Worker

Employer

Worker

Employer

Anonymised Parties

A Public Servant

A Public Service Organisation

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 - 00001966

09/11/2023

The requirements of anonymity in this case are such that almost any detail might risk the identification of the parties, and also having regard to other sensitivities in the case. Therefore only a very general outline of the background to the case, and the submissions of the parties is provided.

The complainant is a public service employee and in 2020 he applied for promotional position. He  was not immediately successful, and he was placed on a ‘reserve panel’ from which future recruitment would take place.

In due course in May 2022, he was offered the position for which he had applied.

Unfortunately, he was not well enough to take up the position at that time and he sought a deferral of the actual transfer to the new position until he was well enough to do so.

This was agreed by the respondent.

On his return to work in September 2022 there was some continued delay in his transfer to the position due to the requirements of specific medical certification for that role.

There were delays to arranging medical consultations in late 2022, and when he did have one in December the doctor wished to refer for a further opinion, and this took place in February 2023.

In the meantime, and very much to his surprise, the panel on which he had been placed was deemed to have expired and accordingly he was no longer deemed eligible for transfer.

Formal notification of the expiry of the panel had been communicated to the organisation at large by means of an internal notice in January 2023 and despite processing his grievance (on two occasions) through the grievance machinery, the respondent took the position that it could not reverse a decision in relation to the expiry of the panel and his promotion fell.

The complainant submits that panels may be extended and that this regularly happens.

The respondent submits that this is essentially a matter of medical certification of fitness for the position which is being sought by the complainant.

While there were delays in the medical certification process these were outside its control, but they could not act in the absence of such certification and give effect to the promotion.

At the time of the offer of the position in May 2022 the complainant was not in a position to take it up for health reasons.

The respondent was simply not in a position to allocate the complainant on or before the closing date of 31 December 2022, as to do so would have been contrary to occupational health advice. No medical evidence contrary to the consultant opinion has been produced and it is submitted that the respondent was fully entitled to rely on that opinion.

As it was put in ADJ-00027084:

‘The [Occupational Health Consultant] is concerned to examine whether the individual is fit and capable of working and, in the absence of robust contradictory medical evidence, the respondent is entitled to regard that opinion as safe and valid.’

The respondent also submitted that the Labour Court has stated clearly that it;

 ‘is of the view that it is the role of management to decide on the allocation of resources and service delivery’ (LCR22840),

 and

 ‘that it is no part of its role to direct a management as to how they manage’ (LCR22749).

It is submitted that these principles apply to the expiry of a recruitment panel after more than two years.

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

The respondent is a large public service organisation and, as with all such organisations, has well established practices and procedures in relation to such things as appointments, promotions, and the general management of its HR function.

One of those procedures operated in this case in that the complainant, not having been initially successful for promotion, was placed on a ‘reserve panel’ from which future appointments might be made, for the duration of the life of the panel.  This latter point, the life of the panel has particular relevance to the respondent‘s position in the case.

The complainant was at that time on extended sick leave and, on being offered the promotion in May 2022, accepted it but asked that it be deferred.

The situation is further complicated by the fact that when he returned to work in September 2022, he was deemed not to be fully fit on medical grounds for the more demanding requirements of the position into which he had been promoted.

Before he could be certified as fit for the position, the panel expired and, according to the respondent’s view, with that, the complainant’s entitlement to the promotion was also extinguished.

Submissions were made by the complainant on the delays in the grievance procedure, and the refusal by the respondent to cooperate with an earlier referral to the WRC, due to its position that  the complainant had failed to properly exhaust the internal procedures.

There was also a submission on the options to extend panels beyond their normal life, and a number of examples were given of where this had been done in other cases.

There was even some criticism of the process related to the medical certification processes, into which an Adjudicator may not intrude.

However, the nub of the matter appears to me to be the true position arising from the circumstances surrounding the ‘appointment’ of the complainant to the position in May 2022.

There can be no dispute about the fact that he was offered the position, and some considerable detail about the appointment, training arrangements etc accompanied that letter of offer.  He accepted the position but asked that it be deferred.

By any normal reading of it this was a firm offer of a position, indeed it was more than an offer; it was confirmation of the position to the complainant, and was followed by his acceptance and therefore the normal terms of an offer of employment or promotion were fulfilled.

That letter referred to the complainant’s ‘imminent transfer’ and specified the date of the transfer, viz June 14th, 2022.

For those reasons, its purpose and intent are not really open for debate.

The complainant asked for a deferral on medical grounds, and this was agreed unconditionally. It did not, in my view. interfere with the essential character of his appointment to the position.

While it is not fair to parse such documents as if they were composed by lawyers, the letter acknowledging the application for deferral did note that this was a deferral of the complainant’s ‘allocation’ to the promoted position and this word also appeared in the heading of the letter. (And incidentally, while the complainant had applied for a deferral for three months there is no reference to this period in the acknowledgment letter).

So, the use of this word  ‘allocation’ is also not without significance (and it also appears in the respondent’s submission to the hearing).

Taken together these facts point to an overwhelming conclusion.

Despite that, in the course of the grievance process the complainant’s trade union sought to have the formal expiry of the panel overturned by the senior managers who were hearing the grievance.

They declined to on the basis that they did not have the power to do so.

In that regard they may be said to have acted reasonably and properly in accordance with the standard HR procedures governing the organisation. But all of that leaves the key question related to the complainant’s status following the exchange of correspondence and his appointment in May 2022 to be determined.

It is quite clear, and I so find that from that exchange of correspondence, the complainant was appointed to the position in May 2022, subject only to being certified as being well enough to take it up.

In that regard he is in a somewhat analogous, if not exactly comparable position to any worker whose contract is interrupted by sick leave. Its fundamentals are not altered simply by the fact of being out sick, nor did the respondent seek to impose any conditionality in respect of the complainant taking up the position on his return.

Taking that view, with effect from that moment, and to be consistent the complainant also ceased to remain on the panel, and therefore its expiry was of no consequence to him,  as he had already been appointed. He could not be appointed twice.

In that regard, and as already noted, asking the various internal grievance hearers to reverse the decision regarding the expiry of the panel was to ask them the wrong question. The answer they gave to that wrong question was the only answer they could give, having regard to the respondent ‘s procedures.

A more substantial ground for grievance would have been found in the respondent’s failure to honour and give effect to the decision of May 2022, expressed as a demand that he should be ‘allocated’ (to use the language in the correspondence acknowledging his request for a deferral) to the promoted position.

They were not required to resurrect the panel at all as the complainant was technically no longer on it.

He had been appointed to the promotional position in May 2022, and had accepted it, and the only issue that arose, now that he had been happily restored to full health, was his ‘allocation’ to it. It is also important that the position had never been filled, which might otherwise have been a complicating factor.

His entitlement to appointment had been preserved and not affected by his temporary health status, now behind him, and subject exclusively to his meeting any medical standards for the post itself.

I take full account of the respondent ‘s submission in respect of the Labour Court’s acceptance of the limitations on its jurisdiction, and thereby on that of an Adjudicator, in respect of ‘directing a management as to how they manage’.

However, I distinguish that general principle (which I fully accept) from a situation in which a determination is sought on the rights of a complainant which is what arises in this case, and which has, since the establishment of the Rights Commissioner jurisdiction nearly sixty years ago, been within the legitimate exercise of functions under this Act.

What I am doing is making a finding that the respondent’s conclusion, (or assumption) that the valid appointment it had made in 2022 was subsequently annulled or rendered invalid by the expiry of the panel was erroneous and not well founded on the facts before me.

Rather than ‘directing a management how to manage’ I am recommending that the respondent management act to implement a decision it has already made, having regard to its erroneous interpretation of subsequent events, the equity of the case and the rights of the complainant.

Promotion rights during illness