Worker

Employer

Anonymised Parties

A Worker

A Government Body

Representatives

Joanna Ozdarska SIPTU

Internal HR

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 - 00001992

17/11/2023

The Worker commenced her employment with the Employer on 17 August 2015. Further to an application for a supervisor role in October 2021, she was successfully placed on a panel in late 2021. She was subsequently removed from the panel in March 2022 because contrary to the alleged requirements of the role, she had penalty points on her drivers’ licence. She stated that this was unfair because a colleague of hers who also had penalty points on her licence was subsequently offered the role. 

While the Worker accepted that the job advertisement stated that a requirement of the role was that the licence should be unendorsed, there was no suggestion in the advertisement that there was a threshold regarding the number of penalty points an applicant should have nor was there any clarity on what an unendorsed licence was. The Worker asserted that further to her removal from the panel, a colleague, who was lower on the panel than her and who also had penalty points on her licence, was offered the role.

The Employer stated that it was a requirement of the role for which the Worker applied that she have an unendorsed drivers licence. Having been subsequently asked to provide a statement from the National Driving Licence service, it became apparent the at the Worker had eight penalty points on her licence. Given that a requirement of the role was that the licence should be unendorsed, namely than an applicant should have no penalty points, an email was issued on the Worker on 25 March 2022 retracting the offer. The Worker subsequently appealed this decision on 31 March 2022. She was informed on 11 May 2022 that her appeal was unsuccessful.

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

This is by any measure an extraordinary and bizarre case because, as set out below, it became apparent during the hearing that the Employer adopted a wholly inconsistent position regarding the requirements for the role that the Worker had applied for.

I noted in the first instance that the representatives for the Employer in attendance at the hearing stated that the job requirements in the advertisement for the role made it clear that an applicant for the role that the Worker applied for could not have endorsements on their drivers’ licence and that as the penalty points she had on her licence constituted such an endorsement, she was removed from the panel.

The fact that penalty points on the drivers’ licence constituted endorsements was also supported by the recruitment department, who removed her from the panel, and the Review Officer who heard the Workers Appeal. Specifically, she stated in the appeal outcome dated 11 May 2022 that “it is clear that penalty points are considered endorsements” and that this definition was applied to all applications for the position that the Worker applied for. If this was the case however, and those with penalty points were prevented from being offered the role, it does not explain why the Worker’s colleague, who had three penalty points and was placed lower than her on the panel, was offered the role.

The Employer’s position around the failure of the Worker to be offered the role is also at odds with the explanation provided by their National Director of Human Resources who, in an email to the Worker of 8 June 2022, stated that the requirements for the role should have stated that applications from candidates who had more than six penalty points on their drivers’ licence would not be accepted. I note however that this clarification was only proffered to the Worker because she queried why a colleague was successful in her application for the role even though she had three penalty points which, according to position the Employer had taken prior to that, constituted an endorsement on the licence. 

I find that this explanation from the National Director of Human Resources was convenient, and it was most notable that her correspondence was silent on what the definition of an endorsement is.

As incomprehensible as it is that the Employer omitted to include in the advertisement either that a candidate could not have more than five penalty points or what an endorsement was, given that there is clearly a different understanding across the Employer as to what the definition of an endorsement is, it is most incredible of all that neither the representatives at the hearing, the Employer’s recruitment department or the Appeals Officer was aware of the position, promulgated by the National Director of Human Resources in her letter of 8 June 2022, that the Employer would not accept candidates who had six or more penalty points but that they would accept candidates who had five points or less.

Considering all of the foregoing, I find that the Worker was unfairly treated and that she should have been offered the job over her colleague given that:

(i)                  it was not clear in the job advertisement as to what constituted an endorsement.

(ii)                even if I accept that the penalty points did constitute an endorsement, it does not explain why the Worker’s colleague was offered the role instead of the Worker even though she also had penalty points on her licence.

(iii)               I do not accept the explanation provided the National Director of Human Resources in her email to the Worker of 8 June 2022, as set out above, given that this was at odds with the position of the representatives at the hearing, the Employer’s recruitment department and the Appeals Officer