Complainant

Respondent

Anonymised Parties

A General Operative

A Local Authority

Representatives

Fórsa

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-00027589-001

08/04/2019

The complainant has had nineteen years’ service with the respondent and in 2016 applied for a promotional opportunity similar to the one in this reference but was unsuccessful.

In 2017 it became vacant and he applied again.

His application was acknowledged, and he was told that there would be further contact in relation to the time and date of the interview for the position.

As it happened, the next thing he heard was that the position had been filled.

He was not invited to attend for interview or given any other information about the progress of his application.

At that stage he was advised that the eligibility criteria for the position had been changed since his previous application (to exclude General Operatives) and that he was no longer eligible for consideration. The previous incumbent of the post did not possess the revised qualifications now being required by the respondent.

The respondent is a unionised workplace but there had been no consultation of any sort with the union over the change in the qualifying criteria.

The change has denied the complainant the opportunity for career development and also access to the higher earnings associated with the new post. Even if he were enabled to compete for the position when it is to be filled permanently he would be at a disadvantage against the person acting in it.

It also represents a discriminatory attitude against General Operatives.

The respondent does not dispute the facts as set out above in the complainant’s submission.

The position has only been filled on a temporary basis as it was necessary to have someone in post urgently.

It is true that the qualifying criteria for the post were changed, partly to limit the number of applicants to those likely to compete effectively for the position, and this was made clear to applicants.

In this case seven applications were received, including that from the complainant, but as he was deemed to be ineligible he did not go forward to the interview stage.

It is likely that a competition will take place to fill the position later this year.

The central argument of the respondent, as outlined in its submission, justifying the change in the qualifying criteria was as follows;

‘The purpose [of the change] was to attract those most likely to attain the standard required at interview stage as per points (b), (c) and (d) in particular as contained in the ‘Education, Training, Experience’ section of the [job specification]. The purpose of restricting the level of applicants was to ensure a manageable interview programme by selecting the most appropriate/suitable number of applicants for interview. It was felt that staff at this level would most likely have the experience and expertise to step into this critical role’

The Points (b), (c) and (d) referred to relate to knowledge of site management etc, supervisory experience and ability to deal with the public.

In principle, the respondent’s actions were not exceptionable; applying qualifications which in its view matched the nature of the post, and this is a normal aspect of recruitment and promotion processes.

That said care is necessary to ensure that some pre-requisite qualifications are actually required for the job and that they do not arbitrarily exclude candidates with good aptitude for a position, and which might be better left to an interview board to decide.

Indeed, in this case there are a number of other considerations.

Although it is impossible to say now how many others would have applied had there been no such restrictions the fact is that there were only seven applicants in all.

It was clear that the complainant had a particular interest in the post, having applied on a previous occasion so even had the number of applicants doubled or trebled, with normal shortlisting this would not have created much difficulty for the respondent in conducting what it described as ‘a manageable interview programme’, if this was the point of changing the qualifying criteria.

Secondly, while these new restrictions were known to the complainant when he made his application, his ambition and self-confidence in persisting with the application is commendable, partly based on his belief that he had performed well at interview in his previous application in 2016 and what he saw as his aptitude for the position.

Perhaps this should have counted for more with the respondent, although it might then have been vulnerable to complaints from other potential applicants who ruled themselves out on the basis of the published requirements for the post.

Nonetheless, the previous incumbent who discharged his functions for twenty years had come from the same grade as the complainant.

On the other hand, the respondent’s error and oversight in not pointing out his ineligibility to continue, (indeed he was given the impression that he was still in the race) was unfortunate and unacceptable.

I take account also of the fact that the complainant’s trade union was not notified of the change. Thee was some disagreement at the hearing about what exactly is required here, and it is not a significant factor in the case.

The complainant cannot be compensated for his failure to actually get the post as that would have been a matter for the interview board and there is no means of knowing whether or not he would have been appointed.

However, the respondent’s case was unconvincing; it erred in not advising the complainant of his ineligibility (indeed it led him to believe his application was still active) and so there has been a breach of his rights to the point where some compensation is justified.

I also recommend that consultation take place with the union on future eligibility criteria for the post before it is advertised for filling on a permanent basis.

I uphold complaint CA-00027589-001 and recommend payment to the complainant of compensation of €950 for the breach of his rights in the matter.

I also recommend that consultation take place with the union on future eligibility criteria for the post before it is advertised for filling on a permanent basis.