Complainant

Respondent

Anonymised Parties

Stonemason

Government Department

Representatives

 SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040213-001

02/10/2020

The parties tried to resolve the matter prior to the WRC hearing.  The SIPTU representative for the Complainant stated they engaged a mediator to investigate the matter.  This broke down though, so the matter is now for adjudication.

The Complainant commenced employment with the Respondent on 16 June 1981. The Complainant believes he was unfairly treated by his employer. The Complainant stated the unfair treatment directly relates to the outcome of a promotional opportunity, wherein he was unsuccessful in obtaining the position.

The Complainant’s representative SIPTU confirmed he has been employed by the Respondent for nearly 40 years and over that time the claimant has carried out all duties with due diligence and professionalism.

The Complainant’s representative stated in 2020, a Grade 2 position was advertised, and the claimant subsequently applied, included all the relevant experience he had within the organisation and the fact that he had previously been placed on a panel for a Grade 1 position.

The Complainant’s representative stated each of the applicants were provided with the Company Industrial Staff Selection Process criteria, within the application pack several variables were identified to the candidates which would form the basis of the interview. 

The Complainant’s representative highlighted the fact that interview objectives must ensure that the candidate will 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 ……………..”

The Complainant’s representative stated the organisation, having identified the objectives of the interview board to place significant weighting on these criteria they contended that in the Complainants case that objective was ignored.

The Complainant’s representative stated other key variables identified within the criteria effecting weighting of each of the four marking schemes focuses on the relevant experience, skills, knowledge, and attributes of the candidate.

The Complainant’s representative stated taking that the Complainant has over 39 years’ experience within the role, more importantly the Complainant trained, supervised, and mentored two of the candidates, however, the weighting given to the individuals by the interview board was noticeably higher.

The Complainant’s representative contends that while other issues which have identified the flaws undertaken by the Interview Board within the process, one of the most noteworthy was the failure of the Board to focus on the Complainant’s written application, citing his expertise and his competencies. The claimant contends that the interview board failed to explore such information as required within the organisation criteria.

The Complainant’s representative stated following the interview process the Complainant was advised that he was placed 3rd on the panel.

The Complainant’s representative confirmed in September 2020, the Complainant submitted a grievance under the Joint Industrial Council for State Employees Code of Practice on Grievance Procedures outlining his dissatisfaction with the promotional competition.

The Complainant’s representative confirmed the grievance was heard on the 21 September 2020, by Head of HR and HR Management. On the 24 September 2020, he issued his finding.

The Complainant’s representative confirmed within the comments and observation outlined by the Head of HR, stated that “Taking on board a solid and relevant marking system, by way of categories and attributed marks, I do not have any evidence to indicate that the marking was not in respect of anything other than the evidence presented at interview”.

The Complainant’s representative confirmed it would be SIPTU’s contention that the comments outlined by Head of HR failed to consider the criteria outlined to the Complainant before the interview.

The Complainant’s representative stated further comments made by Head of HR, refers to appointments being made on merit, albeit the criteria for judging suitability of the candidate can be related to the attributes and skills required to fulfil the duties of the post.

The Complainant’s representative stated that the Head of HR, failed to give any consideration to the fact that the two candidates above the Complainant had only just completed their apprenticeships and the competencies required to fulfil the post had at this stage not been achieved.

The Complainant’s representative stated the Interview Board was in breach of natural justice and acted unfairly in failing to apply the protocols associated with the Industrial Staff Selection Process which placed the Complainant at a disadvantage.

The Complainant’s representative stated there was a serious and fundamental unfairness demonstrated by the employer in that the Interview Board failed in adopting the principles as outlined by the Head of HR in his response to the Complainant dated 24 September 2020.

The Complainant’s representative contends that the employer Candidate Information Notice, with reference to the Minimum Eligibility Requirements clearly demonstrates that the weighting given to the Complainant by the Interview Board on the four competencies, displays a lack of objectivity shown to our member in both significant service and work contribution to the organisation.

The Complainant’s representative stated the Complainant is currently carrying out the role of Grade 3, as set out within the Job Specification, albeit without the salary. SIPTU contends that the Complainant would be entitled to have, at least, a Mediator to examine the process and issue a recommendation.

The Complainant’s representative commented that the Complainant is requesting that the Adjudicator recommend that this complaint is well founded. That the employer would move the claimant to the next point on “a red circled personal to holder basis” of the Grade 3 salary scale or in the alternative, that an Independent Mediator be appointed to review all aspects of this claim.

The Respondent stated that on 2 October 2020, the “Complainant” submitted an application for adjudication to the Workplace Relations Commission (the “WRC”) under section 13 of the Industrial Relations Act 1969 (the “1969 Act”). The Complainant alleges that he has been unfairly treated by the Respondent as a result of not being selected for a promotion opportunity at the Respondent organisation.

The Respondent submits that the Complainant does not come within the definition of a “worker” under

Section 23 of the Industrial Relations Act 1990 and therefore, respectfully submits that the WRC does not have jurisdiction to deal with the complaint.

Without prejudice to this, the Respondent rejects the allegation that the Complainant has been unfairly treated by the Respondent in respect of any promotion opportunity, and maintains that the promotion process was consistent with the Company Industrial Staff Selection Process

The Respondent stated theComplainantisalong-standingandvaluedemployeeoftheRespondent,havingcommenced employment with the Respondent on 16 June 1981. He was most recently appointed to a position of responsibility on 23 July 2020.

The Respondent stated they advertised for the position in or around June 2020. The Complainant submitted his application for this role on 17 July 2020. The Complainant was interviewed on 25 August 2020 by the HR Management (Operational) and a number of interviewers. On 26 August 2020, a report was drafted to the Board confirming the outcome of the interview process. By letter to the Complainant dated 3 September 2020, the Complainant was advised as follows:

“I wish to inform you that, while you were not successful on this occasion, you did achieve 3rd on a reserve panel. This panel will remain in place until 26 August 2022 and you will be contacted should a vacancy arise.”

The Respondent confirmed by emails dated 6 and 7 September 2020, the Complainant submitted a grievance under the Joint Industrial Council for State Employees Code of Practice on Grievance Procedures outlining his dissatisfaction with the promotional competition. In particular, the Complainant stated “I believe I have been unfairly treated as I was unsuccessful in the competition, I also believe that the Company did not give due consideration to my service, experience and the fact that I have mentored two successful candidates in such competition heretofore.”

The Respondent stated by letter dated 16 September 2020, the Complainant was invited to meet with, Head of HR, to discuss his grievance. The grievance was heard on 21 September 2020 by Head of PR and HR Management. The Complainant was accompanied at this meeting by his SIPTU representative. On 24 September 2020, the Head of HR issued his finding by email confirming that the Complainant’s grievance was not upheld.

The Respondent stated the Complainant submitted his complaint under section 13 of the 1969 Act to the WRC on 2 October 2020. By letter dated 18 January 2021, the WRC wrote to the Respondent to advise a remote hearing had been scheduled on 23 February 2021. The Complainant outlined details of his complaint in his submission to the WRC. In particular, the Complainant requested that “the Adjudicator recommends that this complaint is well founded. That the employer would move the claimant to the next point on “a red circled personal to holder basis” of the Grade 3 salary scale or in the alternative that an Independent Mediator be appointed to review all aspects of this claim.” The Respondent also provided documents to the WRC by email dated 26 January 2021 in relation to the February hearing.

At the adjudication hearing before the Adjudicator in February 2021, the parties agreed that they would try to agree to a resolution through mediation/conciliation and the hearing was adjourned.

The Respondent confirmed the parties appointed a Facilitator in order to agree a resolution. This process took place from February to October 2021. Unfortunately, the parties were unable to agree a resolution. On 23 September 2021, the WRC scheduled the complaint for a rehearing on 2 November 2021.

As referenced above, the Complainant submitted his complaint under section 13 of the 1969 Act. This states:

“Rights commissioners.

(2) Subject to the provisions of this section, where a trade dispute … involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

As set out under section 1 of the 1969 Act, “the Principal Act” means the Industrial Relations Act 1946 (the “1946 Act”). Therefore, only workers as defined under the 1946 Act, are entitled to take a claim under section 13 of the 1969 Act. The definition of “workers” under the 1946 Act was subsequently repealed by the Industrial Relations Act 1990 (the “1990 Act”).

Section 23 of the 1990 Act defines a “worker” for the purposes of the Industrial Relations Acts, 1946 to 1976 as and section 23(1) specifically provides that the definition of “worker” does not include “a person who is employed by or under the State”.

This exclusion of “a person who is employed by or under the State” is further supported by the decisions of the WRC and the Labour Court when examining the definition of a “worker” under section 23 of the 1990 Act. It is clear from the decisions of the WRC, in A Civil Servant v A Government Department and An Employee v An Employer that civil servants are considered to be employed by or under the State and as such, are excluded from taking a claim under the 1990 Act.

The decision of the Labour Court in The Department of Foreign Affairs v A Worker, further provided that State employee who were not civil servants are also excluded from the definition of a worker under the 1990 Act.

In summary, the claimant was employed by the Department of Foreign Affairs as a bilingual secretary/shorthand typist. She was not a civil servant but she was employed in the Irish Embassy in Paris. The Department challenged the jurisdiction of the Labour Court to hear the complaint, arguing persons employed by or under the State are specifically excluded from the definition of worker under section 23 of the 1990 Act.

The Labour Court agreed the claimant was precluded from bringing her case to the Labour Court as a person who is employed by or under the State. This was found to be the case notwithstanding the fact that the Complainant did not have any alternative recourse available.

The Respondent stated that similarly, the Complainant in the present case is a State Industrial Employee. The Complainant is, therefore, “employed by or under the State”. This is supported by the minimum eligibility requirements of the Information Notice, which states that the prospective employee appointed in the role, grade 3 must be “A serving State Industrial Employee.”. In addition, as referenced above, the Complainant initiated his grievance under the Joint Industrial Council for State Employees Code of Practice on Grievance Procedures (the “Code”) by emails dated 6 & 7 September 2020. The Code sets out the appropriate process for dealing with grievances raised by State employees, such as the Complainant in this case. This is reflected at paragraph 1 of the Code which states:

“This code covers 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).”

Section 23(3) of the Industrial Relations Act 1990 allows the Minister for Finance to designate persons “employed by or under the State”. The Code covers the Complainant because the Complainant is “employed by or under the State” i.e. a State Employee.

Stage 4 of the Code, which is the final stage, outlines the process for referring a grievance to a third party. This states:

Stage 4- Referral to third party

“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 Respondent stated as noted above, State employees, such as the Complainant, can seek to have a third party, such as the WRC, review the case. However, in general, the intention is to avail of the conciliation service of the WRC for this purpose, as opposed to the adjudication services under section 13 of the 1969 Act.

As the Code refers to conciliation services as the appropriate service of the WRC, in conjunction with the definition of “worker” which excludes State employees such as the Complainant, it is respectfully submitted that the WRC does not have authority to deal with this complaint.

The Respondent stated without prejudice to the position that the WRC does not have jurisdiction to hear this complaint, the Respondent submits that the promotion process followed by the Respondent was in line with the company Industrial Staff Selection Process (the “Procedures”). The Respondent rejects the Complainant’s assertion that he has been unfairly treated as a result of the outcome of the promotion process. To the contrary, the Complainant was placed third on the reserve panel, and is currently placed second on the panel. The Respondent maintains that the interview process was conducted in a fair, objective and transparent manner in accordance with the Procedures and Candidate Notice.

The Respondent stated the Complainant along with seven other candidates for the prospective role were assessed based on the following criteria:

·        Knowledge of the job and relevant work experience

·        Project management, record management and organisation skills

·        Interpersonal and communication skills

The Respondent confirmed that each above criterion provided for with the same maximum mark of 100. The pass mark for the competition was 220 marks. The interview was conducted by three interviewers who set out the appropriate marks allocated to the Complainant based on his response to the questions raised at the interview. The

Complainant received the following marks:

Knowledge of the job and relevant work experience: 100

Project management, record management and organisation skills: 100

Interpersonal and communication skills:  100

Health & Safety:  100

Total:  400

Marks (as averaged) awarded

Knowledge of the job and relevant work experience: 57.57

Project management, record management and organisation skills: 61.67

Interpersonal and communication skills:  63.33

Health & Safety:  56.33

Total:  239

The Respondent confirmed the average marks received by the Complainant based on his interview performance was 239, and the Complainant was placed third on the panel.

The Respondent confirmed following the Complainant’s grievance on 6 and 7 September 2020, on 21 September 2020, the Complainant met with the Head of HR at the time, to discuss the outcome of the interview and raise his grievance in relation to the process. At this meeting and in the Complainant’s submission, the Complainant argued that the Board failed to focus on the Complainant’s written application, citing his experience and his competencies.

The Respondent stated as detailed in the interview notes the Head of HR explained how the marks were applied to the Complainant. In particular, he explained that the application form is used as a “background document for the interview board to get a picture of the candidate but it is the actual evidence provided by the candidate at interview that determines the marks given.” This is further reflected in the Candidate Information Notice which provides that the application form will be relied on for the purpose of shortlisting candidates for interview. In particular, this states:

“The short-listing process will be based on an assessment of the information supplied on the Application Form. When completing the Application Form, please take the opportunity to provide as much information as possible and to demonstrate relevant qualities and experience to support your application. Following shortlisting, the most suitable applicants, as determined by the short- listing process, will be invited to attend for a competitive interview.”

This is also reflected in the objectives of the interview process as set out in the Procedures, which states:

“While the Interview Board obtains part of its evidence for decision making from the outcome of the candidates application form, it is a function of the Interview Board to facilitate the candidate in providing evidence of his/her suitability for appointment, by asking appropriate and relevant questions, within the context of the marking scheme and in a suitable interview setting.”

The Respondent stated after the meeting, the Head of PR emailed the Complainant on 24 September 2020, informing the Complainant that his grievance had not been upheld. By way of explanation, he 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 them at interview in response to the questions asked…Taking on board a solid and relevant marking system, by way of categories and attributable marks, I do not have any evidence to indicate that the marking was not in respect of anything other than the evidence presented at interview to the Interview Board and I do not see any sign of any candidate being treated unfairly, marked down or up given any particular advantage or disadvantage.”

The Respondent asserts the Complainant was treated fairly and, in a manner, consistent with all other applicants, having been allocated marks based on his interview performance.

The Respondent stated the Complainant further argues in his submission that the Head of PR failed to give any consideration to the fact that the two candidates above the Complainant had only just completed their apprenticeships and the competencies required to fulfil the post had at this stage not been achieved.

The Respondent stated the Complainant has not provided any evidence to support this argument. To the contrary, Head of PR stated in his email to the Complainant dated 24 September 2020 that on review of the relevant competition documents, he had satisfied himself that the Interview Board had adopted a consistent approach in respect of the marks awarded to each interviewee. This 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 Respondent stated as highlighted by the Head of PR in the above extract, it is not his role to insert himself into the interview to reassess the evidence presented at interview. This approach has also been honoured consistently by the Labour Court, finding it shall not interfere with the decision of an interview board, when there is no evidence of unfairness, irrational or inappropriate behaviour. For example, in A University v A Worker, the Labour Court stated “The Court has consistently adopted 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 … the Court can only look behind a decision in relation to appointment where there is clear evidence of unfairness in the selection process or manifest irrationality in the result.” This decision was more recently followed by the WRC in A Lecturer v An Institute of Technology,wherein the Adjudicator refused to re-run the interview process in the absence of any untoward decision by the interview board. As a result, the Adjudicator recommended that the worker accept the decision that he was unsuccessful in interview.

The Respondent stated in the absence of any clear evidence of unfairness, the Respondent is satisfied the selection process was conducted in accordance with the Procedures and requests the WRC recommends that the decision of the interview panel is upheld.

The Respondent advised as the Complainant is a person who is employed by or under the State, he does not come within the definition of a worker under the 1990 Act. The WRC is bound by the parameters of statute and the case law as cited within. Accordingly, the WRC does not have jurisdiction to consider the within complaint, and as a result, must dismiss the claim.

Without prejudice to this, the Respondent is satisfied that the interview process complied with the relevant competition documents and as a result, rejects the position that the Complainant was unfairly treated following the outcome of the interview process.

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

The Respondent states the employee achieved 3rd on the reserve panel which will exist until August 2022. He is now 2nd on this panel as one candidate has been appointed. The hub of this claim is that the Complainant says his 39 years’ service and the fact he mentored two of the successful candidates want not taken into account.  

The Respondent states that the internal promotional interview process was conducted consistently and fairly in line with their fair interview procedures. Eight candidates applied for the role.  Application form was used to select for interview, then interview was for the appointment on the panel. The Complainant had the opportunity to add anything additional at interview so he received fair process.

The Respondent also stated that this Complainant is not covered by this Industrial Relations Act as he is a worker of the state.

The Complainant’s representative SITPU stated that the Respondent is a public servant so should be covered by WRC and they say the Respondent did not object to WRC involvement to-date and is part of their grievance procedure involvement.

Having considered all the evidence presented both oral and written I am issuing my recommendation and recommend that the process was fair and consistently applied to the Complainant.  The application form was used to short list for interview and the interview evidence presented at the interview itself is what was used to determine interview scores.   This is a fair and transparent process which was applied and I recommend the process and panel created were done so fairly.

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute. I recommend the Complainant accept the interview decision and remain on the panel as per his interview performance.