Complainant, an employee of the Lotteries and Gaming Authority who had not been selected in the internal selection process held by the Authority for the position of Supervisory Inspector sought the intervention of the Ombudsman arguing that the selection process had not been carried out in accordance with good practices generally used in public entities.
Complainant explained that after he was interviewed by two different selection boards he had enquired about his ranking in this selection process but was informed by the Director, Corporate Services (DCS) that the results had not been officially published. Once the results were published some weeks later he had requested information on his performance during the interview and his ranking in the process, also in view of the fact that one of the appointees had resigned. He had been asked to attend a meeting with the Chief Regulatory Officer and the Director, Corporate Services both of whom had been members on the selection boards and they had informed him that it had been difficult for the panels to come to final decision since all the applicants had been close, but he was still not provided with his marks. He stated that during this meeting he had explained to these members that even though he was getting older he was willing to further his studies and that he had been perturbed with the question put by one of the selection boards in connection with the employee’s membership in a Union. He however insisted that shortlisting was never mentioned during this meeting.
Following further enquiries complainant was provided with a breakdown of the marks and the comments of the selection panel during a meeting held with the DCS where the latter had stated that the Board had found it difficult to come to a final choice. Complainant stated that once he reviewed the comments of the selection panels he sent an email to the DCS informing him that he was not in agreement with the marks awarded and the comments made. He alleged that some days later the DCS had called him for a meeting where he advised him to withdraw this email since it could cause him detriment. Some time later he had requested his ranking in the selection process once again and this time he had been informed by the DCS that since he had not been shortlisted he did not form part of the final ranking of candidates. Complainant insisted that no-one had ever mentioned that a shortlisting process had been carried out and that he had not been shortlisted. On the other hand, he had always been told that it was very difficult for the Board to come to a decision.
The reaction of the Authority
The Authority stated that six applications had been received in connection with this call for applications and that all applicants had been requested to attend two interviews held by two separate panels. It explained that the two-interview system had been implemented so as to ensure that no form of internal collusion would be perceived and in fact the second panel was composed of a Board member and the Chief Officer, who barely knew the interviewees and acted as a check and balance over the first panel. The two panels prepared two separate reports which were not discussed outside the panel before finalisation and both panels concluded that only two candidates were suitable for this supervisory role. The Authority insisted that the selection process had been conducted in full compliance with the rules of proper governance, without favouritism and in a transparent and fair manner.
In its reply to the complaint, the Authority noted that complainant had quoted the name of the Authority incorrectly notwithstanding that he had been employed there for many years. In the opinion of the LGA this reflected complainant’s level of education and his inability to use appropriate language skills which are significant factors guiding the choice of candidates for management positions. It stated that the members of the Selection Board had noted that he did not possess the adequate level of education and had commented that he had not shown the willingness to pursue a graduate diploma within the time-limit agreed upon.
According to the Authority when the Board had asked complainant how he would resolve union issues which may arise between employees and management if he were to be appointed Supervisory Inspector, he had appeared extremely uncomfortable at this line of questioning and had not answered the question satisfactorily. The Authority submitted that this question was very pertinent since the ability to handle union issues is a key requirement in the management of employees and is indispensable in maintaining a healthy relationship with the Union representing employees.
The Authority affirmed that complainant is unable to state with any degree of certainty whether there was a difference between the marks awarded to the various candidates, since his request in regard had been denied in view of the fact that data concerning with the performance of other candidates is to be kept confidential. LGA denied that complainant had been told to delete his email, that he had been informed that he had not been shortlisted or that his results were not part of the final order of merit when he enquired about the final order of merit in this selection process. On the contrary, the Authority commented that in a previous meeting complainant had informed Management that he had requested this information so as to understand how he had performed during the interview and not because he intended to take any form of legal action.
The Authority remarked that complainant appeared to have deliberately modified the order of the emails submitted in support of his claim. The LGA insisted that complainant had been informed that he had not been shortlisted because he had not convinced the Board members that he was willing to take up the requisite studies and because the panel had been shocked at his statement that he was in the habit of bending rules to find a reasonable solution – a behavioural trend which is unacceptable within a regulated and licenced regime.
By way of conclusion the LGA clarified that the Board’s decision that only two candidates were suitable for the position was final and the fact that one of the appointees resigned does not automatically imply that the post will be filled by the Authority – in fact management had decided not to fill the vacant post.
Complainant rebutted the statements made by the Authority arguing that a candidate’s knowledge is not restricted to certificates but encompasses the experiences gained over the years, the training one has undergone and the courses the candidate would have attended to widen his knowledge. He pointed out that he had gained a wealth of experience from his previous career. He reiterated that he had always been willing to follow a Diploma course in management and clarified that any information sought referred to the marks awarded to him by the Board and was in line with the provisions of Article 21 of the Data Protection Act. He denied having made any of the statements mentioned by the Authority and pointed out that the panel’s comments contrasted with the marks which he had been awarded.
All eligible candidates were interviewed by two separate selection panels, each composed of two members. The first Board assessed candidates in accordance with a number of criteria established before the commencement of the selection process and a minimum of 1 mark up to a maximum of 5 marks were awarded individually by each member of the selection panel in each criterion. The final mark was established after the average of these marks was worked out. The Panel also passed comments about the performance of each applicant.
From a review of the documentation it transpired that the Board had expressed the view that although complainant was a good employee he did not fit the role and did not have the necessary characteristics. The Board noted that complainant was one of the least qualified employees and commented that from his body language during the interview complainant had given the impression that he was not eager to take up the required studies. Complainant was awarded 70.5% by the first panel.
The criteria utilised by the second panel were leadership skills, aptitude for the role and dedication to the Authority. Complainant was awarded 60 out of the available 100 marks. This panel expressed the view that complainant was a very experienced individual commenting that during the interview he had demonstrated “…strong attitudes which demonstrated that he may not be fit to be a leader, firmly believing in a divide between management and employees. …sways towards bending rules in trade of finding a reasonable way out may be a matter of concern for the role he currently holds”.
Complainant’s average mark in the selection process was 62.25% and he ranked in fourth place.
The Board members clarified a number of statements allegedly made by complainant. The selection board stated that what was meant in the Authority’s email of December 2011 was that complainant was not selected for the final stage since he did not meet the expected level in the first two interviews. The members of the second panel insisted that the Authority had an open door policy to discuss issues of an industrial nature with its employees and elaborated that their comments about complainant sought to describe the characteristics of the applicant concerned such as the manner in which his past experiences “…contribute to the perception that he is prepared to seek solutions to issues that may lie outside an appropriate interpretation of the applicable rules.”
Considerations of the Ombudsman
The Ombudsman observed that the selection process was carried out by two separate Boards which utilised distinct criteria, a practice which cannot be criticised as not being administratively correct. The criteria were all subjective in nature and therefore depended on the subjective evaluation of the members of the Board of a candidate’s performance during the interview – consequently the Ombudsman cannot change or challenge these opinions when he was not even remotely involved in the process.
On the contrary, the Ombudsman criticised the feedback provided to complainant by the Authority in connection with his performance during the interviews. The Ombudsman pointed out that complainant should not have found difficulties in being provided with the marks he had been awarded in the selection process and that the Authority should have provided him with his marks once the results were official. Complainant was entitled to this information so that he could understand what needed to be improved for future selection processes.
The Ombudsman stated that an applicant is entitled to information as to his ranking in a selection process, but remarked that the Authority had failed to provide complainant directly with this information. He elaborated that complainant contended that he had been told that he was not included in the final ranking, but it had resulted that complainant had ranked in fourth place with a global mark of 65.5%.
In this context, the Ombudsman considered complainant’s allegation that he had been told that he had not been shortlisted by the Selection Board. The Authority had insisted that complainant had not been precise and that in the meeting held in September 2011 he had been informed that he had not been shortlisted because he had failed to convince the Board that he was willing to pursue the course required in the call for applications. The Ombudsman pointed out that the wording used in the Authority’s email of December 2011, informing complainant that during the meeting held in September 2011 he had been informed that his marks did not form part of any order of merit since he had “…not been shortlisted for the final stage for selection of the post of Supervisory Inspector…” was mistaken and not appropriate in the circumstances, since a shortlisting process is carried out before the final interview takes place. The Ombudsman affirmed that similar equivocal comments gave rise to doubts as to whether one had been treated fairly and impartially, even if there was no concrete evidence of injustice.
The Ombudsman remarked that the right to good administration by authorities and bodies of the European Union is a fundamental right of every individual in terms of Article 41 of the European Charter of Fundamental Rights and forms part of the Treaty of the European Union. He elaborated that the European Ombudsman had also published ‘The European Code of Good Administrative Behaviour’ explaining what this right entails in practice. The European Ombudsman had noted that the impact of the Code went beyond the institutions of the European Union and that a number of States had accepted the responsibilities emanating therefrom. The Ombudsman commented that in terms of Article 41 of the Charter entities operating in the public sphere must operate in an open and transparent manner and that citizens have the right to be provided with reasons for decisions taken and are entitled to access their file, provided this is done respecting the legitimate rights of third parties. In the light of the aforesaid the Ombudsman criticised the failure on the part of the Authority to provide precise and clear information and stated that this could be interpreted as an attitude lacking transparency and one which is not in accordance with good administrative practices. He however pointed out that throughout the investigation the Authority had taken note of the points raised by this Office and had assured the Ombudsman that his recommendations would serve as guidelines in future recruitment processes.
The Ombudsman stated that he could not take a decision in regard to the statements which the members of the selection panels claim where made by complainant during the interview and regarding their impression that complainant was not willing to further his studies because of the conflicting versions which were given by both parties. He observed that the assertions of the selection board members were the result of the subjective interpretation of these members about what was stated by complainant during the interview. The Ombudsman commented that in similar instances, and where there is no documentation, it is generally very difficult to come to a conclusion about what was said and how these statements had to be interpreted. On the other hand, the Ombudsman pointed out that the Authority had provided a plausible explanation in connection with the question put by the Selection Board about union issues.
The Ombudsman observed that the Selection Board was justified in including qualifications and level of education as one of the criteria for selection in a position at this level. He pointed out that the call for applications specified that applicants required good oral and written communication skills and a good knowledge of IT skills relating to the profession. Moreover, in view of the fact that the call for applications specified that the appointee was required to follow a graduate diploma in Accounts, IT or Management, it was necessary for the Board to evaluate the qualifications and level of education possessed by the applicants so as to ensure that the selected candidates possessed the necessary qualifications to apply for the course and were capable of following these studies successfully.
Finally, the Ombudsman noted that since complainant had ranked 4th in the selection process he was not next in line to fill any vacancy that may have occurred following the resignation of one of the appointees.
The Ombudsman therefore concluded that:
i. the selection process was administratively acceptable, at least until the appointments were made, even if the criteria utilised throughout were completely subjective in nature. Naturally, it is more desirable that objective criteria are included amongst the criteria utilised in a selection process so that a review can be carried out by the authorities. This however does not diminish the validity of the Selection Board’s report;
ii. since the criteria were all subjective in nature, the marks awarded are not verifiable and the Ombudsman cannot substitute a subjective assessment of the Selection Board with his own, since he was not involved at any time during the selection process;
iii. the question put during the interview in connection with union issues was relevant and the Authority provided a plausible explanation; and
iv. this grievance arose mainly as a result of how complainant’s requests for information were handled by the Authority and this attracts criticism. This notwithstanding, the Authority informed the Ombudsman that it had learnt from this complaint and had included the recommendations and suggestions made by this Office into its recruitment processes so as to ensure that HR processes are transparent and fair. In view of the Authority’s statement no recommendations were necessary.