Worker

Employer

Anonymised Parties

A Research Technician

A Farm Services Company

Representatives

Andrea Cleere SIPTU

 A HR 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-00033830-001

16/01/2020

The Worker applied for a promotion post and the Employer failed to implement its pre-agreed pre-application process in his case. The Worker maintained that if the process had been implemented that his Technical rating relative to his colleagues would have been equal to his colleagues and not less as was the case and that this flaw in the process influenced where he was placed on the Panel for the promotion posts.

The Worker is employed as a Research Technician.  A promotional position for an Experimental Officer was advertised in March 2019 which the Worker was eligible to apply for.  It became apparent to the Worker that the steps of the competition process were not adhered to and that this had disappointing consequences for the Worker in his candidature for the post.  The Worker exercised his right to appeal the outcome of the competition however he remains aggrieved and sought adjudication on the matter through the services of the workplace relations commission. 

Several vacant positions in the Organisation were subject to consultation and engagement between management and the union regarding the method of carrying out an internal recruitment and selection process.  An email was sent to all staff on 19th March 2019 inviting eligible candidates to submit a completed application form from which four immediate posts would be filled by successful candidates and a Panel would be formed for any future vacant positions over the following two-year period.  Attached to the email were several documents explaining the role and competencies for each of the positions and specific instructions were detailed along with completion dates for the steps in the application process.  The Worker applied for the role of Experimental officer and went through the steps of the application process as detailed in the agreed process that had been circulated to all staff. 

The process provides that the candidate fills in the appropriate fields and enters comments on the application and sends it to the Head of Department (HOD), the HOD meets with the candidate to discuss and signs the application and progresses it to the Head of Programming (POG).  Where the HOD is not the candidates line manager, a meeting will also be arranged with the line manager and both the HOD and the line manager are required to sign the application form.  In the case of the Worker the HOD was not his line manager, however both the HOD and the Workers line manager failed to meet with him and in addition to this his line manager failed to complete the form at all.

The Worker submitted his application on the 15th April 2019, his line manager rang him and advised him to be in the office to discuss the application with the HOD on the 1st May 2019.  Subsequently the HOD emailed the Worker with some suggested amendments to improve his application which the Worker did and resubmitted again on the 3rd May 2019.  The HOD did not meet with the Worker however he received the application form with comments and scores on the 13th May 2019 via email.  The Worker replied to this e-mail stating that he was looking forward to meeting with the HOD to discuss the form contents.  The application form has four grading marks as follows: 

: Requires improvement / Does not meet requirements

: Good / Meets requirements

: Very Good / Often exceeds requirements

: Outstanding / Almost always exceeds requirements

The Worker was unhappy with the mark awarded for Technical Experience and Expertise and felt that this carried through to the interview stage, he was unhappy with the score at interview also.  This was further compounded during the interview feedback as he was informed that the HOD mark had a significant impact on the final interview mark. 

It was the Workers’ position that he has more dairy farms than any other farm recorder and that his portfolio included complex farms with higher than average incomes.  In addition, the Worker had a primary role in training recent appointments to the farm recorder staff and was the only farm recorder in the Process to score 4 – the other scored 5, this is of particular importance as this criteria was a “double score” competency which was marked out of 200. The Worker was advised by his line manager that a telephone conversation with the HOD would take place on the 16th or 17th but that never took place.  It was not possible for the HOD to mark the Workers work as he did not know or work with him. Following feedback, the Worker exercised his right to appeal the process to the internal appeals board which was heard on the 11th November 2019, the outcome of the appeals board found that while breaches in the process did occur, but the appeal failed. 

The general principles that guide the design and operation of the Red Circled Technician promotion process are:

Objectiveness – decision are based on explicit evidence.

Openness – clearly identified process and criteria.

Consistency – between stated criteria and actual decisions reached. 

It is the Workers’ opinion that these principles were not adhered to. 

The Workers’ HOD did not discuss the application with him in advance of him completing the Manager Assessment, Overall Comments and Recommendations which compromised the general principle of objectiveness which requires that decisions are based on explicit evidence. The Workers line manager and HOD failed to conduct a meeting to review the completed application form which is in direct breach of the protocols that were set out for the application process and jeopardises the openness of the clearly identified process and criteria.The process for the application for the Experimental Officer position does not require shortlisting therefore it is confusing to the process as to why scores are awarded on the application form and it gives a false interpretation as to how the candidate might score at interview as the consistency between the stated criteria and actual decisions being reached are varying.   

The Worker did not feel that his professional merit and depth and breadth of technical knowledge has been recognised in this process.  It is perplexing that the score achieved is a slight increase on a previous competition despite being vastly more experienced.  It may be viewed that all National Farm Survey recorders are doing the same work therefore the same technical expertise is required and acquired yet the Worker received a 4 when others received a 5.The Worker brought an additional skillset which are beneficial to the work carried out which include farmyard design, computer skills, financial and accounting skills through his 29-year membership of the Board of Directors in the local Credit Union where he served for a time as treasurer.The Worker liaised with UCC business school on survey techniques and interview questionnaire design while also networking with Co-ops and Social Enterprises to increase awareness of the National Farm Survey and has also been published.The Worker has been disadvantaged compared to colleagues as the Workers’ department is the only department where the line manager and HOD failed to meet with applicants.

Recently the Worker was met with his line manager for a PMDS and raised the issue of why the HOD marked all other applicants a 5 and him a 4 when they carry out the same job.  The line manager responded that he did not know why and that his contribution was not considered by the HOD when awarding the marks.The Worker advised that this promotional opportunity is purely financial as appointed colleagues carry out the exact same duties now as the they did before, and which are the same duties that the Worker carried out now. 

The Worker is working for 40 years in the Career grade, he joined in 1996 at existing grade.  During those 25 years he has been paid less than the majority of his colleagues even though they were performing identical work. This abnormality has always been a source of low morale for him with very few opportunities existing to apply for promotion. He saw the 2019 competition as his final opportunity for promotion and felt confident that he would do well.  He wanted to convey that words cannot express the disappointment for he feels that proper procedures were not adhered to. This has a very demoralising effect on his self-esteem which he still finds difficult today. 

The Worker has tried to get feedback on his poor performance firstly from the post interview feedback session and later from his line manager without success.  Again, he asked his Line Manager during the 2021 PMDS interview to advise on the weaknesses that merited a lower score than his colleagues. He said he would talk to the HOD and get back to him but as with previous requests, he got no response.   

There was a breach in the pre-interview process where specific steps were not completed, and marks were awarded by the HOD without meeting with the Worker or the line manager.  The HOD had no interaction or is familiar with the Workers’ work.  It has been confirmed to the Worker by the line manager in a PMDS that he could not explain why he received a 4 when others received a 5 for doing the same job.  The Worker was advised during feedback that the HOD marks carried a lot of weight at interview stage.  This completely disadvantaged the Worker when compared to other candidates that did meet with their respective HOD’s from other departments.

The Worker commenced employment as a Technical Assistant Grade, on 17th December 1979. On the 5th April 1990 he transferred to his current location where he later took up a role in 1996 and has continued to work in this role to date.

The Worker competed in a promotion competition in 2008 for promotion to Experimental Officer Grade and was placed 26th on the Panel. A Moratorium on recruitment pay and promotions in March 2009 prevented further promotions being made within this group. On the 19th March 2019 a promotional Experimental Officer Grade competition was launched and staff at Career Grade technician level were eligible to compete.

The Worker competed for promotion to Experimental officer Grade through a competitive interview process and was placed 12th on the Panel. He sought interview feedback as he was disappointed with his result and on the 4th September 2019 the Director of Research and the Assistant Director of Research met with the Worker in this regard.

Following this, the Worker exercised the internal appeals process and his appeal was heard by an Appeals Board on 11th November 2019. The Board who recommended that the "Appeal has not been upheld and that the breach in process did not negatively impact the overall result in the promotion competition".

A promotion competition was put in place for staff at Career grade to compete through an interview process for promotion to Experimental Officer. The Worker attended for interview on the 11th June. A total of 15 staff were interviewed over two days, of which 14 were Panelled following the interview process.

Significant Management and Union consultation took place in advance of the competition being launched so as to agree the competency framework, competition procedures, application form and the overall schedule for the competition. The competition launched on the 19th March 2019. Interview training was made available to interviewees and interviewers in advance of the competition.

The competition procedures set out the guidelines for filling the Experimental Officer promotions, and the five steps to be taken by the applicant and management as part of the application process.

Step 5 of the process (Section 3.3) indicates that the HOD meets with the applicant to review the completed application with him/her and provides any clarifications as required. The staff member then completes Section 3.3 to include comments as desired, for example any disagreement with the overall assessment and recommendation and submits the application to HR as directed. The applicant has the last sign-off on the application form. Therefore, should he/she have any queries these can be raised in Section 3.3 on sign-off.

It should be noted that the HOD and the Line Manager are not at the same location as the Worker. The HOD did review the application form and provided feedback to the Worker as to further revisions required to his application form as he felt that the Worker was not fully representing himself on the form. The HOD on finalising the application form returned it to the Worker with his comments and marks. While the HOD did consult with the Worker's direct line manager in advance of assigning marks on the application form, the HOD neglected to meet face to face with the Worker in advance of completing Section 2. Furthermore, as the Worker is based off-site feedback from the HOD on his application was over the phone. This approach was applied by HOD in the case of all applicants in the department with the exception of one who is based on site and a face to face meeting occurred in this instance.

Section 3 of the application required sign-off by the HOD and the manager. The HOD completed this section. It is noted that the line manager did not sign the Worker's form, which was in error, as he thought it was only the HOD's sign-off was required. Furthermore, the line manager did not sign any of the applications that came forward from staff within the department. While this was unfortunate, the line manager confirms that he fully supported the Worker in the application process having provided him with one-to-one support and guidance in completing his application form, as he did with all other applicants within the department.

The Worker had an opportunity to raise concerns or comment as to a disagreement if any, with the overall assessment and recommendation as prompted by the pre-wording in the final section of the form at his sign off. However, the Worker signed off on the application form acknowledging that he had read and discussed his application form with his HOD with no indication of any issues of concern. Had the Worker raised a concern on submitting his application, this would have been formally addressed by the Human Resource Department.

The Worker was called for interview on the 1 June 2019. The interview board in preparation received an interview pack containing; interview procedures, application forms, note taking forms, marking sheets, board report forms. The candidate was asked competency-based questions by each interview board member relating to their specific competency area. It was clear to the interview board members that comments, assessments and marks on the application form were for guidance purposes only and that an independent interview mark was to be awarded based on each board members competency area mark following the interview process. In this regard, the procedures note that "ratings awarded and the comments provided by the HOD on the application form are intended to assist the shortlisting and interview boards, as applicable, in a fair assessment of each candidate's application for promotion". The Worker was marked accordingly in each competency area as per the interview process. This process was replicated for all other 15 candidates.

On receipt of the outcome of the interview process the Worker was unhappy with his result and sought feedback as part of the interview process. This was provided to the Worker by two of the board members? the Director of Research and the Assistant Director of Research. It was following this that the Worker supported by SIPTU exercised the internal appeals process where it was recommended that "the appeal be not upheld and the breach in process did not negatively impact the overall result in the competition".

As outlined, the competition procedures were made available to staff and management on launching the promotion competition. The Worker's application form was not signed off by his manager. This was in error as he thought sign-off was only to be carried out by the HOD. Again, all applications which came forward from the department were treated similarly. In addition, the HOD and the line manager provided one-to-one support to the Worker and other staff in the department in guiding them in completing their application form. Furthermore? the Worker revised up his application form on request from the HOD to ensure that he clearly represented himself and his work.

The Worker had an opportunity to raise concerns relating to a potential breach of procedures or any other matter on submitting his application form to the Human Resources Department, but instead signed his Application Form (Section 3.3) acknowledging that he had read and discussed her application/report with her Head of Department, and he noted nothing of concern.

Finally, the Interview Board members had clarity in their role in terms of the interview process whereby, the marks they awarded were as result of the interview process and not based on or to be combined with the marks awarded by the HOD on the application form. There was no correlation between the HOD scores on the application form and that of the final interview score awarded at interview in the case of the Worker or any applicant in this promotional competition.

This dispute arose from an application by the Worker for the position of Experimental Officer. 15 Staff applied for the Posts and the Worker was placed 12th on the Panel formed. 6 positions have been filled and a commitment to a further 3 staff has been made to fill 3 more posts imminently.

The core issue is that the Employer and the Trade Union involved agreed a very detailed pre -application process to be completed by applicants and line management prior to each application being submitted by a candidate. The Employer accepts that this process was not followed in a few cases, including the Worker involved, with 9 of the applicants having been met by line management to review/discuss their application in advance of it being submitted, as required by the process, and 5 were not met, including the Worker involved in this case. Of the 6 successful applicants to date, 5 were met in advance by their line management.

The Workers case really relates more to his rating of him in the Technical assessment as a 4, when all other staff in the same role as the Worker were rated 5 by the Head of Department. This only came to light after the Panel was created and the Worker received feedback from the Board Members. and the Worker felt that this rating was unfair relative to his colleagues, his above average workload and the fact that his technical expertise had never been questioned in the past in his performance reviews nor had he been asked to undergo any additional training to improve his technical competency. The Worker maintained that the Head of Department was not fully aware of the Workers technical level and the rating of 4 was unfair as a result and if the process had been followed as agreed he would have had more opportunity to influence the score in this area.  The Employer stated that the Worker signed his application and agreed with its contents and raised no issue regarding his Head of Department ratings in advance of the application being submitted by the Worker.

However, the fact that the agreed pre-application process was not followed by some line management, including the Worker in this case, leaves the Worker with a grievance and with his dispute with the Employer having some merit.

It is important to state that it is not the role of an Adjudicator to second guess an internal decision-making body on its appointments nor is the role of an Adjudicator to second guess what rating Line Management gives to an employee in a job application process. However, where the general application process shows a possible disadvantage to an applicant not being treated in the same way as other applicants, as it is in this case, with 8 people getting a one to one meeting with their Line Management in advance of sending in their application and the Worker in this case not getting the same facility, then there was an inherent flaw in the pre application, previously agreed, process. It is neither legally possible or from an Industrial Relations perspective practical, to undo the appointments already made or committed too and the principal of fairness must be applied to those placed lower on the Panel than those already appointed or about to be appointed shortly, who were not party to this Complaint, so their Rankings should continue to stand for as long as the Panel exists.

The Worker sought full compensation of the salary difference between his current Grade and the new Grade, amounting to approximately 13,000 Euros per year for the remainder of his working life which could be up to 10 or so years. This is a totally unreasonable request considering the breach is limited to a very specific issue. There is also no evidence to show that had the process been completed as agreed, that the decision of the Interview Panel would have been any different, but the possibility exists and the fact that the Worker got feedback, after the Panel was formed, that his Technical rating may have influenced the Interview Panel, somewhat, gives more credence to the Workers grievance.

Having considered the Parties submissions and inputs at the Hearing I recommend the following;

1.       That any Line Management involved in the any new selection process be given one to one training and direction by HR management on any pre-agreed process and instructions that they must complete the process as agreed. The fact some staff were not office based is no excuse for not following a pre-agreed process.

2.       With regard to the specific situation the Worker involved found himself in and due to the possibility of him having received an unfair rating in the Technical competence area relative to the other members of his Department and the Worker not having the opportunity to meet with his Line Manager and Head of Department as per the agreed process to try understand and influence this rating, which may, or may not, have influenced the Interview Panel in its deliberations, I find the Complaint well founded and Recommend that the Worker be paid compensation of 3,000 Euros. This is on a once off red circled basis and forms no precedent for any future or other similar claims.  Again, for the sake of clarity, this compensation is not for the Employer not following the agreed process but specifically relating to the individual circumstances of this Workers Technical Rating not being discussed with him in advance by Line Management and its possible influence on his Panel placement. Also, for the sake of clarity, had the Worker received the maximum Technical Rating or have been met by their Line Manager in advance of submitting their application, the Worker would not have succeeded in this dispute.

Promotion