Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

ESA Consultants

 HR

Act

Dispute Reference No.

Date of Receipt

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

CA-00045100-001

08/07/2021

The Worker alleges that the Employer breached the Commission for Public Service Appointments (CPSA) Code of Practice on the Appointment to Positions in the Civil Service and Public Service. 

The Worker submits that as a result of substantial failings on the part of his employer, he has been refused promotion which has resulted in the loss of income, pension entitlements, etc.

The Workers submits that he applied for a promotion on the 26th November 2015.  The promotion competition specifically stated that candidates would be placed on a panel in order of merit based on competency.

The promotion competition consisted of the following five stages:

1.       Shortlisting

2.       Map Reading and Geospatial Awareness

3.       Skills Test and one day familiarisation course

4.       Medical examination and a three-week pre-selection course

5.       Competency based interview

The competencies required and assessed for the role were:

·       Respect for Diversity

·       Teamwork

·       Effective Communication

·       Personal Responsibility

·       Community Customer Focus

It is submitted that the Worker’s Line Manager marked the Worker 21/25 on the initial assessment in relation to his suitability for promotion.  The marking was approved by senior management.  On the 8th March 2016, the Worker received notice from the Chairperson of the Competition Board that he had been shortlisted to proceed to Stage 1.  On the 11th April 2016, the Worker received notification that he was successful at Stage 1 and shortlisted for assessment in Stage 2 and that he had received a mark of 96%, placing him at No. 6 in order of merit.  On the 26th May 2016, the Worker received notification that he was successful at both Stages 2 and 3 and that he was shortlisted to proceed to Stage 4.  The Worker said that in the course of Stage 4, all of the candidates for promotion we required to sign a document confirming their understanding that a mark of at least 60% at Stage 4 was required to progress to Stage 5.

On the 11th July 2016 the Worker received notification that he was successful at Stage 4 and that he had progressed to Stage 5, the competency based interview.  The Worker submits that the Chair decided that three candidates should be interviewed for each position resulting in a total of 12 interviewees, including two candidates who did not meet the qualifying threshold of 60%.  Although the Chair suggested that his actions were line with the CPSA Code of Practice, it is submitted that this is not the case.

On the 12thAugust 2016 the Worker was notified that he was unsuccessful at Stage 5.  The Worker was informed that he was unsuccessful due to his relatively low mark for teamwork and communication.  The Worker asserts that the decision was at variance with his previous successes and was without justification or merit as he had scored well in these areas in all of the other stages of the competition.  It is submitted that the interview Board failed to adhere to the correct procedures and that the interview board failed to consider the Worker’s previous assessment results at stages 1 to 4. 

On the 22nd November 2016, the Worker appealed the outcome of the competition on the grounds of breach of procedures and confirmed by email on the 11th December 2016 that he sought to have a review under Section 8 of the CPSA Code of Practice.   On the 13th December 2016, the Worker received notification that a senior manager was appointed to conduct the appeal.  On the 2nd July 2019 the final report was issued to the Worker, over two years after lodging his appeal.

The Worker subsequently lodged a complaint with the CPSA alleging the following breaches of its Code of Practice:

·       The process was unfair as two candidates progressed to interview stage despite not reaching the qualifying mark of 60%. 

·       The process was not merit based as stages 1-4 of the process were not taken into consideration.  Final shortlisting was determined at the interview stage only.

·       There were significant delays experienced in the processing of his Section 8 review.

The CPSA found in favour of the Worker in relation to all three allegations and found that the breaches of the Code of Practice “resulted in a very unfavourable outcome for the candidate and would request [the Employer] consider taking steps as practicable to provide assistance or restitution for the complainant.”

The Employer submits that it runs all competitions (internal and external) in line with the CPSA Code of Practice.  The complaint is in relation to a competition for a specialist unit which was held in 2015. 

The Worker was deemed unsuccessful following interview at stage 5 of the competition.  As a result, he submitted an internal complaint alleging breach of the CPSA Code of Practice.  It is accepted that there were significant delays in progressing the complaint within the Employer organisation, however, it is also submitted that the outcome would have been the same regardless of the duration of the appeals process.  The Worker subsequently complained the outcome to the CPSA under the CPSA Code of Practice. 

The CPSA issued its report in December 2020 and did identify breaches as follows:

“1. We have serious concerns that candidates who did not meet the qualifying standard were progressed to interview.  There is no record of the CPSA recommendation referred to by the chairperson on the recruitment file or in recruitment procedures.  We also have concerns that the decision was made by the chairperson of the board and not the recruitment unit.

2. We do not consider it fair or in line with best practice that stages 1-4 of the selection process were disregarded when forming the final order of merit.

3. We are not satisfied with the length of time taken to complete the report.”

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, when a breach is identified, 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 employees competing in the same competition.

It is highly unusual for the CPSA to issue a decision to ‘provide assistance or restitution for the Worker’ as was the case in relation to the herein dispute.  However, following internal engagement with the Worker under the Grievance Procedure, a number of compensatory measures were offered to him including further training/development opportunities and additional supports.  These were rejected.  The Employer is of the view that the only restitution acceptable to the Worker is an appointment to the Specialist Unit.  This is completely outside the gift of the Employer.  Nor is it within the gift of the Employer to offer financial compensation.  The Worker was asked to suggest any other form of acceptable restitution short of appointment and/or financial recompense.

The actions of the Employer following receipt of the report were to implement the CPSA’s instructions and clarity on this was also provided to the Worker.  Ultimately, the Employer is limited in its capacity to “provide assistance or restitution” to the Worker.

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. 

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

I note the following pertinent findings which were made by the internal reviewer:

·       The duration of the stages was as follows: Stages 1 and 2 – one day; Stage 3 – eight days; Stage 4 – three weeks; and Stage 5 – 30 minutes.

·       At the completion of Stage 4, the Worker was the highest placed candidate

·       At the completion of Stage 5, the Worker was ranked in 7th place

·       The Reviewer was satisfied that neither of interview candidates who achieved less than 60% at the conclusion of Stage 4 were successful if achieving a promotional position.

·       The Internal Reviewer found that “it is difficult from an objective analysis not to conclude that it was manifestly unfair to totally disregard the fact that [the Worker] was deemed by [trained instructors] to be the highest ranking [candidate] in terms of his suitability and to have this achievement expunged from the merit based selection process thereby vesting final suitability in his performance during a short competency based interview of thirty (30) mins.  Reviewer holds a professional opinion that a selection criteria that fails to take cognisance of results of tests/assessments and in particular the ranking from Stage 4 which rigorously tested the candidates suitability for the role to be filled is contrary to the CPSA principle of fairness in the [the Worker’s] true competence, abilities, experience and qualities exhibited by him in Stage 4 were nullified.

·       The Reviewer noted the Worker’s comment to the effect that “he may not interview as well as others” in competency based interviews.

I note that the CPSA instructed the Employer to “cease using an end-of-process competitive interview as the sole method of determining a candidate order of merit in a multi-phase selection process.   I further note that both the internal reviewer and the CPSA recommended that the Employer should consider whether a competitive interview is even necessary, and, if so, the Employer should determine the correct level of weighting to be assigned to it.  I note that the CPSA asked the Employer to revert to it outlining its intended course of action.

It is difficult to conclude otherwise than that the Worker suffered a grievous wrong when his obvious suitability for the role, as evidenced by his outstanding results at Stages 1 – 4, was not taken into account at the interview stage which was, by far, the shortest stage in the process. 

Having carefully considered the submissions of both parties, I recommend as follows:

·       In relation to the delay in investigating the Worker’s initial internal appeal, I find that an award of compensation is appropriate in all of the circumstances.  Accordingly, I recommend that the Employer pay the Worker compensation in the amount of €10,000. 

·       I note, and commend, the Employer’s undertaking to explore the possibility of seconding the Worker to the specialist unit.  I recommend that the outcome of the Employer’s deliberations should be made known to the Worker within 6 weeks of the date of this recommendation.

·       In the light of the Worker’s admission in his internal appeal that he may not perform well in competency based interviews, I recommend that the Employer make training in competency based interviews available to the Worker and that the Worker avails of this training.

Selection process for promotion