ADJ-00014075

Complainant

Respondent

Anonymised Parties

An employee

A Local  Government Authority

Representatives

Gerry Flanagan SIPTU

A Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018479-001

12/04/2018

The Complainant commenced employment with the Respondent as part of a Community Employment Scheme on 7th April 2014. He was assigned to general operative duties and worked 40 hours per week on alternative weeks. In July 2016 the Complainant applied for the post of temporary general operative and following application and successful confined competition, the Complainant was appointed. The Contract was fixed term commencing 23rd August 2016 and termination date was 22nd February 2017.

In January 2017 the Complainant was offered a further contract for the post of temporary general operative. This was a fixed purpose contract with commencement date 23rd February 2017 and no termination date.

The Respondent wrote to the Complainant on 9th November 2017 offering a permanent general operative position. This offer required that the Complainant would amongst other requirements submit academic qualifications. The Complainant contacted Personnel to advise that he had not in fact completed his Leaving Certificate.

The Complainant’s specific purpose contract ceased with the permanent filling of the post as per the provisions of his contract.

The Complainant lodged his complaint with the Workplace Relations Commission on 12th April 2018.

BACKGROUND:

1.       The Complainant commenced employment with the Respondent as part of a Community Employment Scheme on 7th April 2014. He was assigned to general operative duties and worked 40 hours per week on alternative weeks. In July 2016 the Complainant applied for the post of temporary general operative and following application and successful confined competition, the Complainant was appointed. The Contract was fixed term commencing 23rd August 2016 and termination date was 22nd February 2017.

2.       In January 2017 the Complainant was offered a further contract for the post of temporary general operative. This was a fixed purpose contract with commencement date 23rd February 2017 and no termination date.

3.       In mid-2017 the Respondent advertised its intention to appoint general operatives’ positions. The Complainant applied for same and in his application cited that he had achieved a Pass Level Leaving Certificate in 1987. The Complainant attended a first interview and was advised following same that he was unsuccessful and would not be called for second interview on the basis of his scores.

4.       Following engagement between the Respondent and SIPTU in relation to this decision with regard to the Complainant and a number of other applications, the Respondent wrote to the Complainant on 9th November 2017 offering a permanent general operative position. This offer required that the Complainant would amongst other requirements submit academic qualifications. The Complainant contacted Personnel to advise that he had not in fact completed his Leaving Certificate.

5.       The Respondent wrote to the Complainant on 2nd January 2018 withdrawing their offer of employment and advising of termination of the Complainant’s employment. The Complainant appealed this decision to the Director of services by letter. The Director of Services responded on 5th February 2018 upholding the decision to terminate the Complainant’s employment and outlined his response.

6.       There followed further correspondence on 14th February 2018 terminating the Complainant’s employment on 3rd March 2018.

UNION’S CASE:

1.       The Complainant was employed by the Respondent for 3 years and 10 months and was never subject to any criticism in relation to his work or behaviour.

2.       The Complainant’s declaration that he had obtained a Pass Leaving Certificate was made out of fear and embarrassment with no malicious intentions. The declaration of itself could not reasonably be viewed, as having a negative effect in regard to fairness for all candidates who had applied as outlined by the Respondent, given that the Complainant’s application was unsuccessful.

3.       The decision of the Respondent to terminate the Complainant’s employment was too severe given the nature of circumstances surrounding the issue.

4.       The Complainant was denied natural justice.

BACKGROUND:

1.       In January 2016, on foot of submission of workforce plans, the Respondent received a delegated sanction from the Department of Housing, Planning and Local Government, in relation to the filling of posts within the local authority.

2.       A number of vacancies existed across the organisation, and the delegated sanction effectively gave the approval to the filling of these posts. In order to fill an immediate and urgent need, in March 2016, the Respondent ran a recruitment competition for Temporary general operatives. The competition was confined to persons employed on a Community Employment and Gateway Scheme. On foot of agreement with SIPTU, it was agreed that successful candidates would initially be offered six-month temporary contracts, pending formation of permanent “open” panel. It was further agreed that one in four permanent vacancies would be filled from this “confined” panel, with the remaining three in four being filled from the open panel.

3.       The Complainant was placed 3rd in order of merit on the confined panel and commenced a six-month contract of employment with the Respondent as a temporary general operative on 23rd August 2016. On 4th January 2017, the Complainant was offered an extension to his contract for the specific purpose of provision of cover pending the formation of the permanent panel, (and associated filling of vacancies) which he accepted.

4.       In February 2017, the Respondent commenced the process of running the open competition for general operative.   Phase one comprised the holding of preliminary interviews. The Complainant attended for preliminary interview in June 2017, but was not amongst those recommended by the Board for final interview.

5.       Final interviews were held and the open panel was formed in September 2017. Permanent filling of outstanding vacancies commenced at this stage. Having regard to his position on the confined panel, the process of permanently appointing the Complainant was commenced on 7th November 2017. He was contacted and asked to submit copies of educational qualifications, birth certificate etc.

6.       On 9th November 2017 the Complainant contacted the HR section and advised that contrary to the information provided and the declaration made by him, on his application forms, he had not in fact sat his Leaving Certificate. The Complainant was informed that this was a serious matter and that the Respondent would have to withdraw its offer of permanent employment. He was advised by letter dated 2nd January 2018 that the offer was withdrawn. The HR Department spoke with the Complainant on 17th January 2018 and advised him that he could appeal this decision to the Director of Services.

7.       The Director of Services examined the Complainant’s appeal but upheld the decision to withdraw the offer of employment to the Complainant.

8.       The Respondent permanently filled the post that the Complainant had held in a temporary capacity and the Complainant’s specific purpose contract was terminated with effect from close of duty on 3rd March 2018.

RESPONDENT’S POSITION: -

The Respondent does not accept that the Complainant was unfairly dismissed. An offer of permanent employment was withdrawn, due to the fact that the Complainant had made a false declaration in respect of his educational qualifications. This false declaration was viewed as a fundamental breach of trust.

The Complainant’s specific purpose contract ceased with the permanent filling of the post as per the provisions of his contract. The Respondent honoured the provisions of this temporary contract and the Complainant’s temporary employment ceased solely due to the fact the purpose for which he was employed came to an end.

In summary the Respondent rejects the claim.

I have considered the submissions and arguments made from both the Respondent and Complainant. The facts as presented by both parties are somewhat similar and there are no areas of disagreement in the facts of the case.

The question in relation to the Complainant claiming that he had obtained his Leaving Certificate has to be questioned. Why did the Complainant do this? The complainant’s representative has said that the Complainant’s declaration that he had obtained his Leaving Certificate was made out of fear and embarrassment with no malicious intentions.

There is a declaration in the Application Form – this reads as follows:

“I hereby declare that I fulfil all the requirements set out in the Qualifications, that the information given in this form is correct and give my permission for enquiries to be made to establish such matters as qualifications, experience and character and for the release by other people or organisations of such information as may be necessary for that purpose. This may include enquiries from past/present employers and the submission of the application is taken as consent to this”.

In the case of Looney and Co Ltd v Looney (UD 843/1984) the EAT summarised as follows:

‘it is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision is to be judged’

My task in the instant case is to look at the reasonableness of the Respondent and the process and procedures utilised.

On 9th November 2017 the Complainant contacted the Respondent’s HR section to inform them that he had not sat his Leaving Certificate. He was advised by letter dated 2nd January 2018 that the offer of employment was withdrawn. Why did it take almost eight weeks for the Respondent to write to the Complainant withdrawing the offer, this appears to be a very long time and was not fair to the Complainant.

On 17th January 2018 a member of the Respondent’s HR Department spoke to the Complainant and informed him that he could appeal the decision to withdraw the offer of employment to the Director of Services.

The letter of appeal was completed (undated) by the Complainant and sent to the Director of Services who received same letter on 22nd January 2018. In his reply dated 5th February the Director of Services states:

“The fact of the matter is that in your application form you stated that you obtained a Pass leaving Certificate in 1987 which it is now conceded is not the case. In the interests of fairness to all candidates, and given the fact that you signed a declaration that the information you were giving was correct when in fact they were not correct with regard to your educational qualifications. I regret to inform you that the decision taken by the Personnel Officer in this matter is correct.

Therefore, I am upholding the decision taken by the Personnel Officer as communicated to you in the correspondence of 2nd January 2018”.

There was no appeal hearing and the Complainant was not reminded of his right to representation. This raises the question was the process conducted in accordance with SI. 146 of 2000 – Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures?

In relation to the complaint being held under the Unfair Dismissal Act, 1997 there are two points raised by the Respondent:

1.       “The Respondent does not accept that the Complainant was unfairly dismissed. An offer of permanent employment was withdrawn due to the fact the Complainant had made a false declaration in respect of his educational qualifications. This false declaration was viewed as a fundamental breach of trust.

2.       The Complainant’s specific purpose contract ceased with the permanent filling of the post as per the provisions of his contract. The Respondent honoured the provisions of this temporary contract and his temporary employment ceased solely due to the fact the purpose for which he was employed came to an end”.

These two points cannot be overlooked and I feel I have no option under this legislation to accept the argument they present. It is for this reason alone that I have to find in favour of the Respondent and deem the complaint as having failed.

The entire process could have been managed better by the Respondent.

I do accept the arguments as presented by the Complainant’s representative and would ask that the Complainant is permitted to re-apply for a position at some stage in future and that his representative may bring this subject up with the Respondent.

Complaint fails for reasons outlined above.

False declaration on application form. Unfair Dismissal.