LCR22768

FULL RECOMMENDATION

CD/23/32
ADJ-00033126 CA-00043782-001

DECISION NO. LCR22768

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES:

AN GARDA SíOCHÁNA

- AND -

A WORKER
(REPRESENTED BY GARDA REPRESENTATIVE ASSOCIATION)

DIVISION:

Chairman:	Mr Foley
Employer Member:	Mr O'Brien
Worker Member:	Ms Treacy

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s)ADJ-00033126 CA-00043782-001

BACKGROUND:

2.This case is an appeal of an Adjudication Officer’s Recommendation by the Employer. On the 7th December 2022 the Adjudication Officer issued the following Recommendation:-

"Having carefully considered the submissions of both parties, I recommend as follows:
In relation to the flaws in the shortlisting exercise, I find that an award of compensation is appropriate in all of the circumstances. Accordingly, I recommend that the Employer pay the
Worker compensation in the amount of €5,000.
In relation to the delay in investigating the Worker’s initial internal appeal, I find that an award of compensation is appropriate in all of the circumstances. Accordingly, I recommend that the
Employer pay the Worker compensation in the amount of €5,000.
For the avoidance of doubt, I confirm that total compensation recommended to resolve this dispute is €10,000."

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 17th January 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on 6th June 2023.

DECISION:

The worker did not attend the hearing of the Court. The GRA did however attend and the Court, with the agreement of both parties, decided to proceed with the hearing of the employer side appeal of the decision of the Adjudication Officer.

The Court has given very careful consideration to the written and oral submissions of the parties.

The dispute before the Court arises from the conduct of a promotion / recruitment competition for the position of Garda driver in 2020 / 2021.

The worker was not successful in his application in that he was not shortlisted for interview. He raised a complaint as regards the conduct of the shortlisting process through the procedures set down by the Commission for Public Service Appointments. The Commission for Public Service Appointments (CPSA) is an independent statutory body which has responsibility for overseeing appointments to a wide range of positions in the Civil and Public Service. The CPSA ultimately issued findings and a report.

The worker in this case made two claims before the Court:

Firstly, that there had been an extensive delay in providing feedback in relation to a complaint made under Section 40 of the internal dispute resolution procedures in relation to the impugned promotion competition. He claims that he should receive compensation for this delay. That complaint related to delays in the completion of an internal review conducted as part of the CPSA code.
Secondly, he contends that the CPSA processes which he followed had identified breaches of the statutory code and other failings of the recruitment / promotion process. He claims that he should receive compensation for those failings.

The Court has noted that the parties have engaged fully with the processes laid down by the CPSA and that comprehensive findings and a report have issued from the CPSA, including as regards the conduct of the internal review. The Court does not see that it has a role in addressing the findings of the CPSA by way of reviewing those findings or the report of the CPSA in order to award a compensatory payment. It is, in the view of the Court, for the CPSA in exercise of its statutory functions to deal with any findings it makes in relation to a complaint made under the code of the CPSA.

The Court notes that following the lodgement of a grievance under the internal dispute resolution procedures no response was given The Court further notes that none of the escalation steps available to deal with a delay in that procedure were engaged by the worker. No submission has been made that the procedure allows for compensation for such delays as an alternative to the use of the procedural escalation steps.

In all of the circumstances, the Court concludes that no case has been made out for the award of compensation on foot of the exercise by the CPSA of its statutory functions or for the fact that no response has been given to the lodgement of a section 40 grievance where no effort was made to utilise the escalation mechanisms in the procedure to deal with delays.

The Court notes in reaching its conclusions in respect of this series of events, that the CPSA has given guidance to the employer as regards the future conduct of recruitment and promotion competitions of the sort giving rise to the within trade dispute.

In all the circumstances the Court has concluded that the appeal must succeed, and the decision of the Adjudication Officer should be set aside.

The Court so decides.

	Signed on behalf of the Labour Court

	Kevin Foley
SOC	______________________
22 June 2023	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Sinead O'Connor, Court Secretary.