Worker

Employer

Anonymised Parties

Social Worker

Health Service Provider

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 - 00000814

03/11/2022

This matter was heard over the course of two days by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

The hearing was conducted in recognition of the fact that all hearings (formal or otherwise) should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual and/or legal submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant evidence provided by the other side.

The Specific Details of the within Dispute is outlined in the Workplace Relations Complaint Form which was received by the WRC on the 3rd of November 2022. This identified the dispute as:

An Interview Panel did not meet with HSE & CPSA Best Practice, and the person shortlisted did not meet selection criteria.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.

The Complainant was represented by a member of the professional Association established to meet the needs of its members and consequently having a specialised interest and knowledge. I was provided with a comprehensive submission dated the 14th day of August 2023. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that an interview process with which he was engaged was unfair.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by an Employer’s Representative body. The Respondent provided me with a written submissions dated 16th of April 2023. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent rejects that its recruitment process is unfair or falls shy of the standards required.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent entity is a not-for-profit entity engaged by the Health Service Executive to provide a community service. The HSE is empowered to engage a third party for outsourcing puposes pursuant to Section 38 of the Health Care Act of 2004 which reads:

38.—(1) The Executive may, subject to its available resources and any directions issued by the Minister under section 10 , enter, on such terms and conditions as it considers appropriate, into an arrangement with a person for the provision of a health or personal social service by that person on behalf of the Executive.

The Service Provider (the Respondent in this case) should provide service standards in consideration for the funding to be provided by the Health Service Executive.

The Complainant has brought my attention to a particular section of the Service Arrangement entered into by the Respondent and the HSE wherein the service provider is advised that there is an expectation that the Service Provider will comply with all statutory regulations, codes of practise standards and quality assurance programmes. Schedule 2 of the Service Schedule notes that:

“Where HSE specific policies, standards or codes are included, the Provider must ensure it has equivalent standards/policies/codes in place which reflect the principles outlined, in a manner relevant to the Providers individual structure.”

The Complainant started his employment with the Respondent Service Provider in 2007. He had achieved his relevant professional qualification in 2007. The Complainant has a wealth of experience and has sought at all times to push himself forward. For example, over 2010 and 2011 the Complainant completed a Post Graduate Diploma programme as he believed this would develop and enhance his skills as well as improve his and his colleague’s practice.

In June of 2022 the Complainant applied for a temporary full-time post as a Team Leader. Of relevance to the within dispute is the heading entitled Qualifications/Experience/Skills which identified that Candidates should have a relevant professional qualification in the Health or Social Care sectors. The heading goes on to confirm the two specific qualifications  that a qualifying candidate should have. I note this includes the qualification the Complainant has had since 2007. In the alternative, the candidate should have a BA in Applied Social Studies or Social Care. It is also noted that Candidates needed to have a minimum of 3 years post qualification experience gained in the services for people with intellectual disabilities.

The Claimant attended for interview on the 5th July 2022, as did the other shortlisted candidate. The interview panel was made up of;

a. Mr. GT – Area Manager,  West Sector (the hiring manager)

b. Ms. VM – QED Officer, Quality Enhancement & Development Department.

c. Ms DA – Area Manager, West Sector 1.6. .

I note that the Complainant did not balk at or object to the make-up of the interview panel in advance of his interview. Following that interview, while he was not selected as the successful candidate for the competition in question, the Complainant was deemed qualified and suitable for the position and placed on the reserve panel for the role.

I understand that only two candidates were put forward for interview and that the Complainant did not get offered the post which went to the second candidate. The Complainant was obviously disappointed and having ruminated on the situation, he raised a formal Grievance. I note that the process of the Formal Grievance through to the Appeal hearing is not being questioned. It is the outcome that remains disappointing to the complainant. I acknowledge that the Grievance Procedure in house has been exhausted and that the complainant is entitled to bring this matter before the WRC for a final analysis/ investigation

The 2 key issues were raised by the Complainant:

a. The Interview panel makeup was not consistent with HSE guidelines.

b. The recommended candidate for the position did not possess some of the required essential criteria necessary to progress to the shortlisting phase of the selection process on date of close of application (14/5/22). The Complainant asserted that the proposed (and ultimately successful) candidate only commenced work as a Social Care Worker in September 2019 and therefore did not have three years’ experience in that role.

I will deal with the issue of how the interview panel was made up in the first instance.

The Complainant has disclosed an inconsistency as between the HSE recruitment and selection process policy and the service providers in-house recruitment and selection process policy. In particular, the HSE guidelines stipulate that there should be an independent chairperson. The HSE guidelines state that the Independent Chairperson of an interview board should have no direct interest in the role and/or the post being filled. It specifically states that the person intended to be a chairperson of an interview panel needs to be external to the location where the vacancy exists. The Complainant has quite rightly identified that the Chair of the Interview panel before whom he presented himself for interview (Mr. GT) was not independent. In fact, as I understand it the Chairperson was the Complainant’s line Manager.

The Complainant obviously felt that this fact mitigated against him in the interview. Even if it didn’t, he says it was not a strict adherence to the guidelines set out by the HSE and these are the guidelines to which the Service Provider signed up and agreed to abide by as part of the process of receiving funds under the Service Arrangement.

In it’s Defence the Service Provider/Employer herein asked me to consider that whilst the Respondent is an agent of the State, it is also an independent employer and operates with its own policies and procedures. The Respondent’s own policy the Recruitment and selection Guidelines for Managers 2021 does not specifically preclude a local Manager from chairing an Interview Panel. In fact, the policy specifically states that:

The relevant Manager will normally be the Chairperson of the Interview Panel.

I understand that relevant Manager in this context is the Hiring Manager. Therefore, someone very close to the post being filled.

The Respondent has stated that it has consistently applied its own policy in this regard. However, I am inclined to accept the Complainant’s argument that he might reasonably have expected his Employer to have adopted the HSE guidelines (which they potentially seem to be contractually obliged to do) and create an interview panel with an entirely independent chairperson. The Employer has failed to do this, and has not been able justify its decision not to.

Even though I accept the Complainant’s argument in this regard I am not convinced that the outcome to the selection process would have been any different.

I will now deal with the second issue raised by the Complainant. That the candidate selected had not possessed some of the required essential criteria necessary to progress to the shortlisting phase of the selection process on the date of close of application (14/5/22) and that the same candidate only commenced work as a Social Care Worker in September 2019 and therefore did not have three years’ experience in that role

The Complainant was dissatisfied that the successful candidate complainant had not completed the three years of experience specified in the application form. As I understand it, the successful candidate had acquired her BA qualification in applied social studies as far back as 2005 and has worked in the relevant field since that time. On the face of it, it appears to me, the successful candidate satisfies the criteria. It has been put to me by the Complainant’s representative that the quality of the experience relied upon wherein the successful candidate worked as a care worker for most of that time and not as a social care worker should have disqualified this candidate from being eligible to compete.

I do not accept this argument. The criteria does not demand that a candidates has to have worked at a particular level (that of social worker in this instance) for three years post qualification. The criteria is that the candidate having acquired a qualification will demonstrate they have three years of experience gained in services for people with intellectual disabilities. The successful candidate was able to demonstrate that she had consistently since 2005 worked in this area – at the level of care assistant.

All sorts of reasons might prevent a newly qualified person from working at a particular grade post-qualification. Reasons might include family, ill-health, demographics etc. The Complainant had the necessary qualification and the three years of experience. It was up to her at interview to demonstrate that she had the necessary skill set outside of that.

I further note that the successful candidate had more recently been employed as a Social Care Worker (the role for which she had long since been qualified to work in).

On balance I do not accept that the Interview Panel were wrong in accepting the candidacy of the individual who went on to secure the post.