Worker

Employer

Anonymised Parties

A Healthcare Worker

A Healthcare Provider

Representatives

Tosh Cowman FORSA Trade Union

Yvonne Moore National HR Lead – Primary Care

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969

IR - SC - 00000565

16/08/2022

The Worker claimed that the Employer failed to abide by agreed procedures in relation to the recruitment campaign for the post of Senior Dental Hygienist thereby denying her a fair recruitment and promotional process. The Worker stated that having placed second on the panel in the CHO XXX area after interview she had a legitimate expectation that she would be appointed to one of two posts of Senior Dental Hygienist in her CHO area. The Employer disputed the Worker’s claim and stated that the competition was progressed in line with the rules around the recruitment process agreed with Forsa Trade Union and that it engaged extensively with the Worker in relation to the recruitment campaign arrangements and the concerns she raised with the recruitment and promotional process, however the Worker refused to accept the outcome. This dispute was submitted under Section 13 of the Industrial Relations Act 1969 and was received by the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 16th August 2022.  

The Worker stated that she was a Dental Hygienist with the Employer in the A Dental Area in the CHO XXX area. She has worked for the Employer for approximately 25 years.

On the 6th October 2021 the Worker received an email from HR Community Operations informing her of her eligibility to apply for a post of Senior Dental Hygienists in the CHO XXX area. There were two attachments to the email, namely the Job Specification and Terms and Conditions for campaign reference CommOps0122021 and the Job application form and the Confined Competition Senior Dental Hygienist CommOps0122021. On page 1 of the Job Specification Form it stated: Location of Post: CHO XXX: 2 posts. On page 4 under the section “Eligibility Criteria Qualifications and/ or Experience” it stated: “the first filing of the Senior Dental Hygienist will be filled by confirmed competition per CHO area. Candidates must …be an employee of the CHO area for the position applied for…”

The Worker stated that on the Application Form applicants were requested to rank their preferred geographical location in their CHO area. In the Worker’s CHO area there were two Dental Areas, the A Dental Area and the B Dental Area. At all material times the Worker worked in the A Dental Area.

On the 15th October 2021 the Worker received an email from HR Community Operations stating that eligible candidates could only apply for a post in the area in which they currently worked. The Worker sent a return email acknowledging receipt of this email. The Worker stated that as she worked in CHO XXX area she applied for the posts in the CHO XXX area. The Worker denied ever receiving the document entitled “Senior Dental Hygienist Frequently Asked Questions” (hereinafter referred as “FAQ”) or that the FAQ was attached to the email of the 15th October 2021.

On the 7th November 2021 the Worker completed the Application Form and on the form she stated that her first preferred geographical location was the A Dental Area and that her second preferred geographical location was the B Dental Aea.

On the 6th January 2022 the Worker was invited for and attended an interview on the 20th January 2022.

The Worker stated that on the 1st February 2022 she received an email from HR Community Operations with two attachments, one of which was a letter signed by HR Community Operations Re: Comm. Ops 0122021 – Senior Dental Hygienist stating; “I refer to your recent application for the above post. I am pleased to inform you that you have been placed 2nd on the panel which has been formed following your recent interview.” The Worker stated that having placed second on the panel after interview she had a legitimate expectation that she would be appointed to one of the two posts of Senior Dental Hygienist in the CHO XXX area.

On the 2nd February 2022 the Worker telephoned HR Community Operations and asked whether there was one panel for the two posts in the CHO XXX area. HR Community Operations verbally confirmed to the Worker that there was one panel for two posts and advised the Worker that the next stage of the process was that the Worker’s local HR department would be in contact.

According to the Worker, as there were two posts in the CHO XXX area she understood that she was guaranteed to be offered one of them as she came second on the panel.

On the 3rd February 2022 the Worker received telephone calls and emails from a number of colleagues congratulating her for placing second on the panel and wishing her good luck in her new post.  The Worker received congratulation cards and one of her work colleagues hosted a surprise tea party to celebrate the news of her new senior position. The Worker stated that she and her colleagues were of the understanding as per the Employer’s screening recruitment process that she would be offered one of the two posts as she was second in the order of merit.

On the 8th February 2022 the Worker received an email from her local HR Department in CHO XXX area which stated that she was “under consideration” for the Senior Dental Hygienist position and that as part of the screening process the Employer required a reference and the documentation and qualifications listed in the email. The Worker stated that her understanding was that the email was only sent to herself and the other interviewee who placed first on the panel.

On the 14th February 2022 the Worker was advised that the Employer was suspending the process as there had been a number of queries and appeals in relation to the confined competition for Senior Dental Hygienists.

On the 23rd February 2022 the Worker received correspondence via email from HR Community Operations  wherein it was stated: “As per your application form I note you ranked your preferred geographical location in your CHO area is as follows:- [A Dental Area] 1, [B Dental Area] 2. I can confirm you have placed No. 2 for your first preference.”

The Worker responded via email on the 23rd February 2022 stating that it was her understanding that she had interviewed for both posts and that she came second on the CHO XXX panel.

The Worker stated that on the 25th February 2022 she was advised for the first time that the application process was not an opportunity to transfer from one Dental Area to another.

From the 27th February 2002 onwards the Worker sought to resolve matters with various representatives of the Employer. She raised a number of queries regarding the process but did not receive a satisfactory response from the Employer.

On the 27th June 2022 the Worker sent an email to HR requesting an informal review of her grievance pursuant to Section 7 of the CPSA guidelines however the review request was denied and she was advised that she was outside of the allowable time frame.

The Worker stated that in an email dated the 10th August 2022 the Employer admitted that it should not have been in communication with the Worker regarding Garda vetting and references as part of the screening process.

The Worker felt that she was being skipped over on the panel to correct errors on the part of the Employer. The Worker submitted that the competition only got suspended when other candidates complained and appealed. According to the Worker the Employer planned to have two panels on the CHO XXX area but only created one panel after the interviews took place. In circumstances where the Worker was second on the panel she should have been offered one of the two posts for the Senior Dental Hygienist in the CHO XXX area.

The Worker stated that as a result of the manner in which she was treated by the Employer she has suffered from anxiety, stress and depression.

The Worker was seeking to have the post of Senior Dental Hygienist awarded to her as her expectation when she secured second place on the panel for the Senior Dental Hygienist CHO XXX area was that she would be offered one of the two posts.

The Employer submitted that the background and context of the Senior Dental Hygienist recruitment campaign CommOps 0092021 was contained in Labour Court Recommendation 21230, dated 16th May 2016 wherein the Labour Court recommended “that 24 senior posts (including 2 posts already filled) should be filled at this time.”

Following this Labour Court Recommendation extensive engagement took place between the Employer’s Management and multiple stakeholders to agree the process to recruit Senior Dental Hygienists from within existing staff through a confined competition as a WTE neutral process. The recruitment campaign covered 16 Dental Areas across 8 Community Healthcare Organisation (CHO) areas. The Assistant National Director for HR Community Operations agreed with the Heads of Service for HR in the 8 CHOs that the first filling of the posts would be co-ordinated through the Assistant National Director’s office. Following an extensive engagement between the Employer and Forsa an agreement was reached on the number of posts to go into each Dental area and also the rules around the recruitment process. The parties agreed on the allocation of posts on the basis of one per Dental Area (1 x 16), with the remaining 6 posts to be allocated to the Dental Areas with the highest populations.

The document entitled “Senior Dental Hygienist Frequently Asked Questions” (the FAQ) was prepared and agreed with Forsa Trade Union. This FAQ document was circulated to the Principal Dental Surgeons to be shared across the Dental Service. The FAQ stated:

“there will be an Interview Board and a panel created for each of the 16 Dental Areas included in this process. Eligible candidates can only apply once and for the area they currently work in. Eligible Dental Hygienists based in Orthodontic Departments that span more than one Dental Area can only apply in one Dental Area and must identify that Area in their application. This is not an opportunity to transfer.”

Eligible staff, identified by Dental Service criteria, which included the Worker, were invited to apply for the post of Senior Dental Hygienist. Eligible staff were sent the Job Specification and Application Form on an individual basis and asked to identify their Dental Area in the Application Form.  

Eligible staff, including the Worker, were advised via email dated 15th October 2021 of the extension to the closing date and the key message regarding how the posts would be filled as contained in the FAQ document, was reiterated to candidates at that time:

“I wish to clarify that there will be an Interview Board and a panel created for each of the 16 Dental Areas included in this Process. Eligible candidates can only apply once and for the area the area they currently work in. Eligible Dental Hygienist’s based in Orthodontic Departments that span more than one Dental Area can only apply in one Dental Area and must identify that Area in their application.”

According to the Employer the competition would be held by CHO area, the panel would be held by CHO area but the appointment would be to the Dental Area in which the successful candidate currently worked and it was not an opportunity to transfer.

The Worker was invited to interview on the 20th January 2022.  

There were 2 posts for the CHO XXX area, one per Dental Area. The Worker indicated her preferred ranking for these posts as number 1 preference the A Dental Area and number 2 preference the B Dental Area.

The Worker was placed number 2 on the CHO panel however she was also placed number 2 for her Dental Area in which she was currently working and the area indicated on her application form (the A Dental Area). 

The Worker raised issues after the competition that she wished to be processed for a post within CHO XXX (B Dental Area) however, according to the Employer, this was contrary to the agreement and what the Worker had been advised prior to and during the competition. The Worker’s concerns were considered and responded to on the 30th March 2022. The Assistant National Director of HR Community Operations advised that the campaign was run in line with the FAQs agreed with Forsa Trade Union, the Interview Boards were arranged by CHO Area but the panel outcomes and appointments were by Dental Area and that as the Worker currently works in the A Dental Area it was not an opportunity to transfer to the B Dental Area.  

The Worker replied to state her issues were not addressed. The Assistant National Director for HR Community Operations reviewed the correspondence and confirmed in letter dated the 8th April 202 the Employer’s position which it stated was clear: the process had been agreed with Forsa Trade Union and was on the basis of Dental Area, not CHO Area and while the Worker’s disappointment could be understood this was not an opportunity to transfer from the Dental Area where she currently worked to another Dental Area.

Further correspondence was received from the Worker’s legal representative on the 19th May 2022. The Assistant National Director, HR Community Operations responded to the Worker’s legal representative on 25th  May 2022, reiterating the rules for the campaign were in line with the Labour Court Recommendation 21230 and the agreed criteria with Forsa Trade Union and the FAQs. The rules from the FAQs were emailed to all candidates, including the Worker, on the 15th October 2021 at 09.00am. There was no opportunity to transfer. This correspondence also explained that getting placed on a panel indicated that a candidate demonstrated the required standard at the appropriate level and did not constitute a job offer.

Further correspondence was received from the Worker’s solicitor. On the 22nd June 2022 the Interim Assistant National Director, HR Community Operations responded advising that records confirmed that the Worker forwarded the email on the 15th October 2021 (which confirmed that it was received by her) and that the Employer’s letter of 25thMay 2021 had covered the issues raised.

The Worker raised a request for a Formal Review under the recruitment code of practice on the 27th  June 2022. This was responded to on the 29th June 2022 stating that the Worker was outside of the timeframes laid down by the CPSA guidelines.  

It was the Employer’s position that this was a competition that had very specific eligibility criteria attached to it in line  with the Labour Court Recommendation 21230 and agreement with Forsa Trade Union as set out in the FAQ document. The appointments had to be within existing staff numbers hence the reason why staff could only apply for the Dental Area in which they were currently working.

It was agreed in advance that there were two posts in CHO XXX. One post in the A Dental Area and one post in the B Dental Area.

All candidates were notified in advance of the competition that they could only be considered for the Dental Area in which they currently work. The Worker works in the A Dental Area.

The Employer did notify all candidates and the service of the agreed rules for the competition and the information was provided to the Worker in advance of the closing date for the competition.

In conclusion it was submitted on behalf of the Employer that the competition was progressed in line with the agreed criteria with Forsa Trade Union. Posts were filled by Dental Area and candidates were advised in advance of the rules and that it was not an opportunity for transfer. The Worker works in the A Dental Area and she placed number 2 for a Senior Dental Hygienist post in that Dental Area. The available post was accepted by the person who placed number 1 on the panel for the  A Dental Area. The Worker wished to be appointed to the B Dental Area, however she does not work in this Dental Area and therefore in accordance with the rules she cannot transfer.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The dispute between the parties related to a competition for a promotional post. It was common case that the background and context of the Senior Dental Hygienist recruitment campaign CommOps 0092021 was contained in Labour Court Recommendation 21230, dated 16th May 2016 wherein the Labour Court recommended “that 24 senior posts (including 2 posts already filled) should be filled at this time.” Following the aforementioned Labour Court Recommendation extensive engagement took place between the Employer’s Management and multiple stakeholders to agree the process to recruit Senior Dental Hygienists from within existing staff through a confined competition as a WTE neutral process. The recruitment campaign covered 16 Dental Areas across 8 Community Healthcare Organisation (CHO) areas. Following an extensive engagement between the Employer and Forsa Trade Union an agreement was reached on the number of posts to go into each Dental Area and also the rules around the recruitment process.

It was common case that eligible staff, identified by Dental Service criteria, which included the Worker, were invited to apply for the position of Senior Dental Hygienist. By email dated the 6th October 2021 the Worker was sent the Job Specification and Terms and Conditions for campaign reference CommOps0122021 and the Job application form and the Confined Competition Senior Dental Hygienist CommOps0122021. The Worker stated that in light of the content of the Application Form it was her understanding that she could apply for and be considered for the post of Senior Dental Hygienist in either of the two Dental Areas within her CHO area. While I understand how the Worker might have been under the impression in or around the 6th October 2021 that she could apply for and be considered for either of  the two Senior Dental Hygienist posts in CHO XXX given that the Application Form asked her to identify her preferred geographical location in her CHO area, I accept the Employer’s submission that the Application Form must be read in conjunction with the document entitled “Senior Dental Hygienist Frequently Asked Questions” (the FAQ) which was prepared and agreed with Forsa Trade Union and circulated to the Principal Dental Surgeons to be shared across the Dental Service after a meeting on the 13th October 2021 with Principal Dental Surgeons.

The FAQ stated:

“There will be an Interview Board and a panel created for each of the 16 Dental Areas included in this process. Eligible candidates can only apply once and for the area they currently work in. Eligible Dental Hygienists based in Orthodontic Departments that span more than one Dental Area can only apply in one Dental Area and must identify that Area in their application. This is not an opportunity to transfer”.

Following the meeting on the 13th October 2021 eligible staff, including the Worker, were advised via email dated the 15th October 2021 how the posts would be filled and HR Community Operations quoted from the FAQ document:

“I wish to clarify that there will be an Interview Board and a panel created for each of the 16 Dental Areas included in this Process. Eligible candidates can only apply once and for the area they currently work in. Eligible Dental Hygienist’s based in Orthodontic Departments that span more than one Dental Area can only apply in one Dental Area and must identify that Area in their application.

I trust this clarifies the current position.”

While I note the conflict in evidence between the parties as to whether the FAQ was furnished to the Worker I conclude that even if the Worker did not receive the FAQ she was on notice of the contents of same in so far as it related to how the posts would be filled as she acknowledged that she received and read the email dated the 15th October 2021 which specifically stated that “eligible candidates can only apply once and for the area they currently work in”.

The parties disagreed about what was meant by “area” in the phrase “the area they currently work in.” The Worker interpreted “area” to mean the CHO area, in her case CHO XXX. The Employer submitted that the Worker misinterpreted the the email of the 15th October 2021 and was interchanging the CHO area with the Dental Area and that reference to “area” in the phrase “the area they currently work in” was to Dental Area. Having considered the submissions and evidence of the parties I resolve the conflict in evidence in favour of the Employer and conclude that the reference to “area” was to “Dental Area” and not CHO area. In the Worker’s case the Dental Area she worked in at the material times, and where she continues to currently work in, was the A Dental Area.

It was common case that on the 1st February 2022 the Worker received an email from HR Community Operations confirming that she placed second on the panel.

The Worker stated that having placed second on the panel after interview she had a legitimate expectation that she would be appointed to one of the two posts of Senior Dental Hygienist in the CHO XXX area particularly in light of the fact that on the 8th February 2022 she received an email from her local HR Department in CHO XXX area wherein the Employer requested, as part of the screening process (which at times was referred to as the “clearing process” but it was confirmed by the parties the screening and clearing processes were one and the same and therefore hereinafter I refer to it as “the screening/clearing process”), a reference and the documentation and qualifications listed in the email.

The Employer stated that being placed on a panel indicated that the Worker demonstrated the required standard at the appropriate level and it did not constitute a job offer. The Employer acknowledged that it commenced the screening/clearing process however it would appear from an email dated the 18th October 2022 from the CPSA to the Worker, exhibited to the Worker’s submissions, that it was “… standard for HR departments to commence processing a number of candidates on a panel (for example the first 10), however this would not confer a right to an offer. The clearance form did also specify, “It should be noted that no contractual obligation is formed by this correspondence. A contract of employment is only valid when received in writing and signed by both parties, i.e. candidate and [the Employer]. If you are currently in employment, I would advise that you do not hand in your notice at this time.” Of further significance is the reference in the email dated the 8th February 2022 to the Worker being “under consideration” for the Senior Dental Hygienist position.  Having regarding to the foregoing I resolve the conflict in evidence in the Employer’s favour. I conclude that whilst the Worker was under the impression, albeit a misguided one, that she had been offered one of the post of Senior Dental Hygienist in the CHO XXX area when the Employer commenced the screening/clearing process before the recruitment process was suspended, commencing the clearing process did not constitute a job offer and as of the 8th February 2022 the Worker was only “under consideration” for the Senior Dental Hygienist position.  

There was a dispute between the parties regarding the manner in which the competition was run in CHO XXX. Having considered the submissions and evidence of the parties I resolve the conflict in favour of the Employer and accept the Employer’s submission that the competition was held by CHO area, the panel was held by CHO area but the appointments were by the Dental Area where the successful candidate currently worked and it was not an opportunity to transfer between Dental Areas.

Finally, the Worker stated that on the 25th February 2022 she was advised for the first time that the application process was not an opportunity to transfer from one Dental Area to another and that it was unfair for the Employer to raise this issue after it had informed the Worker that she had been successful at interview and placed second on the panel. This evidence conflicted with the Worker’s evidence that she received the email of the 15th October 2021 and was aware of its contents which I have concluded advised eligible candidates that they could only apply in the Dental Area in which the currently worked. While the body of the email did not expressly state that the recruitment process was not an opportunity to transfer from one Dental Area to another I conclude that if the Worker could only apply in the Dental Area in which she currently worked it follows that she could not transfer to another Dental Area.

The Labour Court has consistently held that it shall not interfere with the decision of an employer’s recruitment or promotional process when there is no evidence of unfairness, irregularity or irrational behaviour.

In A University v. A Worker CD/16/143, LRC21333 the Labour Court stated that:

“The Court has consistently adopted the position that it does not substitute its decision for that of an employer’s recruitment or promotional panel regarding the merits of a candidate... the Court can only look behind a decision in relation to appointment where there is clear evidence of unfairness in the selection process or manifest irrationality in the result.”

In University of Limerick v. A Worker, LRC 21339 the Labour Court stated:

“In dealing with similar disputes in the past the Court has taken the view that in the absence of irregularity in the conduct of the promotion process, or manifest irrationality in the result, the Court cannot seek to re-run the process and substitute its views on the merits of the applicants for those of the Promotions Board, or make a comparative analysis of their work.”

I have reviewed the documentation submitted to the WRC in advance of the hearing, the submissions of the parties and the evidence presented at the hearing. I hear and understand the disappointment and frustration of the Worker however having considered the arguments outlined by both parties and having regard to the case law referred to above and all the circumstances surrounding this dispute I conclude that there is no evidence of irregularity or manifest irrationality or unfairness in the conduct of the recruitment and promotional process on the part of the Employer. The Worker worked in the A Dental Area and she placed number 2 for the post of Senior Dental Hygienist in the A Dental Area. The available post was accepted by the person who placed number 1 on the panel for the A Dental Area. The Worker wished to be appointed to the B Dental Aea however she does not work in the B Dental Area and therefore in accordance with the rules governing the recruitment process she could not transfer to the B Dental Area. From a consideration of the documentation presented by the parties it is apparent that the Employer engaged extensively with the Worker in relation to the recruitment campaign arrangements and the concerns she raised with the recruitment process, however the Worker refused to accept this position. I recommend that the Worker accepts the decision that she was unsuccessful on this occasion.