ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004540

Complaint(s):

Date of Adjudication Hearing: 20/03/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Ashdown Park Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 13 of the Industrial Relations Acts 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 Complainant’s Case:

The worker has been a member of The Employer emergency transport service for the past 15 years, initially as an Emergency Medical Technician, then Paramedic, followed by an appointment to Advanced Paramedic and is currently the Station Supervisor in Wexford.

Throughout this period, the worker has comported himself in a professional and dutiful manner, moving through the ranks to achieve the position he currently holds. He has been in his current supervisory role since 2008.

In January and May of 2012, the worker applied and competed for a number of Officer Positions including:

1. Operations Resource Manager
2. Quality Safety and Risk Manager
3. Fleet Logistics and Estate Manager
4. Aero-Medical and Special Operations Manager

The worker was successful in competing for all of the above positions and was subsequently placed on Panels for each posting. These Panels would be used for the purposes of filling Permanent and Temporary posts, as they arose. These panels were national panels, and as such, are used to fill vacancies as they arise nationwide.

It should also be noted that employees were informed by the then Director of the Employer that the likelihood was that no further competitive processes for these grades would happen for “some considerable time”

The worker’s complaint revolves around the irregular management of a number of promotional panels to which he was successfully placed following a competitive interview process. The worker states that The Employers have acted in such a way as to preclude the worker from attaining a promotional post on a number of occasions.

There have been discussions surrounding the abolition of some of the panels detailed herein between the unions and the Employer under the auspices of the WRC. The complaints herein predate that decision to close the panels. Moreover, this particular complaint is personal to the worker and his union believe that, as such, his complaints do not fall under the parameters of the talks that have been held heretofore. Therefore, any counter argument by the Employer that this complaint is tied in with the national discussions would be incorrect and should not be regarded as such.

The worker states that he can demonstrate how he was, on each occasion, treated most unfavourably to the extent that an outside party could determine that there may have been a concerted effort on the part of the Employer management to stymie the worker’s promotional prospects which he had fairly and competitively achieved in each of the 4 competitions.

The four positions on whose panels the worker was successful in being placed upon were:

1. Operations Resource Manager

2. Quality, Safety and Risk Manager

3. Fleet Logistics and Estate Manager

4. Aero-Medical Officer

At that time all existing officers were offered the once off opportunity to transfer into any of the new positions above, then allowing for any subsequent vacant positions to be filled from the above respondent panels of candidates deemed fit for the above roles. .

In Limerick Area West, there were at least three vacant permanent Operations Resource Manager positions vacant for approximately three years from the establishment of the panels. Despite a national panel for Operations Resource Managers being in place at that time, the Employer ran a local competition rather than utilise the existing panel.   The worker believes this afforded to local Supervisors in that area the opportunity to act in the vacant officers positions while many, including the worker, were not given the opportunity as members of the panels to be either appointed to, or act in those positions. It should be noted that the man that raised this issue in the email, has been appointed to a permanent post having also served in an acting position and is one position ahead of the worker on the Operations Resource Manager Panel.  

Vacant Operations Resource Manager position in Cork, this was made vacant by the transfer across, for a 6 month period, of X to a vacant Quality, Safety and Risk position in Kilkenny. the worker was assured at the time by the Operations Performance Manager Area South, that it was a temporary move that would last 6 months and it would then be filled from the panel of which the worker was listed next for appointment (Quality Safety and Risk panel).

The subsequent position made vacant by X in Cork was then filled on a temporary basis by a panel member. It should be noted that that panel member was one place ahead of the worker on the national panel. On March 19th 2015, the worker received an offer of an Operations Resource Manager position in Limerick. The panel member placed one before the worker took up that position in Limerick as it was a permanent position.

This then left the position in Cork vacant as the person holding it had now moved to a permanent position in Limerick. Following on from the placement of successful candidates of the national panel, the worker was next in line for the vacant position in Cork. However, the National management refused the worker the opportunity to take up the Cork position, despite his panel placing. The worker did inquire on the 20th August 2015 regarding the vacant position in Cork to be told by the Employer that a transfer policy, not yet nationally agreed at that date, (transfer policy approval date 23rd September 2015, two months after an email to the worker) would take precedence over the national panel in the first instance and only if, after that process the position was still unfilled, would the panel be utilised.

The position in Cork was left vacant from June 2015 until July 2016 even though on many occasions the worker offered to take up that position on an EOI (Expression of Interest) acting position, to be told by the Human Resources Manager, that the position was filled.   The worker felt as if he was fobbed off for ten months.

On a monthly basis he contacted senior officials to be told that it would be sorted in the coming weeks. This has continued for many months.

Three vacant officer positions in the Dublin North-Leinster area during the life time of the national panels. These positions had been vacant for some time, but had been filled prior to the disbandment of the panel, following an internal competition ran in November 2015. The worker was informed that there was no one left on the officer panels prior to the running of this competition.

The worker strongly contests this as a gross misrepresentation of the facts. This information was channelled to the worker the Assistant Chief Officer, who informed the worker by voicemail of the same. The situation now is that there are three positions in Dublin being filled at present by people who were not even on the panels because those on the panel were not offered them at any stage. The panels were disbanded on the 16th March 2016 whilst this competition was run on the 23rd November 2015. This is particularly relevant to the worker as he was next in line on the national panels at the time and, as such, should have been offered one of these positions.

There was a vacant Quality, Safety and Risk Position in Kilkenny for many months following the promotion of an employee. It appears that overnight a female employee was slotted into that position from Cork. This was in June 2015. The female employee was an existing Operations Resource Manager in Cork. When the worker queried this, as he was on the Quality, Safety and Risk panel, he was informed that it was only for a six month period. That was for well over twelve months and he now understand that she has been appointed to this position permanently since February 2016.

There was also a vacant Quality, Safety and Risk Position in the Dublin area, during the lifetime of the panel, due to long term sick leave and again another local competition without any recourse to the live national officer panel, which was also filled by a person not on the national Quality Safety and Risk panel, of which the worker had the expectation of being offered the position, albeit temporarily.

There was a vacant Operations Manager Resource Manager position in Wexford Station from January 2012 to September 2012. This position was being filled by a person on an old training and development officer panel and when the worker queried why he was not being offered this position as he was on the new live ORM national panel, albeit in an acting position, he was informed by the Employer that it would be rotated through the LEMT’s on a 6 week rotation until it was filled permanently. This never happened.

On the 7th March 2016, the worker was informed by HR, that the jobs would be given out to the panel and it would be sorted in less than six weeks. The worker was also informed that Limerick would be the position that he was most likely to get. This conversation was witnessed. This created an expectation on the part of the worker that his position on the panel was going to be finally recognised, however this did not occur.

It should also be noted that a similar occurrence happened in Dublin.

On Thursday 10th March 2016, the worker was informed that the panel would be abolished on Friday 11th March 2016. .

Summary of Respondent’s Case:

The worker is an employed with the Employer and is based in Wexford, South region, one of three respondent regions.

In January and May 2012, following a national competition run by the Employer, The worker was panelled for the post of Officer, in particular, placed on four of six panels created for differing Category of Officer. These national competitions were for the permanent filling of officer’s positions nationally where approval to recruit existed. His panel placement was as follows:

AO Fleet & Estate, number 15

AO Operations & Resource Manager, number 23

AO Quality Safety & Risk, number 8

AO Aero medical Officer, number 3

While appointments were made from the above panels, the worker and others on the panel were not appointed and while one past in the West was offered out to the worker, he was not appointed as a person ahead of him on the panel was appointed to the post.

In March 2016 the worker was advised by the recruitment entity that due to the age of the panel (i.e. 4 years) the panels he was on were being expired from the 11th March 2016. The recruitment entity also contacted those on the other Officer panels, as listed above, including Officer Operations resource manager to advise them that the panels were expiring. The rationale for a corporate decision in February 2016 to expire old panels was due to the requirements of the Commission for Public Service Appointments (CPSA) code of practise. The CPSA make it clear that panels should cease after two years but cannot be utilised after 3 years and as the CPSA hold The Employer recruitment licence and audit activity, The Employer and recruitments service have to act on requirements & instructions of the CPSA.

In June 2016, the worker raised a grievance which culminated in the stage 3 decision of the 7th July 2016 which did not find in his favour.

In September 2016 the worker referred his complaint to the WRC but as the issues rose, namely closure of the panels and temporary cover of posts were subject to on-going national collective discussions, including conciliation at the WRC, the request for investigation was rejected. Following discussion at a second collective engagement at the WRC it was subsequently agreed by The Employer to attend and the objection was removed.

In October 2016, the worker queried how specific posts were filled. Management advised as per e-mail of 4th October 2016, making reference to posts being filled, including by way of existing requirements relating to PSA redeployments and transfer policy for existing post holders.

The worker was informed that the 2012 panel he was on was no longer live in 2016. Due to CPSA requirements all panels over three years in duration must close. It is an accepted recruitment practise that panels have a limited life span and also that being placed on a panel does not infer or guarantee any future appointment

The Panels the worker was on were utilised to fill a vacancies at that time but are now closed and will no longer be used to fill future vacancies and those who were on such panels at time of closure have been advised of same.

Had the Employer accepted the workers argument in the past, there were a number of other staff on the six panels who could also have such a claim ahead of him due to being on other panels in addition to the ORM one and based on order of merit of panels would have had a preferential position. In this regard we note that an employee Y was informed that he was in fact tenth in line for the main panel of AO Operations and Resource Manager at the time of the panel closing in 2016.

In the worker’s September 2016 application to the WRC, he sought the redress of promotion to officer post, however when placing an individual on a panel there was no guarantee of an offer of post and the clear position of The Employer is that placement on a recruitment panel does not constitutive a formal job offer.

While the employer Service may have some vacant positions not all of these positions had been approved for filling but if the posts are approved at a National Level, as is planned for 2017 then they will be advertised through the normal recruitment entity procedures. Indeed a number of the posts queried by the worker could only be filled on a temporary basis within the regions as they are substantively held by parties who have been assigned differing roles on a temporary basis. As the issue of closing officer panels and filing of vacancies has also been the subject of collective discussions, including on-going collective conciliation and mediation at the WRC (conciliation C160642-16 as per appendix 4), the employer’s governing body believe matters before the adjudicator are in fact collective in nature and issues raised are more appropriately encompassed by this referral by the union. As part of these ongoing national collective discussions at the WRC, The Employer has clearly communicated that the permanent appointment of Officer Posts shall be by way of a new recruitment competition in 2017, which is currently in planning as part of respondent’s 2017 workforce plan.

Also noted that issues for Officers are not un-usual as there is also a collective process with the union with regard to the post the worker holds (LEMT) due to non- filling of a far higher number of posts as a result of non- funding and problems associated with temporary arrangements.

In addition to not all vacant posts being approved for permanent appointment prior to 2017, it must be noted that other national processes have also delayed decisions on the filling of posts, namely the on-going management structure review and the now concluded control reconfiguration project to implement LCR20454, which required the Employer to keep posts available for ex-control staff in accordance with section 6 of the PSA on redeployment and had an effect on posts queried by the worker.

The worker has queried existing Officers being transferred or redeployed to differing roles, however due to the existence of the collectively agreed transfer policy for existing grade holders is a collective agreement for existing post holders and cannot include applicants as to do so would undermine and violate recruitment entity managed recruitment campaigns occurring in accordance with CPSA guidelines.

The worker very clearly has issue with the Employers regions covering vacancies on a temporary basis with regional arrangements to meet service delivery demands; however this is to address gaps where permanent approval was not forthcoming. While some ORM vacancies exist nationally, without approval or a current panel to fill permanent posts, some temporary cover assignments have occurred in the regions due to service needs and are required until a new process in place as per governing bodies requirements. As above it is only the 2017 workforce plan in accordance with respondent funding requirements will The Employer is in a position to permanently fill vacant office posts by way of national competitions.

The existence of circular 17/2013 and prior respondent acting up policies show that temporary vacancies can be covered way of individuals taking on higher duty outside of national recruitment; however those in such situations cannot be permanently appointed. We note some of these arrangements have occurred for longer periods than planed originally but this relates to the funding and approval process to fill posts permanently.

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

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I am satisfied based on both the workers and the Employers evidence that the worker was advised in March, 2016 that due to the age of the panels they would expire on the 11^th March, 2016. I am also satisfied that the rationale behind the decision to expire the panels was due to the requirements of the Governing bodies code of practise. Due to a licensing agreement the Employer must act within the requirements and instructions of the governing body. I am also satisfied that the Employer, nationally, entered into talks at the WRC in relation to the abolishment of the panels. As part of the ongoing national collection discussions at the WRC the Employer has communicated to the worker and other employees that the appointment of Officer post/s going forward shall be by way of recruitment competition in 2017. This recruitment process is in the planning stages as part of the 2017 workforce plan.

I do not propose to make any comment on the 2017 process as to do so would trespass on the jurisdiction of the collective agreement reached following discussion at the WRC.

Any issues the worker had with the Employer’s recruitment process historically is now moot since the abolition of the panels and the introduction of the 2017 process. Nothing I could recommend would have any bearing on the selection process within those panels as they no longer exist.

In those circumstances I do not propose to make any recommendations in this matter.

Dated:   18/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly