FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TUSLA CHILD & FAMILY AGENCY (REPRESENTED BY MASON HAYES & CURRAN, SOLICITORS) - AND - A WORKER (REPRESENTED BY IMPACT TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Recommendation No: ADJ-00007052.
BACKGROUND:
2. This case concerns an appeal by the Claimant against the decision of the Employer to alter the eligibility criteria for the post of ‘Educational Welfare Officer with Responsibility for Assessment of Education in Places other than Recognised Schools’ in the Education Welfare Service, with the result that he was excluded from a competition in November 2015.
The Union on behalf of the Claimant said that it is a long accepted practice that eligibility criteria or changes to eligibility would be the subject of prior discussion and agreement with the Union.
- The Employer said that it is entitled to specify criteria which it regards as being essential to a particular position, the criteria is fair and there is a clear rationale for the criteria for the post and that it was applied fairly to all applicants, including the Claimant.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 9 August 2017 the Adjudication Officer issued the following Recommendation:-
- “I have considered the submission of both parties. In the evidence presented to me I accept the Respondent’s right to determine the criteria they require for any post in the functioning of their role and duty under their mandate. I therefore do not find the claim well founded and it fails.”
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 18 September 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 17 November 2017.
DECISION:
This is an appeal by an employee of an Adjudication Officer’s Recommendation which found against his claim under the Industrial Relations Act, 1969. The Claimant claimed that the employer had, without consultation with the Union, altered the eligibility criteria for the post of ‘Educational Welfare Officer with Responsibility for Assessment of Education in Places other than Recognised Schools’ in the Education Welfare Service, with the result that he was excluded from a competition in November 2015. In February 2016, he was informed that he had not been shortlisted for interview as he did not meet the required educational criteria. He appealed the decision under the Commission for Public Service Appointments Code of Practice, through its various stages to the Decision Arbitrator which in a final decision upheld the earlier outcome that found that he was ineligible to apply as he did not meet the required education criteria.
The Claimant has been employed by the organisation since 2005 as an Educational Welfare Officer. He made the point that in 2010 the National Educational Welfare Board selected him from an internal expression of interest campaign amongst all existing Educational Welfare Officers to train to carry out the function of home assessor, which was designed to assess education in places other than recognised schools. Therefore, he disputed the contention that he was not qualified for the role advertised in 2015. He maintained that he had been carrying out this work for six years prior to the competition which lead to this dispute.
The Claimant told the Court that with funding assistance from the employer he completed a Master’s Degree in Public Management, including a dissertation on an education related topic.
The employer stated that due to the specialised nature of the role it deemed it necessary to have the specified qualification as a necessary requirement for the role.
Having examined the submissions of both sides, the Court notes that the Claimant processed his appeal of the decision not to shortlist him through the available appeals process. The Court notes that these processes were brought to finality.
However, the dispute before the Court was not in relation to whether or not he was shortlisted but was a dispute relating to the eligibility criteria that applied to the competition. Specifically, it relates to the fact that the decision on eligibility criteria was not the subject of consultation between the employer and the Union. The Court was informed that the disputed criteria for the post of ‘Educational Welfare Officer with Responsibility for Assessment of Education in Places other than Recognised Schools’ is currently the subject of a negotiation process between the parties at national level and is intended to progress through the normal industrial relations processes.
On that basis, the Court recommends that the parties should proceed in that process to seek to resolve the issue of the appropriate eligibility criteria for the post and bring that issue to finality. The Court expects that that process will take into account the type of circumstances pertaining to existing Educational Welfare Officers such as the Claimant, as was presented in his case.
On the basis of the Court’s conclusion above where it has found that the Claimant appeal of the shortlisting process in 2016 was brought to finality, the Court cannot uphold his appeal, however it varies the Adjudication Officer’s Recommendation by the Court’s Recommendation above.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
30 November, 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.