Complainant

Respondent

Anonymised Parties

A Staff Nurse

Health Business Service

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00008224-001

17/11/2016

Following a successful appeal in a recruitment process, the complainant was placed on a panel from which an employee who was placed at a lower place was appointed.

The complainant is a staff nurse in an emergency department. She submitted an application for a competition from which 3 CNM2 (Clinical Nurse Manager) posts were to be filled. On 7^th September 2016 her application form was screened by two ADONs (Assistant Director of Nursing).   The complainant was deemed ineligible under “demonstrating continuing professional development” but “sufficient evidence” under “experience in the supervision and coordination of care of acutely ill patients”.   However, when the overall assessment question was asked regarding calling for interview, the “No” box was ticked. The complainant received confirmation by letter dated 13^th September 2016 that she would not be called for interview. In accordance with the appeal procedure, she appealed the decision not to shortlist her.   This appeal was made within the time limits in the code of practice governing the process. However, there was a delay on management’s part in acknowledging and dealing with her appeal. The complainant was alarmed to learn that interviews for the three posts were to take place on 29^th September 2016 while the appeals officer only acknowledged her appeal (which she submitted on 15^th September 2016) on 26^th September 2016. It is submitted that this fell far short of the commitment to acknowledge her appeal within three working days as provided for in the code of practice.   The complainant’s appeal was upheld and the decision issued to her by email on 6^th October 2016.     She was invited to interview by letter dated 10^th October 2016 and the interview took place on 20^th October 2016. On the same day of her interview the complainant was informed by colleagues that job offers had now been issued to candidates who had been interviewed in September. On 21^st October the complainant requested the suspension of the process until she received the result of her interview but this was refused.   She received the outcome of her interview on 24^th October 2016 and was placed no. 3 on the panel. It should be noted that a standard sentence in panel letters and which was contained in the complainant’s letter states as follows:

“Please note that appeal outcomes or the accommodation of special circumstances of other selection process participants are not included in the formulation of order of merit at this stage. Therefore, your order of merit is subject to change”.

This sentence clearly demonstrates that appeal outcomes will affect candidates’ placements on panels, initially identified to them. The complainant’s appeal outcome and subsequent interview placed her number 3 on the panel in a competition for 3 posts.   It is submitted that final panel placements and job offers should have waited until the outcome of the complainant’s appeal and interview.   On 21^st October when the complainant asked when she would know the outcome of her interview as she was concerned about job offers already made, she was told that the officer concerned had no knowledge of job offers made. This shows a disjointed incoherent approach and effectively confirms that the complainant’s appeal was not communicated to the area dealing with the competition.

It is argued that the complainant has been professionally and financially disadvantaged by the failure of the respondent to perform their roles in processing her application for the post of Clinical Nurse Manager 2 and then in dealing with her appeal appropriately as set out in the Code of Practice.     The mistakes from the outset, the delay in her appeal and the lack of interdepartmental cohesion have all resulted in the complainant being refused a post in which she has proven she was one of the best three candidates for three posts.  

Three posts of CNM2 were advertised on 11^th August 2016, with a closing date of 25^th August 2016. In her application submitted on 23^rd August 2016, the complainant omitted to include information regarding her eligibility for the competition and was therefore deemed that the application could be processed no further.     Following a formal appeal submitted to the Acting Appeals Officer on 15^th September 2016, he recommended that the complainant should be afforded the opportunity to interview for the post.   Notwithstanding the fact that an acknowledgement did not formally issue, it is submitted that the timeframes were adhered to in relation to issuing the recommendation.   The competitions are governed by the Code of Practice. It is argued that the Code of Practice, which sets out an appeal mechanism does not compel Office Holders to halt or suspend an appointment process pending the outcome of a review/appeal.   The code at clause 7.13 refers to the timelines required and states the reason for the timelines as “This is necessary to ensure that delays in the recruitment process are avoided”.     Posts were offered to those who were on the panel in accordance with the then results of the interview and prior to the amendment of the panel results arising as a result of the complainant’s interview.   The complainant attended for interview on 20^th October 2016 and was placed third on the panel. However, at this point the three posts had been offered and accepted by candidates.   The respondent acknowledges that the complainant’s review outcome came after all available positions had already been offered to existing panelled candidates. The offer and acceptance of the third and final position had been made and received on 20^th October 2016, prior to any amendment to the panel. Although very regrettable for the complainant, this action was in line with normal process as per the code of practice.

The sequence of events which led to the complainant being interviewed and ultimately successful in her application put her at a disadvantage and resulted in her not being treated equally to other candidates.   With the exception of the acknowledgement stage, the other timelines in the appeal process were adhered to by the respondent. However, there was a two week gap in the outcome of the complainant’s appeal and the interview and at some stage in this period, the respondent ought to have at least informed those making the job offers that there was another candidate i.e. the complainant to be considered in the selection process.   While I note the respondent’s point about the code of practice stating there is no obligation on the office holder to suspend an appointment process while it considers a complaint, I note that clause 8.1.2 goes on to state:   “However, the Commission expects that, where possible, the office holder will intervene in cases where it finds that an error is likely to have occurred”.   The interview of the complainant on the same day as the post was being offered to another candidate indicates that there was a communication breakdown and the complainant suffered as a result.

In the circumstances I recommend that the complainant be appointed on a personal to holder basis as a CNM2 from 1^st January 2017 and that she be appointed to the next available post at that level in the same general geographic area.