Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

SIPTU

 Employee Relations

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 - 00001899

20/10/2023

The complainant was on annual leave when a competition for a promotional opportunity was advertised and the date for receipt of applications passed. 

On his return to work from leave, the complainant learned of the advertisement and application deadline.

The complainant appealed a decision not to accept his application.  The appeal was unsuccessful resulting in referral of the dispute to the Workplace Relations Commission for investigation.

The Worker has 24 years of exemplary service with the Employer. 

While the Worker was on annual leave, a competition for a promotional position opened and closed.  The Worker was not informed of the competition during his leave.

On his return to work from annual leave, the Worker learned that the competition’s date for receipt of applications had passed and immediately contacted HR.  The Worker was informed the competition had closed.  The complainant’s appeal of the decision not to accept his application was unsuccessful.

It was submitted that the Employer should have accommodated the Worker’s request to access the competition process in the context of the Worker having been on annual leave and having regard to his right to disconnect during this period.  It was further submitted that most competitions, where advertised during the summer months, run over two blocks of leave periods to facilitate applications from persons on leave.

In resolution of the dispute, the Worker sought the same pay scale as the promotional position, on the appointment of the remaining persons on the panel to permanent positions.  The Worker did not seek the promotional title as he would not have the opportunity to perform the role. 

The Employer submitted that the Worker was aware, or could have been made aware, of the promotional competition.  It referred in this regard to an April 2023 bulletin, circulated to all relevant staff, including the Worker, which contained information on the relevant upcoming competition and invited expressions of interest.  Staff who submitted an expression of interest received an individual email to their nominated email address with the job specification.  The Worker did not submit an expression of interest.  The Worker’s nominated email address for communications was his work email address and, whilst recognising the Worker’s right to disconnect, the Worker had not provided the Employer with an alternate means of contact while on leave.  It also disputed the asserted custom and practice of scheduling competitions around or across blocks of leave and the Worker’s eligibility for the promotional role.

It was a fallacy to say that there had been no communication to the Worker about the competition.  An invitation for expressions of interest issued in April 2023 giving the Worker the opportunity to obtain details of the competition.  The Worker was aware of the upcoming competition, he was afforded the opportunity to receive information while on leave and by means that did not require him to access his work email.  The Worker disadvantaged himself by not availing of these opportunities.

The Employer was fully opposed to the resolution sought by the Worker; it would be highly irregular for someone to receive the benefit of a position they were not carrying out. It was the Employer’s position that the Worker had had every opportunity to compete for the relevant promotion.  It was satisfied the Worker was aware of the competition and provided with the opportunity to apply.  Given the complexity and scale of the Employer’s recruitment calendar, it is not possible to ensure that all relevant employees are not on leave at the time a competition is advertised.

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

The Worker was on a block of annual leave from 25 July 2023 to 21 August 2023.  His last day at work prior to his annual leave commencing was 22 July 2023, when he finished a night shift at 9.00am.

By email, sent at 16.36 on 25 July 2023, HR notified relevant personnel of the competition the subject of this dispute and informed of acceptance of applications from eligible candidates up until midnight on 15 August 2023.  This email requested all officers in charge to bring the advertised positions to the attention of relevant personnel who may be on leave.

The Worker returned from annual leave on 22 August 2023 to discover the promotional opportunity had been advertised and the date for receipt of application had passed while he was on leave.  The Worker was not informed during his leave of the advertisement and closing date for applications.  He immediately contacted HR at local level about how he could apply for the promotional opportunity and was advised that he should contact the Employer’s recruitment section without delay.  The response received by the Worker from the recruitment section was that the competition had closed, and that applications could not be accepted for any post in the Employer organisation after the closing date.  It further advised that the onus is on the candidate to ensure the application is submitted in time.  On 31 August 2023, the Worker internally appealed that decision on the grounds that he had not been aware of the promotional competition due to not having access to work emails when not at work, being on annual leave and his right to disconnect.  The Worker’s appeal was acknowledged but declined by the Employer.  It reasoned that allowing an applicant to apply after the closing date would have repercussions on the integrity of the competition and be unfair to other applicants.  The Employer considered the 3-week application stage timeframe to have been reasonable and declined to consider the Worker’s request to make a late application.

The Worker does not accept that he could be excluded from the competition when he was on approved annual leave at the time. 

Whilst I acknowledge the rationale for timelines in a recruitment process and accept in general a policy of not accepting late applications, it is my view that the Employer could have exercised some flexibility without undermining its normal policy or the integrity of the recruitment process by reason of the following particular circumstances in this case:- 

-          the Worker was an internal applicant with 24 years’ service who was on approved leave from work when the competition was advertised and the application deadline expired;

-          the Worker’s annual leave block had been allocated in February 2023;

-          previous communications from the Employer in respect of the competition did not specify application or interview dates or any other material dates in relation to the competition process;

-          the Worker contacted HR on the day he returned to work from leave to ask about how he could apply;

-          the recruitment process was at an early stage when the Worker enquired about how to apply; the application stage had closed the week beforehand, and interviews were not held until November 2023;

-          whilst the Employer organisation may have approximately 100 competitions each year across different grades and professions, only 2 or 3 of this number relate to the particular service in which the Worker works;

-          it was not a requirement of the competition process for a candidate to have declared their interest in response to the memo published in the April 2023 bulletin.  

In my view, the Employer’s decision not to admit the Worker’s application was unreasonable having regard to the specific context and circumstances of the Worker’s request.

I have some difficulty with the resolution proposed by the Worker, namely that he be afforded the benefit of the pay scale attached to the promotional position from a certain point in time.  The merit in this dispute relates to the Employer’s decision to refuse to accept the Worker’s application for the competition in the context as set out above.  Entitlement to a higher pay scale is contingent on appointment, and appointment to the panel was subject to meeting the eligibility requirements, successfully completing an assessment and a competency-based interview. 

As I consider the decision not to facilitate access to the competition to have been unreasonable in the particular circumstances and context of the request, I recommend the Employer make a payment to the Worker of €1,500.00 in resolution of the dispute. 

My recommendation is made in the particular circumstances of this dispute; it is not a precedent for flexibility in dates and timelines in recruitment processes. 

Industrial relations dispute – Recruitment – Internal competition - Annual leave – Application deadline