Due for promotion: Worker challenges recruitment process after failing to secure higher post

The Fair Work Commission (FWC) recently dealt with a dispute concerning the promotion of a worker after acting in a higher duties position.

The case revolved around the interpretation of an enterprise agreement and the employer's response to recommendations made by an appeal panel.

The worker argued that the employer had not properly implemented or provided reasons for not implementing key recommendations, raising questions about the fairness of the promotion process and the employer's obligations under the agreement.

Worker performs higher-duty responsibilities

The dispute centred on a worker who had been employed as a registered nurse level 1 (RN1) since 2018. Between July 2022 and December 2023, the worker participated in four unsuccessful recruitment rounds for a registered nurse level 2 (RN2) position.

During this time, the worker accepted several higher-duty positions as an RN2, receiving a higher-duty allowance.

After being unsuccessful in obtaining a permanent higher-level role in January 2024, the worker lodged an appeal. An Appeal Panel was convened, which made two key recommendations:

1. To set aside the selection process and conduct a new one

2. To give positive consideration to confirming the worker at the higher level independently of the position applied for

The employer's response to these recommendations formed the main point of disagreement.

Employer restarts recruitment process

The employer decided to restart the entire recruitment process, withdrawing offers made to successful candidates and re-advertising the positions. However, the worker did not reapply when the positions were re-advertised in June 2024.

The worker argued that the employer had not implemented or provided reasons for not implementing the second recommendation, as required by the enterprise agreement.

The worker said that the first recommendation only required redoing the selection process, not the entire recruitment process.

The employer interpreted the first recommendation as requiring a complete restart of the recruitment process. They argued that the second recommendation depended on the outcome of the new selection process, which the worker chose not to participate in.

To illustrate the employer's position, the FWC decision quoted their letter to the worker:

"To ensure impartiality and adherence to due process, a Joint Selection Committee, consisting of new panel members and a Union Representative, will oversee the selection process. Please be advised that the decision rendered by this Committee will be final and non-appealable."

‘Recommendatory and not directory’

The FWC considered the arguments presented by both parties. A key point in the Commission's analysis was the nature of the Appeal Panel's recommendations. The decision stated:

"In terms of s.183, in my view it cannot be disputed that the powers of the appeal panel are recommendatory and not directory. So much is clear by the words of s.183.12 which provide that the panel will 'recommend' to [the head of service] that the decision the subject of the application be confirmed, varied or other action taken. There is no requirement for [the head of service] to accept the recommendation in full or in part, and can decide to take 'other action'."

The FWC said that the employer was not bound to follow the recommendations exactly as they were made.

The Commission also found that the employer had met its obligations under the enterprise agreement by providing a written response within the required timeframe. The decision noted:

"I am satisfied that [the employer] met the requirements of s.183.13 in that it provided reasons in writing for its decision, in response to the appeal panel recommendations, within 28 days."

Ultimately, the FWC determined that the employer's actions were consistent with the enterprise agreement. The Commission concluded:

"Overall, I am satisfied that [the employer] met the requirements of s.183.13 in that it provided reasons in writing for its decision, in response to the appeal panel recommendations, within 28 days."

This decision highlights the importance of clear communication in employment decisions and the need for HR professionals to consider the implications of enterprise agreement provisions when managing promotions and appeals.

It also underscores the advisory nature of appeal panel recommendations and the discretion employers have in implementing them, provided they act within the bounds of the relevant agreement.