Worker

Employer

Anonymised Parties

Emergency Worker

Emergency Service Provider

Representatives

Killian McGovern BL,                                  Lara Kennedy Jones Solr.,                              Crushell & Co Solicitors  

Employer HR Department

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 - 00001238

03/04/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all formal hearings 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 sometimes legal submissions provided by the respective parties. Relevant parties or their witnesses 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 Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 3rd of April 2023. As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts, the hearing was conducted in private, and the recommendation is anonymised.

I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was fully represented by his legal team. I was provided with a comprehensive submission dated the 21st of February 2024. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form and the oral evidence given by him and one of his colleagues (PN) at the hearing.  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 and his colleague was challenged as appropriate by the Respondent’s Representative.

The Complainant seeks a recommendation that will allow him to move (or create a pathway to move) into a full-time position.

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 a number of individuals from the Respondent HR Department. The Respondent provided me with a written submissions dated February 23rd, 2024. 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 arguments made on submission were challenged as appropriate by the Complainant’s legal representation.

The Respondent asserts that it cannot make bespoke arrangements for two individuals where there were open transparent and competitive recruitment processes in place.

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.

I have carefully listened to the parties herein and have taken account of the comprehensive submissions opened by the parties and re-read by me before approaching the process of formulating a recommendation.

The Complainant and his colleague have both come before me seeking a recommendation that will recognize the unique positions held by them in the context of an overall competition recruiting into particular roles.

The Complainant and his colleague PN presented with the exact same factual background, and they are both looking for the same outcome. Both Complainant’s came to work for the Respondent in and around 2018. The Complainant’s have “retainer” status. This is a particular classification of Emergency Worker that relies on the said emergency worker being “on call” to respond to emergency situations as and when they arise. As I understand it, the Complainants are paid an Annual Retainer Fee or salary and thereafter will be paid extra monies for each of the emergency call-outs that they have to attend. I think it is crucial to the overall examination of this matter that I acknowledge that a very particular criterion is needed for individuals to be employed as a retained emergency worker. This criterion is the need to live in very close proximity with the emergency centre from which the emergency services are being dispatched. Both Complainants had to satisfy this criterion before they could apply for the retained emergency worker employment. I note that the Employer herein tends to see the roles as being part time and that retained emergency workers often have other employment.

Without doubt the terms and conditions of employment for the retained emergency worker are very onerous. The Complainants generally have to be on call all day and every day. I understand there is four weeks annual leave but other than that it’s a full-time roster. The particular centre from which the Complainants operate use only retained staff. Everyone is basically available 24/7. This makes home life and family life very problematic. The Complainants have to stay close by and ensure their response times, alertness and physical capabilities are finely honed and in a state of preparedness. They carry a huge burden of expectation and have performed what has been asked of them through all types of adversity. A huge acknowledgement and debt of gratitude is owed to them and all their colleagues.

The Complainants have long since wanted to move into full-time positions within the emergency service. I can understand that being engaged full time on a shift pattern would seem to be attractive as it delivers certainty and diminishes the need for being on-call. This, in turn, allows for a better work life balance. The Employer recognises that many members of its retained staff are desirous of being taken on full time. In recognition of this fact, the Employer runs what are described as confined competitions for full time staff positions, which competition is open to retained staff. However, in tandem with the confined competition the Employer also runs an open competition.

I understand that just such competitions were held in 2022 and that up to 16 people applied under the confined competition and that a huge 4,780 people competed under the open competition. The process of how the competitions are run has been agreed with the Employer and the relevant Trade Union. It seems, however, that the only advantage to entering the competition from the position of retained emergency worker is after the selection process. All applicants under both competitions have to sit Psychometric tests followed by Interview before being placed on panel from which recruits are drawn on order of merit. Successful candidates coming from a retained background appear to get some sort of preferential treatment at this point in time.

In any event neither of the Complainants before me in the WRC, moved beyond the Psychometric testing part of the process. The evidence is that four of their colleagues got past this stage and were given interviews with only 1 previously retained employee moving ultimately to a full-time position.  In the open competition there were 216 successful candidates placed on the panel. The Complainants are greatly aggrieved at the outcome.

On a practical level the Complainants believe that they should have been given some sort of training or at least guidelines in the area of Psychometric testing. The Complainants also say they never got any feedback on why they fell down in that aspect of the process.

The Complainants have also referenced two events in 2002 and 2006 when retained employees seemingly transferred automatically to full time positions. In effect, the Complainants are seeking a similar pathway be opened up to allow for their absorption into the full-time rank and file. However, these two events have been explained to me by the Respondent Employer as being very specific instances where the bespoke arrangements were required to meet an on the ground situation – such as the closing down of one centre. On balance, I cannot in any event attach much significance to these two events that occurred 22 and 18 years ago. At that time there was a completely different employment landscape, and the levelling effect of the Public Appointments Service was not yet fully recognised. I accept on balance the argument that modern day best practise is exemplified by the  PAS which operate fair, transparent and open competition processes. The Respondent herein has taken it’s lead from the example set by the PAS.  Indeed, all government agencies and most private sector entities are now very careful about the fairness of their recruitment processes and that fact must generally be perceived as a good thing.

The Complainants are very proud, capable and brave individuals who have served in the emergency service with diligence. They want their years of service and their comprehensive emergency training to have had more of an impact in the selection process. However, the competition did not place particular emphasis on that to the detriment of the Psychometric testing and/or the Interview process. On balance I do not think that this approach is inappropriate or unfair. The positions of retained employees and fulltime employees are being treated entirely differently. I accept that there are huge similarities but do not think that the Employer should be precluded from throwing the net as wide as possible to ensure it gets the best possible candidates. Again, I am noting that one of the strict criteria for retained staff is the stipulation that they live within a certain proximity. The role of full-time firefighters does not have that stipulation and the population catchment is therefore greater. This is a significant difference in the role types. The consideration for one role (living close by) does not necessarily transfer to the other. After all, the Complainants have already had the advantage of proximity give them a favourable advantage over many non-proximate candidates when they initially applied for their retained positions.