LCR22626

FULL RECOMMENDATION

CD/22/77
ADJ-00030147 CA-00040213-001

DECISION NO. LCR22626

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

OFFICE OF PUBLIC WORKS

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman:	Ms Connolly
Employer Member:	Mr Murphy
Worker Member:	Ms Treacy

SUBJECT:

1.Appeal of Adjudication Officer’s Decision No’s: ADJ-00030147 CA-00040213-001

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 22 April 2022 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 28 March 2022 the Adjudication Officer issued the following Recommendation:

“I recommend the Complainant accept the interview decision and remain on the panel as per his interview performance.”

A Labour Court hearing took place on 01 June 2022.

DECISION:

This is an appeal by SIPTU, on behalf of a Appellant, against an Adjudication Officer’s Recommendation (ADJ-00030147, dated 28 March 2022). The Appellant claims that he was unfairly treated by his employer when he was unsuccessful in securing a promotion following a selection process.

At the WRC hearing, the Employer raised a preliminary issue in relation to the Adjudication Officer’s jurisdiction to hear the appeal. The Adjudication Officer considered that preliminary matter and proceeded to investigate the complaint. The Adjudication Officer rejected the appeal and recommended that the Appellant “accept the interview decision and remain on the panel as per his interview performance”.

Preliminary Matter

At the outset of the Court hearing, the Employer outlined its position that the Labour Court did not have jurisdiction to deal with this appeal. It submits that the Appellant does not come within the definition of a “worker” as defined under Section 23 of the Industrial Relations Act 1990, which specifically excludes individuals “employed by or under the State”.

The Appellant is a State Industrial Employee employed by a Government Office and so is “employed by or under the State”. The Appellant initiated a grievance under the Joint Industrial Council for State Employees Code of Practice on Grievance Procedures (the“Code”). The Code applies to:-

“…all State industrial employees who come within the remit of the National Joint Industrial Council for State Industrial Employees (JIC) which operates under the aegis of the Labour Relations Commission (LRC), (i.e. persons designated under section 23(3) of the Industrial Relations Act 1990 (No 19 of 1990).”

The Appellant is obliged to follow the process set out in the Code for referring a grievance to a third party. The Code states as follows:-

“If the matter cannot be resolved at Stage 3, the employee can seek to have a third party review the case. Depending on the issue, employees can access the various ‘arms’ of the State’s industrial machinery, such as a Rights Commissioner, the Labour Relations Commission, the Labour Court, the Equality Tribunal, the Employment Appeals Tribunal etc. However, in general, the intention would be to avail of the services of the Conciliation Service of the Labour Relations Commission for this purpose. This is without prejudice to any statutory right that an employee may have to submit an issue to a particular agency. The Human Resources Division will be happy to advise employees on the availability of other sources of advice. Third party proceedings are conducted in accordance with the practices of the relevant agency.”

The Employer submits the Code refers to conciliation services as the appropriate avenue for resolving matters. It states that, in conjunction with the definition of“worker” which excludes State employees such as the Appellant, the Labour Court does not have jurisdiction to deal with the appeal.

SIPTU, on behalf of the Appellant, rejects the Employer’s assertion that the Labour Court does not have jurisdiction to deal with this appeal. It submits that the Appellant is a Public Servant not a Civil Servant. Furthermore, the Employer has set a precedent by attending the Labour Court in the past in relation to individual grievances.

The Employer fully cooperated with the processing of the Appellant’s grievance in this case and attended the Adjudication Officer’s hearing into the matter at the WRC. The preliminary issue in relation to jurisdiction was raised at that hearing The Adjudication Officer issued a finding in relation to the preliminary matter and proceeded to investigate the matter.

Discussion and Finding - Preliminary matter

The Court can only investigate a dispute which statutorily is a “trade dispute” as defined in Section (3) of the Industrial Relations Act 1946 as follows:

“the expression ‘trade dispute’ means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;”

This must involve a“worker”as defined by Section 23 of the Industrial Relations Act 1990 thus:

“In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include-

(a) a person who is employed by or under the State…”

The Employer contends that the Appellant does not come within the definition of a “worker” as defined under section 23 of the Industrial Relations Act 1990 and submits that the Labour Court does not have jurisdiction to deal with the within appeal.

Having considered the positions of both sides the Court notes the following:

The Employer confirmed to the Court that the Appellant is a State Industrial Employee and not a Civil Servant.

The Employer confirmed that the Joint Industrial Council for State Employees Code of Practice on Grievance Procedures is the appropriate mechanism for resolution of workplace disputes and that no other grievance process or avenue of redress was available to the Appellant in this case. Those procedures provide for referral of matters to the Labour Court.

While the Employer submits that the Conciliation Services of the WRC is usually the first port of call to address individual workplace issues, it accepts that historically the employer has attended the Labour Courtin in relation to such matters. In this case, the Employer fully engaged with the processing of the Appellant’s grievance and willingly attended the Adjudication Officer’s hearing into the matter at the WRC.

On the basis of the oral and written submissions made, the Court is satisfied that the Appellant is a “worker”for the purposes of the Industrial Relations Act 1990. In such circumstances, the Court finds that it has jurisdiction to investigate the matter and the Appellant has the right to have his appeal heard.

The Substantive Claim before the Court

SIPTU Position

The Appellant has 41 years’ service with the OPW and in 2020 applied for the position of Foreperson Grade 3. The Appellant claims that he was unfairly treated by his employer when he was unsuccessful in securing a promotion following a selection process.

The criteria for the role stated that candidates would be placed in order of merit “based on the comparative depth and breadth of their experience, practical nature of their experience, level, and significance of achievement...”. SIPTU submits that the marks awarded to the Appellant were unfair and not a true reflection of his performance over four decades.

The Interview Board failed to consider the Appellant’s written application, or his expertise and competencies as required. The Interview Board failed to apply the appropriate weighting to the competencies outlined in the selection process. Furthermore, the appeal process failed to take account of the selection criteria outlined to the Appellant before the interview process. No consideration was given to the fact that the two candidates placed above the Appellant on the panel had recently completed their apprenticeships and so could not have achieved the competencies required to fulfil the post.

The Appellant seeks that the Court find the complaint to be well founded and seeks that the Court recommend that the employer apply the appropriate grading differential on a “a red circled personal to holder basis” between his current grade and that of the contested Foreperson Grade 3 position.

Employer position

The Employer rejects that the Appellant was unfairly treated during a promotion selection process. To the contrary, the Appellant was placed third on the reserve panel, and is currently placed second on the panel. The Employer submits that the interview process was conducted in a fair, objective, and transparent manner, in line with the OPW Industrial Staff Selection Process. The Appellant was treated fairly and in a manner consistent with all other applicants, having been allocated marks based on his interview performance. Marks were awarded on the basis of the candidate’s performance at interview.

The Appellant appealed the outcome of the interview process. That appeal was conducted by the Head of HR who satisfied himself that that the Interview Board had adopted a consistent approach in respect of the marks awarded to each interviewee. The appeal outcome letter stated:

“The Interview Board allocated you marks based on your performance at interview. The Interview Board's assessment was based on the evidence you provided to them at interview in response to the questions asked. I am not in a position to insert myself into the interview itself nor can I reassess what and how evidence was provided at the interview. I have noted from the competition documentation that there is a consistency of approach by the Interview Board in respect of all of the interviews.”

The employer submits that in the absence of any clear evidence of unfairness, it is satisfied that the selection process was conducted fairly in accordance with procedures. The Employer further submits that it is not the role of an appeal body to reassess evidence presented at interview. The Labour Court has consistently found that it shall not interfere with the decision of an interview board, when there is no evidence of unfairness, irrational, or inappropriate behaviour and requests the Labour Court upholds the decision of the WRC and dismisses the appeal.

Findings

The Court has given very careful consideration to the written and oral submissions of the parties.

The Appellant submits that a promotion competition in which he was a participant was flawed in so far as the Interview Board failed to take full account of his application and question him on areas of his particular expertise which were relevant to the post in question. The Appellant contends that the interview panel should have asked him about particular areas of his expertise but failed to do so.

The Employer submits that the Appellant participated in a competency-based interview, where marks were awarded on the basis of a candidate’s performance at interview.

The Court cannot, on the basis of the oral and written submissions made at the hearing, find a basis for concluding that the procedures employed by the Interview Board were unfair to the Appellant or was structured in such a way as to disadvantage him vis-a-vis other candidates.

The Court has consistently taken the view that it cannot substitute its views on the merits of candidates for promotion for those of the nominated interview board. Hence, in the absence of irregularity in the selection process, or irrationality in the result, the Court cannot intervene. In this case there is no suggestion of irregularity in the selection process nor is there any evidence upon which the Court could conclude that the result of the selection process was irrational.

In these circumstances the Court is satisfied that the conclusion reached by the Adjudication Officer was correct and that her recommendation is reasonable.

Accordingly, the Court finds that the appeal fails, and the recommendation of the Adjudication Officer is upheld accordingly.

The Court so recommends.

	Signed on behalf of the Labour Court

	Katie Connolly
CC	______________________
14 July 2022	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.