Worker

Employer

Anonymised Parties

Worker

Employer

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

27/04/2021

The Worker submitted an industrial relations dispute to the Workplace Relations Commission on 27th April 2021 alleging that the Employer has breached the Code of Practice of the Commission for Public Service Appointments (CPSA) in relation to them. The said complaint was referred to me for investigation.  A hearing for that purpose was held on 12 October 2022. 

The Worker submits as follows:

The Employer advertised vacancies in a role with driving responsibilities on 30th July 2020.  These roles are highly sought-after positions as they attract a pensionable allowance which equates to 40% of basic salary.   The Worker applied for the role as they believed that they possessed the necessary skills and experience.  On 30th October 2020, the Worker was informed that they were not successful in their application and, therefore, were not shortlisted for interview.  

The Worker was given feedback from the shortlisting board.  The Worker felt aggrieved about the areas in which they were scored and also felt that the scores that they received were unfair and not reflective of their skills and experience.  The Worker was at a loss to understand how they could be scored on competencies relating to physical fitness or aptitude for driving without any assessment being carried out on their ability to drive or their physical condition.  The notification of the competition had included the provision that the shortlisting process would be based solely on the application form.  The assessment criteria would be applied to the core competencies and the essential/desirable requirements applicable to the post would be considered where necessary.  The core competencies for the position were listed as personal responsibility; teamwork; effective communication; respect for diversity; and, community & customer focus.   There were no desirable requirements listed.  The interview board, however, assessed candidates under the heading of ‘essential experience’ (fitness level) and ‘essential qualification’ (aptitude for driving) which were not listed either as a core competency or a desirable requirement.

Internal CPSA Review

On 11th November 2020, the Worker requested an internal review under the Commission for Public Service Appointments (CPSA) Code of Practice on Appointment to Positions in the Civil Service and the Public Service of the scoring and the areas for which they were marked for the purposes of shortlisting.   The Code of Practice does not allow for any actions to be taken if there was an adverse finding. On 12th August 2021, the Worker received a copy of their review.  In the Worker’s case, the reviewer found that the Worker was unfairly assessed and should have been shortlisted for interview.  Yet, surprisingly, despite this, the reviewer found that there was no breach of the Code of Practice.

External Review carried out by the Commission on Public Service Appointments (CPSA)

On receiving the feedback from their internal CPSA reviews, the Worker sought an external review by the Commission for Public Service Appointments under Section 8 of the Code of Practice.

Due to the number of complaints received by the CPSA, it undertook a review of the promotion competition.  The CPSA’s found as follows:

• The Commission cannot overlook the length of time the report took to issue to the complainant. Having initially requested the review in December 2020, we find it unacceptable that the final report was issued to the complainant in August 2021. We find that the lack of communication from the public body to the complainant to be a breach of the Code of Practice as per Principle 5 of the Code, which states, ’transparency in the appointment process and the openness with which the complainants are dealt by office holders will enhance candidate confidence. Open and active communication on the process and the basis for assessment is essential’. The public body should have communicated to the complainant any delays and the reason for delays with the review process.
• The Commission is not satisfied that the reviews conducted reached appropriate conclusions or demonstrated evidence-based decisions. The Commission finds that the reviews completed by the internal reviewers do not appropriately illustrate an understanding of the review mechanisms under the Code.
• The Commission has reviewed the scoring system applied to candidates in the shortlisting process and is satisfied that they were fairly applied to all candidates.
• The Commission is not satisfied that the appropriate mechanisms were used to measure driving and fitness skills and the consideration of these competencies in a paper based shortlisting exercise is inappropriate.

Conclusion

The Worker acknowledges the WRC’s position is that it does not substitute its decision for that of an employer’s recruitment or promotional panel regarding the merits of a candidate for employment or promotion.

The Worker submits that a breach of the Code of Practice occurred in this competition which denied the Worker the opportunity for advancement. The Worker has lost the opportunity to increase their salary and pension.  The Worker contends that they should be compensated for their lost opportunity.

The Employer submits as follows:

The Employers’ Guidelines for Internal Appointments and Promotions is aligned to the Code of Practice on Appointment to Positions in the Civil Service and the Public Service published by the Commission for Public Service Appointments (CPSA). 

There were five vacancies at the time of running the competition for drivers.  Following the shortlisting exercise involving 91 applications, 33 candidates were invited to attend for interview. The shortlisting committee reached its decision by awarding marks for all competencies and arriving at an overall mark for each of the applicants.  The shortlisting process was carried out for all applicants based on their application forms only and a consistent approach to the process was employed by the shortlisting committee.  The Employer submits that the CPSA fully supports shortlisting and, in past reviews of internal competitions, has encouraged the Employer to apply shortlisting where appropriate. 

On 24th November 2020, the Worker’s representative wrote to the Employer outlining their concerns in relation to changes to essential requirements for the post and in relation to the shortlisting process. The representative was advised that any candidate who is dissatisfied with the outcome of a competition may seek a review of management of their application under the CPSA Code of Practice.

The internal reviews were completed and some candidates appealed the outcome to the CPSA.  The CPSA reviewed the appeals and reverted to the Employer with a report on the competition.  The CPSA findings were as follows:

1.       “The Commission finds that there was a breach of the Code of Practice with regard to the timeliness of the internal review and a lack of meaningful communication provided on this to the complainant. The Commission is satisfied that this lack of communication from [the Respondent] to the complainant is a breach of the Code of Practice as per Principle 5 of the code, which states, ‘transparency in the appointment process and the openness with which candidates are dealt by office holders will enhance candidate confidence. Open and active communication on the process and the basis for assessment is essential. 

2.       The Commission is satisfied that a breach of the Code of Practice occurred in relation to the internal review which in its view did not appropriately illustrate an understanding of the review mechanisms under the code. 

3.       The Commission is satisfied that the decision taken by [the Respondent] not to comply with the internal reviewer’s recommendations was in line with the Code of Practice. 

4.       The Commission is satisfied that the general scoring system was fairly and equally applied to all candidates. 

5.       The Commission also finds a breach of the Code of Practice in the marking mechanism used to evaluate the essential requirements and essential experience namely the aptitude for driving and the high level of personal and medical fitness. There were no practical assessments undertaken to evaluate candidate competency in these requirements. The Commission finds that this is a restrictive practice. The Commission considers that the shortlisting criteria applied in this instance were not appropriately related to the job specification and duties and requirements for the role. It also considers that the assessment basis for these elements was not sufficiently objective for the purposes of fair, consistent and merit based assessment”. 

Management Position

It is accepted that there was a departure in relation to the essential requirements from the 2010 competition to the 2020 competition.  The changes to the ‘essential’ criteria were deemed necessary by the relevant business owners.  This would not be unusual practice since a decade had passed and this rationale was addressed in correspondence to the Worker’s representative in August 2020.  

An outcome from an appeal to the CPSA does not result in nullifying a competition or allowing access to a competition for any person when a competition has closed.  Rather, the CPSA instructs the organisation complained of to ensure that future competitions are held in line with the Code of Practice.  To allow retrospective entry to a competition would compound breaches and would also be unfair to other personnel competing in the same competition.

It is noteworthy that in its findings, the CPSA did not find that any candidate was treated unfairly vis-a-vis any other candidate.  In particular, reference is drawn to that part of the CPSA’s findings where it is stated that the general scoring system was equally applied to all candidates.  Shortlisting, by its nature, results in some candidates being disappointed.  There are several individuals who came close to, but did not reach, the cut-off point for being called for interview.

It is accepted that there was a delay in issuing the results of the internal reviews as borne out by the Commission’s report.  All affected personnel were updated as to the delay of the final determination by email on the following dates: 12th February 2021, 25th March 2021 and 27th April 2021.

The Employer submits that due to the numbers of personnel affected by any delay caused, the within claim is more akin to a collective matter than an individual claim.  The Employer contends that any finding for the Worker would have knock-on consequences for a wider group of personnel.  The Labour Court has found that it is statute barred from investigating a dispute of an individual Worker when it may have an impact on a wider body of employees.  A recent example is found in South Dublin County Council and A Worker - LCR 22508 where it is stated:

 “Section 13(3) in relevant part which provides as follows:

13(b) A rights commissioner shall not investigate a trade dispute— (i)if the Court has made a recommendation in relation to the dispute, In light of these statutory provisions and its conclusion that (a) the claim for compensation for loss of earnings before the Court is, in all practical senses, a claim for compensation for the same losses previously decided upon by the Court, and (b) that any decision of the Court has the potential to affect the pay of a body of workers, the Court concludes that it is statute barred from making a decision in this matter.”

A recommendation in favour of the Worker, who was not the only candidate to have experienced a delay in progressing their internal review, would result in them gaining an advantage over other candidates who were not shortlisted and who did not progress a complaint through a review under the CPSA Code and/or by way of a complaint to the WRC.  The Employer submits that the within claim is without merit and statute-barred on the basis of wider implications. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Preliminary Issue - jurisdiction

The Employer has raised a preliminary issue with regard to my jurisdiction to hear this case and suggests that I lack jurisdiction to investigate this dispute as it has wider implications for a body of workers in accordance with section 13(2) of the Industrial Relations Act 1969 which provides that Adjudication Officers of the WRC may not investigate disputes connected with rates of pay, hours or times of work or annual holidays of a body of workers.

Contrary to the position adopted by the Employer, I am of the view that this is an individual dispute which was submitted, and heard, alongside other similar disputes purely for administrative convenience and is not connected with the conditions of a body of workers. I conclude, therefore, that I do have the jurisdiction to investigate this dispute.

Substantive Issue

In making my findings, I am guided by the Labour Court’s consistent adoption of the position that it does not substitute its decision for that of an employer’s recruitment or promotional panel regarding the merits of a candidate for employment or promotion.  However, I am also cognisant of the Labour Court’s findings in LCR 21333 A University v A Worker where the Court stated:

“The Court can only look behind a decision in relation to appointments where there is clear evidence of unfairness in the selection process or manifest irrationality in the result. “

Accordingly, following the reasoning of the Labour Court as set out above, I am of the view that I can investigate (i) the use of criteria which are not amenable to a paper-based assessment in the shortlisting exercise and (ii) the delay in providing an outcome to the Worker from the internal review.

Shortlisting Exercise

The first matter for me to investigate is the shortlisting exercise which was carried out to identify the candidates which would proceed to the interview stage of the competition.

In their feedback from the shortlisting exercise, the Worker was assigned a mark of 10 out of 20 for aptitude for driving, yet the accompanying comment noted that they were had “qualification and experience of driving different categories of vehicles”.  I note that, in their application form, the Worker wrote that they had successfully completed courses in driving cars, personnel carriers, vans and 4x4s plus trailer.  Frankly, I am at a loss to understand how the Worker’s mark was arrived at without the benefit of a practical assessment.

Under the heading ‘personal and medical fitness’ in the shortlisting assessment form, the Worker received a mark of 8 out of 15 with the comment “evidence of a keep fit lifestyle”.  I note that in their application form, in relation to their fitness and wellbeing, the Worker wrote that “I keep fit by playing soccer and swimming.  I am medically fit.”  Again, I cannot understand how the assessors arrived at the Worker’s mark without the benefit of a fitness and medical assessment.

My concerns about the validity of the assessors’ markings in relation to the Worker’s driving skills and fitness levels is supported by following findings of the CPSA:

“The Commission also finds a breach of the Code of Practice in the marking mechanism used to evaluate the essential requirements and essential experience namely the aptitude for driving and the high level of personal and medical fitness. There were no practical assessments undertaken to evaluate candidate competency in these requirements. The Commission finds that this is a restrictive practice. The Commission considers that the shortlisting criteria applied in this instance were not appropriately related to the job specification and duties and requirements for the role. It also considers that the assessment basis for these elements was not sufficiently objective for the purposes of fair, consistent and merit based assessment”. 

I recommend that an award of compensation is the appropriate remedy in this regard.

Delay in providing feedback

The second matter for me to investigate is the length of time the Employer took to provide a response to the Worker.  The Worker initially requested a review on 11 November 2020 but the report was not issued until 12 August 2021. I am of the view that the investigation into the Worker’s complaint took an unacceptable length of time which resulted in unnecessary stress for the Worker.  My view is supported by the following findings of the CPSA:

“The Commission cannot overlook the length of time the report took to issue to the complainant. Having initially requested the review in December 2020, we find it unacceptable that the final report was issued to the complainant in August 2021. We find that the lack of communication from the public body to the complainant to be a breach of the Code of Practice as per Principle 5 of the Code, which states, ’transparency in the appointment process and the openness with which the complainants are dealt by office holders will enhance candidate confidence. Open and active communication on the process and the basis for assessment is essential’. The public body should have communicated to the complainant any delays and the reason for delays with the review process.”

 I recommend that an award of compensation is the appropriate remedy in this regard.

Issues with shortlisting exercise.  Delay in providing outcome of internal review.