ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00016800
The Respondent attended in person
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 04/07/2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker commenced employment with the Employer as a Lecturer in September, 1999. In 2006, the Worker progressed to the role of Lecturer above the Bar and was duly placed on the appropriate scale at the time. In June, 2017 the Worker applied for promotion to the grade of Senior Lecturer. The Worker was informed that her application was unsuccessful on 5 October, 2017 and was issued with written feedback on 27 October, 2017. That feedback stated that there had been 102 applications for 33 promotion places (56 in the Arts, Business & Law (ABL) constituency and 46 in the Engineering & Medicine (SEM) constituency and that promotion places were allocated proportionately between those constituencies. The Worker appealed the decision to the Senior Lecturer Appeals Board by letter of 7 January, 2018. The appeal was dismissed by letter of 29 June, 2018 and the Report of the 2017 Senior Lecturer Promotions Appeals Board was published on the same day.
The Worker contends that her application for the position of Senior Lecturer was considered in a manner that was manifestly unfair and is seeking a recommendation that the process be re-run in respect of herself with identified procedural breaches addressed. The Employer disputes the claim.
Summary of Worker’s Case:
The Worker’s arguments in relation to this dispute can be summarised as follows:
· In her appeal of 7 January, 2018, the worker set out six grounds and she stands by all of these grounds but would draw particular attention to the following: Questionably large variations in scoring by Panel Assessors; Lack of common understanding of performance norms; Extraordinary disciplinary inequity of the outcomes of the 2017 promotion; and Absence of any intervention and guidance by External Reviewer.
· The Worker’s application for promotion was subject to chaotic and bizarre discrepancies in assessment without external moderation or assessment, despite which she was less than two points from the promotion’s threshold, despite being in an academic discipline from which no promotions we made and despite exceeding the threshold for promotion to Senior Lecturer in the SEM constituency.
· It might be legitimate for a university to decide, for policy reasons, to have a higher number or proportion of Senior Lecturers in some ABL disciplines rather than others, or to ensure a minimum spread between disciplines (as was done between the ABL and SEM constituencies). However, there is no evidence that any such policy existed or, at any rate, was made explicit. The Worker wrote in her appeal that “effectively, the ABL assessors have divided applicants into two disciplinary sub-groups with members of one sub-group are highly likely to be promoted, while it is almost impossible for members of the second subgroup to succeed”. There was no warrant in the criteria for promotion for any such division in the ABL constituency and it is contended that this, by itself, is sufficient to render the outcome of the process manifestly irrational.
· A minority report from an independent assessor on the Senior Lecturer Appeals Board was submitted to the Employer on 21 June, 2018 which expressed concerns for the natural justice of the process on some of the same grounds as identified by the Worker. This report was not referred to in the Report of the 2017 Senior Lecturer Promotions Appeals Board and was also ignored by the Employer. It is deeply concerning, and both inexplicable and clearly unfair, for the concerns of the independent assessor not to have been addressed at all either in the aforementioned Report or in the terse response of the Academic Secretary on 29 June, 2018 to the Worker’s appeal which merely “found that there were no procedural breaches of the Senior Lecturer Promotion procedure to support [her] claim in this regard”. It is contended that this lack of consideration to be a substantial procedural defect in and of itself.
· The process took place in the absence of performance norms for the post of Senior Lecturer for which the Worker and others were applying. The Report of the 2017 Senior Lecturer Promotions Appeals Board recommended “the development and application of School norms for the level of Senior Lecturer for the next promotion round”. It is difficult to see how a fair promotion process for Senior Lecturers could have been conducted at all without such norms being in place.
· The Worker refers to the case of Medite Europe Ltd. & A Worker AD1483 where the Labour Court held that: “The Court has consistently held, in cases such as this, that its role is not to substitute its views on the respective merits of candidates for promotion for that of the designated decision makers. It is only when there is clear unfairness in the selection process or manifest irrationality in the result that that the court could interfere with the outcome of such a process”. It is contended that a manifestly irrational result occurred in the Worker’s case which was derived from a clearly unfair process.
Summary of Employer’s Case:
The Employer’s arguments in relation to this dispute can be summarised as follows:
· The Worker applied for promotion under the Senior Lecturer Promotions Scheme but narrowly failed to be successful in her application. She subsequently appealed the decision. However, the appeal was not upheld. An appropriate appeals board was constituted as per the appeals process which included an external chairperson, a senior internal academic nominated by academic council, a senior external academic nominated by the Trade Union, supported by a senior university administrator and an external legal advisor.
· The external legal advisor was appointed to support the appeals board to ensure that the appeals process was conducted appropriately, and that the principles of natural justice were upheld.
· The external academic trade union member of the appeals board chose to issue a report on her findings of the scheme. The report set out concerns about the quality of the oversight in the promotion scheme within some school as some schools had no applicants promoted while other schools had a significant number promoted. At no point in this report did the external academic appeal board member suggest that she was not happy with the outcome or report of the Appeals Board.
· There have been no further rounds of the Senior Lecturer Promotions scheme with the scheme effectively now on hold. The Employer and Unions have been in discussions for over a year to introduce a Promotions Scheme for Senior Lecturer and these discussions are taking on board the recommendations set out in the Appeals Board Report. The Worker will be eligible to apply under the new scheme once it is agreed.
· If the Worker were to have her application re-run it would clearly undermine the process of the promotion scheme for all applicants that were not successful but would also seriously compromise any future promotion schemes or recruitment process.
Findings and Conclusions:
This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim by the Worker that she should have been successful in her application for promotion to the position of Senior Lecturer in 2017.
I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.
The Worker contends that the manner in which her application was considered was manifestly unfair and she has identified a number of procedural breaches in the promotion process which she contends have tainted the process and rendered it unfair. The Worker appealed the decision not to promote her to the Senior Lecturer Appeals Board but was not successful. The Worker, in support of her claims of procedural unfairness in the promotion process, has relied upon a minority report submitted by one member of the three-person Senior Lecturer Promotions Scheme Appeals Panel (i.e. Professor X being a senior external academic, nominated by trade unions).
The Worker is seeking to have the process re-run in respect of her application after the undertaking of reasonable, substantial and verifiable measures to address the shortcomings identified in her complaint.
I note that in dealing with similar disputes in the past the Labour Court has taken the view that in the absence of irregularity in the conduct of the promotion process, or manifest irrationality in the result, the Court cannot seek to re-run the process and substitute its views on the merits of the applicants for those of the Promotions Board, or make a comparative analysis of their work.
The Senior Lecturer Promotions Scheme 2017 sets out the structures and procedures governing the Scheme including the role, functions and operational procedures applicable to the Senior Lecturer Promotions Board and Senior Lecturer Appeals Board. I note that the Senior Lecturer’s Promotions Scheme 2017 was an agreed policy between the Employer and the Trade Unions.
The Senior Lecturers Appeals Board considered the Worker’s appeal and subsequently issued its decision on 28 June, 2018. I note that the Appeals Board held that it found no evidence of manifest departure from procedures which adversely affected her candidature for promotion and accordingly decided not to uphold her appeal of the decision of the 2017 Senior Lecturer Promotion Board and that the position in respect of her application for promotion remained unchanged.
Having examined the report of the Senior Lecturer Appeals Board and taking account of the points raised by the Worker, I am satisfied that the Senior Lecturer Appeals Board was constituted in accordance with the agreed procedures and that it examined and addressed all the points raised by the Worker and submitted its findings on each.
In all the circumstances, I find that there is no reason to disturb the decision of the Senior Lecturer Appeals Board findings and therefore, I cannot concede to the Worker’s claim that the process be re-run in respect of her application for promotion.
However, I note that the Report of the 2017 Senior Lecturer Promotion Appeals Board and the minority report from Professor X, both contained recommendations, which in their respective opinions, would enhance and improve the effectiveness of future competitions. In particular, I have taken cognisance of the concerns raised by Professor X in relation to the procedural fairness of the process and her comments concerning matters that might be considered important in terms of fair procedures on any future round of promotions. In particular, I note that Professor X raised concerns in relation to the quality of the oversight in the promotion scheme, differences in outcomes related to the School/Discipline of the applicants for promotion, procedures relating to the marking of applicants, appropriate training for Board members in relation to equality legislation and use of the multiplier for assessment.
I note that the Employer and Trade Unions are currently engaged in discussions with a view to the introduction of a further Promotions Scheme for Senior Lecturer. In the circumstances, I would recommend that these discussions should be concluded without further delay and that the Employer have due regard to the recommendations made in the Report of the 2017 Senior Lecturer Promotions Appeal Board and the recommendations/concerns raised by Professor X when finalising the procedures to be incorporated into the promotions scheme.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I cannot concede to the Worker’s claim that the process be re-run in respect of her application for promotion to the position of Senior Lecturer. However, I recommend that the discussions in relation to the introduction of a further Promotions Scheme for Senior Lecturer should be concluded without further delay and that the Employer have due regard to the recommendations made in the Report of the 2017 Senior Lecturer Promotions Appeal Board and the recommendations/concerns raised by Professor X when finalising the procedures to be incorporated into the promotions scheme.
Dated: 1st October 2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Industrial Relations Act 1969 – Section 13(9) – Trade Dispute – Promotion – Third Level Education – Senior Lecturer