Complainant

Respondent

Anonymised Parties

Supervisor

A Bus Service Provider

Representatives

Thomas O'Connor , National Bus & Rail Union

 H.R. Manager

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-00034014-001

27/01/2020

This dispute concerns the advertising and filling of a vacancy at a supervisory grade (Inspector) by a bus driver (who had been acting up as a supervisor) in circumstances where the Complainant contends that the Inspector position should have been confined only to those currently already holding an Inspector/supervisory position, which would have included him but not the person who was appointed.

The Respondents position is that while there is a 2000 agreement in place whereby vacant temporary roles are to be filled on a seniority basis, (2000 Inspector Change Programme) if a role that is being advertised is permanent, the filling of that post is made based on suitability for the role and not seniority. The criterion of suitability as opposed to seniority is supported by the Labour Court recommendation LCR 212438.

The Complainant had worked as an inspector/supervisor for ten years in the North West of the country. This role was permanent and involved him spending 3 days based in the Complainant’s locality and 2 days based in a location 115 km away.

In 2019 a different permanent Inspector post became vacant. The terms of this post included being based in the Complainant’s locality for the full working week and therefore was more suitable for the Complainant from a work life balance point of view as opposed to driving long distances two days per week.

It was the Complainant’s understanding that the advertisement of this new vacant permanent Inspector position would be confined to applicants only to those who already held positions in the inspector/supervisory grade.

However, the advertisement which was posted reflected a broader recruitment strategy which opened the application to all drivers/inspectors. In doing so, a long-standing custom and practice was abandoned.

The Complainant contends that the custom and practice in place was that when a Inspector position became vacant it would be filled an Inspector applicant, if one applied. This  in turn would create another inspector vacancy created by his departure which again would be open to Inspector applicants only. It was only when no inspector applicants had applied for the remaining inspector vacancy, that the position could then be offered to a non-inspector.

When the Complainant realised that the custom and practice was being abandoned and that his application would join a much wider cohort of applications – some at a driver grade and some at an inspector grade – that his trade union objected on his behalf. They pointed to a collective agreement signed in 2000 which, they contended, supported their contention, that the post should have been limited to inspector applicants only.

The Respondents did not agree with this interpretation of the 2000 agreement. They contended that the wording of the collective agreement was confined to temporary recruitment only for Acting up positions and that permanent Inspector posts would be based on suitability and not seniority.

The recruitment process continued and a driver applicant (who had been acting up as an inspector but, unlike the Complainant was not permanent)  was ultimately appointed to the post. By allowing this the Respondent allowed this candidate leap-frog the Complainant’s entitlement to the post.

In support of this dispute the Complainant refers to the use of the word “temporary” in section 7 of the 2000 Agreement states: “Appointed Inspectors will have first option of the temporary vacant position.” He contends that “temporary” in this context means “until it is filled.” It relates to recruitment to acting-up roles, but it is not confined to that. It also is co-terminus with vacancy, in that all positions are temporarily vacant, including permanent ones, until they are filled.

The Complainant contends that he had been doing exactly the same job as the previous holder of the position in the same location, except it was for 3 days as opposed to 5 days per week. He contends that he was the senior applicant therefore in accordance with the 2000 agreement and according to the custom and practice that had pertained (that only existing inspector applicants should have been considered to fill the vacancy) that he should have been offered the post.

The Respondents defence to this complaint is that recruitment for permanent Inspector positions, is conducted on suitability for the post and not on seniority criteria.

It is accepted by the Respondent that, in respect of the filling of temporary or acting-up supervisory posts, the entitlement to apply is confined to employees who are at the supervisory grade (ie. Inspectors) but this does not pertain to the filling of permanent posts.

The Respondents contends that this is what the 2000 agreement states and the interpretation of section 7 of that agreement,  as is relied on by the Complainant does not apply the ordinary meaning of the section. The wording of section 7 of the agreement is unambiguous and effect should be given to the ordinary meaning of the words. It only applies to the filling of Acting up and temporary posts.

Furthermore, it is not accepted by the Respondent that the custom and practice of recruitment for permanent inspector positions is confined to supervisory grade applicants alone. If that were the case, then the permanent positions advertised would not prompt any driver (or otherwise non Inspector)  applicants. The evidence in that not only have drivers applied for such posts, but they also have been recruited.

Inspector roles require a specific skill set depending on the type of inspector role that is being filled. Recruitment for such pivotal leadership roles within the organisation could not be confined to an assessment of seniority, because to do so would mean that the most suitable candidate for the role could not be chosen.

Section 7 of the 2000 agreement refers to Acting Inspectors, not Inspectors.  It goes on to state how temporary positions will be filled: “Appointed inspectors will have first option on temporary vacant positions.” There is no reference to the recruitment or filling of full-time positions in section 7.

The Respondent’s Recruitment and Selection Policy (April 2019) states that recruitment is based on suitability.

LCR 212438 was a Labour Court recommendation in 2017 which stated under a section headed Promotion and Filling of staff vacancies: All posts including shift and supervisory vacancies will be filled in an open and transparent process. Successful candidates for supervisory roles will be selected on suitability.”

 The recruitment process in the North West arose because a supervisor/inspector retired. It is accepted that the former inspector had worked and alongside the Complainant and that their responsibilities in the three days that their work location overlapped, that their roles were very similar however that fact does not determine the issue.

In accordance with the Respondent’s recruitment based on suitability, several candidates applied for the role. These were both existing permanent supervisors and drivers (one of whom was acting up as supervisor). The selection process is a transparent one whereby qualified candidates are interviewed (by two interviewers) and based on their application and interview, an inspector is appointed based on suitability for the permanent position.

This is the process, for the recruitment of permanent Inspector posts, has pertained both nationally and locally within the North West for twenty years. Any argument that the custom and practice was other than this is denied.

It can regularly occur that a post is filled temporarily before it is advertised as a permanent role. This sometimes occurs where the permanent holder of the post becomes unwell and goes on extended sick leave before ultimately retiring. In such instances the temporary filling of the post (for the duration that the permanent Inspector is on sick leave) is made from a confined pool of supervisory applicants. However, once the person retires and the vacancy is that of a permanent Inspector, that role is filled on suitability criteria. It might be that the person who is holding the post on a temporary or acting up basis is ultimately successful in filling the permanent post, but this does not always occur and should not be conflated with an entitlement to the permanent role because s/he held the temporary role or an entitlement to the permanent role because s/he already holds another supervisory grade.

The dispute is fully denied by the Respondent.

Before I consider the wording of the 2000 collective agreement (entitled Inspector’ Change Programme), both sides have contended that custom and practice in place, supports their different/opposing positions.

The Complainant refers to what he says has always happened on the ground and what all staff have understood as the custom and practice position, which is that Inspector roles are filled initially by Inspector applicants and it is only when there are no remaining Inspector-applicants for a post that the Respondent can make the position available to non-Inspector applicants. The Complainant referred to specific inspector appointment processes, which were limited to inspector-only applicants.

The Respondent defends its position and points to instances where drivers have been appointed to permanent Inspector roles and that this practice is not only limited to recruitment processes in which no Inspectors apply. They accept that temporary Inspector roles are open to be filled – in accordance with the 2000 agreement – with Inspector only applicants but that this does not pertain to the filling of permanent posts, such as the position which is the subject of this dispute.

2000 (Inspector Change Programme) Agreement

Section 7 of the 2000 agreement states “Appointed Inspectors will have first option of the temporary vacant position.” Section 7 of the agreement is headed “Acting Inspectors” and the contents of section 7 is confined to Acting Inspectors.  Therefore, the application of section 7 of the 2000 agreement may only be considered in the context of the recruitment of acting up posts and not permanent posts.

I do not accept that section 7 of the agreement provides the Complainant with an entitlement that, in respect of non-Acting up Inspector posts, that the advertisement of a permanent Inspector post must also be limited to Inspector only applicants.

The Complainant contention that the word “temporary” means “until it is filled” and that all positions are vacant until they are filled.  However, the word temporary is used in the context of the filling of Acting up Inspector posts, and in this context, I do not accept that the word “temporary” should be interpreted as meaning essentially nothing.

A separate collective agreement (Joint Industrial Relations Forum chaired by Mr. Tom Pomphrett) dated 20 August 2010 refers explicitly to the filling of temporary positions and in doing so it was accepted that such posts are only open to Inspector grade applicants. This is accepted by the Respondent. Therefore, the JIRF agreement does not further the Complainant’s cause.

The position in dispute was a permanent Inspector position and, in those circumstances, neither section 7 of the 2000 agreement nor the JIRF agreement appears to apply.

I do not accept that the Respondent’s policy dated April 2019 on Recruitment and Selection was in place when this dispute arose and for that reason I do not consider this policy for the purpose of this recommendation.

However, I do not accept the Complainant’s contention that the Labour Court recommendation (LCR 212438) which records that recruitment is to be based on suitability, only pertains to recruitment within the maintenance division.  This is not a construction that applies the ordinary meaning of the recommendation.

I find that the Complainant has not discharged the burden of proving that on the balance of probabilities the Respondent was obliged to recruit, in respect of a permanent Inspector post, only from a pool of existing Inspector applicants.  

Consequently, this dispute/complaint is not well founded.