Complainant

Respondent

Anonymised Parties

A Manager

An Not for Profit Organisation.

Representatives

  Self Represented.

Michael O'Sullivan, ARRA HRD

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-00044355-001

26/05/2021

The Complainant commenced employment with the Respondent on 19th September 2012. He was employed as a Community Engagement Manager.

The complaint was received by the Workplace Relations Commission on 26th May 2021.

Chronology of events on appointment of interim CEO.

1.       Early January EE (CEO) informed POC and MOC (senior management team) in a zoom meeting he had handed in his notice and was leaving at the end of February. This meant there was almost 2 months to recruit an interim CEO.

2.       A couple of days later EE asked POC and MOC in individual phone calls that MM, chairperson wanted to know if either of them would be interested in stepping up to the position of interim CEO. MOC said yes but a recruitment process of sorts would have to take place.

3.       On Tuesday January 26th MM informed MOC, POC and EE that LD would be stepping in as interim CEO as of February 1st. MOC noted no advertisement had been forwarded to staff who wished to apply for the post. MM responded that the board did not want disruption so went outside of the organisation.

4.       Immediately after this Zoom meeting, EE called MOC. EE was very angry that he had been asked to gauge staff interest in the position of interim CEO and for the board not to follow through on interest that was expressed.

5.       On Wednesday January 27th MM issued an email to all staff about the appointment of LD. MOC emailed MM for a meeting on the issue which was arranged for Friday January 29th (see copy of meeting notes in appendices).

6.       On Wednesday January 27th staff sent MM a letter via email expressing their concern that the recruitment of interim CEO was not in line with organisations recruitment policies.

7.       On Friday January 29th MM issued a response from the board, copied to all staff and board members.

8.       On February 1st an interim CEO, LD started. Staff responded to the email of the board on February 2nd again asking for answers on the process followed.

9.       The board responded by email on February 4th. No questions were answered on the process, except to say the permanent CEO process would be different.

10.   Staff were informed by a board member that at a board meeting, the board had asked the nominations committee if there was any internal interest in the position of interim CEO. The response was that there was no internal interest in the position.

11.   Staff wrote to the CEO on February 10th to ask for a formal investigation as per the staff handbook.

12.   The (then) CEO Mr EE acknowledged the staff grievance on February 11th.

13.   There was no further engagement from the CEO despite the handbook saying the process should be done in 10 working days. I would suggest that the board did not want EE having anything to do with a formal investigation given that he was asked to gauge interest in the interim CEO post by MM.

14.   Two external HR consultants did not find that the board had erred in its actions. Note that the 2 consultants were paid by the board and one of them is representing the board here today so one would have to at least question their independence.

Issues arising

15.   The board did not adhere to its own recruitment policy in relation to appointing an interim CEO. There was no recruitment process followed at all that the board was able to tell staff about. The employee was not aware of any advertisement placed internally or externally advertising the position. He is not aware of any interview process having taken place.

16.   The staff handbook states the following:

“Job advertisements will be designed based on the job description and person specification. Positions on most occasions will be advertised both internally and externally. All employees (including fixed-term and part-time employees) will be notified of any permanent positions that arise during their employment through staff notice-boards or other suitable means” and “Advertisements will make clear, both in wording and illustration, that the positions are open to all suitably qualified candidates” and “Details of all available positions will be fully circulated to ensure access to all suitable applicants. This includes forwarding internal advertisements to employees on leave including maternity leave and parental leave. All advertisements will carry the statement (the Respondent was named) is an equal opportunities employer’ In order to provide opportunities for career development, we will favourably consider employees for internal vacancies and promotional opportunities where possible. We believe that everyone should have the chance to increase their knowledge, skills, responsibility and earnings and we encourage you to seek out opportunities as they arise”

17.   While the policy may afford some leeway in certain areas it does not allow for no process whatsoever. An interim CEO was appointed with no recruitment process at all. It seems there was no person specification or job specification.

18.   The person appointed to interim CEO did not have any experience at management in an organisation such as the Respondent or any organisation. They had no CEO experience. They had no management qualification or a qualification in the areas of law, social care, disability or advocacy that the Respondent would look for in a new employee. The person appointed had not worked for approx. 20 years.

19.   On the face of it, the board appointed an unqualified person with no experience of working in an organisation like the Respondent, without any recruitment process. The person appointed was an ex-chairperson and known to the current chairperson. At least one other staff member was appointed without interview due to a link with the chairperson (MM).

20.   I as a member of staff, according to the Respondent’s recruitment policy had the right to apply for the post of interim CEO which was denied to me by the actions of a very inexperienced board. I believe that the board in failing to follow its own recruitment policy has had an impact on my future career.

21.   The board also did not adhere to the HSE recruitment policy as set out in the Code of Practice for the Appointment of Positions of the Civil and Public Service. The Respondent’s service level agreement with the HSE indicates the policy must be used. A derogation from a recruitment process only applies in positions for under 6 months and even in cases of less than 6 months the person must demonstrate their qualification or experience for the position. As noted above, the candidate appointed had no management qualifications or experience or had ever worked in an organisation like the respondent company making them unsuitable for the position of interim CEO.

22.   In all of their responses the board referred to the process of the recruitment of a permanent CEO. This complaint to the WRC is about the position of interim CEO only.

Introduction

The Organisation champions the human rights of people with an intellectual disability. It campaigns for change and works in partnership with others to build a more inclusive Ireland. The organisation works with people with an intellectual disability, family members, carers, and professionals.

Background to the Dispute

At the start of January of 2021, the CEO EE resigned his position.  He provided two months’ notice and worked until the end of February 2021.

The Nominations and Succession Committee met on the 7 January 2021, to discuss the process of the recruitment of a replacement for EE and to look at interim solutions in relation to the position of CEO.

The Board met on the 25 January 2021 and discussed the recommendations from the Nominations and Succession Committee. Subsequently on the 26 January 2021, the outgoing CEO EE and the Chairperson at that time M McN met with the Complainant and one other employee who were the Senior Staff Managers reporting into Mr EE.

They informed the two employees of the decision of the Board to proceed with the appointment of an interim CEO and that the process of the appointment of a new CEO would commence immediately. On the 27 January 2021 a letter signed by 11 staff was submitted to the Chairperson in relation to the way the process of appointing an interim CEO without any recruitment or involvement of staff was implemented.

Arising from this an emergency Board Meeting took place on the 28 January 2021, to discuss this staff letter.  This meeting concluded that they would proceed as planned with the appointment of an Interim CEO.

On the 29 January 2021, a reply was sent to staff which had been agreed by the Board in relation to the matter.  The interim CEO took up her position on the 1 February 2021.  On the 2 February 2021, the staff responded to the letter from the Board dated 29 January 2021 in relation to the appointment of an Interim CEO.

The Board by email replied to the staff letter dated 2 February 2021. This email was sent on the 4 February 2021. The Board reiterated that after significant consideration the appointment of an Interim CEO was confirmed and the recruitment process for the appointment of a permanent CEO was put in place.

It was emphasised that the recruitment notice for the position of CEO would be sent to all employees and therefore provide them with an opportunity to apply for the position.  On the 10 February 2021, the staff sent an email to the outgoing CEO Mr EE.  This sought to advance their collective grievance in accordance with the grievance procedure.

Examination of Staff Grievance in relation to an appointment of an Interim CEO

The staff grievance was processed, and a report prepared and presented by Consultant 1 on the 31 March 2021 into the staff grievance.  The staff appealed this in line with the grievance procedure and an appeal was conducted by Consultant 2.

The report on the appeal of the staff grievance was concluded and issued on the 30 April 2021.  The findings from the processing of the grievance including the appeal was that the decision to appoint an Interim CEO was informed by a number of specific matters current as of January 2021:

·       Timing around the Level 5 lockdown and the organisations role in advocating about the impact the closure of schools had on children with disabilities

·       HSE funding negotiations for 2021.

·       Impact of a full financial audit which was taking place on the resources of the organisation

·       New piece of work in relation to the Irish government and the implementation of the UNCPD project was ongoing at the time

It was found that for those 4 reasons the Board decided that it would be a very serious disruption of the work of the organisation to have an internal recruitment process for an Interim CEO at that time. In processing the staff grievance an examination of the recruitment policy identified that “positions on most occasions will be advertised and that details of all available positions would be circulated”. It was also identified that the policy in dealing with Internal Recruitment stated – “…we will favourably consider employees for internal vacancies and promotional opportunities where possible.”

This clearly establishes that it is not a definitive requirement to advertise every position.

Complaint before the WRC

The complainant submitted a complaint on the 26 May 2021 to the WRC.

The complainant mistakenly sets out in the complaint form in relation to the recruitment that ‘the policy does not allow for any reason to operate an appointment as has happened in this case’. It is submitted that the recruitment and selection process allow for the circumstances that arose in this case, where there are justifiable reasons to make appointments without going through the recruitment process.

It is submitted that in circumstances where the Board determined that they had a suitable person immediately available to fill the position of Interim CEO against the background of the 4 very pressing matters to be completed then this was an entirely appropriate decision. It was not in any way precluded by its recruitment and selection process from so doing.

Equally the complainant is mistaken in making the assertion in his complaint form that ‘the organisation is funded by the HSE and must adhere to HSE recruitment policies as stated in our Service Level Agreement’., giving the suggestion that a recruitment process must be followed.

It is clear regarding the Service Level Agreement that temporary non-permanent appointments can be made which do not have to follow the procedures as set out in relation to the Codes of Practice on recruitment.

The Board decided in full light of the facts that they would appoint an Interim CEO who was available and had the requisite experience and skills to carry out that position for a short-term period while the organisation undertook the recruitment of a permanent CEO.

The Board no more than any Board, are ultimately charged with operating the organisation in the best interest of the delivery of its stated objectives and purpose. Having considered the options available the Board determined at its meeting on the 26 January and subsequently on the 29 January on review of the staff grievance that it was appropriate to continue with and put in place an Interim CEO while proceeding with the recruitment of a permanent CEO.

At no stage has the policies and procedures of the organisation being interfered with.  All matters associated with this process of recruitment were done, taking due consideration of the grievances of staff, and setting out a process in which all staff were able to proceed and apply for the permanent post of CEO.

Conclusion

It is submitted that the organisation operated entirely transparently and fairly regarding the appointment of an Interim CEO.  The organisation subsequently undertook and successfully completed a recruitment process for the appointment of a permanent CEO and this process was concluded with that person taking up their position in September of 2021.

The complaint before the WRC is misguided and misplaced.  The Complainant who had a senior position within the organisation at the time of the appointment of an Interim CEO, was as well as all his colleagues, afforded an opportunity to apply for and be considered for the position of the permanent CEO role.

It should be noted that only the Complainant proceeded with a complaint on this matter. All other staff did not further proceed with the complaint on the exhaustion of the internal grievance procedure at the end of April 2021.

The Adjudicator is asked to take account of this submission and the associated documentation in finding respectfully that the Respondent did not breech any procedures and processes in the manner in the which the Interim CEO was appointed.

The representative for the Respondent has stated very clearly via their submission:

The report on the appeal of the staff grievance was concluded and issued on the 30 April 2021.  The findings from the processing of the grievance including the appeal was that the decision to appoint an Interim CEO was informed by a number of specific matters current as of January 2021:

·       Timing around the Level 5 lockdown and the organisations role in advocating about the impact the closure of schools had on children with disabilities

·       HSE funding negotiations for 2021.

·       Impact of a full financial audit which was taking place on the resources of the organisation

·       New piece of work in relation to the Irish government and the implementation of the UNCPD project was ongoing at the time

It was found that for those 4 reasons the Board decided that it would be a very serious disruption of the work of the organisation to have an internal recruitment process for an Interim CEO at that time. In processing the staff grievance an examination of the recruitment policy identified that “positions on most occasions will be advertised and that details of all available positions would be circulated”. It was also identified that the policy in dealing with Internal Recruitment stated – “…we will favourably consider employees for internal vacancies and promotional opportunities where possible.”

It is a great pity that no discussion took place prior to the appointment of an interim CEO. Had the situation been explained to the organisation’s senior management team I feel that this situation could have been avoided.

I have to accept that the actions taken were permissible under the rules …..” positions on most occasions will be advertised and that details of all available positions would be circulated”.

I note that the Complainant is no longer employed by the organisation.

The Chairperson of the Board did make a mistake in not communicating with the Complainant before the appointment of a new interim CEO. I would now recommend that he accepts this was a genuine mistake and put this issue behind him.

The Chairperson of the Board did make a mistake in not communicating with the Complainant before the appointment of a new interim CEO. I would now recommend that he accepts this was a genuine mistake and put this issue behind him.