Worker

Employer

Anonymised Parties

A Worker

A Public Service

Representatives

Association Representative

Self/Internally 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 - 00001817

27/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001818

27/09/2023

The Worker has been employed by since 2008 carrying out a frontline role for the relevant Public Service. In 2021 he was appointed to a reserve panel for an internal specialist service after an internal competition. The Worker was position 20 on a 20-person panel. This panel was to last for a set amount of time and ongoing vacancies for the specialist service were to be appointed from it. This position was set out in letters to the Worker. The Respondent extended out the panel twice until the 31st of March 2023.

The Employer posts its internal transfers, panels and promotions by way of internal circulars. These are available to all serving staff.

The Worker could see from these circulars that the panel was nearly exhausted and that in January/ February 2023 there were a series of appointments from the panel which were subsequently cancelled. The result of this was that he could see there were vacancies which had reached his position on the panel and expected to be called.

The Employer did not call the Worker. Instead, they decided to begin a new competition for a new panel.

The Worker attempted to raise these matter internally over the course of 2023. The Employer refused to engage with him and did not reply to his internal grievance. He found this extremely stressful and undermining.

He submits that there were vacancies which should have been offered to him as they occurred while the panel was still live.

The Employer refutes the Worker’s case. There were 4 others ahead of him on the panel who weren’t called. Their grievance process does not allow them to deal with issues related to competitions.

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

On the substantive issue the Worker, through detailed submissions, was able to establish he was correct and that vacancies occurred during the lifetime of the panel which were not offered to him or the person ahead of him. 

The Employer had asserted, in submissions made just before the hearing, that the panel had not been exhausted and that the Worker was behind 4 others who were not appointed or offered appointments. The Worker was able to establish, in the hearing, by reference to the Employer’s circulars that those people ahead of him on the panel who the Employer had identified (by way of staff no.) had in fact been offered posts. It was only when the Employer got to the last two people on the panel, which encompassed the worker, did they cease offering vacancies. This would have occurred in February 2023 whereas the panel expired at the end of March 2023. The Employer accepted this and attributed the error in their submissions to a failure to update some personnel files.

Importantly, the first time this exercise was carried out and the first time the Worker obtained any sort of substantive response from the Employer was in the WRC hearing.

The Employer has asserted that the Worker’s issue could not be progressed through their own internal grievance procedure because the terms of that grievance policy specifically did not encompass, “Promotions, lateral appointments and any consequent appeals which are subject to the Code of Practice of the Commission for Public Service Appointments (CPSA).”

The Worker’s representative disagreed and pointed out that appointments from panels are not encompassed by the Code of Practice and which deals mostly with the competitions themselves. The Worker had raised a query with the Employer’s CPSA officer who responded but referred to the entitlement of the Employer to organise a subsequent competition after the expiry of the panel. They did not address the issue of him not being offered vacancies which arose while his panel was live.

The Worker’s Union representative also pointed to the section of the grievance policy which states that a grievance can be pursued into how an excluded practice or policy is being carried out.  

In either event, where an Employer believes that a grievance does not fall within the scope of their policy, they should outline that to the Worker in writing. In this case they simply ignored him. This was an entirely unfair way to treat a Worker of 15 years’ service.  

After these matters were referred to the WRC the Employer made no effort to engage or try to resolve matters. The first time they responded to the Worker in any substantive way was in the WRC hearing a year and a half after he first raised his concerns internally. This is an inappropriate way to engage with both the Worker and the WRC’s function under Section 13 of the Industrial Relations Act.

I am unwilling to make a direct recommendation that the Worker should be appointed into the relevant specialist service. I note that he was successfully put on the new panel for that service but it is a large panel. I note the sensitivity of the work involved in that service and I am the view it would be a significant overstep of my role if I were to recommend that he be given a new role or the next available role within the specialist service. However, I do find that under the Employers own procedure he should have been offered a role in February 2023 and I would recommend that the Employer’s HR Department engage with the management of the specialist service to see if they can right that wrong by way of future appointment. For the avoidance of doubt, I believe that option is open to them. They cannot now assert the new panel makes this impossible when they previously ignored the pre-March 2023 panel. However, the expertise and discretion to make that decision sit with the relevant management figures within the specialist service, not with me.

As to the failure to engage with the Worker and their own internal policies I recommend that the Employer pay the Worker compensation in recognition of the hurt and stress caused by their refusal to engage with him and his legitimate grievance.

I note the Worker is paid approximately €75,000 per annum and recommend he be paid, €10,000 which is roughly 7 weeks wages.