Complainant

Employer

Anonymised Parties

An Administrative Officer

A County Council

Representatives

Mike Mc Namara FORSA

 Keith Irvine LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00049299-001

23/03/2022

The Employee was a temporary employee on a fixed term contract and applied for a full time Administrator post. The Employee claimed she should have been offered a full-time post and the Employer used the incorrect Recruitment scheme to fill the 3 positions available. The Employer stated they used the policy that was in effect at the time of the post being advertised and this was the appropriate policy to fill the position. The Employee also claimed she should have been offered a post in the Library.

The case involves a claim by the Employee in relation to her failure to be appointed to the position of Administrative Officer Grade VII by the Employer and compensation for the loss incurred.

The matter concerns the alleged failure by the Employer to adhere to the provisions of the Local Authority Recruitment Pool agreement. This is a WRC brokered Industrial Relations agreement between Fórsa trade union and the Local Government Management Agency (LGMA). The agreement became effective on the 1st January 2020, replacing the older Common Recruitment Pool Agreement. The Employee in this case commenced employment as a Temporary Administrative Officer Grade VII with the Employer on the 23rd November 2020, having been successful at interview and being placed at number 4 on the Grade VII open panel.

The lifetime of such panels is normally one year from the date it is formed however, a panel may be extended for a further period of up to 12 months at the discretion of the Chief Executive.

 It was submitted by the Employee that on the 29th of April 2021 as her employment was progressing, she sought clarity from the Senior Executive Officer, Human Resources department regarding her position on the permanent panel. However, it is contended by the Employee that whilst she did receive a telephone call from some two weeks later, the matter of her position on the panel was not addressed.

 It was submitted that on the 28th of July 2021, the Employee contacted HR regarding where she was on the panel and that HR did not reply to her at all and this placed her at a disadvantage in understanding her position and making the case that the new system should be used for the appointments. The Employee made several efforts to establish her situation without reply. It was not until October when the Employee questioned why her contract was not being renewed that she received a reply from HR.

On the 27th October 2021 Fórsa wrote to the Senior Executive Officer seeking an urgent meeting to discuss the Employees employment status with the Employer and other related matter and a meeting was arranged. On the 5th November 2021 the Senior Executive officer wrote to Mr. McNamara Fórsa, stating “I have reviewed our records and can confirm that (The Employee) was placed No 4 on the Open panel on 9th October 2020. A Common Recruitment Panel was also formed at that time which consisted of employees from the Employer and the wider common recruitment pool. The competition was advertised in November 2019 and a shortlisting exercise was conducted in March 2020. Due to COVID the final interviews were then held in October 2020. For your information there were 3 permanent appointments from the Common Recruitment Pool panel. The rules applicable to appointments relating to this Panel were 80% CRP and 20% Open”.

On the 15th November 2021 Mr. McNamara Fórsa wrote to the Employer seeking a review of the position relating to the Employee, stating “Under the new Common Recruitment Pool Agreement, which has been operative since January 2020, the 50%-30%-20% rule applies and I note from your correspondence of 5th November, that you have applied the 80%/20% rule, which was the old Common Recruitment Agreement. The panel in (The Employees)  case was formed in October 2020, therefore the new rules should have applied. In the circumstances I am seeking a review and would be obliged if you could revert to me at the earliest opportunity as (The Employees) current contract is due to end this Friday 19th November 2021”.

The Employer alleged that there was an informal agreement with the Trade Union that the old system would apply to the filling of the Panels and the Employee Representative confirmed that no such agreement had been agreed.

The Employee also alleged she should have been offered a Grade 7 post in the Library that was filled from the Grade 7 panel. The Representative sought confirmation if this is the same panel which the Employee was on, or was this drawn from another panel.

On the 19th November 2021 the Employee lodged a grievance with her line manager in accordance with the provisions of the Employer’s grievance procedures, in it she stated “I wish to formally lodge a grievance under the Employer’s grievance procedure. My grievance is in relation to how the application of the Common Recruitment Pool operated in filling each of the vacant posts drawn for the A.O. Panel (2020). The incorrect manner in which the positions were filled has resulted in me being denied the offer of a permanent position to which I was entitled.”  The Employee submitted correspondence that her grievance was not pursued by the Manager as the person involved replied  “I am no longer the Employee’s line manager. In addition, l have no knowledge of the application of the recruitment pool and therefore cannot issue a response” and no further action was taken by the Employer on the grievance.

On the 26th November 2021 the Senior Executive Officer wrote to Mr. McNamara Fórsa reaffirming her position that the Employer had filled the posts in accordance with the recruitment procedures applicable to that competition and as set-out in the Candidate Information Booklet

On the 26th November 2021 The Senior Executive Officer sent an email to the Employee concerning the grievance that she had raised with her line manager on the 19th November, stating “The matters that you have raised were addressed at the meeting on 4th November 2021 which was attended by you, your union representatives and the Human Resources Department and subsequent correspondence which issued to the Union”.

On the 7th December 2021 Mr. McNamara, Fórsa sent a letter to the Senior Executive Officer , confirming that Fórsa were not aware of any such agreement being sought by The  Employer or consented to by Fórsa trade union concerning the recruitment procedures applicable to the Grade VII competition. Fórsa also requested that the Senior Executive Officer set out the precise nature and details of the purported agreement and asked if she could identify the parties to the agreement that she believed existed at the time of the competition.

On the 10th January 2022 Mr McNamara Fórsa submitted a Freedom of Information request to the Employer seeking release of phone records between an Administrative Officer Human Resources, for any calls that would have taken place between October 2019 and March 2020..

On the 28th January 2022, the Freedom of Information officer for the  Employer, issued a final decision on Mr McNamara’s FOI request. The report stated that there were no records of phone calls between the Corporate Services landline, or the Administrative Office  mobile with either Mr McNamara’s mobile phone or with the Fórsa Limerick landline, during the timeframe specified.

The competition for the Administration Officer Grade VII was advertised in November 2019 and a short-listing exercise was not conducted until March 2020. The WRC agreement between Fórsa and the LGMA became operative as and from the 1st January 2020. Clause 1 of the WRC agreement between Fórsa and the LGMA says “This procedure supersedes any and all previous arrangements for recruitment to Clerical Administrative Grades IV to VII andthese procedures will replace all existing arrangements for recruitment to Clerical Administrative Grades IV to VII.” Clause 3 of the WRC agreement states “The sequencing of filling of posts from the commencement of these procedures will be as set out in Appendix 1” Clause 8 of the agreement states “Any existing panels for Clerical Administrative Grades IV to VII which are in place at the date of commencement of these new procedures will continue to be used to the date of their expiry. Thereafter these new procedures will apply to subsequent recruitment for Clerical Administrative Grades IV to VII”. It is a fact that the  Employer did not adhere to the provisions of the Local Authority Recruitment Pool Agreement dated 1st January 2020 when placing applicants on panels for the Grade VII post. HR contended that as the competition was advertised in November 2019, that the old Common Recruitment Pool procedures should apply. They even went so far as to allege that they had reached a local agreement with Fórsa to that effect and continued to maintain that position right throughout Forsas  engagement with them on the matter, culminating in Fórsa seeking records under the provisions of the Freedom of Information Act to prove otherwise. Clause 1 of the agreement sets out that the new agreement supersedes all previous arrangements. Clause 3 states that the sequencing of filling posts from the commencement of these procedures will be set out in Appendix 1, it does not say that the advertisement for such posts must be from the operative date, there was still time between the advertisement in November 2019 and the interviews in October 2020 to fill these posts in accordance with the sequencing set out in the new agreement. Clause 8 of the agreement refers to existing panels which were in place at the date of commencement of the new procedures, the panel to which the Employee refers was not in place on the commencement date, therefore the new procedures should have applied. From the 29th April 2021 right through to the 11th October 2021, when the Employee was seeking information as to her placement on the panel for a permanent post, HR did not respond in an open, and transparent way to her request for information, and in the circumstances it is submitted that these were not the actions of a reasonable employer. Furthermore, the Administrative Officer alleged that she had a telephone conversation with Mr McNamara in which she says she sought and received the agreement of Fórsa to run the competition as they did, this just simply did not happen. This is the actions of an unreasonable employer, arising from which Mr McNamara was forced to submit a Freedom of Information request to the Employer. There was no evidence to support such a contention from the Administrative Officer, simply because it did not happen. The Employer disbanded the panel from which the Employee had been drawn because it had been in place for one year, they advised that a new panel was advertised under the new rules in 2021, which we understand went live on the 12th November 2021. It is practice throughout the local government sector that all panels are for a twelve-month duration and with agreement they can be extended for a further twelve months. There was no attempt to extend the panel in this case, nor was there an objective justification for not doing so. The was no difficulties identified with the complainant’s work ethics and performance and the Employees probationary reviews were all completed satisfactorily.

In the circumstances the Employee was denied the right to have her grievance heard in accordance with the Employers own procedures, and with the General Principles of S.I. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. General Principles of the Code of practice states that the essential elements of any procedure for dealing with grievance and disciplinary issues are, that they be rational and fair and that grievance procedures and must comply with the general principles of natural justice and fair procedures which include: That employee grievances are fairly examined and processed. The Employee earned 4000 Euros a month (approximately).

The Employee Representative sought an Recommendation in favour of the Employee to the effect that:

The actions of the Employer by not populating the panel for the grade VII post that applied in the Employees s case, was not in conformity with the Fórsa/LGMA WRC brokered agreement, therefore unfair,

The actions of the Employer by not engaging with the Employee between April and October 2021, concerning her place on the permanent panel was not open and transparent, and therefore unfair, and that.

The failure of the Employer to deal with the complainants’ grievance in this case did not comply with best practice, or with its own procedures or with the provisions of Statutory Instrument No. 146/2000, thereby failing to afford the Employee access to fair procedures and depriving her of her right to the principles of natural justice.

Require the Employer to offer the Employee a permanent Grade VII post for which she had qualified, but was denied.

 Require the employer to pay the appellant an amount of compensation that is just and equitable in all the circumstances.

The Employee was employed as a temporary Administrative Officer in the Housing section with the Employer from 23rd November 2020 until 22nd November 2021 per her Contract of Employment and when the Employee’s employment with the Employer ceased.

On 2nd September 2021 the Employee queried with HR if her contract would be extended, and she also queried when she might become eligible for a permanent post.

 A response issued from the Employer on the 2nd September advising that her contract was due to end on the 22 November 2021 and it was unknown at that point if it would be extended. She was also advised that there were no permanent posts to be filled at that point.

On the 11th October 2021, the Employer contacted the Employee to advise her that her contract would be ending on the 22nd November 2021 as per her Contract of Employment. On the 14th October 2021, the Employee queried why her contract was not being renewed. The Employer responded that the complainant’s contract was a temporary contract, the duration of which was 1 year and related to the post of Administrative Officer.

The Employee was again advised that her employment would finish on the 22nd November 2021 as per the terms of the contract and as advised to her by letter dated 12th October 2021.

On the 27th October 2021, FORSA Union requested a meeting regarding the status of the complainant’s contract. The meeting took place on the 4th November 2021 with the Employee also in attendance. FORSA queried how the post was filled, the sequencing of the posts, the complainant’s positioning on the panel and the number of positions filled. They also queried why the post wasn’t being extended. It was confirmed at the meeting that an Administrative Officer was returning from career break and would take up the post.

On the 5th November, the Employer wrote to FORSA confirming that the Employee was placed 4th on the Open panel (which was formed on the 9th October 2020) and that a Common Recruitment Pool Panel (CRP) was also formed. The competition was advertised in November 2019 and a shortlisting exercise was conducted in March 2020 however due to Covid-19, the final interviews took place in October 2020. There were 3 permanent appointments made from the Common Recruitment Pool panel; the rules applicable to appointments relating to this panel were 80% CRP and 20% Open.

On the 15th November 2021, FORSA wrote to the Employer requesting a review of the complainant’s post and the application of a revised Recruitment Agreement. On the 18th November 2021, the Employer replied to FORSA confirming what had already been confirmed and also advising that the Employer had contacted FORSA in advance of the interviews to confirm that the competition would proceed under the previous Recruitment Agreement.

On the 18th November 2021, FORSA replied to the Employer citing that a new Recruitment Agreement could have been applied. FORSA also confirmed that they were advised by the Employee ‘that a Grade 7 post in the Library was recently filled from the Grade 7 panel’ and requested confirmation of this statement.

On the 19th November 2021, the Employee emailed her Line Manager formally lodging a grievance under the Employer’s policy. Her grievance was ‘in relation to how the application of the Common Recruitment Pool operated in filling each of the vacant posts drawn for the AO Panel (2020). The incorrect manner in which the positions were filled has resulted in me being denied the offer of a permanent position to which I was entitled.’

On the 26th November 2021, the Employer wrote to the Employee confirming that the matters she had raised in her email of the 19th November 2021 were addressed at the meeting on the 4th November 2021 and in subsequent correspondence which issued to the Union.

On the 26th November 2021, the Employer also wrote to FORSA in response to their letter of the 18th November 2021, confirming that the posts were filled in accordance with the recruitment procedures applicable at that time and as set out in the Candidate Information Booklet. The Employer also confirmed that the vacancy in the Library Service was filled in accordance with the provisions of the Library Workforce Plan and the qualifications pertaining to the post and that the post was filled through separate competition and panel.

 The WRC Complaint by the Employee is over “the failure of the Employer to correctly draw from the recruitment panel”. It is a matter of fact that the Administrative Officer competition was initiated in November 2019 under the Recruitment Agreement in place at the time (Common Recruitment/Open Recruitment 80:20) which was applied to the Administrative Officer competition.

The Employee placed 4th on the Open panel (which was formed on the 9th October 2020). There were 3 permanent appointments from the Common Recruitment Pool panel where the rules applicable to appointments relating to this panel were 80% CRP and 20% Open.

Separately, a Senior Executive Librarian retired on the 20th August 2021 and the resulting vacant post was filled from the Senior Executive Librarian panel on the 4th October 2021. The Employee was not on this panel. This was in accordance with the Library Workforce Plan 2019 and the WRC Library Agreement. The Employer has filled posts in accordance with the rules of the relevant competition. Three permanent Administrative Officer posts were filled from the Administrative Officer panel which was created in October 2020.

 The Senior Executive Librarian post was filled from the Senior Executive Librarian panel. The Employees temporary post due to a temporary vacancy in Housing due to a career break which ended in accordance with the complainant’s contract of employment at which stage the Administrative Officer who was on career break returned to work.

 The Employer sought a Recommendation n the Employer’s favour in the current case where all competitions were held in accordance with the relevant recruitment agreements and the Employer had no case to answer.

I have considered the written and oral submissions of both parties and see degrees of merit in both cases. There is obviously some disagreement between the Parties about the interpretation of when the new agreement should come into effect which has lead to this dispute. However, from reading the Agreement (and associated correspondence) it is clear that the implementation date is January 1st 2020 and the new rules were to replace existing arrangements were effective from that dare. There was no evidence whatsoever that the Forsa Representative accepted that the old system should apply to the recruitment process in question.

The Employees case is the effective date of the new procedure is January 1st 2020 (per the written agreement) and the Employers case is that the position was advertised in November 2019 and the previous system of selecting for posts advertised prior to this date applied, although the post was not filled until after January 1st 2020. While the agreement is clear that the commencement date is January 1st 2020 there is no specific mention in the agreement of how to deal with posts advertised prior to that date and where interviews had already been conducted.

On examination of the dispute the Employer stated that all 3 posts were filled by current full time staff and that were the new system applied the Employee concerned would have came sixth in the order of selection. The Employee Representative made a case that the Employee would have came third if the new process had been used and therefore would have got a full time job offer.

It is a long-established principle that third parties do not get involved in the selection of staff disputes unless there is an obvious manifest injustice involved. Three proposals for settling the dispute were put forward by the Employee Representative with the first option being the preferred solution. The first option of the Adjudicator determining the Employee came third and therefore placed above a candidate selected is fraught with legal issues as of course the employee selected third is now appointed to the role. Plus, it puts the Adjudicator in the place of the decision of the interview panel, a situation that does not sit easy with a third party. The second option of placing the Employee on a certain position on a new panel when a new vacancy occurs, would not be fair to other candidates who are not party to this dispute and who also have the right to have their views and rights considered, especially since the new selection method is now in place and the old method replaced.  That leaves the only option open to the Adjudicator to consider, if it is appropriate, is compensation and on what grounds that many be merited. I note the Employee has commenced a new role recently with a different employer and stated her preferred option would have been to stay with the Employer involved in this dispute. It is important to note that nothing in the Agreement stops the Employee from directly applying for any new position available.

There were very different views expressed at the Hearing about the operational use of the new system and to a degree, an amount  of ambiguity about when the new system should come into effect for positions that were already advertised. What is clear is the Trade Union did not agree to the continuance of the old system and while the Employer did, to a degree, engage with the Employee on her fixed term employment status ending it was never clearly put in writing to the Employee where she stood regarding the panels. Likewise, there was no evidence of a formal communication to the Trade Union that the Employer planned to use the old system for the appointment of staff for the positions advertised. While some of this lack of clarity/communication can be put down to the difficulties encountered during Covid it left the Employee with a degree of uncertainty regarding her position and lead to a dispute between the Employer and the Trade Union on when the new procedures would come into place. While the agreement brokered at the WRC is quite clear about the commencement date it did not adequately address jobs already advertised, thus leaving some ambiguity. While the placing of where the Employee in the order of selection was disputed by the Parties at the Hearing, if the new procedure had been applied, (3rd versus 6th) it is highly unlikely a temporary fixed term Employee (the Employee with the within dispute) would have got precedence over a full time permanent staff member for the post advertised.

There was no clear evidence that the Employee was on the Library Panel, qualified for same or should have succeeded in getting the Library role. 

Having considered all of the above, I Recommend that the Employee be paid compensation of 4,000 Euros in full and final settlement of the dispute and breach of her employment right.  I recommend in favour of the Employee.

Trade dispute