ADJ-00011826

Complainant

Respondent

Anonymised Parties

A public servant

A public body

Representatives

Association of Higher Civil and Public Servants

Mason Hayes & Curran

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-00015674-001

08/11/2017

The complainant seeks redress following the respondent’s decision not to confirm his promotion to a Manager role and asserts that the respondent did not comply with the probation policy. The respondent asserted that it acted wholly in accordance with the probation policy and was entitled to decide not to confirm the complainant’s promotion.

The complainant outlined that the respondent got the probation process wrong, for example not informing him his probation was being extended and not sending him notes. He submitted that these oversights had consequences. The external investigator concluded that there were historical staff issues.

The union representative outlined that he attended the meeting of the 22nd May 2017 but this was not an appeal. The biggest issue was the extension of probation at the second meeting when the complainant should have been told that this was under consideration. The complainant was left in shock and sent in a spin. The complainant did not accept that the deficiencies were immaterial.

The complainant attended the Employee Assistance Programme on the 23rd January 2017 and took sick leave between the 27th March to 2nd April 2017. He went on administrative leave and returned to work on the 20th April 2017.

The complainant outlined that the Director called the staff meeting of the 30th November 2016 as there were tensions in the team following an inspector walking out of a previous meeting. The Director said that they need to get along. There was no criticism. It was agreed by the team, including the inspectors, that they needed to get along. The complainant outlined that one of the inspectors had also applied for his role and there were tensions. The Director brought this to his attention. The complainant said that things improved and the tensions eased in January 2017. He referred to being confronted by the inspectors in a room and made the Director aware of this. There were also issues with a named report going on site visits.

The complainant outlined that he wanted the investigator’s findings upheld and for fair procedures to be applied. The complainant said he effectively seeks re-instatement to the AP role in another position. He submitted that if the process was not followed, the procedure was not fair and the respondent was not entitled to reinstate him to the analyst position.

The complainant said that he took over the Manager’s role in a complicated matrix of relationship. Whatever of the competencies, this case was a case about rules. The complainant was sent to a mentor and a coach, but the Director did not take on board the points he made following their support. The Director had ridiculed his suggestion for the inspectors to report directly to the Manager. He said that the extended probation period included time when he was out and the investigator found that this impacted on the probation process. It was speculative to say what would have happened if he had been given the full time. It is not relevant what happened to the eleven others appointed to manager roles.

The complainant outlined that a further unfairness was the emphasis placed on deficiencies in a draft report, where timelines were moved forward and he had to submit the draft before the seventh probation meeting. He outlined that there was plenty of work available in April and May to complete the probation process, so there was no need to move this document forward. It was problematic to move timelines forward at a time when someone is challenged. The union representative said that he had never seen the recommendations of a third party not adhered to. The respondent could have gone to an Assistant Secretary of another department to carry out an appeal.

The respondent opened its submission by acknowledging the value of the complainant as a longstanding employee of the respondent. The respondent outlined that the Manager role was a pre-existing role and referred to the competencies and tasks associated with it. It referred to the contract of employment and clause 5 which deals with probation. It submitted that it was clear to the complainant that there would be a probationary period.

The respondent applied a probation period to internal promotions as well as to new hires. It was practice that at the end of probation, the line manager made a recommendation and it would be for a senior manager to decide whether to confirm the probationer in the role. The respondent said that the senior manager was impartial and this process was similar to an appeal. It pointed out that the union representative had attended the meeting with the senior manager.

The respondent outlined that there were seven probationary meetings. The 21st November 2016 meeting set objectives. On the 21st December 2016, the respondent appointed the investigator to deal with the complainant’s grievance and he found that at the second meeting, the Director should have notified the complainant of the possibility of extending the probation period. At the third meeting, the Director agreed to a four-week period before extending the probation period, which took place at the fourth meeting. Another extension was made as the complainant was absent from work. An administrative error caused the failure to send the notes of the seventh probation meeting. All other notes were sent to the complainant.

The respondent submitted that the Director supported the complainant. The complainant questioned her support as part of his grievance, but the investigator did not find in his favour. The grievance policy requires that grievance decisions are made by an internal manager. The policy provides for an appeal to a senior manager, who are appointed individually and are at the level of Secretary General. The respondent submitted that it was appropriate that someone from the respondent make the decision. The senior manager was impartial and independent because she was appointed by the Minister.

The respondent outlined that the Manager role had existed since 2012. The Director had performed the Manager’s role prior to the complainant’s appointment. Another manager had also carried out this role, along with other duties. The role involved two direct reports and collaborative work with two inspectors. Back to 2011, inspectors reported into the Manager but this was changed so that the inspectors now report to Directors. The Manager role focuses on the regulatory side and not the technical side. It outlined that the performance management issues relate to the two reports.

The respondent submitted that there was direct conflict over the extension of the probation period. It submitted that the question was whether this had a consequence over the decision made regarding suitability. It submitted that the respondent followed a fair and comprehensive process. This was a decision to be made by the respondent, in particular as it knew the competences required of the role. The investigator was asked to carry out the grievance investigation and he made findings of fact. There was no commitment to adopt his findings and ultimately it was the respondent’s decision.

In respect of the application for re-instatement, the respondent outlined that it wished to continue to support him. There was no impediment to him applying for other positions. The Director had taken a view in respect of the complainant’s suitability for the Manager role and this was endorsed, in turn, by her manager.

The HR Manager outlined that the complainant had discussed with her the confrontation with the inspectors. She asked what would he like done and set out options for him. The complainant said that he would talk to the Director, and this is what happened. In relation to the speeding up of the work, the HR Manager said that she met the complainant on the 20th April 2017 and he wanted the probation process to conclude prior to the 4th May 2017. The process was not sped up but the complainant asked that the process come to an end.

The respondent said the fact of the eleven other managers being confirmed showed that it treated employees fairly. The respondent wanted the people in high-level positions to meet the standards. The post was a responsible position and this was an assessment of meeting competencies. It outlined that the matrix has been in place for some time and included collaborative work. The respondent had given the complainant time regarding his illness. They had to stand over the competencies. The inspector had applied for the manager role and it is often the case that the successful candidates faces the challenge of working with disappointed colleagues. The role necessitated a collaborative approach and the respondent supported their managers. There were regular meetings with managers. The complainant ‘s probation was tested over eight months. A hurried report would not impact on the assessment of the probation. Managers would be expected to deliver reports in a speedy fashion. The Director had looked at how advanced the document was and questioned the factual basis of the report, and found that this wanting.

The complainant is a valued employee of the respondent, having worked there since 2008. In 2016, he was successful in obtaining a promotion to the Manager role. This was a significant achievement and the Director was part of the interview panel 

Unfortunately, the complainant’s promotion was not confirmed at the end of an extended period of probation. The complainant now seeks to be reinstated to a role at the level of Manager, saying that he was materially disadvantaged by deficiencies in how the probation policy was applied to his promotion. He also refers to ADJ 3848, where the WRC adjudication officer recommended redress of €10,000.

This dispute has been subject to several internal processes within the respondent. A senior manager upheld the recommendation that the complainant not be confirmed in his newly appointed role. The complainant lodged a grievance regarding how the probation policy was carried out. This was referred to an external investigator, who issued out a detailed report on the grievances. The complainant appealed how the respondent proposed to implement the investigator’s recommendations. This was heard by a senior manager, who upheld the respondent’s position.

The probation assessment looked at seven areas: ‘quality and accuracy of work’, ‘efficiency’, ‘attendance’, ‘time keeping’, ‘work relationships (team work and interpersonal communication skills)’, ‘managing the performance of staff’ and ‘competency in the role’. It allowed for four ratings: ‘improvement required’, ‘satisfactory’, ‘good’ and ‘excellent’.

The complainant received all ‘good’ ratings after the second probation meeting, although the note pointed to difficulties with staff. After the third meeting, he was rated ‘improvement required’ in ‘work relationships’ and ‘managing the performance of staff’. This was repeated in the fourth meeting, which also stated that ‘improvement required’ in ‘competency’. The fifth meeting scored ‘improvement required’ with regard to ‘quality and accuracy at work’ as well as ‘managing performance’ and ‘competency’. ‘Improvement required’ ratings were given for ‘managing staff’ and ‘competency’. At the seventh meeting, the complainant received a rating of ‘improvement required’ in ‘quality and accuracy of work’, ‘managing the performance of staff’ and ‘competency’.

I was asked to read the various lever arch files submitted at the adjudication, including those compiled by the investigator. I have done so and note the following. First, the complainant raised several issues regarding the probation process, four of which were upheld by the investigator. Having reviewed the documentation, I endorse these four adverse findings regarding the application of the process. There include failures to inform the complainant of what was to happen next and to provide him with documentation.

Second, I note the thorough documentation compiled by the respondent, in particular by the Director. She immediately questioned the complainant about early initiatives he pursued, for example asking the inspectors to copy him on emails and the proposal to re-introduce a hierarchical structure. The complainant acknowledged that these were mis-steps.

Third, the investigator asks why the CMO’s recommendation that a meeting be arranged between the complainant and the Director on his return from sick leave (arising from work-related stress) was not implemented. The complainant asserts that none of the CMO’s recommendations were implemented; the senior manager, for the respondent, states that they were materially complied with. Whatever of the CMO’s recommendation, I note that there was no allegation that the respondent had not complied with the relevant return-to-work protocols.

Fourth, I note that the key challenges faced by the complainant related to his role as Manager and the interpersonal relationships with both reports and collaborators. There were also challenges with prioritising work. I note that these were competencies of the role, i.e. the role involved managing within a complex matrix and managing priorities. While there were certainly shortcomings in how the probation policy was applied, the respondent largely complied with the policy and made its decision on foot of the assessment of the Director and others.

I appreciate that the promotion to the Manager role was challenging and the complainant worked hard in the role. He adapted following earlier mis-steps. Ultimately, however, whatever the shortcomings in the process, they do not merit a recommendation that the complainant be reinstated to a role at the level of Manager. The respondent largely complied with the policy and undertook a thorough review of the complainant’s actions as Manager, covering both the positive and the negative. As submitted, it was entitled to reach the decision not to confirm the complainant in the Manager role. It is also a decision for the employer to make; it is not feasible or appropriate for the respondent to have placed this decision in the hands of a third party.

While I am unable to recommend the complainant’s reinstatement to an equivalent role to the Manager one, I propose that he receive redress of €3,000 for the breaches identified by the investigator and endorsed above. I appreciate that the complainant was afforded administrative leave, but there should be acknowledgement of the above shortcomings.

CA-00015674-001

I recommend that the respondent pay to the complainant €3,000 for the shortcomings identified in the application of the probation policy to the complainant.

Industrial Relations Act

Probation arising from a promoted role