Worker

Employer

Anonymised Parties

A Worker

A Health Care Service Provider

Representatives

Michelle Connaughton Forsa Trade Union

 Management

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 - 00000453

12/07/2022

The Complainant unsuccessfully applied for a promotion to a Grade VI post.  He contends that the reason he was not successful was because he requested Carer’s Leave. The Respondent denies this, contending that the reason that he was unsuccessful was that he received an unsatisfactory reference. The Complainant further contends that, during the review and appeal process, he was never fully informed of the reason and it took until a WRC Adjudication for that to be clarified. His internal grievance was not properly dealt with in that it failed to take account of the basis for his appeal. The Respondent denies this, contending that all internal grievance procedures were properly followed and all remedies were exhausted.

In August 2021 the Respondent advertised for the post of a Grade VI HR/Payroll Compliance Manager.

The Complainant applied for the post.

He was interviewed and successfully placed as number 2 on the panel.

He was offered the post subject to Garda Vetting and Occupational Health clearances and satisfactory references.

The Complainant had worked for the Respondent since 2000 in different capacities and grades, starting as a clerical officer Grade 3 and working his way up until he worked a temporary assignment at Grade VII between July-October 2021. During his 22 years employment with the Respondent he worked in Grade 3, Grade 5 and Grade 6 posts and the post that he was seeking promotion to was a Grade 6 post. Any negative feedback as to his performance at the temporary Grade 7 post should not have determined his promotion application for a Grade 6 post, given that it was of short tenure, he had never before worked in a Grade 7 post and because it was during this four months that he had domestic responsibilities and he needed to take Carer’s leave.

All his other references since 2000 had been good, there was no proportionality in one negative job reference (for a post higher than the one he was applying for) determining that he would not get the promotion.

Furthermore during the review and appeal process, his belief - that he was not promoted because he had taken Carer’s Leave - was never properly responded to. He was allowed to believe that the job reference was negative because he took Carer’s Leave after four months and this was the basis why he didn’t get the job.  The appeal process, which is supposed to be an independent process dealt with his complaint on the basis of job reference without clarifying which aspect of the reference was being relied on.

In addition the Appeal investigator relied on evidence of a risk assessment to reach her findings, a risk assessment that the Complainant was never provided with nor asked to respond to prior to the conclusion of the appeal process.

The whole process, both review and appeal, was entirely defective in terms of fair procedure and failed to comply with the Respondent’s own internal mechanisms when unsuccessful promotion applications are contested.

The Complainant seeks to be appointed to the role that he applied for or in the alternative compensation.

The Complainant worked for the Respondent from 2000-2022.

In late 2021 the Complainant applied for a Grade VI HR/Payroll Compliance Manager.

He was successful at interview and was offered the post subject to the employer Garda clearances, Occupational Health clearance and satisfactory references.

The Respondent recruitment process requires the receipt of a suite of satisfactory references to confirm an appointment.

In respect of the Grade VII post that the Complainant held between July-October 2021 (a Grade 7 Manager) the Complainant’s reference was unsatisfactory in three key areas: Acceptance of Responsibility; Caseload Management and Communication with Supervisor.

The Complainant’s line-manager advised that she not recommend the Complainant, nor would she re-employ him.

As these were key skills for a Grade 7 post, the job offer was withdrawn on 14 March 2022.

The Complainant had discussions with the Respondent HR manager and issued a formal complaint. During a telephone discussion with the Complainant, the HR manager assured him that the reason he was unsuccessful was due to the three key performance criteria in the job reference, not his request to take Carer’s leave. (The Complainant denies that this was ever discussed.)

Following receipt of the Complainant’s appeal, an appeal process was put in train and an independent investigator was appointed to deal with his appeal.

The findings and decision of the appeal issued on 6 May 2022 and none of the Complainant’s complaints were upheld.

The Respondent is obliged to make a job offer subject to satisfactory references. The Complainant did not receive a satisfactory reference for the period July-October 2021. The offer had to be withdrawn. The Complainant was provided with every opportunity for the decision to be reviewed and appealed but that process was unsuccessful.  

I am satisfied that the Complainant believed that the reason that he was not promoted was because, while in the Grade 7 post between July-October 2021, he requested permission to take Carer’s Leave. That belief may have been erroneous but the fact that he believed that this was so was known to the Respondent.

He believed that the one unsatisfactory job reference he received (in over 22 years of service) for a short period between July-October 2021 (during which time personal circumstances prevailed which necessitated him taking Carer’s Leave) should not have determined the promotion,  particularly given that he was applying for a Grade 6 role, having never worked at Grade 7 before (and therefore was likely to have fallen short on a grade 7 standard.)

But the central matter at the heart of this complaint is that the Complainant thought that it was because of his Carer’s Leave request and the Respondent knew that because it is evidenced within his emails to HR from late March 2022 on.

I am not satisfied that the Respondent properly considered or dealt with this complaint.

If the Complainant and HR manager did have a conversation in March 2022 (which the Complainant denies) in which he was told that rather than it being about his Carer’s leave request the reason that he was not appointed was due to his failure to pass in three key performance criteria he clearly still believed that Carer’s Leave was the reason, after that conversation,  because he emailed HR to say so and then proceeded with a section 7 Appeal on the same basis. The correspondence shows that he was provided with the job reference on 22 March 2022 and on 25 March he emailed HR complaining that the decision to withdraw the job offer was because he had taken care leave and that he had family reasons that required him to take that leave. That was the moment where one would have expected a written response stating that the decision had nothing to do with Carer’s Leave and everything to do with his failure to meet three key performance areas.

Instead on 29 March HR emailed the Complainant, stating that the appointment required a satisfactory reference, which was ambiguous. The Complainant thought that the unsatisfactory job reference was because his manager was unhappy with him requesting Carer’s Leave. The HR manager knew it to be otherwise but was not specific about that.  At no point did the Respondent clearly state to the Complainant – it’s the findings about your key competencies – it’s not the Carer’s Leave, which is regrettable.

Then the next stage in the process was the appeal. One would have thought that at least during that process clarity could have provided but it did not. I am not surprised that the Complainant felt not listened to, because frankly, he was not.

I consider the appeal process to have been unsatisfactory and not in compliance with the Respondent procedures. The Complainant’s appeal was re-worked into three questions (none of which included his actual complaint) and none of which were upheld.

Given that these review and appeals processes are designed to ensure that fairness is afforded to both an unsuccessful promotion candidate and the employer, the Complainant’s actual complaint remained unaddressed.

What happened during the appeal was a process which did not serve the Complainant. He continued to believe that he did not get the job because of a job reference and what he thought was injurious about that reference was that he had taken Carer’s Leave. The words care, leave or family reasons do not appear anywhere in the appeal decision. It took the WRC adjudication hearing to clarify to the Complainant which aspect of the job reference and on what basis the Respondent found it to be unsatisfactory.

Furthermore there was a breach of fairness during the appeal because one of the appeal findings was based on contents of a risk assessment that the Complainant neither saw or was permitted to have any input into, until after the appeal process had ended.

I am satisfied that the Respondent failed to sit down and properly listen to and address the Complainant’s concerns from late March 2022 onwards and had this been done it would have saved the Complainant an avoidable wrong footing, which led to him pursuing an appeal on an avoidable wrong footing and bringing a WRC complaint on an avoidable wrong footing.  

I find this complaint to be well-founded.

I accept that under its recruitment processes the Respondent was entitled not to appoint the Complainant to the post based on a poor job reference, however I consider the manner in which the review of the decision and the appeal was conducted neither followed proper process nor gave effect to the purpose of the appeal because it failed to properly address the Complainant’s concerns.

The process was carried out but it was conducted in a non-listening way.

I find this complaint to be well founded and I recommend that the Respondent pay the Complainant compensation in the sum of €16000.

The Complainant’s financial losses amount to circa €5000 per annum, however this does not take account of the unnecessary stress, the disrespect that he understood was meted out to him and the impact of that which lasts into the future. The Complainant worked for 22 years for the Respondent. I find that his concerns should have been dealt with more thoroughly and with greater care and attention.

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

Trade Dispute – Process – Appeal – Lack of fair procedures.