ADJ-00034211

Worker

Employer

Anonymised Parties

 A Foreman

 A Local Government Authority

Representatives

Con Casey,  SIPTU Official

 Niall O Keeffe, Employee Relations Manager

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-00045118-001

09/07/2021

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On July 9, 2021, the Union submitted a claim on behalf of the Worker in the case that the Employer had contrived to prevent the workers appointment into a promotional position.

This was strongly opposed by the Employer in the case. The Employer submitted a very comprehensive written submission.

Preliminary Issue:

At the commencement of the hearing on 13 April 2022, the Union raised their preference for attendance at a Face-to-Face hearing in the interest of natural justice. The Union referred to the presence of an abundance of paperwork in the case.

The Employer opposed this request and confirmed that the responding team was assembled and ready to go.

I allowed the parties to expand on their respective views, following which I took 10 minutes break and responded to both parties assembled on the remote hearing.

1 The investigation was being held in private and was modelled on the pillars on what was “fair and reasonable “the Recommendation was not justiciable. The Union had not submitted a written submission in the case and was in possession of the Employer prehearing submission.

2 I went through the WRC procedures on objections to remote hearings and informed the parties that I had not established on the parties’ submissions just how a remote hearing would be unfair to the worker or indeed how it would be contrary to the interests of justice?

3 The case was not based on an Inquiry informed by evidence. This was an industrial relations matter in a live employment, where the focus was on what might resolve the Dispute.

4 The hearing had been structured in accordance with the provisions of Section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. No earlier application of objection to remote hearing had been received prior to hearing.

5 I informed the parties that I intended to press on in the case that day and was strengthened in this resolve by the party’s confirmation that an alternative disputes resolution mechanism had already been conducted remotely in the case and this had not disadvantaged the worker.

The Preliminary issue was decided in the Employers’ favour. The Remote hearing proceeded.

The Course referred to in this case is a “6-day Road Services Supervisor Programme “

The Worker is a full-time foreman in a Public Body since 2005. His claim surrounds a contention that he had been treated prejudicially regarding access to a promotional position which had a knock-on loss of pay and pension accrual. He had exhausted the grievance procedure in pursuit of a resolution. The Union sought an investigation.

The Union outlined that the Worker had identified the central importance of Course A to enable him to advance through promotion. He contended that the public body had contrived to prevent his appointment to an identified promotional post as he had been prevented from attending Course A, which in turn blocked his promotional pathway.

The Union outlined that in or around October 2018, on the conclusion of an Industrial Relations Dispute, certain positive workforce initiatives unfolded.

A Training Centre fed into three named catchment areas.

The Worker was not allowed to progress onto Course A delivered through this Training Centre. He was offered a place on the commencement date of the course, but by then, it was too late.

By way of chronology, the Union detailed that the Worker had commenced in the employment as a General Operative advancing 16 months later to the role of Foreman. He had his sights set on the promotional post referred to as Promotional Post A.

His distance from that post has now resulted in a loss through pay differential and pension to €241 per week, €13,000 per annum in addition to a needless delay in career advancement.

The Union identified the claim to resolve the dispute as an automatic appointment to Promotional Post A where the Worker was prepared to work up at role level in his home area.

On 29 August 2018, Course A was announced

The Worker and his Colleague were put forward as candidates to attend the course. The Worker was apprehensive as he had an uneasy relationship with Candidate B.  The Supervisor told him not to worry as they would not be expected to carpool in attending the course.

The Course was due to commence in October …. On the day before the course commenced, he was informed that his name had been withdrawn. One Supervisor had dropped out of the course grouping and the Employer launched a decider for the remaining place through seniority, where candidate B won on record of tenure.

The Worker felt disrespected and sought to influence the Manager by explaining that he envisaged the course being linked to a better chance at interviews. He felt dismissed by his manager when he told him that he could simply impress the interview team with words.

The Worker took it upon himself to liaise with the Training Centre and he was told there were available spaces on the course.

The next day, the Worker was informed that he could avail of an available space on the course and to attend that day at 2pm.

The Worker declined the offered place.

Early 2019, interviews for Promotional Post A followed and candidate B plus two actors were appointed.

The worker struggled with this exclusion. He had not competed for the position as he believed that he needed the back up of Course A to advance. He also said he wanted to investigate this exclusion.

He also developed a view, following a review of his personnel file that the Management had cautioned against both Candidate A, the worker and Candidate B, the incumbent attending the course together.

The Worker has not advanced in his career since that date and when asked why he had not considered competing for another position? He outlined that he lived locally and wanted a local promotional position. He said that personal circumstances prevented him launching out to other areas. He believed that his local colleagues held him in high level of respect, and he would have benefitted the role of Promotional post A. He accepted that he had been offered a place on the October course, but he believed that he had been unfairly treated and wanted to investigate further when he sought access to his personal file.

The Union contended that the workers pathway to course completion was marred by an instruction to “keep him off the course “The Worker went to enormous lengths and retrieved documents which indicated that he was prevented from accessing the course.

The Union argued that possession of that course would have served as a tipping point in favour of the Worker in an interview situation.  The Union also flagged that the workers attendance on courses had always been documented but that had not applied in relation to the Course A.

The Union concluded by summarising the grievance progression and the continued lack of resolution. The Union contended that the Worker ought to be designated into a Promotional A position as a mutually acceptable resolution.

The Employer, in opposing the claim, outlined that the Public Body 2018 Workforce plan had yielded approval for additional posts across 4 disciplines. The Promotional post, category A was at the highest level of these approved positions. The Employer confirmed that the Public Appointments Commission did not cover the post called Category A.  There were 60 Foreman roles and 23 Category A posts active in the service.

Access to the positions was by application followed by a confined competitive interview. There were 68 recorded applications. The Worker did not apply for a Category A position and was not eligible for interview. A number of appointments were subsequently made to the position of Category A.

The Employer outlined that Course A, a level 6 award was notified to the service in August 2018. It was not deemed   a prerequisite or essential to compete for Promotional post A. Eight course places were allocated to the public body, with a stated tiered preference given to the applicants in the grade of District Supervisors followed by Category A postholders.

There was a high level of cross section interest in accessing the course

The Employer confirmed that the worker and candidate B were submitted as service nominees for the course but were overtaken and gazumped by nominees from another service of higher-ranking candidates. Preference was to be given to these candidates in the first instance. The Training Centre confirmed that Candidate A and B would not now be progressing to the course.

The service continued to canvas for possibilities of access and on 8 October, two days before the course commenced, the training centre sought a nomination to cover an Engineer who had withdrawn from the course. one remaining place existed, and the matrix of seniority was applied to the offer of this place which went to Candidate B, who commenced the course in October 2019. The Worker agreed to the application of the matrix of seniority at that time.

The Workers Area Manager continued to canvas for an opportunity of access to the course on the workers behalf. He was led to believe that another course could be imminent in February 2019, if sufficient numbers existed

The Manager was unaware of a second withdrawal from the course, a point detected by the worker prior to it becoming clear at the training centre. The Area Manager sought to check in with the worker if he wanted to secure the place.

He recorded the workers response as:

I spoke with the worker., he is working west of X and in his work clothes. By the time he would be changed and into the training college, it would be much later in the day, and he feels that he would be at a disadvantage by joining the course today

A confined competition occurred in February 2019. Marks were not awarded for specific qualifications, but rather for relevant experience. Subsequent interviews were conducted by means of an open competition.

It was the Employers position, that significant effort had been extended to support the workers stated intention to join the course. The employer denied obstructing the workers promotional pathway at any time. The Public Body sanctioned his attendance on the course both in October 2018 and February 2019.

While it was factually correct that the worker was overtaken by a candidate of higher ranking, once a person of higher grading withdrew from the course, the next available place within the cohort of allocated 8 places was offered to the worker They argued that the Worker then decided not to join the course in October 2019. He completed the course in February 2019.

The Worker raised a grievance in May 2019 and told the public body that he was dissatisfied with how local management had treated him and how 3 positions at Category A had been appointed rather than the two that were advertised. This was clarified and explained as an initial two positions which were joined by a third post on retirement.

The Course cost €1,800 per candidate

The Public Body did not have current vacancies and operated a lateral transfer opportunity. The Public body was not prepared to place the worker into a higher post by designation as it departed from the Organisations rules around promotion

In conducting my investigation, I have considered all relevant oral and written submissions presented to me by the parties.

I have taken some time to consider this Dispute. I noted that the parties did endeavour to resolve the matter internally and I note the continued endeavours during the period of pandemic.

I found both parties shared a commitment to seek to resolve the issue albeit both had divergent views. 

This dispute comes to me against a backdrop of live employment. This is a central consideration for me. I had the benefit of meeting the key individuals involved in the case at hearing, the Worker, and his Area Manager. 

I listened carefully as the worker outlined that he had a speedy progression to a promoted position 16 months after his arrival to the service but had remained in that role since.

I accept that he had a strong impetus to advance his career at the public body. This is reflected in the Area Managers email which records a five-year waiting period where both candidates A and B were recognised as seeking to secure a training course which historically had been 9-day s duration and in 2018 was remodelled to a 6-day commitment in return for a Level 6 qualification.

I noted both parties’ positive disposition to both the course and the promotional positions which emerged following a Dispute and previous WRC Conciliation.

What happened next appears to me at least as a collision of expression of interests in undertaking the course over September 2018.

I accept that both Candidate A and B were both nominated to undertake the course, but they were not confirmed as definite starters. Unfortunately, the nominations were parked when higher graded personnel stepped forward to access the posts  

A careful review of the contemporaneous documents exhibited by the Employer demonstrated that the Workers Area Manager sought to keep A and B candidacies live in the event of spaces remaining within the 8 allocated or as a default that their names would go forward into a new course. 

The Worker should have been reassured of the Area Managers support and advocacy at that time. Perhaps, if that had occurred, he may have had more trust in the employment relationship.

However, it is not lost on me that the course places were transfigured rapidly between 26 and 28 September 2018 and one Area Managers plans were unsettled by another Area Managers nominations from the primary access grade. The worker in this case was in the secondary access grade. 

A default opportunity then occurred where a last-minute   access became available on the course and the matrix of seniority was agreed and applied. I understand that this process was endorsed by the worker.

The documentation relied on by the employer demonstrates that the Area Manager continued to pitch for the inclusion of the worker on that course or a subsequent course.

The Worker takes issue with this and has identified his concern that he was prevented from accessing the course as he was observed as not having positive staff relations with candidate B and because of that needed to have access to a separate course.

I have considered this viewpoint and while I cannot dispute that the worker genuinely held this belief, I could not establish that this was an accurate reflection of what happened. There may well have been a few throw away remarks between the worker and his immediate manager, but they were overtaken, in my opinion by the Area Managers pitch to secure a place on the course for him . 

Instead, I found a defined lack of cohesion in the interaction between the training centre and the public body. I identified a lack of transparency surrounding the grade eligibility for the course. The course was advertised prior to the agreement on the tiering in favour of higher grades being confirmed. I found this to be clumsy and poor administration and was bound to be confusing in the expressions of interest.

 Two Higher grade Candidates withdrew from the course. One position was filled by Candidate B and the second place drifted somewhat and was not notified to the Area Manager prior to the commencement of the course.

 Instead, it fell upon the worker to establish that vacancy but while eventually offered the position on the course, he actually declined it as he told me that he wanted to investigate the circumstances around this.

By then, the worker had a strong belief that both his immediate and area manager had stood in his way and painted him out as a figure of discord. He placed a lot of reliance on the notes of the training officer and a reported jibe by his line manager.

However, the paper trail disagrees with this perhaps overly sensitive viewpoint. I am satisfied that the Area Manager kept the workers wish to access the course live when he rang him and offered him the place on the course on 10 October 2018. He also supported his eventual access to the course in early 2019.

In conclusion, there should have been one agreed point of contact in terms of the public body: training centre contact. I would have liked to have seen a more transparent system for allocation of excess places.

. I did not think it fair or reasonable that the worker should have had to investigate the allocation of places or communicate directly with the training officer. I found that when the worker took on his self-directed investigation that it served to “paralyse “him somewhat in resuming a veritable pathway in career progression. In a word, it held him back. I found this regrettable.

However, I did not think it fair or reasonable that the worker declined the course in October 2018 or that he forfeited his opportunity to compete in the interviews of February 2019, by then, he had been accepted on and had commenced the course. This should have been a manifestation of opportunity for him.

By not moving forward in the direction of the interviews at that point, I found that the worker acted to his own detriment.

I took time to identify the core of this dispute at hearing.

 I have centred on the evolution of the promotional positions at the public body as I was assured that operational issues had been addressed regarding health and safety issues. The employer explained that a panel was formed following the February 2019 competition. The Worker missed the opportunity to compete among the 68 applicants and contends that the resolution to the dispute lies in designation into the role. 

My attention was drawn to the workers reticence to compete for any of the advertised positions from February 2019 onwards and find that this was another missed opportunity in his career. He told me at hearing that personal circumstances prevented him from competing for another post external to his domiciled area. In the course of a private hearing, he did not specify those circumstances. 

Taking everything into consideration, I find that the worker did not take time to engage with the Managers who he felt were conspiring against him.

He was provided with the much-desired course and yet he did not combine the completion of the course into a veritable bid for promotion at any time thereafter. I find that he has held himself back in that regard. His contention of prejudice is not upheld at this point. The Worker was eligible for interview and on his own volition did not progress. 

While I have expressed misgivings around a shortfall in a robust system of inter unit communication between the training centre and the public body in 2018, taking everything into consideration, I have not found merit in the worker’s dispute.

I am not able to recommend a concession of the claim. 

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