ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017478
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: Ewa Sobanska
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 is Lecturer (Above the Bar). She referred her complaint to the WRC on 11th October 2018 in respect of her unsuccessful application for promotion to the grade of Senior Lecturer.
Summary of Worker’s Case:
The Worker submits as follows:
The Worker is a Lecturer (Above the Bar). She brings a complaint concerning her unsuccessful application for promotion to the grade of Senior Lecturer, which she contends was dealt with in a manner which was clearly unfair in the process and manifestly irrational in the result.
The Worker submits that 33 promotion places were made available divided between an Arts, Business & Law (ABL) constituency and a Science, Engineering & Medicine (SEM) constituency. Promotion places were allocated proportionately between those constituencies.
The Worker submits that she applied and was unsuccessful in her application for promotion to the grade of Senior Lecturer. She appealed the decision to the Senior Lecturer Appeals Board by letter of 8th January 2018. That appeal was dismissed by letter of 29th June 2018 and the Report of the 2017 Senior Lecturer Promotions Appeals Board was published on the same day. The matter was referred to the WRC on 11th October 2018.
Nature of research The Worker argued that the assessment of her research fell across both the SEM and ABL constituencies, should have been conducted by an interdisciplinary panel. This argument was rejected by the Appeals Board.
The Worker’s argument was later supported by the Report of the 2017 Senior Lecturer Promotions Appeals Board, which stated that ‘the University should consider giving future Senior Lecturer promotion candidates the option of having their applications assessed by an interdisciplinary panel. Comprising assessors from both SEM and ABL constituencies.”
Contract roles The Worker argued that the process was fundamentally flawed because ‘it did not consider the fact that [she] had worked in a temporary position’ between 2001 and 2009 during which period she was ‘not afforded the same opportunity as [her] tenured colleagues and access to funding sources was denied’ and so her application ‘should not [have been] assessed in the same manner as [her] colleagues who enjoyed certainty in tenure’. This argument was rejected by the Appeals Board on the grounds that its ‘remit did not extend to reviewing the procedures or processes that had been agreed with stakeholders in advance’.
CELT qualifications The Worker argued that the awarding of marks to holders of ‘specific [Centre for Excellence in Learning & Teaching] qualifications’ was ‘a procedural flaw as (a) applicants were not informed in advance of the competition that these qualifications would act as a rubric for marks during the [Senior Lecturer] promotion assessment process and (b) assessors may not have considered equivalent qualifications or experience in their assessment for this category.’ This argument was rejected by the Appeals Board on the grounds that ‘the attainment of CELT qualifications was not a requirement for promotions’ and that ‘Candidates were scored under the category of “Professional Development” on the basis of their overall continuous professional achievements’.
The Worker contends that the Draft Marking Template, which states a requirement for ‘PG cert’ and ‘PG Dip/MA’ for access to higher marks in the Learning, Teaching & Assessment category, contradicts this.
Independent student evaluation The Worker argued ‘that the inclusion of an independent student evaluation for female lecturer particularly in male student dominant disciplines is flawed in the [Senior Lecturer] application process’ and cited academic studies showing ‘that student evaluations of teaching are strongly associated with the gender of the instructor”. She concluded that as she taught ‘in a predominantly male environment I believe that my scores were lower than my colleagues. It is clear that the [Senior Lecturer] assessment procedures did not allow for this and consequently I was disadvantaged.’ This argument was rejected by the Appeals Board on the grounds that ‘there was no evidence of a breach of the agreed procedure’.
Norms The Worker argued that since it was ‘not clear if the assessment panel applied the norms to [her] entire service as those norms were unknown to [her] at the time.’ She went on to contend that ‘the process is flawed as it is unfair to long term staff who must now compete with newer staff under relatively new standards and who did not have the advantages that new staff have in recent years.’
The Worker further argued that ‘the University is aware that long serving females, in particular, have been greatly disadvantaged as evidenced by the setup of a returner’s grant (which was not offered to [her] after the birth of [her] children’…) and mid-career grant offered since 2017 to me and my female colleagues to negate this disadvantage’. She continued by asking, rhetorically. ‘If this disadvantage is obviously recognised at institutional level then how was this disadvantage considered in the assessment of my [Senior Lecturer] application if at all?’
This argument was rejected by the Appeals Board on the grounds that ‘the norms used were for Lecturer-above-the bar’ and that ‘all candidates were treated equally in this regard.’ The Appeals Board did not address the points raised by the Worker concerning the duration of the existence of performance norms or the issue if inequity in respect of access to returners’ and mid-career grants in any substantial way.
The Report of the 2017 Senior Lecturer Promotions Appeals Board noted ‘that performance norms for Senior Lecturer level were not available’ and recommended ‘the development and application of School norms for the level of Senior Lecturer’.
Discrepancy in scores The Worker argued ‘that there was a very large variance between the marks awarded to me from different assessors’ and asserted that ‘A large variation in marks suggest a quality flaw in the process’. Marks awarded for Learning, Teaching & Assessment ranged from 56 to 78, marks for Research & Scholarly Standing from 55 to 78, and marks for Contribution from 43.8 to 72.4. This argument was rejected by the Appeals Board on the grounds that ‘the process was robust in this regard and that it addressed divergence in scoring by assessors.’ The Appeals Board did not respond on the very fact of the large variation in itself. The Worker argues that a large variation in scoring without adequate explanation is in and of itself evidence of manifest unfairness and irrationality.
Additional appointment The Worker cited the Employer’s decision ‘to promote one female applicant (essentially a 34th person to the role of senior lecturer) this year on the basis of meeting a base or standard in a separate but parallel process. This candidate was permitted to meet an acceptable standard for [Senior Lecturer] promotion in a non-competitive assessment’. She went on to seek a similar assessment opportunity. This argument was rejected but the Appeals Board on the grounds that ‘it did not identify any breach of agreed procedures’. The Worker argues that this is a lackadaisical and unacceptable response by the Employer to the discovery by a senior lecturer promotion candidate that a private parallel process for promotion to Senior Lecturer existed, but was not made available to the Worker or others, and that this is a matter which requires explanation.
Transfer of a Senior Lecturer post from SEM to ABL The Worker cited the movement during the Senior Lecturer promotion process of a post from the SEM constituency to the ABL constituency and contended that the unfilled SEM post should have been subject to competitive recruitment following the process. In its response, the Appeals Board ‘did not uphold the claim that any candidate was disadvantages by the transfer’ and ‘agreed that there was no procedural breach of the Senior Lecturer Promotions Scheme in this regard.’
In the case of Medite Europe Ltd v A Worker AD1483 the Labour Court stated:
“The Court has consistently held, in cases as this, that its role is not to substitute its views on the respective merits of candidates for promotion for hat of the designated decision makers. It is only where there is clear unfairness in the selection process or manifest irrationality in the result that the court could interfere with the outcome of such a process.”
The Worker contends that it a high standard that it has been met for the reasons set out above.
The Worker seeks a recommendation that the Senior Lecturer Promotion Scheme be re-run in respect of her application after the undertaking of reasonable, substantial and verifiable measures to address the shortcomings identified by this complaint.
Summary of Employer’s Case:
The Employer submits as follows:
The case relates to a claim by the Worker that her application for promotion to Senior Lecturer was not considered fairly and had procedural breaches. She is seeking to have the process re-run.
The Worker commenced employment with the Employer as a Lecturer in September 2001. She progressed to the role of Lecturer (Above the Bar) in January 2009 and was duly placed on the appropriate scale at that time.
On 15th June 2017, the Worker submitted her application for the Senior Lecturer Promotions Scheme. The Senior Lecturer Promotions Scheme that was in place at the time provided the framework for the assessment of applications and clear guidelines were available to all staff planning to apply.
The application submitted by the Worker was considered by the promotions board. However, unfortunately, the Worker‘s application was not successful on this occasion and she was notified of this on 5th October 2017.
On 27th October 2017 the Registrar / Deputy President wrote to the Worker following on from the correspondence of 5th October 2017 and also provided a detailed feedback report.
The individual assessor marking sheets and overall scoring show the scores provided in regard to the Worker’s application.
On 8th January 2018 the Worker lodged an appeal of the decision of the promotions board stating a number of reasons for her appeal which included the nature of her research and the fact that she was on contract role for a number of years.
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.
On 29th June 2018, the Academic Secretary provided a comprehensive response of the outcome of the appeal process to the Worker. The appeal board did not uphold the appeal and set out the reasons for same. The nature of the appeals process was to consider procedural breaches rather than reconsidering the original application.
The Senior Lecturer Promotions Appeals Board provided a report to the Governing Authority on 29th June 2018 in regard to the 2017 Senior Lecturer promotion round.
The external academic trade union member chose to issue a report on her findings of the scheme. This report set out concerns about the quality of oversight in the promotions scheme within some schools as some schools had no applicants promoted while other schools had a significant number promoted, and also some recommendations for consideration in future promotions schemes. 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.
The Worker applied for promotion under the Senior Lecturer Promotions scheme. Unfortunately, she failed to be successful in her application. She subsequently appealed the decision, however, the appeal was not upheld. To ensure that the appeals process was conducted appropriately and the principles of natural justice were upheld the external legal advisor was appointed to support the board.
There have been no further rounds of the Senior Lecturer Promotions scheme with the scheme effectively now on hold. The Employer along with SIPTU and IFUT trade unions have been in discussions for over a year now to introduce a Promotions Scheme for Senior Lecturer and Personal Professor. The discussions are taking on board the recommendations set out in the Appeals Board Report. Whilst good progress has been made, the support of the WRC conciliation services is being engaged to help to conclude the discussions and help all parties reach satisfactory agreement. The Worker will be eligible to apply under the new scheme once it is agreed.
With any promotions process whether it is a promotion scheme or interview process there will usually be applicants who are not successful, and this can be for a number of reasons which would include not enough positions, or incomplete unsatisfactory applications. If the Worker was allowed to have her application re-run again it would clearly undermine the process of the promotions scheme for all applicants that were not successful but would also seriously compromise any future promotions schemes or recruitment process.
The Employer asks that the Adjudication Officer finds in favour of the Employer.
Findings and Conclusions:
I have given careful consideration to the submissions of the parties to this dispute.
The matter concerns a claim by the Worker that her 2017 application for promotion to the grade of Senior Lecturer was dealt with in a manner which was unfair in the process and manifestly irrational in result. 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 by this complaint.
In LCR 21362 A University v A Worker the Labour Court held that:
“The Court does not itself have the expertise to evaluate the substance of an application for promotion to a senior academic position.”
In LCR 21333 A University v A Worker the Labour Court stated:
“This Court has consistently adopted the position that it does not substitute its decision for that of an employer’s recruitment or promotional panel regarding the merits of a candidate for employment or promotion. The Court can only look behind a decision in relation to appointments where there is clear evidence of unfairness in the selection process or manifest irrationality in the result. “
Consequently, it is not within the remit of an Adjudication Officer to substitute his or her view on the merits of the applicants or make a comparative analysis of their applications. The only issue that is within the competence of an Adjudication Officer is to examine whether some clear procedural unfairness or manifest irrationality in the result may have been present in the process that could have resulted in an injustice to the Worker.
The parties confirmed that the 2017 Senior Lecturer Promotions Scheme has been agreed between the Employer and the relevant unions.
The Complainant appealed the decision in respect of her application for promotion to the Senior Lecturer Appeals Board on 8th January 2018 listing some 14 grounds in her appeal submission. The appeal was dismissed on 29th June 2018. The Appeals Board noted that its remit was to examine whether there was any breach in the implementation of the 2017 Senior Lecturer Promotions Scheme. The Board dismissed the appeal on the basis that it found no evidence to suggest that the agreed procedures for assessing applications to the promotions Scheme had not been observed and there was no evidence of a breach or procedural irregularity in respect of agreed procedures in relation to the Worker’s claim.
I find that the Appeals Board, having reviewed the points raised by the Worker in line with the agreed scheme, found no evidence of manifest departure from the agreed procedures which adversely affected the Worker’s candidature for promotion. In the circumstances, I find no reason to disturb the Appeals Board findings and consequently, I cannot uphold the Worker’s claim and recommend that the process be re-run in respect of her application.
However, I note that the in the Report issued on 29th June 2018, the Board identified one procedural breach in respect of incorrect multiplier being applied to a period of maternity leave. This irregularity did not apply to the Worker’s application.
The Board issued a number of general recommendations, including one proposing that the Employer “…should consider giving future Senior Lecturer promotion candidates the option of having their applications for promotion assessed by an interdisciplinary panel, comprising assessors from both SEM and ABL constituencies.”
The Report noted also that ‘that performance norms for Senior Lecturer level were not available’ and recommended ‘the development and application of School norms for the level of Senior Lecturer’.
I also note that Professor A, a senior external academic nominated by trade union to the Appeals Board issued a separate minority report on 21st June 2018. Professor A noted that she has “a number of concerns about the outcomes of the Appeals’ Process which I feel obliged to document separately to the main report.” Professor A expressed her concerns “as to how the principles of natural justice and procedural fairness were applied in relation to the appellants in the original round of promotions”.
Professor A outlined in detail her concerns in respect of “a large body of people who applied who had, in effect, no opportunity for promotion as a result of the school/discipline to which they belonged”. Professor A raised in the report concerns in respect of the quality of the oversights in the promotion scheme and the marking of candidates. Professor A made further comments in respect of the use of the multiplier for assessment and equality considerations other than gender.
These concerns and the recommendations put forward by the Appeals Board need to be recognised. The parties confirmed at the hearing that the Employer and the Unions are currently engaged in negotiations of a new promotions scheme for Senior Lecturer under the auspices of the conciliation services of the WRC. Given that the new procedures for a promotion scheme are being negotiated at a collective level between the Employer and the unions it provides an opportunity to address any shortcomings.
Having carefully reviewed the submissions of the parties and the details of the dispute, I find no sufficient reasons to recommend concession of the Worker’s claim that the promotions process be re-run in respect of her application.
I recommend that the Employer and the Unions, as a matter of urgency, finalise the new negotiated promotions scheme, taking on board, where appropriate the recommendations and concerns raised by Professor A and the recommendations of the Appeals Board.
Recommendation: (strictly pertaining only to the facts of this Dispute):
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having considered the submissions of both parties, and for the reasons stated above, I do not recommend in favour of the Worker with regard to her request to re-run the promotion process in respect of her application.
I recommend that the Employer and the Unions, as a matter of urgency and in advance of any future promotional competitions, finalise the promotions scheme, taking on board, where appropriate the recommendations and concerns raised by Professor A and the recommendations of the Appeals Board.
For the avoidance of doubt, I confirm that this recommendation is particular to the unique facts and circumstances of the instant case and that it cannot be quoted or used by either party or any other party in any other case.
Dated: 30th September, 2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Promotion – unfair process – Senior Lecturer- university – Industrial Relations Act