Worker

Employer

Anonymised Parties

Security Officer

Health Service

Representatives

Ms. Martina Weir, Siptu

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 - 00001187

24/03/2023

The Worker commended employment with the Employer on 28th March 1998. At relevant times the Worker’s role was described as that of “Security Officer”.

On 24th March 2023, the Worker referred the present complaint to the Commission. Herein, he alleged that a promotional campaign was operated unfairly by the Employer. In denying this allegation, the Employer submitted that the promotional campaign was conducted in accordance with all relevant guidelines and the principles of natural justice.

Following the Employer’s positive election regarding engagement with the dispute, a hearing was convened for, and finalised on, 11th July 2023.

Both parties issued substantial submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side throughout the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker is engaged as a security officer within the Employer organisation. In February 2022, the Employer notified the Worker of a competition to the newly created role of “Head of Security”. Given the Worker’s extensive experience as a security officer within the Respondent organisation, he applied for the role. By response dated 31st March, the Worker was informed that he was ineligible for the role, as he didn’t meet the criteria set out in the job specification.

In this regard, the applicable criteria stipulated that an applicant must have a certain education requirement or an equivalent qualification and experience working in a management capacity and significant management and technical experience. The Worker was informed that the was deemed to be ineligible based on the second to last requirement, i.e. recent experience working in a management capacity. This decision disappointed and confused the Worker, particularly in circumstances whereby he met the final, extremely similar, criterion. On a practical basis, the Worker’s position was that he had assumed several management functions in the course of his employment and had the relevant experience necessary for the role. Following from the same, the Complainant raised a grievance in accordance with the Employer’s internal procedures. Following ain internal review the Employer confirmed that the Worker had correctly been deemed ineligible based on a lack of relevant management experience.

In July 2022, it became apparent that the role had not been filled and a further competition was advertised. On this occasion, the job specification was amended slightly. In this regard, the final two criteria was changed to experience working in a management capacity or (as opposed to and) significant management and technical experience. The Worker submitted that this represented a fundamental amendment to the criteria. In particular, he submitted that the amendment or the “and” to an “or” clearly indicated that he only required compliance with one of the final two criteria. In circumstances whereby no issue had been raised regarding the final criterion in the previous competition, he believed that he should meet the standard in relation to the present matter. Notwithstanding the foregoing, and again to the Worker’s disappointment, the Employer again deemed him ineligible on the grounds of a lack of relevant management expertise. 

By submission the Worker stated that the manner in which the promotional competition was operated had the effect of preventing the existing security personnel from applying for the same. It was submitted that the existing staff had no opportunity to gain the relevant experience necessary for the role and no method by which they might obtain this experience. The Worker further submitted that he should not have been deemed to be ineligible for the role, as he had demonstrated managerial experience. He submitted that this this experience was discounted by the Employer from the outset. As a result, the Worker was denied that opportunity to apply for a promotion in a role that he had dutifully carried out for over twenty years.

In addition to the foregoing, the Worker submitted that his grievance in relation to the same was inappropriately handled. In particular, it was submitted that he did not have an opportunity to meet with the decision maker and that the process was subject to an paper review only. 

By response, the Employer denied the Worker’s allegations and submitted that the promotional competition was operated on a fair, clear and transparent basis.

Regarding the initial application for the role, the Employer submitted that the Worker had failed to demonstrate “satisfactory employment within the last 2 years working in a management capacity in security or related service”. In this regard they submitted that the application for the role demonstrated no managerial experience, and as such they had to deem the application as ineligible.

The Employer agreed that no suitable candidate was appointed following this initial competition. Following the same, the readvertised the post. Following a review of the Worker’s application, it was determined that he again ineligible on the basis of a lack of relevant managerial experience.

In addition to the foregoing, the Employer submitted that it was possible for security staff to be appointed to the role. They submitted that the Employer body provides ample training and courses to allow for any member of staff to progress to a managerial position should they wish to. While these courses were open to the Worker, he had not availed of any on the date on which he referred his complaint.

Finally, the Employer submitted that the Worker’s grievance was progressed in line with their own internal policy and the principles of natural justice.

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

The present dispute involves, in the main, an allegation that the Employer acted unreasonably in the operation of a promotional campaign. In particular, the Worker submitted that their position regarding his eligibility in relation to the essential criteria for the role was unreasonable and inconsistent.

In this regard, I note that the role in question was a new position, essentially creating a managerial function for the Complainant and his colleagues. Naturally, the Employer is entitled to expect certain minimum requirements in relation to this competition. In both competitions the Employer set out four criteria that must be met prior to consideration. While the first two of the same were uncontroversial, the final two became the subject of the dispute. These criteria are as follows,

“…recent satisfactory experience within the last 2 years working in a management capacity in security or related service”. 

And,

“…significant relevant management and technical experience in either a hospital / security department / or security implementation in another relevant large organisation”.

Given that the role is managerial in nature, it is unsurprising that direct management experience is a requirement for consideration. Notwithstanding the foregoing, it is apparent that the two criteria listed above are almost identical. In this regard, it is difficult to determine what essential skills are being sought by the final criteria, as opposed to that sought in the preceding point.

In applying for this position, the Worker set out, in some detail, the managerial aspects he has assumed as part of his role. In this regard, he submitted that as the security workers had operated without a manager to that point, he had assumed many of these duties as part of his normal daily activities. Ultimately, the Employer did not accept this as complying with the management requirement, as it did not demonstrate direct managerial experience.  While this may be viewed as a somewhat harsh decision, and in this regard I agree that it essentially prevents the existing security guards form being appointed to the role, it is not unreasonable for the Employer to dictate that an applicant have direct managerial experience when applying for a managerial role.    

Following this process, it is common case that a suitable candidate was not appointed, and the competition was run again. At this point the first managerial criteria was amended slightly to managerial experience within the last 5 years. It also of note that in the documentation issued to the Worker in advance of the same the “and” joining the two criteria was changed to an “or”. While this change was not consistent throughout documentation, it was certainly set out by the Employer at least once and as such they should be held to the same. This slight amendment had the large implication that a candidate requirement only one as opposed to both of the above-mentioned criteria. Again, the Worker applied for the role and again he was informed that he did not meet the management criteria, on this occasion being informed that he did not meet the second criterion listed.

At the hearing, the Worker took issue with the fact that no concern was raised regarding this criterion in the first instance. In such circumstances he submitted that it was inappropriate and inconsistent for the Employer to deny his application on these grounds on the second application. Having considered this argument, I find that I cannot agree with the same. Regarding this initial application, it is clear that the Employer required compliance with both managerial criteria. As a consequence of the same, in a situation whereby an applicant does not meet both or either they will not be shortlisted. As the Worker was not deemed to meet the first criterion, he was not shortlisted and there was no requirement to address the second issue. This cannot be interpreted as implied confirmation of his compliance with the criterion, rather it appears that the Employer had no need to address the same.  Regarding the second campaign, it is apparent that an applicant needed to meet only one of the two criteria. In this regard the Employer determined that the Worker did not meet the final criterion listed. On a purely practical level, it is clear that both criteria are extremely similar, and if a application does no meet one it is difficult to envision how they would meet the other. In addition to the same, the only substantive amendment to the same was an extension of the period in which relevant managerial experience would be considered. As this did not apply to the Worker it is somewhat unsurprising that it did not have an impact on his application.

Regarding the final point raised by the Worker, he submitted that his grievance consisted of a paper only review and was not properly investigated. In such circumstances it is apparent that the subject matter of the grievance was itself a paper exercise, with no inter-personal meeting being considered during the same. In such circumstances I find that this process is not inappropriate. 

Having regard to the foregoing, while I do have considerably sympathy for the Worker’s position, the fact remains that it is not unreasonable for the Employer to demand that an applicant have direct managerial experience in applying for a managerial role. In such circumstances I cannot recommend in favour of the Worker in relation to this dispute.

Campaign, Competition, Criteria