Worker

Employer

Anonymised Parties

General Operator

County Council

Representatives

Ms. Andrea Cleere, SIPTU

 Self- Represented

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-00044681

17/06/2021

The Worker commenced employment on 1st June 2013. At all relevant times, the Worker’s role was described as that of “general operative”. On 17th June 2021, the Worker referred a dispute within the meaning of the Acts to the Commission. By correspondence dated 23rd June 2021, the Employer positively elected to engage with the dispute.

As a consequence of the foregoing, a hearing was convened for, and finalised on, 15th July 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker is engaged in the environmental section of the Employer organisation. At times he is expected to “act up” into the role of foreman and is duly compensated for the same.

In May of 2021, the Employer held a confined competition to fill the role on a permanent basis. Whilst the Worker naturally believed himself to be qualified for the role, the essential criteria for the same included an active C licence. The Worker was aggrieved by this as no C licence was required by him to act up into the role, nor had one been required during his tenure.

The Worker corresponded with the Employer in advance of the competition, setting out his views in relation to the same and seeking to have the requirement removed. Notwithstanding the same, the Employer would not resile from their position. As a consequence of the same, the Worker was effectively barred from applying from a role that he had been fulfilling on a temporary basis.

By response, the Employer denied that their actions in relation to this matter were unreasonable.

They accepted that the criteria for permanent appointment required that the successful applicant held a category C driver’s licence. The rationale behind the same was that the Employer intended to expand the fleet to include such vehicles in the future, and they wished to ensure that they had qualified drivers in relation to the same.

The Employer further submitted that a similar advertisement was posted in 2018, which also required a C licence. The Worker was in employment at the time and would have been aware of the requirement. In these circumstances, the Worker had a period of almost three years to secure the licence should he wished to have been permanently appointed to the role.

The current dispute involves the Employer’s selection of essential criteria in respect of a permanent appointment. It is the position of the Worker that the criterion in question was not in fact essential as he had been fulfilling the role on a temporary basis without the same. In the alternative, the Employer submitted that they are entitled to set the criteria for selection based on their own requirements. They further submitted that the criterion in question was not unreasonable and was consistent with previous competitions.

The first point to note, as a matter of fact, is that a category C driver’s licence is not an essential requirement for the foreman role. The Worker’s uncontested submission in this regard is that he had been acting up in the foreman capacity for some time with the need for such a licence. Indeed, it appears that the Worker’s section does not in fact utilise any vehicles that would require such a licence. The Employer’s stipulation in this regard relates to a potential future requirement, rather than one that is immediately required to complete the role.  Having regard to the same, it is evident that the requirement to hold such a licence may well constitute a preferred qualification, rather than an essential requirement. In this regard, I also note that it would be entirely within the Employer’s gift to appoint an applicant to the role on the understanding that they would work towards achieving this qualification within a certain timeframe.

Having regard to the foregoing, I find that the Worker acted unreasonably in designating the requirement to have a C licence as an essential requirement for the role. Regarding an outcome in relation to the same, the competition in question has long concluded and it would be inappropriate to interfere with the same after the fact. In such circumstances, I recommend that the Employer pay the Worker the sum of €2,000 in compensation and remove the criterion in question as an essential requirement for further competitions. 

I recommend that the Employer pay the Worker the sum of €2,000 in compensation and remove the C licence requirement as an essential criterion in further competitions. 

Essential Criteria, Preferred Qualifications