ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00025385
An Institute of Technology
Teachers' Union of Ireland
Tom Mallon B.L. instructed by CC Solicitors
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: 18/02/2020
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 13 of the Industrial Relations Act 1969 following 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’s dispute relates to the Employer’s use of selection and recruitment processes and procedures which he claims are unfair, not transparent or appropriate.
The Employer disputes the claims made by the Worker.
Summary of Worker’s Case:
The Worker is a lecturer with the Employer, a higher education institute of technology, who has a dispute with his Employer with regard to promotional Senior Lecturing 1 (teaching) posts (‘SL1’).
He said that the Employer has failed to fill the entire allocation of promotion posts that were available for the school of Humanities, where he was teaching. The Worker points to a number of issues he had with the Employers handling of the promotional competition.
The Worker said that the closing date for the competition was 19 May 2016 although interviews for the position did not take place until September 2018. He said that he sought to update his CV in the time between submitting his original application and prior to the interview, however the Employer refused to allow him to do so. He was critical of the Employer’s communications with candidates at this time and the long delays in running the interviews.
The Worker said that the interviews were conducted over three days and the Worker attended for interview on day two. The Worker said he was not successful, however he only subsequently found out that a panel was put in place and he was never informed that a panel would be created.
The Worker was critical of the marking criteria employed by the interview board. He said that there was no breakdown or weighting on how marks were awarded. He said that he was particularly concerned over the marks awarded for his “specific knowledge and skills” and from the feedback he felt that the interview board only considered some of his extensive work and not all. He said that although he had superior qualifications, teaching and superior experience he scored less than two of the successful candidates, who were not actively teaching in the preceding years.
The Worker said that he sought a stage 2 grievance meeting to address his grievance. A meeting was held on 23 November 2018, but he was unhappy with the outcome as the interview notes of all the interview board were not provided to him and some of the notes taken by the interview board were contradictory. As no resolution was found to his grievance it was advanced to a stage 3 grievance on 9 January 2019. A meeting was held 13 February 2019 where he was advised that the Employer had its process reviewed by IBEC and it was deemed to be robust.
The Worker said that the Employer sought to appoint the successful candidates to the SL1 posts notwithstanding his unresolved grievance and thereby breached the nationally agreed grievance procedures and denied him an effective appeal. The Worker said that as there are no other appeal procedures available to him, he had no other option but to evoke the grievance procedures.
The Worker claims that the Employer failed to deal with any of the requests he had sought, in particular to treat his grievance seriously, to observe time limits, or to review the interview process.
The Worker cited the High Court decision in Becker v Duggan  IEHC 376 where, in judicial review proceedings, it was held that a candidate must have recourse to a reasonable opportunity to challenge an unfair interview process.
The Worker said as per the Ministerial Selection Procedures (1993) the interview board may include technical advisors to attend all interviews should that be considered necessary. The Worker said that as a language lecturer there was no technical advisors (with language lecturing qualifications) present to assess him, and none of the interview board had the necessary qualifications. The Worker also queried the independence of one of the members of the board who was there as “the appropriate person from business/industry other than a member of the College” as per the procedures, when she clearly works for the College.
The Worker was critical of the line of questioning in the interview by the board members, in particular, their probing as to why he had not published work with his supervisor and whether the scope of the questions could provide the board with material to determine the Worker’s strengths and weaknesses as a lecturer and researcher.
He said that the marking criteria and marks awarded were irrational. He said that he was better qualified than Mr. A, one of the successful candidates and the Employer failed to discuss anything about Mr. A, his qualifications or suitability, with him in the subsequent grievance meetings.
The Worker said that the Employer failed to implement best practice following a recommendation from an independent Equality and Diversity review report from 2007 on communications, marking the interview and giving feedback.
The Worker said that he has suffered a psychological injury as a result of the Employer’s handling of matters.
Summary of Employer’s Case:
The Employer is an institute of education (‘IT’) with over 1000 staff, including 528 lecturers.
On 10 May 2016 the Employer advertised 3 Senior Lecturers 1 (teaching) posts in the school of Humanities as well as 8 other Senior Lecturer posts in other Schools within the Employer. The number of SL1 roles is set by the Department of Education. The Employer conducted a selection procedure in accordance with the Regional Technical Colleges Act 1992. The Employer was in communication with the Worker’s Trade Union up to advertisement and no issues were raised.
The Employer said 42 applications were received for the posts and 22 selected for interview. The interviews did not proceed until September 2018 due to a number of substantive reasons, which the Employer gave details of in its submission at the hearing and said was mainly because it was ensuring that it correctly complied with the Ministerial Selection Procedure criteria.
The Employer said that the interview board were present at all interviews over the three days, each candidate was given the same opportunity and it did not invite candidates to update their CVs in advance of their interview. The interview board were asked to review the list of candidates and highlight if any potential conflict of interest existed. None were reported.
The Employer said each candidate was asked the same predetermined questions and invited to give a presentation on a predetermined topic. Everyone was treated the same. The top three scoring candidates were offered the three SL1 posts and a panel of four was created with candidates with the next highest marks. The Employer said it followed a fair and transparent selection process in accordance with the Statutory Procedures.
As regards the CVs, the Employer said that the interview board only considered the documentation provided at the time the original applications were made so as to be fair to all candidates, although the interviews were held at a significantly later period. All candidates were invited at the interview to identify any additional information and new experiences they wished to bring to the Board’s attention.
As regards the interview questioning, the Employer said the same questions were asked of every candidate and were designed around the job, role and duties, as well as the Person Specification for the post.
The Employer said the marking of each individual was based on an assessment of the answers provided to the interview board. The Worker’s marking sheet was presented in the submission.
The Employer said the Selection Procedure provides for the formation of a panel during the selection process on the basis of merit. This would allow for the Employer to fill any future vacancies that may arise within the following two years. It said the Worker and his Trade Union would be aware that this is common practice, and a fair and reasonable use of public sector resources.
The Employer said that it held two grievance meetings with the Worker and conducted a review of its processes and is satisfied that it acted fairly throughout and that its processes were fair and robust and within the scope of the Selection Process.
The Employer said that in the absence of any irregularities in the interview Board’s conduct or a manifest irrationality in the result, there is no scope to re-run the process and substitute the interview Board’s view of the merits of the candidates with that of the Adjudication Officer’s views on the merits of the candidates. The Employer referred to the Labour Court recommendation in A University v A Worker CD/16/143 Decision No. LCR21333, where it said that “The 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 … [it] can only look behind a decision in relation to appointment where there is clear evidence of unfairness in the selection process or manifest irrationality in the result.”
The Employer also cited the Labour Courts recommendation in University of Limerick v A Worker CD/16/206 Decision no. LCR21339, when they said “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 …”
Findings and Recommendation:
I have carefully considered both parties’ submissions. The dispute between the parties relates to a competition for three Senior Lecturer 1 promotional posts and the subsequent grievance procedure.
It is the Worker’s submission that, the Employer did not follow the nationally agreed grievance procedure, thereby denying him a fair review of the promotional process; the interview process was not fair, he was asked inappropriate questions and much of his relevant work was not properly considered; his grievance process was not dealt with in a timely manner and was not taken seriously; the Employer breached the nationally agreed grievance procedures and effectively denied him an effective appeal and fair procedures; the Employer acted contrary to the Ministerial Selection Procedures.
The Employer’s position is that this was a very competitive interview, no one was invited to update their CV, time was set aside at the interview to address updates; everyone was treated the same; the successful candidates were deemed more suitable based on the criteria; no bias, discrimination or other claims were made; the Employer carried out a review of the interview process to ensure it had acted correctly; the Employer is entitled to set up a panel and its common in the industry to do so; it made appointments from the panel as the possible and potential time lag until this appeal process was completed could be lengthy. It said that there was nothing awry with its interview process, the interview board’s conduct and nothing irrational in its decision making.
I have listened carefully to both sides. I hear and understand the disappointment and frustration of the Worker’s position. However, I deem that nothing untoward was presented to me that would require me to deem it necessary to look behind the actions or the decision of the interview board in this situation. In this regard I take note of the recommendations by the Labour Court in University v A Worker and in University of Limerick v A Worker (as noted above). I also deem that there was no evidence of substantial poor practice and unfairness in how the Employer handled the Worker’s grievance.
The nationally agreed grievance procedure is not the most appropriate way to review grievances of this nature, a local immediate process would be more beneficial to deal with appeals of this type for all parties concerned.
Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the dispute. I would recommend that the Worker accepts the decision that he was unsuccessful on this occasion.
Dated: 10th July 2020
Workplace Relations Commission Adjudication Officer: James Kelly
Industrial Relations Act – internal promotion competition - unsuccessful