ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00026267

Parties:

Complaint(s):

Date of Adjudication Hearing: 06/03/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

The Dispute refers to the Complainant not being promoted to a vacancy despite being successful in a promotion competition and a vacancy arising shortly after being placed on the panel

Summary of Complainant’s Case:

The Complainant submitted that she applied for and was successfully placed on a promotion panel for Grade VI in March 2018. She received a letter of congratulations from the Director of HR having her that she was placed third on a panel. The Complainant therefore had every expectation that she would be promoted when a vacancy occurred in accordance with the agreed procedures.

The Complainant submitted that a vacancy was offered to the second candidate but that candidate did not take up the offer. On that basis the Complainant submitted she should have been offered that role, and would have expected to have been in position from April 2018.

In addition, the Complainant advised that a role in her office at Grade VI also existed and was held on a specified purpose contract by another colleague whilst the post holder was on maternity leave. When that post holder came back to work she did not return to her role and the person on the specified purpose contract remained in that job in an acting capacity.  This colleague had also applied for promotion on the same competition but was not deemed suitable and was therefore not placed on the panel. The Complainant therefore submitted as she was now qualified she should have been provided with the opportunity to be posted to the Grade VI role and her colleague redeployed to her substantive grade.

Furthermore, the Comp submitted that a circular letter issued in January 2018 stated that where a temporary assignment arises due to the requirement to fill a permanent vacancy management must seek to have the post filled permanently with due expedition through the normal recruitment process. The Complaisant was therefore of the view that this process was ignored as she was working alongside

The Complainant maintained that she made a number of informal submissions to the PA of the HR Director seeking clarification on the matter during the summer of 2018. As issues had not progressed the Complainant maintained she made formal enquiries to the HR Director in May 2019 and August 2019 but her enquiries were unanswered. The Complainant submitted that she was also recommended for promotion by her own line manager for vacancies that existed in her office but that such recommendations were not fulfilled.

In the interim the Complainant has become aware that in fact four vacancies have occurred and she was neither informed of these vacancies or informed of any change in the procedures relating to being promoted from the panel. The Complainant was advised recently that she would be promoted to a Grade VI, and that the promotion would be backdated to September 2019.

On that basis the Complainant contended that the Respondent is in breach of its obligations to promote her in accordance with the agreed procedures. She was seeking to be promoted from April 2018 where she argued she was entitled to be offered the vacant position that occurred at that stage. She is dissatisfied that the offer to backdate her promotion to September 2019 fails to adequately address the situation on the basis it would be some 17 months after she should have been promoted and the implications this has on her seniority and related career opportunities.

Summary of Respondent’s Case:

The Respondent acknowledged the Complainant was successfully placed third on a panel for promotion to Grade VI in March 2018. It further acknowledged that a vacancy arose in April 2018 that was turned down by the second placed candidate. It acknowledged that the Complainant was not offered this role, nor did it advise her at the time of the situation. The Respondent further acknowledged a colleague who was on a specified purpose contract in the office at Grade VI was not successful in their application for a Grade VI position in the same office, yet that person was retained at the Grade VI role whilst the Complainant who was successful remained at Grade V.

The Respondent also acknowledged that a number of other vacancies occurred but that the Complainant was not offered any of these positions. The Respondent acknowledged that it was reasonable for the Complainant to have an expectancy to be offered the next vacancy in accordance with the agreed procedures. The Respondent also maintained that there was no obligation on it to fill vacancies.

The Respondent advised that it did not inform the Complainant of any changes in its approach to fill or not fill vacancies, and where such changes occurred it would have been reasonable to have informed the Complainant.

The Respondent acknowledged that the Complainant’s informal and more formal enquiries were not responded to at the time. However, a new HR Director was appointed in September 2019 and when the matter was considered by that person it was agreed to offer a promotion to the Complainant with effect from September 2019. The rationale for deciding upon that date was it was when the new HR Director was appointed, and as such the newly appointed HR Director maintained they were not in a position to promote the Candidate prior to her appointment date as the decision prior to her appointment in September 2019rested with the former HR Director prior to. The Respondent maintained that under those circumstances it was reasonable to backdate the promotion date to September 2019. The Respondent in its submission also acknowledged for some unknown reason the Complainant was not offered a post in April 2018 when the person placed number two on the panel did not accept the position.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

Having heard the evidence presented by the parties I am satisfied the Complainant was successfully placed third on a panel for promotion to Grade VI in March 2018. She therefore had an expectancy she would be promoted in accordance of the procedures pertaining to the promotion competition and relevant circular letters and practices.

At the time of her promotion a colleague in the office who was on a specified purpose contract in a Grade VI role, was unsuccessful in the same promotion competition. Notwithstanding, that colleague remained in the Grade VI post when the substantive post holder left that post and the Complainant remained at Grade V awaiting a vacancy to arise.

In addition, and unknown to the Complainant, the second placed person on the promotion panel did not take up a vacancy that was offered to that candidate in April 2018. Subsequently the Complainant sought clarification of when she would be promoted but received no response. The Complainant was never advised whether there were any changes the procedure relating to the filling of vacancies from the panel. Indeed it is unclear whether there was any change to the obligations on the Respondent to promote the Complainant at the next available opportunity.

It transpired, unknown to the Complainant, that some four vacancies had occurred between 2018 and 2019 but she was not offered any of those positions, nor was she informed whether there was a decision to supress the vacancies. In May and August 2019, the Complainant raised a formal enquiry to the HR Director seeking clarification on her position, and being aggrieved that a person she worked with who was not successful in the promotion competition had been retained at the higher grade on the specified purpose contract in the same place of work as the Complainant. Moreover, the Complainant’s formal enquiries were not responded to.

The Complainant was not informed at any stage that vacancies would not be filled, and she was left in this position for over twenty months after the competition and awaited news of being appointed. The Complainant also received a recommendation from her own line manager to be promoted to vacancies that existed, but to no effect.

The HR Director left on a career break and was replaced in September 2019. Matters did no progress so the Complainant reluctantly submitted her complaint to the WRC on 2nd January 2020. Since her submission to the WRC I note a decision to promote the Complainant was confirmed by the newly appointed HR Director within a few days before this hearing, and where the promotion was to be backdated to September 2019. For some reason the Respondent was not in a position to backdate the promotion before September 2019 because it was unaware of the former HR Director’s position on the matter. Tellingly in its written submission the Respondent stated for some unknown reason the [Complainant} was not offered a post in April 2018 when a vacancy was declined by the person placed second om the panel.

Taking all of the above into account, and in light of the very specific and unique circumstances in relation to this particular complaint (which includes a person in the Complainant’s place of work who was unsuccessful in the promotion competition continuing in an acting capacity at the higher Grade whilst the Complainant who was successful in the promotion competition was required to work alongside that colleague in the lower grade) I find the Complainant was treated unfairly.

Accordingly, I recommend the Complainant in this particular case should be promoted to Grade VI and where the date of her promotion should be backdated to June 2018, with all associated benefits and entitlements from that date. In light of the uniqueness of the circumstances as set out in this complaint the recommendation cannot be relied upon in the setting any precedent and as such it stands on its own merits.

Dated:   22nd April 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: