LCR22668

1.Appeal Of Adjudication Officer Decision NoADJ-00033789.


BACKGROUND:

2. WORKER'S ARGUMENTS:

• The Worker referred a dispute under section 13 of the Industrial Relations Act, 1969 to the WRC arising from a promotion competition advertised in 2019.

• The Worker states that as a result of misleading or wrong information he lost out in terms of income, position and reputation.

COMPANY ARGUMENTS:

• The Worker did not avail of the complaint procedure available to him through the CPSA at the time of the competition or when the competition ended.

• The Worker first raised the issue with regard to the promotion competition 2 years after the competition was held.
  
  

The Employer appealed the recommendation of the Adjudication Officer on 22 July 2022, in accordance with S13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 27 October 2022. The following is the decision of the Court:

DECISION:

The Court has carefully considered the written and oral submissions of the parties.

The Claimant contends that he was misled as regards a competition for promotion and that, having been so misled, he did not apply for the promotional position.

The employer rejects the claim and contends that the information provided to all potential candidates was clear.

The employer submitted that the advertisement for the posts made clear that the posts would be located in Dublin. The employer also submitted that it is a condition of the Claimant’s employment, as it is for all members of An Garda Siochana, that he is liable for re-location upon promotion.

It is undisputed that the Claimant asked the employer by e-mail dated 14^thApril 2019 whether any of the promotional posts would be located in Thurles or the Garda College. He told the employer at that time that this query and three further queries were of importance as the answers would determine whether or not he would enter the competition.

The Claimant was located in Thurles.

The Employer responded on 30^thApril 2019 to say that applicants would initially be assigned to the Dublin Region. That communication was accurate at the time and consistent with the original job advertisement. Subsequent re-structuring of regions of the employer created the ultimate situation whereby, while the significant majority of posts were located in Dublin, a minority were located outside Dublin.

It is undisputed that, while some posts were ultimately located outside Dublin, no promotional posts were ultimately located in Thurles or the Garda College.

The Claimant seeks compensation of €129,000 approximately which he submits is his calculation of the financial impact of his decision not to enter the promotion competition versus earnings he would have achieved to retirement and in pension had he participated and been successful.

The Court notes that the Claimant had advised the employer that his decision to compete in the competition would be determined, inter alia, by whether a promotional post would be located in Thurles or the Garda College. No post was ultimately located in either location.

In those circumstances it cannot reasonably be concluded that the Claimant was in any way misled as regards what he, in April 2019, identified as the important matter of whether there would be a promotional post located in Thurles of the Garda College.

The Court notes that the Claimant never entered the promotion competition, which is the source of his complaint, never raised an issue as regards that competition with the Commission for Civil and Public Service Appointments which is the body established to deal with such matters and that he made no complaint to the Workplace Relations Commission in relation to the matter for over two years after April 2019.

In all of these circumstances, the Court does not recommend concession of the within claim.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SL	______________________
04 November 2022	Chairman