Complainant

Respondent

Anonymised Parties

An Engineer

A Local Authority

Representatives

  Complainant

 LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058156-001

7th August 2023

The employee is employed as an engineer in the respondent Local Authority. In 2022 he completed the recruitment process for Senior Executive Engineer through the Public Appointments Service . He was successful and was placed on the panel. He was informed that he was under consideration for appointment as SEE in the respondent Local Authority.  However, he subsequently received correspondence from PAS stating that he could not be regarded as eligible for the role as he does not hold the required qualifications in Engineering.

Some years earlier the complainant had sought clarification from the respondent relating to concerns he had regarding his qualifications and eligibility for Executive Engineer recruitment competitions.  He was informed by senior members of the respondent management that his qualifications met the requirements.

In 2022 the complainant completed the recruitment process for Senior Executive Engineer (SEE) in Local Authority (LA) through the Public Appointments Service (PAS). He was successful and was placed on the panel. He was informed by PAS that he was under consideration for appointment as SEE in the respondent Local Authority (LA).  However, subsequently the complainant received correspondence from PAS stating that he cannot be regarded as eligible for the role as he does not hold the required qualifications in Engineering.

Some years earlier, on, 21/09/2017 the complainant had emailed the Director of Services within the LA, highlighting concerns he had regarding his qualifications  and eligibility for Executive Engineer recruitment competitions being held at the time and stating that if necessary he was willing to further his education in order to qualify for future promotion to engineering roles. The reply received on 25/09/2017 from the Head of Human Resources stated; “As this application is deemed to be an equivalent qualification in professional engineering you are deemed eligible to compete for both Executive Engineer positions.”

The complainant also received verbal assurance from the Director of Services that there wouldn’t be an issue regarding his qualifications for promotion in the LA again.

The complainant has worked as an Engineer in various Local Authorities since 2005 where he came through ranks from Assistant Engineer to Executive Engineer. In 2019 he was promoted to Executive Engineer in the respondent LA which had  identical qualification requirements on candidate booklet as PAS require.  Also in 2019 he was offered Executive Engineer role in a different local authority. following interview/screening with identical qualification requirements on candidate booklet as PAS require.  In 2023 he applied and interviewed for the role of Acting SEE with the respondent where he was successful in making the panel again with identical qualification requirements on candidate booklet as PAS require.

The complainant has been placed on engineering panels/received job offers following recruitment campaigns for a variety of public bodies with identical qualification requirements on candidate booklets as PAS require. The complainant always reached targets on his annual Individual Performance Plans and the respondent Human Resource records proves his competence as an Engineer.

The respondent carries out training needs analysis annually – if further training was required it should have been highlighted.  For career advancement, the respondent advised the complainant to complete Postgrad Diploma in Public Management which he  successfully completed in 2016/2017 – funded by the respondent. If he had been  aware of a shortfall in his engineering qualification, he would have completed the required bridging course years ago.

The complainant went through the arduous PAS recruitment process based on his employer’s clarification that his qualifications were deemed eligible. He invested time and money to further his career in engineering based his initial recruitment, promotion and clarification received from his employer that his qualification are eligible. The respondent always deemed his qualifications eligible. The complainant committed to LA career in engineering and, as a result, lost opportunities for career progression elsewhere/loss of earnings, etc. postgrad expenses/professional advice on applications/interview training etc.

The complainant has suffered stress, anxiety, and effects on his wellbeing arising from his treatment on this issue. His status and standing among colleagues will be severely dented if he does not get appointed to SEE level.

At a meeting on17/05/23  the Chief Executive of the respondent indicated that the respondent can’t interfere in process with PAS. The Chief Executive indicated that he will appoint the complainant if he gets a recommendation to appoint from PAS.

The issue here is whether the complainant has any remedy against the respondent arising out of the assurances he received regarding his eligibility to be appointed as SEE.

Recruitment in the local authority sector is either undertaken directly by Local Authorities or in the case of specific designated permanent posts at senior level, it is undertaken by the Public Appointments Service (PAS) whose role is the sourcing and assessment of candidates including determination of qualifications. 

The role and function of the Public Appointments Service is provided under statute in the Public Service Management (Recruitment and Appointments Act) 2004.

Specifically in relation to the post which is the subject matter of the complaint, the role and function of the PAS in this recruitment process is established under the Local Authorities (Officers and Appointments) Act 1926 which established the Local Appointments Commission the predecessor to the PAS.  This Act does not provide for a local authority to have any function in the selection of persons to fill posts which have been designated under the act. This function lies solely with PAS.

The setting of qualifications for posts in the Local Authority sector is a matter for the Minister for Housing, Local Government and Heritage.

In 2022 the Public Appointments Service advertised a competition for the purpose of recommending a person(s) for appointment to the position of Senior Executive Engineer in Local Authorities nationally. The placing of an individual on a panel by the PAS creates no entitlement to appointment or employment it simply affirms that an individual has completed the stages in the recruitment process. Before any recommendation can be made to any public sector employer the Public Appointments Service in meeting its statutory obligations must satisfy itself that the individual in question holds the appropriate qualifications for the post. The Complainant has advised in his complaint that following application and assessment by the PAS as having met the qualifying standard he was placed on a panel. The Respondent Council has no knowledge of this and the appointment to a position with the Respondent Council would only arise when a recommendation for such an appointment is sought from PAS.  At that point it is the next person on a panel and the Council have no knowledge of the identity of same.

The subject matter of the complaint does not constitute a trade dispute for the purposes of the Act. The Respondent Council have examined all aspects of Sec on 13 of the Act but cannot find any basis on which it can be considered a party to the complaint as set out.

It is clear that the dispute as referred to the WRC relates to a matter of determination of suitability to be appointed to a position by the Public Appointments Service.  The Complainant has himself confirmed there is no decision of RCC to challenge, there is therefore no worker employer dispute. The Respondent Council believes that no bona fide dispute can exist with the Respondent Council for the purposes of the definition of section 23(1) Industrial Relation Act 1990.

The Complainant has made the following statement in his complaint to the WRC “The real issue is whether I can rely on the negligent misstatements on the part of (the respondent) to seek damages for the detriment I have suffered by not being appointed to SEE role as a result of relying on the information from (the respondent).” This is indicative of an intention by the Complainant to proceed with a civil action in this matter, it is therefore not appropriate for this matter to be the subject of consideration under the Industrial Relations Act which is of its substance and nature based on voluntarism and it is not the function of the WRC to meet the request of the Complainant as set out in his complaint to the WRC.

 It is well established in law specifically with cases under Equality legislation that it is not for the WRC Adjudicator or Labour Court to form any view on the merits of the complainant or his/her suitability for appointment, rather it is to determine whether or not the respondent's decision was tainted by unlawful discrimination on the ground advanced. The respondent Council believe that similar principles apply to a complaint under the Industrial Relations Act and that it is not the role of WRC Adjudicator or Labour Court to give a recommendation on the merits of the complainant or his suitability for appointment.

As previously advised it is a matter for the Minister to determine qualifications for a post as provided for under section 160 of the Local Government Act 2001

 Qualifications for employment.

160.— (1) (a) The appropriate Minister may declare qualifications of such classes and descriptions as he or she thinks fit for a specified employment under a local authority or for such of the employments as belong to a specified class, description or grade.

(b)         Before declaring under this section qualifications for any employment under a local authority to which the Local Authorities (Officers and Employees) Acts, 1926 to 1983, apply, the appropriate Minister shall consult with the Commission for Public Service Appointments.

(c)          A person is not to be appointed to any employment under a local authority for which qualifications are for the time being declared under this section unless he or she possesses those qualifications.

(d)         For the purposes of this section, the fact that a person has been recommended for appointment by the Chief Executive of the Public Appointments Service to any employment shall be conclusive evidence, in the absence of fraud, that he or she possessed at the time of such recommendation the qualifications for the time being declared under this section for such employment.

(e)         Where the appropriate Minister declares under this section qualifications for a specified employment, additional qualifications for that employment are not to be fixed by a local authority without the consent of the appropriate Minister.

I note the respondent’s position in relation to whether or not this is a trade dispute.  The complainant is an employee of the respondent and his complaint relates to his potential career progression either within the respondent or in another local authority.  The role of any good employer includes addressing the development needs of its employees whether for functional purposes or for personal development. It is this aspect of the dispute which I believe is properly referred under the Industrial Relations Act.

It is clear that the decision maker regarding the acceptability of qualifications is PAS.  It would be desirable that that organisation would determine equivalences for various qualifications,  perhaps following advice from third level education providers about the relevance of recognition for prior learning schemes which might give weight to the complainant’s considerable work experience in the relevant area.  However, I accept the respondent’s position as articulated at the hearing that this matter is outside the control of the respondent.

The respondent, as a good employer, has responsibility to the complainant to contribute to his development both functional and personal.  It’s representatives did mistakenly confirm to him that he need not pursue additional qualifications to be eligible to compete for future promotions. In these circumstances I believe the respondent has a duty to assist in securing complainant’s future career pathway.

To this end I recommend that, in consultation with the complainant, a suitable conversion/bridging course be identified which, subject to successful conclusion, would enable the complainant to meet the minimum requirements stipulated by PAS.  I appreciate that undertaking this course would involve considerable effort on behalf of the complainant.  I therefore, recommend that the normal maximums in relation to time off be set aside in this instance and that the respondent facilitate the complainant’s attendance at any such conversion course both by payment of the relevant fee in full and up to 30 days paid leave (excluding annual leave) per annum to attend for the duration of the course.

I recommend that the normal maximums in relation to time off for the pursuance of additional academic qualifications be set aside in this instance and that the respondent facilitate the complainant’s attendance at an identified relevant conversion/bridging course both by payment of the relevant fee and up to 30 days paid leave per annum to attend for the duration of the course. This recommendation is in full and final settlement of the dispute.

Required qualifications.  Public Appointments Service recruiting for a Local Authority