ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00025262 

Parties:

Complaint:

Date of Adjudication Hearing:  09/03/2021

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 13 of the IndustrialRelations Acts 1969following 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The worker in this case was offered a promotional position which was then withdrawn when the employer received an unsatisfactory reference.

Summary of Worker’s Case:

In 2018 the worker applied for a position on a panel for a supervisory position.  He was successful and achieved a high place on the panel.  He was offered a supervisor post which he accepted in April 2019.  He was then informed that the offer of the post was being put on hold as an unsatisfactory reference had been received.  The worker appealed the matter and it was investigated internally by a manager.  This process took two months and at the end of it the reference stood.  On 3rd July 2019 the worker received a letter stating that the job offer was withdrawn and he was being removed from the panel and would not receive any further job offers from the panel.  The worker appealed and the outcome of a formal review on 13th August 2019 considered that the issues raised were internal matters which should be progressed through the appropriate channels.  It emerged through subsequent GDPR request and reply that the manager investigating the matter had not been in communication with the person who gave the unsatisfactory reference.  The worker lodged a grievance and has rebutted in full the inaccurate and incorrect information about his performance contained in the reference.  Due to many time delays the worker requests adjudication on his case.

It is submitted that :

The worker wholly disputes the information as presented in the reference

Management failed to consider another reference which it appeared at one stage they might have.

The worker has been seriously disadvantaged by the reference provided which has resulted in a promotional position being withdrawn for which he was suitably qualified.

There were inordinate delays in trying to have the issues resolved and no engagement by management to resolve the worker’s grievance.

Historical issues and personality difficulties between the worker and manager A are the basis which formed management position.

In a similar case, the Labour Court found (AD1248 HSE – and – A Worker) that a severe wrong was perpetrated on the worker and awarded significant compensation.      

Summary of Employer’s Case:

The worker took part in a competition for which 3 essential elements must be fulfilled before appointment, reference checking, health assessment and garda clearance.  The worker’s immediate line manager (Manager A) would not provide a reference as he would not recommend the worker for the post and so the next Manager in the line Management structure (Manager B) provided a reference. Unfortunately this reference of March 2019 did not recommend the worker for the post.  The reference was internally reviewed on the request of the recruitment section (as occurred with all unsatisfactory references) but upon review the respondent employer was satisfied with the reference provided.

In July 2019 the recruitment section communicated to the worker that his offer was withdrawn and advised him of his right to appeal.  Unfortunately the worker was one of 8 staff from whom  conditional offers were withdrawn for unsatisfactory reference.  

The worker exercised the formal appeal process.  The outcome communicated in August 2019 did not find in his favour by the independent reviewer.  

As part of due diligence in providing a reference Manager B looked at a number of issues relating to the worker which were behind Manager A not providing a reference. Such matters were of serious concern to Manager B which could not be ignored and so the respondent employer strongly disputes the worker’s complaint that the reference contained inaccuracies.

What cannot be lost as context is that the post in question is a Supervisor, the first line in management and one that requires a substantial level of trust and confidence whereby such a contractual relationship is not possible and cannot be forced upon the employer because the worker is unhappy with the reality of his reference. Also the post of Supervisor is intended to show good example to staff, something that the worker’s record reviewed does not support.

Upon review by the employer it was also noted that the worker’s reference also contained another example of not meeting the required standard, namely attendance / absence being unsatisfactorily high over the set standard that resulted in 6 other offers being withdrawn. In this regard we note that had Manager B recommended the worker for the post, this matter would still have been reviewed by the recruitment section and likely resulted in a withdrawal of offer following review as occurred with comparators as good attendance was a key factor for Supervisors, something not evidenced on the reference at the centre of this case.

With reference to other staff who had offers withdrawn, the employer would have a serious concern that creating a precedent for the worker in this case would require a revisiting of other offers withdrawn and lead to an un-workable situation rendering references invalid.

In summary, the employer is satisfied that a fair and accurate reference was provided for the worker.  The reference was deemed unsatisfactory and the offer was withdrawn.  The established appeals process was utilized and the outcome did not find in favor of the worker’s appeal.

 There were 8 other employees who had offers withdrawn at reference stage and the employer would have a serious concern that creating a precedent for the worker in this case would require a revisiting of other offers withdrawn and lead to an un-workable situation rendering references invalid.

Findings and Conclusions:

The process for appointment in the competition for the posts which the worker applied for contains 3 essential elements which must be fulfilled before appointment, reference checking, health assessment and garda clearance.   In this instant case, the reference provided was not satisfactory and therefore the offer made was withdrawn.  The fact that the offer was made before checking the reference and then the offer was withdrawn is a flaw in the process, and the employer, as the hiring service manager should seek the recruitment service to take steps to rectify this flaw.   I note that the worker exercised his right to appeal and was not successful in his appeal.   I see no basis for overturning this decision.  I further have no basis to arbitrate on the accuracy or relevance of details given in the reference.   However, I note that the issues which were summarised in the reference and in the employer’s submission at the hearing contain issues going back to 2015/2016/2017/2018 and in particular a reference to a disciplinary issue which expired in December 2018.  I recommend that these issues be expunged from the worker’s file and a fresh start be given to him going forward for future promotions.    The employer should provide the worker with a letter confirming that the historical matters are expunged from his file.  Further, and as a gesture of good will and to draw a line under this dispute, and without causing precedent, the employer should pay to the worker the sum of €2,000 compensation for the flaw which led him to believe he was successful in his application and for the delays in the case.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the historical issues be expunged from the worker’s file and a fresh start be given to him going forward for future promotions.    The employer should provide the worker with a letter confirming that the issues are expunged from his file.  Further, and as a gesture of good will and to draw a line under this dispute, and without causing precedent, the employer should pay to the worker the sum of €2,000 compensation for the flaw outlined and delays in the case.

Dated:   07/05/2021

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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