Worker

Employer

Anonymised Parties

Nurse

Health Service

Representatives

Mr. Niall O'Sullivan Psychiatric Nurses' Association

Self-Represented

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 - 00000779

19/10/2022

On 28th April 2023, the Worker referred the present disputes to the Commission. Herein, she alleged that she had been adversely affected by a change in the pass rate for an interview process. In denying this allegation, the Employer submitted that the setting of the pass rate was an operational matter and that the investigation of the same falls outside of the remit of the Act. They further submitted that the Worker did not avail of the applicable internal appeals procedure.

Following the Employer’s positive election to engage in the dispute, a hearing in relation to the same was convened for, and finalised on, 30th August 2023.  This matter was heard concurrently with similar matters involving two of the Worker’s colleagues. At the outset of the hearing it was agreed that the matters were similar, with one representative submission being made in made in support and in defence of the substantive matter. As a result of the foregoing, the outcome below with be repeated across all three disputes.

The Worker is engaged as a nurse within the Employer organisation. On 14th February 2022, the Worker applied for promotion to the role of “clinical nurse specialist”. On 24th March 2022, the Worker was informed that the pass rate for this role was to be 60%, as opposed to the standard 40%. The Worker was concerned about this development, but assumed that it was part a nationwide amendment in this regard.

The Worker attended for the interview and was unfortunately informed that she was unsuccessful in the application. On reviewing her scores, it became apparent that the Worker exceeded the previous pass rate of 40% but fell short of the new pass rate of 60%. While the Worker was unhappy with this outcome she did not pursue it at the relevant time. 

Following a subsequent meeting with her trade union representative, the Worker queried the amended pass rate of 60%, particularly when it transpired that the pass rate for subsequent competitions was returned to 40%. By response, the Employer submitted that they were unable to retrospectively reduce the pass rate and enter the Worker onto a panel arising from the competition. In addition to the same, they submitted that the Worker should have appealed the outcome in line with the process adopted for such matters.

By submission, the Worker’s representative stated that the Employer was in breach of the relevant code of practice in relation to such competitions. In particular, he submitted that the Employer arbitrarily increased the pass mark for one competition without informing the relevant stakeholders or setting out any basis for the same.

As a consequence of the foregoing, the Worker’s representative requested that the pass mark be amended from 60% to 40%, having the effect of the Worker being placed on the panel arising from the competition. The Worker further submitted that the Employer exhibited some reluctance to hear the grievance as referred. In this regard, she submitted that the Employer should be directed to review their grievance procedure in this regard.

At the outset, the Employer submitted that the present dispute could not be progressed under the Industrial Relations Act. In this regard it was submitted that issues in respect of fairness regarding public service appointments are mandated by the Public Service Management Acts, and administered in accordance with the CPSA. In this regard it was noted that the process allows for an internal appeal that was not availed of by the Worker, with the Worker’s dispute being internally progressed as a grievance.

Notwithstanding the same, the Employer submitted that the pass mark for the competition was issued to the Worker in advance of the same with no issue being raised at that point, or indeed when the result issued. It was further submitted that the setting of such pass marks is an operational matter and as such is an inappropriate matter for adjudication in this forum.

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

The present dispute involves an allegation that the Employer acted in an unreasonable manner by increasing the pass rate, or the mark at an applicant may be placed on a panel following interview, to 60% from 40%. The Worker has submitted that this position is unreasonable, particularly in circumstances whereby this increase appeared to be arbitrarily imposed for the promotional campaign she engaged with. On foot of the same, she submitted that that the mark be retrospectively reduced, with the consequent effect of her being placed on the panel arising form the competition. In denying this allegation, the Employer submitted that the marks for the competition were issued to the Worker in advance, with no issues being raised in relation to the same at that juncture. In this regard, it was further noted that the Worker did not engage with the appeal process at the relevant time. Finally, the Employer raised various procedural issues with the dispute being ventilated in the present forum. 

The first point to note is the subject matter of this dispute, the pass mark that was adopted for the internal promotional campaign, relates not only to the Complainant but to each applicant involved in the process. In this regard, it is clear that the outcome sought by the Worker, the reduction of the pass mark, will have a consequent effect not only for herself, but for an indeterminate number of other candidates. Having regard to the foregoing, it is apparent that the present dispute is in fact a collective matter and is not appropriate for resolution as an individual dispute.

In addition to the foregoing, notwithstanding the Worker’s allegation that the Employer departed from best practice, it is apparent that the campaign was conducted in accordance with the relevant statutory framework. In the matter of Galway County Council -v- A Worker LCR 21800, the Labour Court held that,

“The Court has been given to understand that the competition in question was conducted in accordance with relevant statute and collective agreements. The Court has been made aware that two candidates were appointed from the competition and that the panel in question has now expired.

The Court has been given no basis to understand how, having regard to the fact that the process of appointment of staff in the sector is governed by statute and collective agreements, it could intervene in this matter.”

Finally, the Worker submitted that the Employer exhibited some reluctance to process her grievance once the same was formally raised. Having reviewed the relevant correspondence, it is apparent that while some issued were raised during the process, the Worker’s grievance was progressed in a timely fashion thereafter.

Having regard to the foregoing, I find that it would be inappropriate to make a recommendation in favour of the Worker in relation to this dispute.

Consequent Effect, Promotion, Appeal, Grievance