FULL RECOMMENDATION
PARTIES : HEALTH SERVICE EXECUTIVE DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00027077 CA-00034650-001 "I recommend that the employer give consideration to allowing for a longer lead in period between sift boards and interview boards in the planning phase of recruitment competitions. This would enable decisions of the sift board to be reviewed and would provide for adequate preparation time for candidates who may be successful in overturning decisions of the sift board to prepare for the interview process. I recommend that the employer compile a guidance document in conjunction with the employee representative unions as to the effective and efficient use of the Code of Practice review/complaint mechanisms and the Grievance procedures, in relation to such matters as when to use either route and what each is most appropriate for. I recommend that the employer ensure that there is no delay in communicating results of review/complaint/grievance procedures, particularly to candidates within a recruitment process. I recommend that the employer put in place (further) supports to help all staff achieve their potential." A Court hearing took place in a virtual Court Room on 15 September 2021. DECISION: The matter before the Court essentially concerns the Claimant’s dissatisfaction with the conduct of a competition for the post of Clinical Nurse Manager 3 in Cavan general Hospital in mid-2019. The post was advertised in May 2019 and interviews were held on 17thJuly 2019. The Claimant was not successful in securing promotion to the position. The conduct of the competition is regulated under the code of the Commission for Public Service Appointment (the CPSA). The first stage in this competition was a ‘sifting’ stage where the applications of candidates were reviewed and a selection made of candidates to be interviewed. The claimant was not successful at this stage. She sought and was granted a review of the matter of the outcome of the ‘sifting’ process. That review resulted in a decision of a HR Manager of the employer allowing her to advance to interview stage. She was advised of this outcome on 28thJune. Interviews were scheduled to take place in mid-July. The Claimant, while awaiting the outcome of her Section 7 review, communicated with the employer seeking that the planned interview dates be delayed such that she would have a fair opportunity to prepare for the interview should her appeal be successful. The employer declined to delay the interview schedule Following confirmation on 28thJune 2019 that she was to be permitted to advance for interview, the Claimant sought that the members of the ‘sifting’ board be excluded from participation on the interview board for the competition. She did so on the basis that she felt she would be disadvantaged if the same individuals who had originally decided that she should not be interviewed went on to comprise the interview board. The employer declined to reconstitute the interview board for the competition. The employer submitted that the claimant had ample time between 28thJune and her interview date of 17thJuly to prepare for her interview and that no case can be made by the Claimant that a failure to re-schedule the interviews disadvantaged her. The employer submitted that the competition was run in accordance with the Code of the CPSA. That Code does allow for an appeal of the outcome of the ‘sifting’ process but does not require or provide for the exclusion of members of the ‘sifting’ board from the remaining stages of the competition should the appeal be successful. The Employer was satisfied that the members of the interview board for the competition had conducted themselves properly and impartially. The employer submitted that the Claimant did not appeal any element of the conduct of the interview process in accordance with the appeal arrangements set out at section 8 of the CPSA Code. The Claimant’s Trade Union submitted that it did seek to raise a grievance internally in the employment arising from the failure of the employer to replace the interview board or to delay the interview schedule. Ultimately however, the matter never progressed through that grievance procedure and the matter weas referred to the Workplace Relations Commission as a trade dispute. The employer submitted that the Claimant had the opportunity to raise any concern she had with the conduct of the competition through the procedures laid down at Section 8 of the Code of the CPSA rather than as an internal grievance, but she chose not to undertake that means of addressing any concerns she might have had. The Claimant in this matter seeks payment of compensation arising from her experience of the competition. The Court notes that she has not alleged impropriety on the part of any member of the ‘sifting’ board or the interview board. She is concerned however that she has been disadvantaged as a result of the failure to replace the interview board and as a result of the failure to delay the interview scheduled. The Court has been given no basis to believe that the entire competition was conducted other than in a fair manner for all candidates. The Court notes that the Claimant did appeal the outcome of the ‘sifting’ exercise and was successful. That appeal was made under section 7 of the code. The Code does not provide that where an appeal of a ‘sifting’ process is successful the members of the ‘sifting’ board should be excluded from the process thereafter. In those circumstances the Court does not consider that an award of compensation could reasonably be made in relation to this matter. The Court notes that the Claimant was notified on 28thJune 2019 that she would be interviewed and was then interviewed on 17thJuly. The Court does not consider that an award of compensation is reasonably required to address the fact that the Claimant’s request for a delay to the interview schedule was not granted. The Claimant has submitted that the internal grievance procedure did not ultimately progress to address her concerns as regards this competition. She did not seek a review of any matter under section 8 of the Code of the CPSA. In the event, the matter has now been considered by an Adjudication Officer of the Workplace Relations Commission and by the Court. In circumstances where the Claimant has had a full opportunity to ventilate and have heard any concern she has as regards the conduct of the impugned competition, the Court does not consider that an award of compensation is reasonable in the circumstances in respect of the failure to advance the matter through the internal grievance procedure. The Court so decides.
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