FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN GARDA SÍOCHÁNA - AND - A WORKER (REPRESENTED BY GARDA REPRESENTATIVE ASSOCIATION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00033033 CA-00043771-001 •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 €5000. •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 €5000. For the avoidance of doubt, I confirm that total compensation recommended to resolve this dispute is €10,000.” A Labour Court hearing took place on 3 March 2023.
This is an appeal by the Employer of Adjudication Officer’s decision ADJ-00033033. The Adjudication Officer recommended that to resolve the dispute compensation of €10,000 should be paid to the Worker. Summary of Worker’s submission The Association on behalf of the worker submitted that in July 2020 applications were invited for positions in the Ministerial Pool. These positions are highly attractive as they attract a significant allowance which becomes pensionable after five years. The Worker in this case submitted an application as he believed he had the necessary skills and the experience for the role. He was advised by letter of the 30thOctober 2020 that he had not been shortlisted and he was provided with the shortlisting form indicating the marks he had achieved under the various headings. The Worker had concerns about some of the scoring. He submitted a grievance complaint to his employer and submitted an application under the Commission for Public Service Appointments (CPSA) Code of Practice for a review of the scoring he received and the areas that were assessed for shortlisting purposes. He was advised by the Employer on the 20th November 2020 that his complaint was not appropriate for processing through the grievance procedure. The Worker initially sought a review under section 7 of the Code of practice but based on information he received he sought to change that to a review under section 8 of the Code of practice. This resulted in two different Garda Superintendents carrying out separate reviews. It was eventually decided that Superintendent Whelan’s review would be the review for the purpose of the Code of Practice. By letter of 24thJanuary 2023 Superintendent Whelan set out his report concluding that the Board had followed procedures for short listing but that the decision not to short list this Worker was incorrect. On the 13thAugust 2021 some eight months after making the complaint the Worker received a copy of the review and correspondence stating that there was no breach of procedure even though the review clearly stated that he should have been shortlisted. The Worker then contacted the CPSA who agreed that there were exceptional circumstances and that they would, under section 8 of the Code of Practice, carry out an external review. The outcome of that review was issued in December 2021. It made a number of findings, including that the appropriate mechanisms were not used to measure driving and fitness skill and that the length of time it took to publish the outcome of the internal review to the Worker was unacceptable. The positions in the Ministerial Pool were filled in October 2021. The Association on behalf of the worker opened to the Court some findings of Adjudication Officers in what they believe to be similar circumstances where the Adjudication Officer had made an award. The Association noting that the Worker had since successfully obtained a position as part of the Ministerial Pool submitted that as the competition process was flawed, he had suffered a lost opportunity and should be awarded compensation. Summary of Employer’s submission An Garda Siochana Guidelines for Internal Appointments and Promotions are aligned to the Commission for Public Service Appointments Code of Practice. In 2020 there were 5 vacancies for Gardai in the Ministerial Pool. 91 candidates submitted applications, this number was reduced to 31 following a shortlisting process. All 91 candidates had the basic requirements for the post. By letter of 24thNovember 2020 the Association wrote to the Commissioner outlining concerns in relation to the essential requirements and the shortlisting process. They were advised that any candidate who was dissatisfied with the outcome of the process could seek a review under the CPSA Code of Practice. The Commissioner was requested to suspend the competition pending the outcome of such reviews and agreed to do so. Subsequently 18 candidates who were not shortlisted applied for a review under the Codes of Practice. The reviews were completed by internal reviewers in the first instance and in the case of this Worker, a further review under the Code of Practice was carried out by the CPSA who then issued a report. The report found that there were breaches of the Code with regard to the timeliness of the internal review and a lack of meaningful communication. It also found that a breach occurred in relation to the internal reviews, it found that the decision taken by An Garda Siochana not to comply with the internal reviewer’s recommendation that this Worker should get an interview to be in line with the Code of practice. It went on to say that the CPSA was satisfied that the general scoring system was equally and fairly applied to all candidates but found that evaluating an aptitude for driving and high level of personal fitness through a paper base exercise was not in line with best practice. The Commission did not find that any candidate was treated unfairly vis a vis another candidate and unlike in other cases did not make any recommendation for assistance or restitution in respect of this Worker. One of the precedence’s opened to the Court by the Association was in respect of a case where an Adjudication Officer made an award and An Garda Siochana did not appeal same. The difference in that case was that the CPSA had recommended that assistance or restitution be made. This Worker’s complaint has been investigated fully by the Commission in line with the code and the issues identified by the Commission are under consideration. Decision The Court notes that the CPSA has a statutory role to establish and oversee procedures that address candidate’s complaints and requests for review of appointments. As set out in the Code of Practice, the decision of the Commission is final and challenges to decisions of the CPSA lie by way of judicial review. The Worker in this case has processed his complaints using the CPSA procedures which provides for the CPSA to take whatever action it considers necessary. In this case the CPSA chose not to recommend that assistance or restitution be made. It is not for this Court to second guess that process. The appeal is upheld. The Decision of the Adjudication officer is set aside. The Court so Decides.
NOTE Enquiries concerning this Decision should be addressed to Orla Collender, Court Secretary. |
