Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Tom Fitzgerald Unite the Union

Hugh Hegarty Management Support Services

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 - 00001895

18/10/2023

This matter came before the WRC dated 18/10/2023 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The specific complaint falls under Industrial Relations Issues Type.  The Worker has a trade dispute he would like investigated.   The aforesaid dispute was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 01/03/2024.  

The Worker commenced employment with the Employer on 01/05/2008. 

The Worker claims the promotional processes in his place of employment are unfair.  The Worker claims in this dispute that he was denied the opportunity to interview for a role due to not meeting the required specifications yet a colleague who did not meet the specifications for the role was allowed to interview and was successful in obtaining the position.

The Employer submits the claim that other staff have been appointed to the position without the required qualifications is unfounded.  The Employer submits the application of the selection process as applied to the Worker was fair and reasonable at all times. 

The Worker seeks that I recommend that he have his experience recognised in the form of an upgrade to the position he seeks. 

Written submissions including supporting documentation was provided by both parties at the opening of hearing. 

I have extrapolated the key elements of the Worker’s case and I summarise hereunder.

The Worker commenced employment with the Employer in May 2008.  The Worker applied for a position at the level he now seeks in July 2021, and he submits he was refused an interview due to not meeting the specifications of the job namely that he had not undertaken the academic diploma in the relevant area of expertise.  The Worker contends he was treated unfairly due to the fact that while he was not allowed to interview due to not meeting the job specification another individual who also did not meet the job specification was allowed to interview and was successful in obtaining the position. 

The Worker alleges that due to this other individual’s lack of qualifications he was sent on the relevant academic course as the same time as the Worker but he has since dropped out and yet he continues to hold the position.  The Worker submits there has been preferential treatment shown to this individual and this has resulted in unfair treatment of him (the Worker) and other staff.

The Worker asks that the WRC recognise he was treated unfairly by the Employer and recommend that the Worker have his experience recognised in the form of an upgrade to the position he seeks. 

The Employer submits the Worker’s position that the promotional processes within the Employer’s workplace are unfair is unfounded and submits the Worker is aggrieved because he has been unsuccessful on numerous occasions.  The Employer submits the position taken by the Worker that other staff have been appointed to the position he seeks without the required qualifications is entirely false and unfounded.  The Employer submits the job description for the role states the successful candidate will have a specific qualification or equivalent.  The Employer submits the individual to whom the Worker refers has a qualification that exceeds the diploma stated in the job description and as such is more than qualified for the position.  The Employer further submits the individual to whom the Worker refers was not sent on the relevant academic course due to his lack of qualifications.  The Employer submits the individual in question elected to undertake the course and he has not dropped out as claimed by the Worker.  The Employer submits this individual has deferred.   

The Employer submits the Worker raised a grievance in accordance with the Employer grievance procedure in or around May 2022 outlining that he felt the selection and recruitment process was unfair as he had been unsuccessful on numerous occasions.  The Employer submits the grievance alleged that other employees had been promised positions prior to the selection process and that those employees did not have the necessary qualifications.  The Employer submits the Worker’s grievance was fairly and thoroughly investigated and witnesses were interviewed.  The Employer submits the outcome of the grievance was that it was not upheld and when the decision was appealed by the Worker detailed reasons were provided to the Worker as to why his appeal was not upheld. 

The Employer submits the processes for hiring and promotions is not unfair and nor was any member of staff given preferential treatment.  The Employer submits a fair and impartial process is outlined in the policy and is available for all staff and candidates to see in advance of applying for a position.  Once a position is identified as needing to be filled a “person specification” form is created which outlines the nature of the role, essential skills required, and the desirable attributes for the position.  Following authorisation, the HR department creates a job description and the vacancy notice is posted internally on notice boards, with third party advertisers and with recruitment agencies.  The policy specifically states that individual managers cannot advertise or initiate any type of recruitment process without express authorisation. 

Candidates apply for the position with a CV and cover letter.  Applications are reviewed and suitable candidates are selected, informed and brought forward for interview.  Each interview panel consists of three people one of which is always from a HR department. 

At interview the panellists are provided with a copy of all the questions and a candidate evaluation form, which is completed by each member of the panel.  Following the interviews, the evaluation forms are given to HR where the scores are combined, and a successful candidate is selected based on the overall score.   The Employer submits that an additional process for existing staff is in operation and that there is nothing inherently unfair to the Worker in a selection process based on interviews as this is a standard practice worldwide. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties together with the information provided by the parties at hearing.  Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the dispute and in fulfilment of my duties under statute. 

Having listened to both parties in this dispute it quickly became apparent that even though there was at the very least a gap of mutual understanding on certain matters, there was a commendable level of willingness to engage on both sides.  Attention was drawn to the relatively informal voluntary nature of the process and to my role in attempting to resolve a dispute and recommend a way forward that is fair and reasonable to both parties. 

In the exercise of orderly industrial relations, it is expected that the parties should effectively utilise their agreed grievance procedure in the first instance before initiating a referral of the matter to the WRC.  I am satisfied there was meaningful local engagement in relation to this matter.  The purpose of the hearing is to find a way forward for both parties which is fair and reasonable in order to maintain the employment relationship into the future.  To this end I particularly note the Worker’s commitment to his employment.  The Worker is currently undertaking the required academic qualification in order to be eligible to apply for the position he seeks and he is to be commended for so doing in the face of his specific learning difficulty.   

The Worker’s dispute has its genesis in his most recent application for a position in July 2021.  The Worker was not shortlisted for interview on the basis he did not meet the minimum requirements for the role namely that he did not hold a Diploma from XXXX college, or equivalent [emphasis added].   

This aforesaid “or equivalent” concept is at front and centre of this dispute.  I note and I accept the Employer advertises globally and the relevant specified qualification is one that is provided in a UK college.  However, prospective job candidates from other countries / continents will more than likely not hold that particular qualification but they will have an equivalent to it. 

It is apparent that this concept of “or equivalent” is the cause of much confusion fuelling speculation and rumour among prospective candidates and existing staff members.   I am of the view “or equivalent” is a nebulous concept that does not provide for transparency or consistency.  On this basis and for this reason I recommend the Employer ensure that in future campaigns examples of what constitutes “or equivalent” are set out in the vacancy notice.  I accept this cannot be an exhaustive list but at a very minimum it should contain details of qualifications that have been deemed in the past to be in the “or equivalent” category by the Employer in the short-listing process thereby putting an end to the rumour about candidates not having equivalent qualifications once and for all. 

I note the Worker’s position that he should have his experience recognised in the form of an upgrade to the position he now seeks.   I cannot recommend that the Worker be simply appointed to the grade he seeks outside of the agreed processes as there would be an inherent unfairness to all other future potential candidates in so doing even if I were inclined to do so.  I find this to be both an unreasonable and unworkable proposal in the circumstances and when this was discussed at hearing the alternative put forward by the Worker’s representative was that I recommend the 2-year post qualification period before the Worker can apply for the position he seeks be waived in respect of the Worker.  Regarding the Worker’s employment I note the collective agreement to which he is bound expressly provides for a two-year period in the newly created level further to achieving the required academic qualification. 

By way of background I note the aforementioned newly created level / grade formed part of a collective agreement whereby a new system was introduced to allow career progression through the early grades based on service and which provided for a new grade / entry level to the position the Worker now seeks at which an employee will remain for two years post qualification.  The rationale for this two-year provision was to provide the opportunity to enable employee to apply what has been learned in an operational setting.  This provision was specifically agreed by the parties to the collective agreement.  I am satisfied the Employer has a collective agreement in place with which it would be inappropriate for me to interfere or disturb. 

The Worker representative put forward the position that anomalies may arise during the implementation of collective agreements and the Worker in the instant case is one such anomaly.  While I may or may not agree with such a position a recommendation as advocated for on behalf of the Worker by his representative that the two-year post qualification period at the newly created level be waived in respect of the Worker would have the consequences of interfering with a collectively agreed mechanism impacting on a body of workers. 

I note the collective agreement between the Employer and the relevant Union does not provide for a review either during or post implementation. 

I recommend the Worker engage with HR in early course and put forward his own suggested accommodations to assist him in the interview process in preparation for when next he is eligible to apply for the position he seeks.  I note the Employer submits no suggested accommodations have been received from the Worker for the Employer’s consideration. 

To this end, I suggest the Worker should seek accommodations that are tailored to his specific needs.  I suggest the Worker enlist the assistance of the relevant national support organisation for his specific learning difficulty to enable him to set out clearly the accommodations that are best suited to him and that will provide him with optimal assistance and support through an interview process. 

Collective agreement; qualification or equivalent;