ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005051

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

Date of Adjudication Hearing: 09/01/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Between a General Manager and a Public Health Authority

Procedure:

This matter comes before the Adjudication Services of the Workplace Relations Commission in the aftermath of an attempted conciliation process which took place in and around March and April of 2016. The Adjudicator’s authority to hear this dispute is recognised in Section 13 of the Industrial Relations Act, 1969 read in conjunction with Section 40(9) of the Workplace Relations Act of 2015. This matter is a trade dispute which has been submitted to the adjudication services for investigation and recommendation

This matter has been inquired into and all parties have been given an opportunity to be heard by the adjudicator and to present to the said adjudicator any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

I have carefully considered the Complainant’s extensive evidence and that of his two colleagues all of whom present the same complaint against the Employer herein. The Complainant is a General Manager within a highly specialised Department of the Employment framework. In effect, the Complainant is making the case that he has been side lined in what appears to him to have been the unfair promotion of a couple of his (identified) colleagues when they were invited to “act-up” or take temporary roles or positions which were subsequently ratified without ever having been made the subject of an open competition and interview process. The Complainant has exhausted all relevant internal mechanisms as provided for by the Employer.

Respondent’s Submission and Presentation:

I have listened to the Respondent’s response wherein it has invited me to consider these circumstances against the difficult backdrop of being forced to fill essential vacancies where there was a strict moratorium in relation to staff engagement and there was therefore extreme pressure to utilise whatever expertise was available to the greatest advantage to the Employer.

Synopsis of Evidence presented:

In 2010, the Department the subject matter of this Complaint was in an extraordinary state of flux, not least because the then National Director seemed to have been put out or gone out on some sort of extended leave - the duration of which was unknown or unknowable. His role was taken over by the now Strategic Programmes Director who gave his own account at the hearing before this Adjudicator. Without apology, this witness gave evidence that he had hand selected the two persons he felt were best suited to filling the vacuum created by his moving up into the position of National Director. These two persons were promoted to the position of Assistant National Director and were selected from the same rank of General Manager as the Complainant herein and it was this selection which was unknown to the Complainant at the time which has given rise to the within dispute.

The Complainant has made the case that there was some subterfuge attaching to this appointment and has described it as the “tap on the shoulder approach”. The Complainant referred to a number of documents which appear to set out a very high degree of probity and transparency for the allocation of positions even if only on a short term basis. It is quite clear that the appointments so made were contrary to the Employer’s own policies and best practice guidelines. These were all referred to in the Complainant’s written submissions though not opened. However I am familiar with such documents and accept fully that there is an intention on the part of this Employer to try and promote equality and fairness in the workplace when dealing with the issue of promotion and elevation.

As against that, I would be of the mind that these codes and guidelines are not contractually binding in nature nor are they intended to be but simply set out best practise. Deviation from such workplace codes can happen but only where such a deviation is in some way reasonable and/or justified.

The Respondent witness went on to state that the positions referred to were held in what is well known and understood to be an “acting up” capacity. The Employer did seem to use the terms “acting up” and “temporary” in an almost interchangeable way and this certainly caused some confusion and annoyance amongst the Complainant and his colleagues. The word “temporary” appeared in a 2014 document caused some ire.

It should of course be noted that the two individuals that were asked to “act up” did so for no financial reward though it was put to me by the Complainant that the issue was not simply one of monetary gain but also had to do with trust, confidence, opportunity and experience all of which the Complainant was denied (he says) by not being considered for the position.

The Respondent witness aforementioned together with the HR Director asserted that beyond doubt the two individuals promoted to these (at the time) remuneratively valueless positions were the best persons for the positions and at the top of their particular fields without doubt. It must be noted by me that this last assertion was not challenged and there seems to, even at the time, have been an awareness that the two individuals were now attending management meetings and their status had changed albeit the individuals in question disclaimed the importance of same when they declared “…there’s nothing in it for me” and “ it hasn’t changed my circumstances…” when asked by their non-promoted colleagues.

It is also worth noting that had the Employer been allowed to effect a promotion at the time in 2010 the number of potential candidates who might have sought consideration for the two positions might have numbered up to 35 so there is absolutely no guarantee that the Complainant would have been successfully selected.

This situation as described continued for a considerable period of time.

I have been invited to dismiss all argument that relate to the prevailing economic climate, FEMPI and to the industrial relations backdrop including the Haddington Road agreement and other more localised impositions. To do so would, in my view, be unrealistic as these vicissitudes have had a very real impact on this and every workplace and this fact cannot be ignored as an inconvenient defence on which the Respondent is entitled to rely.

I do however accept that the process has been frustrating for the Complainant wherein it seems even their freedom of information application revealed no clear documentary path leading to the decision for the hand selection of the two individuals. It must now seem clear that this is quite simply because there was no paperwork and their selection was at the perceived need of the newly appointed National Director.

What could not have been anticipated in 2010 was the introduction some years later, under the Haddington Road agreement, of providing an opportunity to all persons who had acted up for specified periods of time to have, where very specific and strict criteria are met, their positions ratified without any further competition. This was a blow to the Complainant and his colleagues in terms of his own career prospects where openings at levels above his own in this Employment structure only come up sporadically. In one move, the Haddington Road agreement (circular 17/2013) affirmed, ratified and consolidated the positions of his two colleagues against whom the Complainant had no personal enmity but whose promotion was brought about, the complainant says by a trampling on his rights and expectations.

The implementation of the circular 17/2013 was designed, it seems, to reward - or at the very least give security to - those persons who had taken on more senior roles for no remunerative reward for something considerably longer than a “temporary” period of time. It is regrettable that the backlash to this system has been the lost opportunity to equally capable persons to compete for the spots that they were not invited to act up to. The Employer has indicated that there have been a considerable number of people so disappointed across their Structures.

In the case of the Complainant he has made the case that he has lost out in the potential amount of anywhere between ten and thirty thousand euros per annum now and into the future. In so calculating, the Complainant has presumed that he would have been successful in being appointed to act up in 2010.

Decision:

On balance I accept that the Employer has acted contrary to its own guidelines regarding the competitive process to be implemented for vacancies both temporary and permanent. I accept that there was no malice intended and that the hand selection process (as described) was operated as a matter of convenience and in circumstances where a genuinely held belief that the best persons to fill the vacancies were the two individuals who were asked. There are circumstances where positions are filled in this way but perhaps not generally this high up on the career ladder. There was no financial gain to the individuals and therefore no material loss to the Complainant.

A long period of time between 2010 and 2013/2014 passed before the complainant took issue with the promotion though the bear fact of it was known to him from early on.

The issue was only consolidated by reason of the Haddington Road circular which allowed for a permanency of position which said circular was not anticipated by the Employer, by the Employee or indeed by the individuals to whom it was targeted.

I do however think the Employer has obfuscated, delayed and prevaricated. The internal processes were unsatisfactory and a paper trail for decisions made has never been established so that it did appear to the Complainant that a “nod and wink” culture appeared to prevail in this workplace whereas I am now satisfied that a teasing out of all the relevant facts shows otherwise.

Industrial Relations Act, 1969:

I recommend that the Complainant be compensated in the amount of €5,000.00 for the manner in which he was treated and the manner in which he was allowed to perceive that he had been treated.

Dated:   15^th May 2017