Worker

Employer

Anonymised Parties

Security

Security

Representatives

 ESA Consultants

HR representative

Act

Dispute Reference No.

Date of Receipt

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

CA-00043838

02/05/2021

This dispute concerns the fact that information provided to the applicant concerning a promotion competition stated that successful candidates would initially be assigned to Dublin. Based on that communication the applicant withdrew from the competition. He was living outside of Dublin and the opportunity to relocate or commute was limited. Later in the competition it became clear that vacancies were both in Dublin and outside of Dublin.

The worker bringing this dispute holds a technical role within the organisation and the opportunity for promotion has been limited based on his experience and specialised skill set.

 At a point in the competition it became clear that the vacancies advertised would also be outside of Dublin. The worker contends that at that point a communication to all candidates who had applied should have issued concerning that significant change. More than 80% of the applicants who applied were successful and promoted. If the worker had stayed in the competition there was a very high chance that they would have been promoted. The worker joined the organisation at a time when specialist IT technical skills were required. The fact is the experience that he possesses is limited to a specialist area and this recent opportunity was a rare chance to gain promotion. The worker feels aggrieved. He pulled out of the competition based on what he views as a misrepresentation that successful candidates would be assigned to roles in Dublin. The worker would have stayed in the competition if he had known that many of the roles were in geographical locations near where he lived.

The internal process states that in the first instance complaints about a recruitment campaign should avail of the public appointments’ grievance/complaint procedures. That requires the matter to be referred to a specific process that is separate and independent of the grievance procedure. There are several stages to that process with a right to final review by the Commission on Public Service Appointments. The internal employee relations grievance procedure specifically references that grievances concerning promotion do not fall within the remit of that procedure.

This worker exercised their right to use the appropriate complaint procedure. That procedure has a statutory basis and relates to a review of the process having regard to a statutory code relating to Public Appointments. The first step requires an internal review. In this case that review did not find in favour of the worker. The second stage provides for a review of a decision that may result in a reversal of that decision. Such a decision could only arise based on the relevant Public Body making that decision. The second option relates to a review by the Commission for Public Service Appointments and that review is conducted having regard to their Code concerning public appointments. That review does not involve a reversal or change to a decision made during the competition and only relates to the code. While there were a number of matters referred to them by the worker and not all upheld; it did find that at a point a breach of the code did occur based on the absence of communication regarding the location of vacant positions. However, that decision was qualified as it also found that at the commencement of the competition that information was not available.

The worker stated that they relied on a representation by the HR department and personnel charged with running the competition and that information was wrong. When specifically asked about the location of the roles the worker was informed that it would be Dublin. While it is true that the information regarding the requirement to work in Dublin was not known at the commencement of the competition neither was it known where the roles were going to be. At a point in the competition when it became clear where the roles were, that information should have been communicated to the worker and he should have been allowed to re-enter the competition. The worker claims loss of earnings now and into the future based on that decision and the amount is very substantial. He stated that he was likely to have been promoted and arising from the misrepresentation made to him; he has suffered very significant loss that will also impact on his pension rights.

All candidates were treated the same. All candidates were informed that the positions would be in Dublin at a point. In fact most the of roles were in Dublin. It is a condition of employment that on promotion the worker would be subject to redeployment. That condition of employment continues. All candidates who stayed in the competition knew that was the case. At a point it became clear that some roles could be located outside of Dublin. However, the worker withdrew the application. There can be no basis to this grievance as the employee never participated in the competition.  The employee chose to have his complaint assessed by the Commission and that was completed against the code as that was the choice made by the worker. This dispute should not have been referred to the WRC as it has been heard and a final determination made. The worker seeks very significant compensation or promotion. However, he never progressed that option under the Public Appointments procedure. The decision of the Commission is final. The Adjudicator is also requested to have regard to the fact that other individuals also withdrew their application in similar circumstances.

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

I note at 8.1 of the Code concerning an appeal to the Commission for Public Service Appointments:

The Commission may find that a public body has not adhered to the standards set out in the

principles of this Code of Practice. In this case, the Commission may make

recommendations offer advice or issue an instruction that an office holder must take

account of in future appointment processes. The Commission cannot instruct a public body

to reverse a decision taken in the course of the appointment process.

A referral under the Industrial Relations Act is to facilitate a resolution of a dispute. It does not concern the adjudication of contractual rights.

The Commission concluded that:

“A number of potential candidates may have declined applying for the competition on foot of information that they would be initially assigned to Dublin and that These potential candidates suffered further indirect disadvantage, as successful candidates were offered the station of their choice”  

A breach of the Code was found based on these findings.

It is also a fact that a level playing field applied at the commencement of the competition as all candidates that applied and continued with the competition were competing on the premise that they would be reassigned to Dublin. It is also a fact that the Commission concluded at the start of the process the location of the vacancies was not possible to specify.

The fact is that the worker in this case is subject to a condition to redeployment on promotion; that may not have happened, but it is a condition of their employment.

The employer argued that no disadvantage arose as the worker failed to compete. However, that is a moot point; the worker didn’t compete based on the information that the promotions would be in Dublin initially. The fact is most positions were in Dublin; however, a very significant number of the vacancies were not.

The employer argued that the CPSA appeal in fact is the grievance process and cannot be reheard. The employer could have objected to attend this Industrial Relations  hearing and they didn’t. Also, the CPSA fulfils a statutory role. No overlap arises where the matter referred is separate to the grievance made to the CPSA concerning a breach of the Code relating to Public Appointments. This industrial relations dispute relates to the loss of opportunity and financial loss arising from a misrepresentation that stated a reassignment would take place to Dublin on promotion.

When making an appeal under the CPSA Code there are two options; an internal section 7 review that can seek a reversal of the decision by the Public Body and a section 8 review which concerns a review by the Commission to determine if a breach of the code occurred. The worker did not seek a reversal under section 7 of the code.

The employer relies on 3 cases where the Labour Court held that it is not open to the Court to either stand in the shoes of a reasonable decision maker concerning appointments or to revisit the outcome of a decision made under the CPSA code:

1.     A University & A Worker LCR21333 (November 2016)

2.     National Ambulance Service & SIPTU LCR22057 (June 2019)

3.       National Ambulance Service & SIPTU LCR22154 (December 2019)

This recommendation does not concern itself with a decision of the employer relating to appointments.

This recommendation does not concern itself with the review of the CPSA code, a matter beyond the jurisdiction of this tribunal.

However, a valid dispute is before the tribunal concerning a misrepresentation that was a primary cause in leading to a withdrawal from a competition.

I note in National Ambulance Service& SIPTU LCR22154 that is cited by the employer,that the Court did in fact make a recommendation awarding compensation:

Having regard to the particular circumstances including the significant length of the temporary appointments and the fact that the Claimant never received feedback as to why he was not successful on the panel, contrary to the Code of Practice, the Court recommends that management should engage with him in a spirit of positivity and co-operation to assist him in better understanding his prospects in relation to future panels/appointments. Furthermore, the Court recommends that management should engage with the Claimant and his Union to agree appropriate supports for him in that regard and should address any possible barriers to his application for future roles within the Service.

The Court is cognisant of the fact that 75% of the Claimant’s service in the National Ambulance Service has been at the higher level LEMT post and since May 2019 has had to revert to a lower grade. This was despite the stipulation in Circular 17/2013 that service in the higher grade should be temporary and should not exceed 12 months except in exceptional circumstances. No such exceptional circumstances were put to the Court. In all the circumstances of this case, in addition to the above recommendation, the Court recommends that a once-off payment of €3,000 in compensation should be paid to the Claimant in full and final settlement.

The Court finds that the Claimant’s claim for regularisation in the LEMT post cannot succeed and the appeal fails. The Recommendation of the Adjudication Officer is varied accordingly.

It was open to the worker under section 7 of the appeal process to seek a reversal of the decision and they failed to do so. That is not an option open to this tribunal having regard to the statutory basis of the code. However, it is noted that a breach of the code occurred and that in turn gave rise to a disadvantage to the candidate. While a very large number of candidates were promoted; it cannot be said that would have occurred as a fact for this worker. It is also a fact that all candidates that stayed the course in the competition were more mobile than the worker, in so far as they believed they would be redeployed to Dublin. It is also a fact that a condition of employment concerning this worker is that on promotion the worker is subject to redeployment. It also a fact  ,despite the misinformation, that the worker withdrew from the competition-limiting a choice that could have been presented if successful at interview.

 Allowing for all the circumstances of this dispute; I recommend a once off payment of €5000 in compensation to be paid to the worker in full and final settlement.

Misrepresentation