Worker

Employer

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Martina Weir Siptu - Works Rights Centre

 Paul Hume, Human Resources Manager

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 - 00001399

17/05/2023

The claimant submitted in his complaint form that he had appealed an interview process  and was successful in having the  interviews for a competition  re - held .The claimant was aggrieved with the second round of interviews and appealed again through the respondent’s and  CPSA process but the respondent failed to follow up and no satisfactory outcome emerged from this process. The respondent asserted that the claimant’s complaint was reviewed outside the timelines for the employer to accept a complaint. It was submitted that a second interview process was undertaken where no conflict of interest was identified and that consequently the interview results were issued to the candidates.

It was submitted that in January 2022, the claimant interviewed for the post of Trainee Plaster Technician at his hospital and was placed at no. 3 on a panel of 3 candidates. The claimant lodged an appeal of the process as he felt there was a conflict of interest as a consultant who was party to an ongoing dispute regarding limb lifting equipment was on the Interview Board. It was submitted that the appeal was successful and the interview was rerun. The outcome of this process was that the claimant was placed no. 3 on a panel of 3.The member appealed the process on the same grounds as his earlier appeal and the employer undertook to nominate an investigator to examine the matter .It was submitted that despite numerous reminders and representations nothing emerged from this process.

It was submitted that the claimant was a long standing employee with a good employment record. It was submitted that the claimant was one of a number of employees who were in dispute with Hospital Management about their refusal to allow the use of a limb lifting aid in the orthopaedic theatre. The issue had been the subject of a number of Conciliation Conferences. Relations were strained owing to managements decision to send home a number of theatre operatives on an unpaid basis because of their involvement in the dispute. It was submitted that the interview Board was made up of 3 members  – 2 of whom were opposed to the use of the equipment and on opposite sides of the dispute to the claimant. It was because of this that the claimant lodged his appeal of the process.

It was submitted that in June 2022 , on foot of the claimant’s objections, management changed the composition of the interview Panel and stood down the previous panel “ – the replacements consisted of at least one consultant who again was vociferous in his opposition to the limb lifter. It was submitted that this made a mockery of the process where on the one hand an interview process was set aside based on a valid objection and a new panel was constructed under the exact same criteria as led to the previous one being stood down. The claimant advised that he had been encouraged by local management some months earlier to upskill in readiness for competition for the PT position which would become vacant due to an impending retirement. The claimant had successfully completed a module of the CPD Programme in Plastar Technology and received certification at the end of 2022.It was submitted that this course had been encouraged and paid for by the hospital. Despite his certification the claimant was placed  no 3 on a panel of 3.The first candidate would fill the post and it was unlikely that the claimant would ever have an opportunity to take up the role. It was submitted that the claimant believed that management’s attitude to him changed when he made it known to them that based on Occ Health advice he wished to avail of any aids available to assist him in the course of his theatre work including the disputed limb lifter. It was submitted that the collective issue around the limb lifter remained live.

It was submitted that the claimant had twice exercised his right to object to what he saw as an unfair and strongly biased interview process .On the first occasion his objection/appeal was validated. On the second occasion the panel included a consultant who was objectionable to the claimant for all the same reason as on the first occasion. It was advanced that the claimant believed that this was intentional on management’s part and that they acted quickly following the interview process to place the No.1 candidate in the post.

It was submitted that the claimant lodged an appeal “ but while on the last occasion the filling of the post was put on hold, on this occasion management had acted with speed to place the successful candidate in situ”. While management confirmed receipt of his appeal and committed to addressing the matter , nothing further was heard and the claimant referred the case to the CPSA .It was submitted that the CPSA advised they could only become involved after the matter had been investigated by the respondent  and a report issued. Having awaited the employer’s  report until Sept.2022 , the CPSA advised they were closing the case. It was submitted that the claimant therefore was denied the benefit of a CPSA assessment of the matter.

It was submitted that had the appeal been successful  and the claimant had an opportunity to avail of a fair and transparent interview process , he would have been placed no 1 ahead of the other 2 candidates based on his 2022 certification. It was submitted that the claimant lost out on future earnings   at the rate of €3,500 minimum per year. The claimant could potentially have 24 years of future employment in the post. The union asked for the complaint to be upheld and that the claimant be compensated based on the case for loss and “ for the blatant and continuous breaches of agreed procedures by the hospital”.

It was submitted at the hearing that the employer had found in favour of the claimant’s legitimate appeal in January 2022.On the second occasion , they acted rapidly to put the person in the post. The concerns expressed by him in relation to the first interview were the same concerns as those prevailing for the second competition – the participation of a consultant who it was alleged had been involved in the industrial dispute which it was submitted  had  been fractious and acrimonious .It was advanced that the employer had ignored the grievance procedure .It was contended that the employer had denied the claimant an opportunity to have the appeal heard.

The respondent set out the background to the recruitment process to fill the vacancy of a permanent  PT .The employer submitted that the claimant was successful and was placed number 3 on the panel .The claimant complained about the composition of the panel which led to the interviews being re-run with a new interview board and the claimant was placed number 3 on the panel following the second round of interviews. A further complaint was submitted about  the composition of the Interview Board for that process.

According to the respondent the recruitment campaign closed on the 21s.Dec. 2021 – 3 panel members had been sourced – an ADON, a Consultant from Theatre and an Independent Chairperson. It was explained that the panel members are required to sign a conflict of interest form – confirming they are not a blood relative of the applicant ; not involved in a dignity at work related incident regarding the applicant ; not involved in a disciplinary procedure / investigation regarding the recruitment campaign. It was advanced that all panel members signed the forms confirming there was no conflict of interest with the candidates attending interview.

It was submitted that the claimant was successful and placed No. 3.The results were issued on the 26.01.2022 .The claimant made contact with the campaign lead on the 9th.March 2022 regarding his objection to the Interview panel. It was submitted that complaints must be lodged within 5 working days of an interview decision. It was submitted that the claimant was objecting to 2 of the panel members and the email was sent outside of the timelines to review a complaint but nonetheless HR agreed to review the complaint.

It was decided to run the interviews again with a different interview board in the interests of fairness. None of the members of the second panel participated in round 1 of the interviews. It was submitted that all panel members signed the conflict of interest of interest form .Interviews were held on the 15t.June 2022 and the results were issued the same day. It was submitted that the claimant was successful and placed No. 3 on the panel.

It was submitted that panel members collectively review individual marks , that they are issued with interview guidelines and the independent chairperson ensures the process is fair and transparent for all candidates. The chairpersons receive training from NRS and panel members are required to complete a module on Recruitment Interviewer skills. The claimant indicated on the 19th.June that there was a conflict of interest with the interview board. As the campaign lead was on holidays no response was issued to the claimant – on the 22nd.July 2022 the claimant advised he would be submitting a complaint to the CPSA. On the 9th.August the claimant again submitted a complaint to the campaign lead under Section 8 of the Guidelines regarding the panel members – “ however the recruitment lead for the campaign was unaware of any conflict”. On the 14th.Sept. 2022 the claimant indicated to the respondent that the CPSA were closing the file.

It was submitted that the candidates initial complaint was reviewed outside the timelines for same and the interviews were re-run. Three new interview panel members were confirmed for the second round of interviews . It was submitted that” the panel members  confirmed no conflict of interest and therefore issued the interview results to the candidates”.

At the hearing , the respondent’s representative submitted that the hospital had sought to source  a consultant from outside the hospital but were unsuccessful. It was submitted that the  interview process was competency based. It was submitted that although the results of the first competition were issued on the 26th.January , the claimant’s complaint was not lodged until the 9th.March.It was submitted that the respondent had taken on board the claimant’s concerns regarding the first panel and that ultimately the claimant was successful in  being placed number 3 on the panel.It was submitted that the respondent had formed a new panel with 3 different personnel and the claimant was  placed. It was submitted that there was no legislative basis for conceding the union’s claim .It was submitted that ultimately the process was fair and that was where the parties disagree.

I have reviewed the submissions of the parties and the extensive documentation presented  at the hearing .The respondent has argued that  timelines were an issue in this dispute but it is clear from the submissions and documentation submitted by the parties that the subject of this complaint is the second interview process and that the claimant lodged his complaint within 3 days of doing the interview ( as set out in the respondent’s recruitment literature )– the tardiness with respect to the processing of his complaint was in the hands of the respondent – they have accepted there was no initial response  to his complaint as the campaign lead was on leave for a number of weeks. The CPSA indicated that they could not act on the claimant’s complaint until they were furnished with a formal report by the respondent and proceeded to close the file when no report was furnished  .In August 2022 , the respondent had confirmed to the claimant that an investigator would be appointed and would be  in contact with him in a number of weeks but no investigation took place. The accusation that there were timeline difficulties on the part of the claimant with respect to the second interview is not supported by the facts or indeed the documentation furnished by the parties.

The backdrop to both  complaints was the participation on the Interview Panels   of  Consultants who had been involved in the dispute regarding the   operation of  theatre equipment by the claimant and his colleagues . It was accepted by both parties that this had been a fractious and acrimonious dispute . The claimant’s concerns about the objectivity of  members of the  consultant  grade were –  as the claimant perceived  it – vindicated when the outcome of the first process were set aside. No satisfactory explanation has been advanced by the respondent for failing to uphold the claimant’s concern of bias/ conflict of interest  with respect to the second competition  when the panel included the participation of a consultant who as the claimant perceived it – had a conflict of interest for the very same reason as applied to the first interview panel – ie the backdrop of a bitter dispute between  members of  the consultant grade  and the claimant’s grade  - where the same circumstances applied i.e. members of the consultant grade were negatively disposed  to the position that had been adopted by the claimant and his colleagues over the use of the theatre equipment .In the circumstances , I find that arising from these inconsistencies  the claimant was unfairly treated .I further find  that the respondent failed to observe their own procedures with respect to the processing of the claimants  complaint regarding the second interview . Coonsequently,  , I am  recommending in favour of  the claimant .