Complainant

Respondent

Anonymised Parties

An Assistant Buildings Officer

 A Third Level College

Representatives

Peter Flood, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027267-001

25/03/2019

Until January 2019, the most senior role in the Estates Management Department at the College was that of Director of Estates Services.  This role became vacant in June 2018 and was advertised internally and externally.  The complainant reported to the previous incumbent and he applied for the job.  Out of 96 applicants, seven were shortlisted for interview, two of whom were internal candidates.  The complainant was not called for an interview.  The interview board, comprising the President of the University, the Vice President for Campus Development, the Bursar and an external person from a university in the UK, decided that the two internal candidates were suitable for the role of Director of Estates Services.

At the hearing about this grievance, on behalf of the respondent, Mr Flood said that, following the interviews, the Vice President of Campus Development and the President consulted with the Human Resources Department regarding a proposal to create two new roles at Director level, and effectively, to eliminate the job of Director of Estates Services.  Following a job-evaluation process, a decision was made to offer two new positions, Director of Campus Development and Director of Campus Operations to the two internal candidates.

The complainant’s position is that, by failing to advertise the two new positions, the College prevented him from having an opportunity to apply for one of these roles, particularly that of Director of Campus Development.  He said that his skills as a buildings officer over the previous 23 years and his experience in capital projects put him in a position where he would have been suitable for this job.  

At the hearing, the complainant said that following interviews in early October 2018, there was no outcome regarding the appointment of a new Director of Estates Services and he sent several emails to the Bursar, who is the line manager for the role.  On December 14^th, he got a reply in which he was informed, “we are very close to making (I hope) an announcement.”  On January 15^th 2019, the Bursar sent an email to all the staff in the Estates Department to inform them that the two internal candidates had been appointed to two roles that had not been advertised, Director of Campus Development and Director of Campus Operations.  On January 17^th the complainant sent an email to the Human Resources Director to ask why the College did not advertise the two new positions.  He got no reply and he sent follow-up emails on January 21^st and again on February 1^st, but still got no reply.

The complainant’s view about this is that when the role of Director of Estates Services ceased to exist, the original competition for the job should have been declared null and void and there should have been a competition for the new posts.  He argued that the failure to advertise the new posts discriminated against him and the other candidates who applied and invalidated the original competition.  He said that, having spent 23 years working on capital development, his candidature for the post of Director of Campus Development was a strong one, and he was denied an opportunity to compete for the job.

Referring to the Code of Practice for the Appointment to Positions in the Civil Service and Public Service, the complainant said that the filling of the two new roles was not conducted in a fair and transparent way and not in accordance with the principles set out in the Code of Practice.  He also stated that the failure to advertise the two new post was in breach of the College’s own recruitment and selection policy.  He said that it appears that the College is “paying lip service” to this policy.

The complainant described the lack of any response from the HR Department as “stone-walling” and he said that he was prevented from making a case regarding his suitability for the role of Director of Campus Development.  At the hearing, the complainant produced a copy of his score sheet for consideration for the advertised role of Director of Estates Management which showed that he scored highly on the campus development part of the job.  He said that if the job of Director of Campus Development had been advertised and if he had been assessed against the criteria for that job, he may have done better and been shortlisted for an interview.  He said that there is little opportunity for promotion in the Estates Department and he feels that he could have given the successful candidate “a run for his money.”     He described the statement from a member of the College’s HR Department that the two candidates for the original post had equal interview scores as “highly irregular.”

Following the appointments, the complainant requested a copy of the “definitive interview document” which he said, is meant to outline the process that the assessment board undertook and their rationale for appointing the successful candidates.  He was informed by the Records Management and Freedom of Information Unit that this document did not exist.

The complainant said that the key issue is that the College’s Recruitment and Selection Policy provides that all posts should be advertised by open competition and that this did not happen.  He claims that there is no evidence of what occurred during the selection process for the two new roles and that he and other employees were denied the opportunity to apply for these jobs.  He said that in his view, it is not for the College to decide, after the fact, that there was no merit in giving him an opportunity to be considered for the job of Director of Campus Development.

At the hearing, we learned that, in September 2017, because of the illness of the Director of Estates Services, the role was advertised on a temporary, “acting” basis.  The complainant applied for this temporary vacancy, but he was not successful and another candidate, “AB,” was appointed. 

Mr Flood argued that, while a recruitment policy is in place, there is no obligation on the University to advertise every post.  The Recruitment and Selection Policy provides that,

“In some exceptional circumstances, advertising may not be necessary, but in all cases, this will only be with the prior agreement from HR body (Resourcing).”

The University’s position is that an exceptional situation prevailed when, following the interviews for the role of Director of Estates Services in October 2018, the interview board concluded that there were two “outstanding candidates” both of whom were internal applicants and one of whom was AB.  A decision was then made to create two new jobs, Director of Campus Development and Director of Campus Operations and AB was appointed to the former post.  As no other internal candidate had met the criteria to be shortlisted for the role of Director of Estates Services, AB and the other internal candidate were appointed to the two new roles.   

While the complainant claims that he was suitable for that job, AB had been in the job of Director of Estates Services in an acting capacity for nearly a year before he applied for the vacancy.  Mr Flood said that it would have been disingenuous and “a charade” to advertise the new jobs because the two best candidates had been identified following a competitive recruitment process for the higher graded role of Director of Estates Services.  He said that “it would not be effective or efficient to run a recruitment process when the decision on who to appoint had already been decided through an evaluation of the candidates (including the claimant) from a previous competition.”

Under the University’s Statute, the President is responsible for the effective and efficient management of the University and he has “such powers as are necessary and expedient” to do so.  Under statute 25, the Governing Authority may delegate to the President “any of the functions … relating to the appointment of employees of the University and the determination of selection procedures.”

The University’s position therefore, is that there is no obligation on the HR Department to advertise every vacancy and that this was an exceptional case.      

The College’s Recruitment and Selection Policy provides that all vacancies will be advertised, “in line with our equal opportunities policy and to ensure that equality of opportunity is afforded to all staff and potential staff of the university.”  It is clear therefore, that the College considers that it is reasonable to advertise vacant posts and that open competition contributes to equal opportunities for interested candidates.

From a legal perspective, there’s no obligation on the College to advertise posts; however, we must conclude from the above wording, that, in general, it’s the right thing to do.  We learned at the hearing that, in the case of the appointment to the roles of Director of Campus Development and Director of Campus Operations, exceptional circumstances prevailed when two suitable candidates emerged from the interviews for the originally advertised role of Director of Estates Services.

The outcome from the interview process was that two candidates were considered to be suitable for this job.  In such circumstances, an interview board is usually faced with the difficult job of deciding between two equally suitable candidates; however, a different outcome emerged and the board was in the somewhat envious position of being able to create a role for each.  I accept that this outcome served a legitimate objective in the College’s overall estates strategy and that it was not done simply to avoid a difficult choice or to prevent the loss of a skilled employee.  From a human resources perspective, I also understand the decision of the HR Department not to advertise the two new positions, because two suitable candidates had already been identified.

For the complainant however, his perspective is different.  The job he applied for was discontinued and two new roles were filled.  His position is that, if he had been given an opportunity to apply for the new job of Director of Campus Development, he may have been considered suitable.  The College’s position is that a candidate emerged from the recruitment process who was more suitable than the complainant for the job of Director of Campus Development, based on the applications they both submitted for the job of Director of Estates Services.  Their position is clear, that if the complainant had had an opportunity to apply for the job of Director of Campus Development, the outcome would have been the same and AB would have been appointed.  Therefore, they make the argument that it would have been disingenuous to re-run the competition.

It is my view that, while it is unpalatable for the complainant, the decision of the College not to open a competition for the two new roles was, in the end, a sensible one because the outcome would have been the same as the outcome from the original interview process.  While I accept the College’s decision not to open a new competition, I am mindful of the effect that the failure to adhere to the Recruitment Process has on candidates.  Such a departure inevitably causes disappointment and suspicion, and this must be managed by effective communications.  It appears that there was no communication about what was being considered until the complainant and his colleagues in the Estates Department were informed that two new positions had been created when the appointments were finalised.

It is my view that there should not have been such a dearth of information that resulted in the complainant sending several emails to the Bursar to find out what was happening regarding the initial vacancy and then sending more emails to the HR Director to find out why the two roles were not advertised.  All of this could have been avoided if there had been more openness regarding the process.  The complainant could have been informed early on, some time after the interviews in October 2018, that a decision had been made not to follow the recruitment procedure.  It is disappointing that, 12 months later, this is the outcome of his complaint to the WRC.

The outcome of a complaint under section 13 of the Industrial Relations Act 1969 must be a recommendation that the employer takes some action that will address a complainant’s grievance.  There is no option to make an award of redress.  

In the circumstances of the grievance under consideration here, I have concluded that the employer has not acted unfairly or illegally, but that, if they had communicated more openly with the complainant, he may have had a clearer understanding of the reason that the job he aspired to was not advertised.  If he had been better informed, he may not have felt so aggrieved and this issue could have been resolved sooner.

I recommend therefore that, where the College is considering a departure from the standard recruitment procedure, that they should inform candidates and employees in the relevant department as soon as is reasonably possible.  This communication should inform staff and candidates of the College’s right to depart from the recruitment process and the exceptional circumstances that apply.

Departure from recruitment procedure