Complainant

Respondent

Anonymised Parties

An Employee

A Local Authority

Representatives

Maura Cahalan Forsa Trade Union

Amanda Kane L.G.M.A.

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-00033740-001

13/01/2020

In 2018 the Respondent sought to recruit a Senior Executive Officer (SEO) through the Public Appointments Service (PAS). The Complainant applied for the position but after some time the Respondent decided not to proceed with the post. The Respondent cited a proposed amalgamation of the local authority as being a key reason for its decision not to proceed. The proposed amalgamation was the subject of a government press release on the 6th June, 2018 and an Oireachtas Bill in June/July 2018. To-date, the proposed amalgamation has not occurred. The Complainant lodged an internal grievance concerning her non-appointment to the SEO post but this did not resolve matters for her. The Complainant referred the dispute to the WRC on the 13th January, 2020.

The Complainant stated on her complaint form that she commenced employment with the Respondent on the 1st October, 2000. The Complainant’s issues are summarised as follows:

1.       Non-Appointment to SEO post: On the 15th June 2018, the Respondent submitted a statutory request to the Public Appointments Service (PAS) for the permanent filling of the post of Senior Executive Officer (SEO). The Complainant participated in the ensuing public recruitment process and following interview, she was placed sixth in order of merit on the regional panel. On the 9th August 2018 the Complainant received a communication from PAS which advised that “a vacancy is now available” in the Respondent and requested her to confirm whether she was “willing to be considered for this post ie: to enter the clearance process after which, pending PAS being satisfied that you meet all criteria for the post, you will be recommended for appointment to [Respondent] who will then make a formal offer”. The sequence which unfolded after that was as follows:

-          On the 13th August 2018 the Complainant accepted the offer of the SEO post;

-          On the 16th August 2018, the local authority’s Chief Executive (CE) wrote to PAS stating that “….I do not wish to proceed with the filling of the position at this time”;

-          On the 18th August 2018 the Complainant stated that she received a further letter from PAS which enclosed documentation in respect of the various clearance checks – eg a Health and Character Declaration Form and a Garda Vetting form. In this letter the Complainant was advised in a sentence highlighted in bold print that the local authority would be contacted “regarding your reference”;

-          On the 23rd August, 2018 the Complainant received an email from PAS which stated “I regret to inform you that due to restructuring within the Local Authority this vacancy has been withdrawn…..Your name will remain on the panel for other vacancies which may arise in your chosen regions”.

It is the position of the Complainant that she has been treated unfairly and unreasonably as a result of the failure of the local authority to appoint her to the SEO position. In that regard, the Complainant contends:

o   That the filling of the post had been sanctioned, that this sanction was still active at the time the CE withdrew the post but that the “job offer was withdrawn…..for nefarious reasons”;

o   The purported re-structuring cited as the reason for not proceeding with the post was not borne out by the facts. In this regard, the Complainant outlined a government proposal in relation to a proposed amalgamation of the local authority which did not in fact materialise. The Complainant stated that the Respondent knew of this proposal prior to contacting PAS on the 15th June 2018 to fill the SEO position and accordingly, that this could not have been a valid factor in its decision not to proceed with the post. The Complainant cited a government press release in relation to the proposed amalgamation dated the 6th June, 2018 which she stated was communicated to all staff on the 7th June. The Complainant stated that the CE gave a presentation in relation to the proposed amalgamation on the 11th June, 2018. The Complainant also cited confirmation by her union Fórsa that they had not received any communication from the local authority in relation to any restructuring;

o   The withdrawal of the post was due to the Complainant’s identity. In this regard the Complainant cited the reference request outlined in the PAS letter received by her on the 18th August 2018, which she stated was not asked of other candidates;

o   The withdrawal of the post was unfairly influenced by a separate workplace investigation involving the Complainant which was on-going at the time – see below;

o   Other SEO posts had been filled by the local authority – including an acting SEO post which the Complainant did not apply for. The Complainant furnished extensive documentation after the adjudication hearing in relation to various positions which had been filled by the Respondent – including Staff Officers, Head of Finance, Engineers, Senior Executive Architect, Director of Services and Senior Social Worker. The Complainant stated that the filling of these other posts demonstrate that she was treated differently and that if the reason for the withdrawal of her post was because of a possible amalgamation of the Respondent “then there were not sufficient grounds to fill the other three posts”.

The Complainant stated that the Respondent has recently advertised for other posts thereby accepting that the proposed amalgamation is no longer under consideration. In this context, the Complainant stated that she should now be offered the position of SEO as the recruitment panel she was placed on remains live until a new panel is formed. The Complainant maintains that this “is imperative as a new national SEO recruitment campaign is underway”.

2.       Pregnancy: The Complainant contends that in August 2018 she was almost six months pregnant and that management was aware of this. The Complainant stated that this was a very stressful time for her and that as a result she attended an Occupational Health Assessment as she was on sick leave due to work related stress. The Complainant contends that the job offer was withdrawn because she was pregnant and had a young family.

3.       Internal Investigation: The Complainant was the subject of an internal investigation which commenced on the 25th June 2018. It is the Complainant’s position that this investigation was not conducted expeditiously and that she was denied due process due to the length of time – ten months – it took to conclude. In August 2018 the Complainant sent an email to the Respondent’s Director of HR requesting a time line as to when the investigation would be concluded and advised that she had been offered the SEO position. The Complainant was advised that there was no definitive time period for the investigation process. The final meeting of this investigation did not take place until the 26th March, 2019 when the outcome was conveyed to the Complainant and she was formally notified by letter of the outcome on the following day.

4.       Processing of Complainant’s Grievance: On the 19th June 2019 the Complainant lodged a grievance letter with the Respondent which was dated 18th June 2019. The Complainant requested that her grievance be dealt with as expeditiously as possible in accordance with the Respondent’s Grievance and Disciplinary policy. The Complainant’s grievance letter stated: “I wish to lodge a formal grievance regarding the withdrawal of the offer of the position of Senior Executive Officer (SEO) …”. The Complainant’s grievance letter outlined the background of the matter, sought clarification on the Respondent’s proposed re-structuring and stated that she was seeking to be appointed to the SEO position with effect from the 13th August, 2018. The Complainant received the outcome of her grievance by letter dated the 27th September, 2019 wherein the Respondent advised that it had no involvement in the PAS recruitment process, that it was “not privy to the details of successfully panelled candidates” and that following proposed legislation and “the prospect of a merger…” the Respondent’s CE advised PAS that it did not wish to proceed with the SEO appointment.On the 7th October 2019, the Complainant responded to the letter of the 27th September 2019 taking issue with the outcome. In her letter the Complainant made the point that the CE was well aware of the possibility of amalgamation at the time he sought the appointment of the SEO and that consequently “…this could not have been a factor in his decision to withdraw the SEO post from me”. In this letter the Complainant requested the Respondent to “notify the SEO vacancy to PAS and that it be backdated to the original acceptance date 13th August 2018…”. The Complainant received holding responses to her letter on the 8th and 22nd November 2019. On the 5th December 2019 the Respondent replied and advised that it had nothing further to add to its previously stated position.

The Complainant outlined that the Respondent’s grievance policy provided that a meeting should have been held with her within two weeks but that instead, her grievance was not heard until the 13th September 2019. The Complainant maintained this was “an unreasonable delay of almost three months in breach of said policy”. The Complainant maintained there was further delay in issuing the outcome of her grievance on the 27th September, 2019. The Complainant stated that she was not afforded natural justice or fair process in relation to the handling of her grievance pursuant to SI 146/2000, that the subject matter of her grievance was not properly addressed and that she was given a false rationale on the 27th September, 2019 regarding the withdrawal of the SEO post in terms of the reliance by the Respondent on the proposed amalgamation/restructuring.

In summary, the Complainant contends that “the reason the job offer was withdrawn was due to a combination of factors. Firstly due to the fact there was an on-going investigation and the fact [she] was pregnant and had a young family”. The Complainant argued that her employer has not shown her any duty of care in relation to her career progression. The Complainant stated that she was not furnished with all information in response to her data subject request and similarly her trade union Fórsa submits that it has not received all information in response to its request under freedom of information. Fórsa further contends that there has been a breach of the Public Service Stability Agreement [2018-2020]/PSSA as a consequence of the Respondent’s failure to fill the vacant SEO post.

The Complainant is seeking to be appointed to the SEO post with effect from the 13th August, 2018. In addition, the Complainant is seeking a stay on filling the SEO post until this WRC adjudication is concluded. The Complainant is also seeking compensation for the Respondent’s breaches of the Grievance Procedure and the protracted nature of the internal investigation. The Complainant cited a number of cases in support of her position.

The Respondent cited the 22nd September, 2008 as being the date of commencement of the Complainant’s employment. The Respondent’s response to the Complainant’s issues are summarised as follows:

1.       Non-Appointment to SEO post: The Respondent stated that the complaint in relation to the Complainant’s non-appointment to the SEO post was based on a factually and legally incorrect premise – in that the Respondent’s decision not to proceed with filling the post was impersonal, was based on objective business grounds applicable at the time, that the recruitment process was undertaken by PAS and that the Respondent had “no involvement with this process and are not privy to the details of candidates”. The Respondent outlined the background to advertising the post and its subsequent rationale for not filling it - in terms of an anticipated amalgamation of the local authority and the publication of legislation in that regard on the 25th July, 2018. The Respondent stated that “Whilst it accepted as a matter of fact that there had been previous discussions in relation to…amalgamation…..the initiation of the legislation now crystallised those discussions formally and meant that decision making by the Chief Executive of [Respondent] was now predicated on the legislation put before the Dáil on the 25th July”. The Respondent stated that the proposed amalgamation would have created staffing issues. The Respondent also outlined the following:

o   That it notified PAS on the 16th August 2018 that it was no longer proceeding with the filling of the SEO post and that it was then the responsibility of PAS to advise the candidates accordingly. The Respondent stated that “In this instance the [Respondent] decided that it would not proceed with the filling of the post, not that it would not appoint the claimant….”;

o   That the Complainant was incorrect in her assertion that she was “offered a post” within the Respondent and that at the time the post was withdrawn PAS was completing the next ‘clearance’ stage of the appointment process;

o   That the formal function of appointment was solely a matter for the Respondent as the law vests responsibility for staffing in its Chief Executive and PAS “…. conducts its own clearance process before recommendation of a person to [Respondent]…”;

o   That the Respondent did not communicate with the Complainant “….in relation to either the competition or the filling or appointment of the post….”;

o   That “….there was no formal, informal, written, or verbal contract or post offer….” to the Complainant from the Respondent and that PAS cannot create contractual obligations;

o   That the Respondent was not advised by PAS of candidates names and therefore did not make a decision based on the candidates identity;

o   That the right of an employer – whether public or private sector – to proceed or not with an appointment is fundamental and to restrict that right would set a significant precedent. In this regard the Respondent stated that “It is critical for the appropriate management of its services that…..employers retain the right to make these decisions”;

o   That “It is a matter of fact that the [Respondent] have not proceeded with the filling of any permanent vacancy through PAS since November 2018”. The Respondent stated that it advertised for a temporary SEO in August 2018 and June 2020 but that the Complainant did not apply on either occasion. It also stated that a new recruitment process for SEO had commenced and that it was again open to the Complainant to apply.

2.       Pregnancy: The Respondent refuted that the withdrawal of the SEO post was a result of the Complainant’s pregnancy or family status. The Respondent stated that there were many instances where it made appointments when the individuals concerned were pregnant and/or on maternity leave including promoting the Complainant to an acting administrative officer position in 2015. The Respondent stated that the Complainant had not pursued any claim of discrimination under equality legislation.

3.       Internal Investigation: The Respondent outlined its position in relation to this investigation. In relation to the complaint about a ten months delay, the Respondent stated that it was unfortunate that one of the investigating team had left and whilst it acknowledged it would have preferred a different time line, it stated that the delay was unavoidable. The Respondent considered this to be a “minor infringement”.

4.       Processing of Complainant’s Grievance: The Respondent rejected the complaint that it had not addressed the Complainant’s grievance or that she had been denied natural justice or fair process. The Respondent stated that neither the Complainant or her representative had identified where any such alleged failing or omission had occurred, prior to the referral of the matter to the WRC, as otherwise the Respondent stated, it would have addressed the matter. The Respondent did not accept that its handling of the Complainant’s grievance was not in accordance with fair process pursuant to Statutory Instrument (SI) 146/2000. The Respondent stated that it met with the Complainant in response to her grievance on the 13th September 2018 and that HR issued the response on the 27th September. The Respondent also outlined its response to the further communication from the Complainant of the 7th October 2018 which sought an instruction to PAS to proceed with the appointment. The Respondent stated that it advised the Complainant this was not possible.

It is the Respondent’s position that the Complainant “….sees only one outcome to her grievance which was her appointment to the [SEO] post so the [Respondent’s] grievance process could never have delivered the outcome which she was seeking hence the current referral to the WRC”. The Respondent stated that having failed in this via the grievance procedure, the Complainant was now seeking to have the WRC issue an instruction to PAS to have her appointed to the SEO post. The Respondent stated that the WRC does not have this authority as this is a reserved statutory function of its CE.

I have considered all the written and oral submissions in relation to this dispute and the documentation furnished. Taking all these matters into account, I find that:

·       The Respondent’s decision of the 16th August 2018 not to proceed with the filling of the SEO post - which was conveyed to the Complainant by PAS on the 23rd August - occurred prior to the completion of the appointment process. I am satisfied that the PAS letter of 9/8/18 set out the steps for the Complainant in that it required her confirmation that she was “willing to be considered for this post” and proceed with the various clearance checks. The 9th August letter advised the Complainant that “All offers are conditional on your successful completion of our clearance processes…”. The stages of the appointment procedure were also outlined in a further letter from PAS which the Complainant stated she received on the 18th August, 2018. In this letter the Complainant was advised that “I am pleased to inform you that you are now under consideration for appointment to the position of Senior Executive Officer…..Your consideration for this post is subject to the Public Appointments Service being satisfied that you meet the essential requirements for this campaign, and is not to be treated as an offer of appointment”. The PAS letter of the 18th August advised that the various clearance checks – Health and Character Declaration Form, Garda Vetting Form etc were to be completed before the 27th August, 2018.

Having considered the exchange of communication between the Complainant and PAS in 2018, I find that the Complainant’s acceptance of “the offer of an SEO position” as per her email of the 13th August, 2018 – was in reality an acceptance to proceed to the next stage of the appointment process – ie the clearance checks – as that was all that was on offer at the time. Based on the PAS correspondence, I am satisfied that such clearance checks were an essential part of the PAS recruitment procedure. In the absence of any evidence to the contrary,I find that this SEO appointment procedure did not reach the stage of recommendation of the Complainant for appointment. Having regard to the wording of the Respondent’s Statutory Request of the 15th June 2018 which requested PAS “to recommend to them a person for appointment….” and having found that the appointment process did not reach the recommendation stage, I accept the Respondent’s position that “….there was no formal, informal, written, or verbal contract or post offer….” to the Complainant.

·       Much of the discussion at the adjudication hearing and in the submissions centred on the reasons why the Respondent decided not to proceed with the appointment – particularly as to whether the Complainant’s identity negatively influenced the Respondent or whether the potential amalgamation of the Respondent was known prior to seeking the appointment of the SEO post in the first instance. These issues were also raised by the Complainant in her grievance procedure. As regards these reasons I find as follows:

o   In relation to the request for a reference, the Complainant has argued that this was not asked of other candidates and that this request demonstrates that her identity was a factor in her non-appointment. The Respondent has refuted this and maintained that it was not advised by PAS of the candidates names. Having considered this matter, I find no evidence that the names of the candidates were made known to the Respondent or that the CE’s decision of the 16th August 2018 not to proceed with the SEO post, was negatively influenced by any proposed reference, or any reference request or the candidate’s identity;

o   In relation to the proposed amalgamation of the Respondent, the Complainant has argued that the failure to proceed for this reason was a false rationale as the proposed legislation was known about and the proposed amalgamation was publicly announced on the 6th June, 2018. The Complainant has pointed out that this was prior to the CE’s statutory request to PAS of the 15th June 2018 to fill the SEO post. The Respondent’s letter of the 27th September, 2019 clearly linked the CE’s decision not to proceed with the SEO post with “the prospect of a merger …” notwithstanding that the possibility of a merger was publicised in advance of the request to fill the post. The Respondent has stated that the publication of the proposed legislation on the 25th June, 2018 formally “crystallised” the potential merger proposals. In addition, the Respondent has outlined that its CE is vested with statutory responsibility for staffing of the Respondent.

In considering the sequence of developments with regard to the proposed amalgamation, I find the Respondent’s position in response to the actual publication of the legislation not to be unreasonable or the basis of a false rationale. That being said, I also find merit in the Complainant’s concern about the Respondent’s rationale for not proceeding with the SEO post – particularly after it became clear that the proposed amalgamation was to all intents and purposes off the table. The Complainant has argued that several vacancies have been filled by the Respondent since 2018. The Respondent has stated that the Complainant has not applied for temporary SEO positions including in 2020 and that had she done so, the Respondent considers she would be a strong applicant having been successful in a national recruitment competition. I find that this dichotomy of positions brings into sharp focus the practical import of the statement in the PAS letter to the Complainant of the 23rd August 2018 which advised her that “Your name will remain on the panel for other vacancies which may arise in your chosen regions”.

·       The Complainant contends that the job offer was withdrawn because she was pregnant and had a young family and this was disputed by the Respondent. In considering this complaint, I am guided by the principles which would generally apply if the complaint was made pursuant to equality legislation. Section 85A of the Employment Equality Act [1998-2020] requires the Complainant to establish, in the first instance, facts from which it may be presumed that that there has been discrimination. If the Complainant does so, then the burden of proof shifts to the Respondent to prove the contrary. In Melbury Developments Limited -and- Arturs Valpeters [EDA 0917] the Labour Court held that “…that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case….All that is required is that they be of sufficient significance.…Mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn ….”.   In Gaelscoil Chill Dara -and- Bernadette Moore [DEC-E2016-074], the Labour Court held that “If the Complainant fails to prove the primary facts relied upon or to satisfy the Court that they are sufficiently significant to establish a prima facie case of discrimination his or her case cannot succeed”.

Applying these legal principles to the present complaint, I find that beyond the assertions in her submissions, the Complainant has not provided significant or sufficient factual evidence to establish a prima facie case or support her proposition, that her non-appointment to the SEO post was negatively impacted by her pregnancy or family status.

·       The Complainant has stated that she was denied due process due to the ten months length of time it took to conclude the internal investigation and the delay in arranging the first meeting pursuant to her grievance procedure. In relation to the former, I note the Respondent accepted that delays had been incurred due to personnel changes within the investigating team – this investigation commenced on the 25th June 2018 and concluded on the 27th March, 2019. In relation to the latter, the Complainant’s grievance letter was submitted on the 19th June, 2019 and the first meeting convened by the Respondent was on the 13th September, 2019. The Respondent’s Grievance and Disciplinary procedure provides at paragraph 5.6 that “A meeting will be arranged with the staff member concerned within two weeks…”. Having regard to the foregoing, I accept that the ten month length of time for the internal investigation was longer than was anticipated and would have exacerbated matters for the Complainant. In respect of the Complainant’s grievance, I find that the Respondent breached its own procedure in terms of not convening a meeting with the Complainant within the stipulated two week period.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to this dispute and accordingly, I recommend:

·       That the Complainant be paid the sum of €1000 in respect of the delays in concluding the internal investigation and in processing her grievance;

·       That the Complainant and Respondent immediately commence constructive and meaningful discussions with a view to establishing how the Complainant’s position on the national panel – following the 2018 SEO recruitment campaign – can be progressed so that she may be appointed to an SEO position in early course. This recommendation is subject to compliance with all necessary PAS recruitment procedures.

Appointment to a Senior Executive Officer post, Public Appointments Service (PAS)