Complainant

Respondent

Parties

Joseph  Shanley

Longford County Council

Representatives

Eamonn Hunt (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00047145-001

12/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00047145-002

12/11/2021

The Complaint was employed by the Respondent as a Senior Executive Officer from 26th June 2018 until 25th June 2021. The Complainant submitted that he was penalised by his employer for invoking entitlements under the Protection of Employees (Fixed term Work) Act, 2003 or for refusing to cooperate with a breach of that Act or to avoid giving a contract of indefinite duration.

The Respondent denied the allegations and asserted that no breach of the Act had taken place.

CA- 00047145-001

The Complainant submitted that he had made enquiries of the HR Department in January 2021 in relation to an upcoming 2021 Staff Officer panel and received information in response tha the recruitment campaign would be advertised in Q1 of 2021.  He submitted that when no advertisement materialised by the end of March 2021, he made further enquiries and was then advised that the recruitment process would not commence until Q3 of 2021. He outlined that the Staff Officer panel was subsequently advertised in July/August 2021.  He further outlined that he raised the matter internally prior to the end of his contract of employment, but that no reason was provided to explain this decision.

He submitted that he had further raised concern in relation to the delay regarding the above recruitment process as part of an earlier complaint to the Workplace Relations Commission.  He outlined that he was told by HR that he could apply to the open competition and that his application would be considered on an equal basis.  He submitted that he disputed this as the decision to delay the recruitment process made him ineligible internal panel which effectively ruled him out of contention for the post in question.  He submitted that this also placed him at a disadvantage for all other Staff Officer posts arising over the lifetime of the panel, as the allocation of posts using these panels strongly favours Local Authority applicants and especially internal applicants.

He submitted that as a consequence of the delay he was ruled out of contention for the internal panel for Staff Officer posts as his contract ended on 25th June 2021.  He further submitted that had he been appointed to an acting role in 2019 or 2020 (the matter which was the subject of his earlier WRC complaints) he would have qualified as an internal applicant with two years’ experience in an Acting Staff Officer role.  He submitted that as the above post was the subject of his two previous complaints to the WRC and the fact that other employees were not similarly impacted by the decision to delay the recruitment process, he believed that the decision to delay that process until after his contract had expired amounted to penalisation as defined under the Protection of Employees (Fixed Term Work) Act, 2003.

CA-00047145-002

The Complainant submitted that the new recruitment campaign for the Staff Officer panel was advertised in July/August 2021 and that he applied for the post on 28th august 2021.  He outlined that his application was for Panel A (All local authority staff only) and Panel B (Open) but that he was not eligible for Panel C (Longford County Council staff only) as his contract with the Respondent had expired on 25th June 2021.

He submitted that he received notification on 7th October 2021 that his application was not shortlisted and that he would not be interviewed for the post of Staff Officer with the Respondent.  He submitted that he was surprised not to have been shortlisted, as he had successfully applied and interviewed for the post of Staff Officer with the Respondent on two previous occasions.

He submitted that he wrote to HR seeking feedback and further information about the shortlisting process and that HR responded stating that only those candidates who scored greater than 400 on their applications were shortlisted.  He outlined that his application received a score of 390.  He submitted that he did not accept that his application was in any way inferior to those that were awarded more than the minimum score, particularly as he had applied and interviewed for Staff officer posts in November 2019and again in June 2020, being placed first and third against other Respondent staff.

He outlined that he had also applied for another Staff Officer post in another local authority via open competition and had been placed 10th on that panel in May 2021. He submitted that this showed that his qualifications and experience were of the required standard to be called for interview against both internal and external candidates.  He submitted that the details provided by HR was vague and that he believed the scores awarded and the number of applicants shortlisted was arbitrary and was not based on the content of applications.

He submitted that, as a result he was ruled out of contention for any Staff Officer post that will arise with the Respondent over the lifetime of the panel (normally 2 years) and that the posts that were the subject of his complaints to the WRC were included.

He submitted that as he was successful at interview previously for one of those posts he believed that the decision to refuse him an opportunity to interview on this occasion came about as a result of him lodging his case with the WRC and he believed that this amounted to penalisation as defined in the Protection of Employees (Fixed Term Work) Act, 2003.

CA- 00047145-001 & CA- 00047145 -002

The Respondent submitted that Preliminary Issue No 2 above was relevant to this complaint and that the Complainant was not a fixed term employee within the meaning of the act and therefore did not have standing to pursue a complaint.

Without prejudice to the foregoing the Respondent submitted that Preliminary Issue No 3 above was relevant to this complaint and that the complaint was out of time.

On the substantive issues the Respondent submitted that the Respondent has a recruitment programme in place that is reviewed and updated on a regular basis and that the programme determines provisional indicative dates for competitions to assist HR with planning, resourcing, scheduling and delivery of the recruitment programme.   The Respondent submitted that the programme is prepared and delivered to meet the operational and service delivery requirements of the Respondent which results in changes to the programme on a continuous basis.  The Respondent submitted that in 2021 the programme was reviewed and updated 14 times and in 2022 it was reviewed and update 15 times.

The Respondent submitted that in February 2021, the recruitment schedule had identified fifteen competitions that required completion and by July 2021 it identified that 41 competitions required completion.  The increase in the number of competitions was as a result of adopting a more proactive approach to scheduling of recruitment competitions to meet service delivery requirements.

The Respondent further submitted that in early 2021, the Staff Officer competitions was provisionally scheduled to be advertised in April 2021, however, upon review of the recruitment schedule, the competition was not advertised until July 2021.  The Respondent submitted that other competitions were also rescheduled e.g., in February 2021 the Administrative Officer competition was scheduled for advertisement in June 2021 but was changed to august 2021, the Executive engineer competition was scheduled for advertisement in April 2021 but was not advertised until March 2022.  The Respondent submitted that the scheduling of competitions applied to all posts both permanent and fixed term.

In addition, the Respondent submitted that a WRC Agreement relating to recruitment to Clerical Administrative Grades IV to VII required the County Respondent to appoint from the panels in sequence.  The Respondent had formed three panels and the Complainant was a candidate in 2 out of the 3 panels.  The Respondent outlined in detail the process undertaken for each of the competitions.

The Respondent submitted that on 7th October the HR section issued correspondence to the Complainant advising him that he was not successful at the shortlisting stage of the Staff Officer competition and confirmed that the Complainant expressed his disappointment via telephone and email.  He sought feedback in relation to the shortlisting process and further information in relation to the number of successful candidates on panels.  The Respondent confirmed that the information was provided.

The Respondent submitted details of further competitions applied for by the Complainant and confirmed that he progressed to different stages in each of those competitions.  The Respondent submitted that this information was provided to demonstrate that all competitions different and that competitions where the Complainant was successful and included on a panel in order of merit had a smaller number of applicants than the competition advertised in August 2021.

The Respondent drew attention to the obligations under Section 10 of the Act which obliges an employer to inform a fixed term employee of vacancies which become available so as to ensure that her or she has the same opportunity to secure permanent employment.  The Respondent advised that the Complainant was provided with this detail and that his application was included in the recruitment process similar to all other applicants.

The Respondent further submitted that the assessment of a candidate is no different whether they are permanent or fixed term.  If a permanent employee does not have tow years’ experience as required within the qualifications of a role, they will be excluded.  If a permanent employee ceases to be an employee of the Respondent subsequent to their application being submitted, they will be excluded from a confined competition.  The Respondent submitted that the criteria as applied to the Complainant were the exact same as those applied to permanent employees.

In conclusion, the Respondent requested that the Adjudication Officer first consider the preliminary issues raised where the Complainant is not a fixed term employee according to the Act.

Without prejudice to the above the Respondent asserted that the instant complaint relates to the Complainant applying and being unsuccessful in a competition run in July2021 for Staff Officer and alleging that penalisation occurred due to him taking a complaint under the Act and that this penalisation was alleged to be him not being progressed to the interview stage of the competition.  The Respondent submitted that it was a matter of fact that the Complainant also applied for a technician post around that time and that he was progressed to the interview stage, interviewed and placed 1st on that panel.  The Respondent submitted that there was no evidence that the Complainant was treated less favourably than a comparable permanent employee was or would have been treated and therefore, asked the adjudication officer to dismiss the current complaint where no breach of the Act had taken place.

CA- 00047145-001 & CA- 00047145 -002

Although the Respondent was present on the day of the hearing, along with their representative, the Complainant did not attend.  I subsequently checked the file and was satisfied that he was sent correspondence via email which contained the time, date and location for the hearing.  I further noted that he had exchanged correspondence with the WRC in relation to his complaint via that email address.

Given that he had used that address for correspondence by email and that the notification of the hearing had been sent to the email address which he continually used, I am satisfied that the Complainant was properly notified of the hearing but did not attend.

In the context of his non-attendance I must conclude that this complaint is not well founded

CA- 00047145-001

For the reasons outlined above it is my decision that this complaint is not well founded.

CA- 00047145 -002

For the reasons outlined above it is my decision that this complaint is not well founded.

Fixed term