deemed eligible for that post. However, following preliminary interview he was not successful. In relation to the Grade VI and VII level posts he was deemed ineligible as he did not meet the requirements for the posts. The Council did not accept the argument that his five years’ experience at local government level as a Principal Officer (Grade PO1) in the London Borough of Tower Hamlets met its eligibility criteria as stipulated in the requirements of the CRP.
The Council contended that in the event that it was to apply a level of discretion to the Claimant it would have to do so in all other cases therefore making the criteria defunct.
Having examined the oral and written submissions along with the additional information requested by the Court at the hearing, the Court finds as follows:-
- i.The Council was obliged by the agreement in place since the 1970s to observe the conditions agreed upon by both parties as reflected in the revised criteria outlined in Circular 14/2007. The Court notes that the Claimant did not meet those criteria.
ii.As there were only two possible vacancies to be filled in 2016, there was no practical reality in extending the competition to an open competition. The Court notes that this is commonplace within the local authorities in similar circumstances notwithstanding Circular 14/2007.
iii.While the January 2016 advertisement did not refer to the confined nature of the competitions it did state that applications were invited “from suitably qualified candidates” and further details were available on application. The job specifications for the positions outlined in precise detail the education, training and experience which were necessary for the jobs, all of which were in line with the agreement as outlined in Circular 14/2007.
iv.Circumstances have altered substantially since 2007 when the Circular was issued. The 2009 moratorium on recruitment resulted in a ban on recruitment of staff for a significant period of time. However, with recruitment activities increasing in recent times coupled with resolving long term acting issues, local authorities are now dealing with competitions on a locally-confined basis; a sectorally-confined basis; a CRP-confined basis and an open competition basis, on foot of agreements between the parties. In such circumstances the Court notes that discussions have commenced under the auspices of the Workplace Relations Commission on reviewing the CRP.
In all the circumstances of this case, the Court does not find in favour of the Claimant and accordingly rejects his appeal. The Court upholds the Adjudication Officer’s Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
9 August 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.