Complainant

Respondent

Anonymised Parties

A Porter

A Public Body

Representatives

Appeared in Person

Ms Maria Daly, Employee Relations Manager .Cork and Kerry.

Act

Dispute Reference No.

Date of Receipt

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

CA-00009209-001

20/01/2017

The Claimant applied for the position of Temporary Sustainable Environmental Officer on 12 December, 2016.He was not permitted to advance his application as the Employer sought candidates from the Clerical grades to compete .The claimant has challenged this exclusion .

The claimant has worked in a Portering role in a Hospital setting for 12 years. During this time ,he completed a significant body of academic achievements in the form of :

1 An Arts Degree

2 Two Masters Degree Programmes in Environmental disciplines in Coastal Zone Management and Town Planning.

He has also undertaken course work in Facilities Management.

The Complainant submitted that he had interviewed for the position of Assistant Waste Officer in 2014 and had been placed second on a panel.

His claim before the WRC arose from the circumstances surrounding his application for the position of Temporary Sustainable Environmental Officer In December 2016, at the Hospital where he worked .He submitted that he had been excluded from applying for the latter position as it was confined to clerical grades and he wished to lodge a formal complaint.

The Claimant submitted that a Colleague of his had held the Assistant Waste Officer position from 2014 -2016 and the position of Temporary Sustainable Environmental Officer position had emerged from this now vacated position.

The Claimant took issue with his exclusion from the competition and drew the attention of the hearing to his contention that :

1 There was no material difference between the two positions, one of which he was permitted to apply and interview for and one he was not allowed to compete in.

2 There was no logical reason why the position should be reserved for clerical officers.

3 The Job Description of the 2016 indicated that someone of the claimant’s qualifications and experience was suitable.

The Claimant referred to the guidelines contained in his employee handbook and in the Code of Practice for Civil and Public Sectors and emphasised the need for equality , probity ,impartiality, integrity , fairness ,reliability and ethical conduct and merit, as  set out in those documents in the context of recruitment .

The Claimant submitted that he had been disadvantaged on the basis of his Porter Grade by his exclusion from the Competition for the Temporary Sustainable Environmental Officer position. He raised his concerns with the Human Resource Department by phone and email and he stated that he had been informed that he could apply when the position went for National competition. He contended that this placed him at a further disadvantage as he had no way of knowing how long the position would be maintained as Temporary and he submitted that the present appointee would hold an advantage in terms of experience and greater understanding of the position.

The Claimant sought that the issue be addressed by the WRC.

The Employer raised a Preliminary issue at the outset of the hearing .The Employer submitted that competitions in respect of recruitment, such as the current issue, was not properly before the WRC Adjudication Service and should have been addressed under the Codes of Practice governing recruitment to the Public Service as set down in the Public Services Management (Recruitment and Appointments) Act, 2004. The Employer contended that the Codes of Practice, established by the Commission for Public Service Appointments provide the appropriate forum for candidates who are unhappy with decisions made in relation to job applications within the public service.

The Employer submitted copies of the codes of practice and outlined the process surrounding a Section 7 review of a decision taken in respect of a job application .A copy of the original Advertisement , job specification and terms and conditions for the position were submitted at the hearing .

The Employer submitted that all applicants for the position, including the claimant were advised that the campaign to fill the position of Sustainable Environmental Officer, Grade 5 ran in compliance with the Code of Practice prepared by the Commission for Public Service Appointments .The Claimant was on notice of the full details of the temporary position to include eligibility criteria.

The Employer drew the attention of the hearing to LCR 21457, National Recruitment Service v A Worker, May, 10, 2017 and submitted that it was directly relevant to the present claim.

“The Court regrets the lack of detail available to it from the Respondent as regards the conduct of the competition including the lack of detail as regards outcomes. Nevertheless, the Court is not in a position to assess compliance by HSE with the approved Code and understands that the CPSA carries a statutory responsibility for consideration of such matters.”

The Hospital employs 4,000 staff. The Employer submitted that on 30 November, 2016, an email was circulated to Service Managers across the Hospital advising of the notice to advertise to fill the position of Temporary Sustainable Environmental Officer, Grade 5 .The Service Managers were requested to bring the notice to the attention of all relevant staff within their areas to include staff on leave.

The Employer contended that the instant referral was inappropriate as there was a potential for a greater number of staff to seek to appeal decisions on their own eligibility, which brought the claim in conflict with the terms of Section 13(2) of the Industrial Relations Acts 1969-2001.

Substantive Issue :

The Claimant joined the Hospital as a Porter on 29 August 2007. He became permanent in the role on 29 August, 2010.

The Employer outlined the details of the background to the Waste Officer Assistant/Porter Grade reporting to the Head Porter at the Hospital in 2014.

The Hospital also employed a Decontamination Officer, who retired in November, 2014. The Hospital was also engaged in a “ Environmental Campaign “and the replacement for this position was structured at Sustainable Environment Officer level, which merged with the Waste Officer Assistant post as a composite Acting position at Grade 5 level.

In 2016, the Sustainable Environment Officer post holder left his position and the Hospital moved to fill the position as an interim arrangement pending the permanent filling of the position .The competition was confined to existing Clerical /Administrative staff and staff aligned to those grades, who had not less than two years satisfactory experience at a grade no lower than a clerical officer and who possessed a sufficient administrative capacity.

The Employer submitted that the claimant, as an appointed Porter was aligned to the Support Service grades on commensurate 1-4 banding structure, and was not a constituent of the Clerical Administrative grades.

The Employer considered the Claimants application for the position .On 13 December , 2016, he was advised ;

“…….The expression of interest for the post clearly stated that only existing clerical/admin staff and analogous grades with the Hospital are eligible to apply ……

I regret that your application cannot be considered on this occasion “

There were 5 applicants for the position ,3 applicants were invited to interview and 2 were advised that they did not meet the qualifying criteria .The Employer accepted that the claimant was aggrieved but pointed to the correct route to address this as via the Codes of Practice referred to earlier in the Submission.

The Employer contended that the decisions taken to place a Clerical parameter to the post rather than the Portering parameter was known by the Service mangers .There was a difference in the Salary for Grade 5 and Portering role .

The Employer requested that the Public Body be allowed to organise its service and personnel in a manner it deems appropriate to ensure an ongoing safe and quality service delivery .The Employer stated that they were aware of the Claimants considerable education portfolio, however , he did not meet the eligibility criteria for the position .The proper course of action for an aggrieved person is before the Commission for Public Appointments and not the WRC .The Employer sought a recommendation in that regard .

Findings and Conclusions:

I have given careful consideration to both parties’ submissions in this case. At the centre of the case is a claimant seeking to find a career pathway for his additional educational achievements obtained while working in his current role .From the Employers perspective, I identified a keen interest in assisting the claimant in this career pathway, however, they sought to be permitted to construct a job advertisement based on a criteria, which necessitated a Clerical component.

In my consideration of the case, I noted that the original advertisement dated November 30, 2016 was sent to a variety of Managers, inclusive of the Portering Department .Given, the specific component of the position being targeted at a Clerical Dept. audience. I found this to be a fundamental error.

I also found the wording on Eligibility Criteria ambiguous in that it stated :

“ Have not less than two years satisfactory experience in the Public Body at a grade lower than clerical officer “

I did however note considerable differences between the content of the Waste Officer position advertised in 2014 and that of the Sustainable Environment Officer advertised in November 2016.

I note that the posts were merged post the retirement of the Decontamination Officer in 2014, given the claimants status as then No 1 on the panel for Waste Officer at that time, it may have been prudent to have advised him of this development as I could see clearly that this information  added to his sense of exclusion on the day of the hearing.

The Claimant was unrepresented at the hearing, but had clearly taken advice prior to his attendance.

I appreciate the point that the Employer made on the Legal and overarching Statutory Authority of the Commission for Public Service Appointments in this case and I accept that submission.

I asked the claimant whether he had activated the grievance procedure locally at the Hospital?. He submitted that he had raised his concerns by email and was dissatisfied with the response and approached the WRC to address the situation .I believe this action to be premature but understandable in terms of the level of the claimants dissatisfaction which arose .

I find that the Labour Court case cited by the Employer to be slightly different as the candidate in that case had actually interviewed and had actually activated the CPSA procedures. The claimant in this case had not .However, I am guided by the powers cited in the CPSA documents that the Commission cannot alter a decision in the course of an appointments process.

In concluding my investigation into this dispute, I have found that the Employer was within their rights to advertise a job based on the determined criteria .However, the communication and distribution of the advertisement had significant shortfalls .I noted that in all the emails exchanged between the parties, post the claimant’s exclusion from the competition, he was not directed towards the CPSA or indeed the grievance procedure. In fact, it seemed to me that nobody addressed him directly outside electronic mail. I found it unusual that the claimant was directed towards applying for the contested position at a national level when he was ruled out locally.

I find that the Claimant has raised an interesting matter under the Public Service Agreements.

Section 3.12 of Haddington Rd Agreement stated:

In recognition of ongoing resource constraints, there will be flexibility around traditional grade demarcations

Section 2.5 of the live Lansdowne Rd Agreement provides that :

The Public Service will invest in its people to increase and expand its capacity, capability and leadership skills, so that it can respond to future challenges. Building on the traditional values of fairness and dedication to Public Services, there will be an emphasis on creating a sustainable culture of efficiency and effectiveness. The Public Service will facilitate improved training and continuous development .Increased mobility in accordance with the terms of the Agreement and further integration of systems and structures will provide a more interesting and challenging environment to careers in the Public Service .

The Claimant is seeking an opportunity to diversify within his employment and he saw his exclusion from the competition of Temporary Sustainable Environmental Officer as a setback in that plan.

I have found that the claimant was not unfairly excluded from applying for the position; however I was dissatisfied with the manner in which the advertisement was circulated. I was also dissatisfied that the claimant was not informed regarding the merged and blended position of the first appointment at Sustainable Environment role level .This goes to the root of the case .

I find that the claimant has declared a keen interest in utilising his additional educational achievements in the course of his work and the most important issue now is to find a mutually agreeable pathway for that to happen. In that sense, alone I find merit in this Dispute.

Recommendation:

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

I recommend that the Employer undertakes an exploration of the Hospital workforce plan within a four week period of this recommendation. On foot of this, the parties should engage in a discussion surrounding opportunities which may be in the pipeline, to allow the claimant time to consider the opportunities in the work force plan and an opportunity to prepare for eventual competition.

I discovered at hearing that there may be a perceived bar to true lateral movement in the Public Body in terms of the claimant risking a reduction   in pay were he to make a lateral transfer to another grade.

In light of the commitments outlined in the two past National Agreements, I would urge the Employer to review this in the claimant’s case, and convey a special derogation to post holder in the event that he finds himself facing that scenario, once offered a position post competition within 18 months of this recommendation.

Dated:     17^th November 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: Application for a Position.