Complainant

Respondent

Anonymised Parties

A Personal Assistant

A Trade Union

Representatives

 SIPTU

self 

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-00039860-001

16/09/2020

Application for Recusal; Conflict of interest.

At the outset of the hearing the complainant’s representative submitted that the Adjudicator should recuse himself on the basis of an alleged conflict of interest.

The basis for the alleged conflict was that he had undertaken a role in 2014 as an independent third party neutral in a matter involving the respondent, which had paid his fee for the process.

All such suggestions of a conflict of interest require careful consideration. In this case I heard the submission of the representative on the point and adjourned briefly to reflect on whether I could proceed.

In the course of the adjournment I considered the position by reference to the Guidelines on Conflicts of Interest in International Arbitration of the International Bar Association (www.iba.com), a copy of which was to hand.

These are discussed at some length in ‘Arbitration Law’ (Second Edition) Dowling-Hussey, Dunne, Round Hall 2014, p77ff. (In addition to the general obligations falling on a WRC Adjudicator the current adjudicator is a Fellow of the Chartered Institute of Arbitrators and subject to its Code of Conduct which relies on the IBA Guidelines).

Despite the reference to international arbitration the IBA guidelines are a ‘gold standard’ in this regard offering three categories of relationships classified by Red (Waivable and non-Waivable), Orange and Green to guide consideration of possible conflicts of interest and as to when an arbitrator should act.

As may be clear from the traffic light analogy they define relationships of varying degrees of proximity which might require an arbitrator/adjudicator either not to act in a case, simply make a declaration of their relationship or involvement or to proceed.

The IBA Guidelines suggest that there might be justifiable doubts as to an arbitrator’s impartiality or independence when;

 “a reasonable and informed third-party would reach the conclusion that there was a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision”  

Arbitration Law op cit p 78

Items on the non-waivable ‘Red’ list include such situations as where there is an ‘identity’ between a party and the arbitrator, or the arbitrator is a legal representative of an entity that is a party in the arbitration, or the arbitrator is manager, director or member of the organisation or has a financial interest in it.

In other words, where there is a direct involvement with a party to the arbitration these are clear examples of where a person may not act or may only do so with the informed consent of the parties.

The Orange list includes such things as where the arbitrator has performed previous services for one of the parties or is performing current services for them, or where there is a personal or professional relationship with a party involved, etc.

Of relevance to this case is the fact that there is a three-year limit within which such professional services were provided.

Those examples from the Orange list require an arbitrator only to declare the fact to the parties, they do not necessarily give rise to a conflict of interest.

There is also a Green list and the IBA has held that if the activities fall within the Green list there is nothing to prevent the arbitrator from accepting the appointment. Items on the green list include such things as previously expressed legal opinions for a party etc.

(For a list or relevant Irish cases on arbitrator’s duty to act fairly and impartially see ‘Arbitration, Commentary and Sources’, Ercus Stewart S.C., Firstlaw, 2003. p 62.)

In this case, in respect of the role on which the complainant based her recusal request this adjudicator acted as an independent workplace investigator in a dispute between employees of the current respondent in which the respondent had no invested position (or none that was apparent).

Neither the respondent, nor its senior management played any part in the investigation, other than to commission it and receive the final report.

I was in no way advising or acting for the current respondent, although the submission in this case was that my role was tainted by the fact that it had paid the Investigator’s fee.

It is normal practice in workplace, third party neutral interventions such as investigations or mediation that the employer bears the cost and this in no way compromises the independence of the neutral, unless there is demonstrable evidence to the contrary.

The role of the investigator was simply to reach conclusions about whether there had been breaches of the Dignity at Work policy. Any further action required then became a matter for the employer.

Also, this work concluded in June 2014,just under seven years ago and there has been no involvement of any sort with the respondent in the interim. I had never met the lead advocate for the respondent before the morning of the hearing.

Where a party wishes to raise questions about the impartiality of a decision maker (at any level of the process) they are obliged to go beyond some generalised and vague assertion that any degree of involvement with one of the parties, whatever its nature and whenever it occurred will be sufficient to raise a presumption of conflict of interest that would affect the making of a fair decision.

It will not.

As will be clear from the foregoing there must, at least be some degree of proximity in respect of the nature of the relationship and also of time.

For these reasons, I am confident that no ‘reasonable and informed third-party’ such as referred to above would conclude that the nature of the work giving rise to the allegation of a conflict taken with the fact that it concluded almost seven years ago in June 2014 would give rise to a perception that I would be influenced by factors other than the merits of the case.

Accordingly having carefully considered the submission I decided to proceed with the hearing.

The dispute relates to the unfair processes and treatment that the complainant was subjected to that resulted in her being deprived of securing a position of her choice which is what she was entitled to.

The complainant contends that management made a unilateral decision to give the position of personal assistant (PA) to a senior manager to a co-worker thereby depriving the complainant of the benefits of her service and right to equal treatment.

The respondent had an established process to deal with restructuring which was breached in this case.

The process was nothing more than a mechanism to create the illusion of fairness. There were breaches of fair procedure throughout the process.

The complainant has worked for the respondent for forty-three years and has held a variety of senior administrative positions.

On October 28th, 2017 she had a meeting with the General Secretary about alleged difficulties with a co-worker to ensure that they would not be working together under new structures.

On November 9th the complainant emailed a request for ‘an open and transparent’ process in relation to any process of discussions on the new structure.

On November 17th she received a letter from a senior manager clarifying the future roles and she replied a week later saying she thought the position was a fait accompli.

On December 5th, 2017 she was formally notified of several vacant roles. On December 8th she acknowledged receipt of this correspondence and corrected a number of inaccuracies and also brought up a published entry in the official diary which seemed to pre-empt the competitive process.

She sought details as to how to apply to be considered for one of the positions, should she be interested and was told she should express an interest. She followed this with further correspondence a few days later on December 17th to assist her in making a decision.

On January 2nd, 2018 the complainant formally expressed an interest in one of the positions and this was acknowledged on January 9th, 2019.

On January 10th there was a discussion between the complainant and a senior manager about the vacant role, and what criteria would be used in the re- assignment process. She was invited to submit answers to a number of questions as to why she was suitable.

She submitted a brief application on January 14th as she had been extremely busy and was advised on January 25th that she had been unsuccessful.

There then followed a dispute about the complainant working from home, during which what she saw as her right to do so on the basis of previous commitments from her management was disputed by her manager and she was instructed to present in person for work.

This was eventually resolved in May 2018.

The complainant submitted formal grievances on April 10, 2019.

These were summarised as including the process adopted to select the applicant (in January 2018), that service and seniority were not criteria used for selection, the inconsistent approach adopted by management, that the complainant was deprived of securing a position that she should have secured, and that she was being disadvantaged for future positions.

Management replied noting that the complainant had not raised any concerns or objections before January 24th, 2018, and that seniority was not agreed to be a criterion. It also stated that the process was clear and transparent and agreed criteria were deployed and that the complainant would not be at any future disadvantage as a result of failing to be appointed.

The grievance was considered by the Personnel Officer who decided on May 31st 2019 that it was not upheld.

She appealed to a senior official and this too was unsuccessful.

She then appealed further to an internal joint appeals body which issued findings, and proposed financial compensation for the complainant, but this was rejected by management.

In summary the selection process in January 2018 was predetermined and management failed to comply with the 2010 agreed method of filling positions including seniority.

Management failed to follow fair and proper procedure and the complainant has been wrongly deprived of the chance to secure her position and that she should now be appointed to the position.

The issue relates to a grievance regarding the filling of a P.A. position and the claim that the complainant was deprived of fair process. There was a clear and transparent desktop exercise to assist in the reassignment into the vacant role.

The complainant did not formally raise any grievance with the manner proposed for filling the vacancy and did not raise any concerns until three weeks after the agreed process had concluded.

The employer says that it has followed the agreed procedures in dealing with this grievance, that it has investigated it in full and followed through on the internal appeal process thus maintaining the integrity of agreements with staff and have exhausted all internal procedures.

On December 5th, 2017 the complainant was formally notified of a number of vacant roles. On December 8th, 2017 she acknowledged receipt of this correspondence and sought details as to how to express an interest in being considered for one of the positions.

The employer clarified matters in correspondence of 12th December 2017 and again on 14th December 2017.  The complainant sought additional clarification on December 17th to assist her in making a decision.

 On January 2nd, 2018 the complainant formally expressed an interest in one of the positions and this was acknowledged on 9th January.

On the January 10th, 2018 there was a discussion between the complainant and a senior manager on the vacant role, and what criteria would be used in the re- assignment process.

Another colleague at the same grade had also expressed an interest in this role, so it had been decided that a clear and transparent desktop exercise should be used as part of the re-assignment process in filling the vacant post, rather than simply re-assigning a staff member into the vacant post within grade, as could have been done. 

Later, on January 10th the criteria for the desktop assignment process were further outlined to the complainant in writing to ensure absolute clarity. This correspondence clearly set out the necessity to define expertise/experience under certain headings.

A written response was sought from applicants with a closing date of January 15th, 2018.

The complainant responded on 14th January and explained why she considered herself suited to the vacant role. She also expressed concern about certain rumours and confirmed that her response was a short summary. 

In the interest of further accommodation, and noting the brevity of the complainant’s submission, on 18th January 2018 she was offered the opportunity to make a supplementary submission and was offered an extension of the deadline to January 22nd while also dispelling the rumour she referred to.

She declined to submit anything further and was offered additional time to do so. 

On January 24th, 2018 the Union wrote to her confirming that she had not been successful in her application and would continue in her existing role. 

On the February 14th, 2018 the complainant advised that she would pursue a grievance regarding the process, several weeks after the post had been filled and the assignee already in post.

The Employer responded on 4th March 2018 confirming that the criteria Used in the desktop re-assignment exercise were exactly those discussed with her on 10th January, confirmed in writing on the same date and as accepted by the complainant as being fair and reasonable at the time.

She then raised some separate grievances on a range of issues that have subsequently been resolved and are not currently in dispute or process.

On April 10th, 2019 some 15 months after the re-assignment process had concluded and the post had been filled, the complainant raised a grievance again and the employer confirmed that the grievance would be investigated.

On May 14th, 2019 a meeting was held with her and her representative to investigate the grievance on a de novo basis and the Personnel Officer issued his findings on 31st May 2019.

He did not uphold her grievance on the re-assignment process and the criteria used, specifically on the fact that Service/Seniority was not used as the sole criterion in the process, and some other grounds (detail provided).

She was advised of her right to appeal on 5th June 2019 and she did so on 17th June 2019. It was heard on 27th August with the outcome issued on 21st October 2019.

The appeal was not upheld (and detail was provided to the hearing of the reasons why).

The appeal outcome was rejected by the complainant and she then referred to a further level of appeal on the basis of the process adopted, her treatment, the selection criteria used, a perceived lack of fairness and transparency and alleged damage arising for the complainant from challenging the decision.

The findings from this appeal were issued on July 22nd, 2020.  This time the outcome was rejected by both parties.

It is important to clarify in the first instance that the employer’s agreed Staff Manual sets out the organisation’s right to recruit staff from whatever source it believes appropriate, as well as the right to assign staff within grade as believed appropriate in line with the operational needs of the organisation.

In this instance, the organisation could have chosen to simply re-assign a staff member within grade to any of the vacant posts. Instead, it chose to engage with the administrative staff affected.

It chose to seek expressions of interest in the roles available following the changes to the General Officer positions and then put in place a desktop process to assist in re-assigning staff to the vacant roles.

The complainant, who herself was re-assigned into a P.A. role in expressed an interest as did a colleague who had been a P.A. since 2004. Hence it was decided to put in place a clear and transparent desktop process to aid reassignment in this instance into the vacant posts.

Both applicants were advised of the desktop process to be adopted, and it was discussed in detail with the complainant on 10th January 2018. This was further detailed in the correspondence of same date and she co-operated with the desktop exercise and duly submitted her response on 14th January 2017

At no point in the intervening period between explanation of the exercise and submission of her response did the complainant raise in writing any formal objection to the desktop process used. In fact, through her active co-operation with the exercise and the submitting of her response there was complete and tacit agreement to this desktop exercise.

The employer’s offer of additional time to the complainant to add to her submission of 14th January went beyond what was fair and reasonable. The extension of the date to 22nd January, as the complainant had outlined how busy she had been, was again a further attempt at additional accommodation although this offer was refused by the complainant.

It is not custom and practice, nor is it feasible for the respondent to seek applicants’ agreement  to selection criteria for vacant posts. The Staff manual clearly details how these posts are filled.

The matter rested there until April 2019, when formal notice of a grievance was submitted by some fifteen months after the complainant was deemed unsuccessful in her expression of interest.

If there had been a credible sense of injustice or unfairness in the desktop process, we would have expected it to be pursued within a reasonable time frame of the notification of the outcome.

The respondent is satisfied that the desktop exercise was fair and transparent. It was put in place to distinguish capability, expertise and experience between two senior colleagues at the same grade. The alternative was simply to assign one or other colleague into the vacancy as per agreements.

The respondent contends that there is no case to answer whatsoever under this heading. Since the grievance was formally raised in April 2019, all agreed procedures have been followed in full.

The complainant has availed of her right to appeal there are no grounds for any reasonable argument that the complainant has been treated in an unfair manner.

The complainant has continually argued that seniority within the organisation should have been the sole criterion but there is no agreement that seniority would be the sole criterion in filling vacant posts. The staff manual clearly sets out how posts are filled and details the employer’s right to re-deploy/re-assign staff as appropriate.

In addition, the use of seniority as the sole criterion when selecting suitable candidates for positions could give rise to claims of unlawful discrimination on grounds of age and that such arguments have been well ventilated in employment equality case law elsewhere.

In summary, the respondent believes that it has been fair and reasonable in its dealings with the complainant. We have applied fair process, equitable treatment, clear criteria, and transparency in the matter.

There are several strands to this dispute.

The first concerns the filling of the vacancy in January 2018 and the general circumstances around that.

The second relates to the dispute about the complainant working from home. That matter was resolved but there is some suggestion that it arose from the issue above. It is not an issue in this complaint.

Then there is the handing of the complainant’s grievance, lodged very belatedly in April 2019, fifteen months after the events to which it related.

This delay raises several issues, not least because of the remedy sought by the complainant that she should now be allocated the position to which she aspired in January 2018, but which has been filled by a colleague ever since.

More generally, a delay of this significance is of interest to an adjudicator on the basis that it may say something about the significance the complainant herself attached to a grievance if she failed to process it in a more timely manner.

In this case, her explanation was that she had been so upset by the events that she could not face the process, and that it was triggered by another similar event.

However, failure to act in a timely manner is always likely to have consequences which are considered below.

It is not the only aspect of the matter where the complainant’s own actions (or omission as in the case above) must be considered.

Turning to the first of these issues, I can detect no grounds for finding other than that the complainant agreed to participate in the assignment process in January 2018 on the basis that it had been set out to her by her management.

It is a separate question as to how the process ought to have been conducted to which I will come presently, but her acquiescence in the process robs her case of merit.

No argument has been made that the employer did anything different to what it said it would do, it facilitated the complainant with a number of extensions of time given what might appear to be her inexplicably casual approach to making her application (her excuse was that she had been too busy).

She appears to have become exercised about the process only when the outcome went against her, and now claims that the outcome was ‘predetermined’. The evidence about the diary entry is inconclusive either way. But the assertion in her formal submission that she was denied the right to fairness and equal treatment in respect of the competition is without merit.

The case made on her behalf that the employer failed to apply seniority is also a weak one. It is not the case that seniority was a determinant in the 2010 re-structuring on which she relied; it appeared to be a kind of ‘tie-breaker’ if a number of other criteria produced a difficulty in separating rival candidates.

Also, that re-structuring in 2010 had been eight years earlier, a much more comprehensive exercise and, as the respondent pointed out selection based mainly on seniority is legally hazardous, to put it no more strongly.

The final, internal appeal stage concluded somewhat tentatively only that while seniority should not be the sole criterion it should be ‘a factor’, whatever that might mean.

It is not necessary to make any finding on the delay in submitting the grievance as her employer agreed to process it, but its decision to do so might be said to be generous in the circumstances. I was not persuaded that the complainant’s delay in doing so was justified.

The first decision on the grievance was issued fairly promptly on May 31st and there was an appeal heard on August 28th. The findings were not issued until October 21st. This delay was not explained, and it is excessive for an internal appeal.

In both cases the grievance was dismissed.

The grounds were essentially the same at each stage and no evidence was submitted to the hearing that there were defects on the process, or that it lacked fairness apart from the fact that it clearly did not deliver the outcome sought by the complainant. There was a simple assertion that it was unfair.

 Likewise, the grounds submitted in the course of the internal appeal did not include procedural defects, and it is odd that that should now become a ground for challenging the process when the opportunity to do so was available internally.

The complainant’s assertion that the disputed position was ‘rightfully’ hers gives some more accurate insight into the heart of the matter in that it suggests that no outcome which did not reverse the result of the January 2018 process would be acceptable to her.

However, that, in itself will not render a process unfair and I conclude that it was a fair process.

The jurisdiction of an Adjudication Officer under this legislation is somewhat constrained. It is essentially an oversight role to ensure that a worker’s rights have not been breached and to seek to apply equitable (in the colloquial sense) remedies where that will be of assistance to the parties.

The Adjudicator has no role in substituting their decision for that made at the level of the workplace in the absence of some serious error in the processes.

In that regard the delay is a significant factor. There is no equitable ground on the facts in this case for overturning the outcome of the January 2018 selection process either on the merits of the case or given the passage of time.

For the sake of clarity, the complainant’s case is, in any event without merit. Some of the grounds of complaint are fanciful, such as that an employer be required to agree the criteria for selection with a candidate. This is a bizarre contention.

Looking at the seven points in the complainant’s summary there is some irony in the criticism in her submission that the outcome in the process was ‘predetermined’ or that it was a ‘sham’ when it appears that is precisely what she wanted, except that she wished it to be predetermined in her favour, as the position was ‘rightfully’ hers.

There is further reference to the disputed position as being her position of ‘choice’, which is damaging to any pretence that the true nature of the complaint relates to the failure to conduct a fair competition, and that it was a matter for the complainant to simply choose it.

She willingly participated in the process and had she been appointed as she wished that would have been the end of it. A decision not to apply seniority even in part is a matter for the respondent. No Adjudicator on these facts would say that they should have relied on seniority, nor indeed probably on any facts, for reasons referred to above.

There is no evidence (indeed none was offered) that the respondent failed to follow fair and proper procedures in the course of processing the grievance, only that the procedures applied failed to produce an outcome acceptable to the complainant.

The very language used throughout the complainant’s submission provides clear confirmation that, at no stage was it a deficit in the procedures that bothered her, but the outcome of those procedures, and the fact that she was denied a position to which she thought she was entitled.

The complaint fails.

For the reasons fully sat out above complaint CA-00039860-001 fails and I recommend that the complainant accept that the matter has been fully and fairly processed to a conclusion.