ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00025386
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 complaint 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 she 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 regard to the running of a competition for Senior Lecturer 1 (teaching) posts (‘SL1’).
She said that the Employer has failed to allocate and fill the entire allocation of promotion posts that were available for the school of Humanities, where she was located and teaching. The Worker points to a number of issues she had with the Employer’s 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. She said that the Employer allowed some candidates update their CV’s in that time and refused others, there was no clear communication from the Employer in the delayed time. She said she was only told at the interview that her updated CV was not being considered by the interview board, that the interview was based on her original application.
The Worker said that the interviews were conducted over three days and she was interviewed on day one on 26 September 2018. She said that on 14 September she contacted the Employer to raise concerns over a possible perceived bias with the Chair of the interview board, in relation to a local political dispute that both she and the Chair of the interview board were involved in on different sides. The Worker said it had serious concerns that were not adequately addressed by the Employer. The Employer had no process or procedure in place for addressing the perceived bias of an interview board member other than to suggest sending on her concerns to the same person she had an issue with. She said that she was really upset. The Worker said after the interview the Chair of the interview board failed to sign her marking sheet and the Employer could not explain to her why that happened.
The Worker was critical of the marking criteria employed by the interview board. She said that there was no breakdown or weighting on how marks were awarded. She said that although she had superior qualifications, teaching and superior experience and research output she scored less than the successful candidate, Mr. A. She said that there appeared a bias towards candidates in management roles.
She said that she learned on 2 October 2018 that she was not successful in the interview, and only afterwards she found out that some candidates were placed on a panel for possible future vacancies. This was the first time she came across the Employer forming a ‘panel’, which she questioned.
The Worker said that she sought a stage 2 grievance meeting to address her grievance. A meeting was held on 18 November 2018 where she said that she got conflicting information from different officers of the Employer and as she failed to get satisfaction, she advanced her grievance to stage 3 on 16 January 2019. A meeting was not held until 19 February 2019 where she 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 post notwithstanding her unresolved grievance and thereby breached the nationally agreed grievance procedures and denied her an effective appeal. The Worker said that as there are no other appeal procedures available to her she had no other option but to evoke the grievance procedures.
The Worker claims that the Employer failed to deal with any of the requests she had made. In particular, to properly address her concern of possible bias at the interview, it failed to treat her grievance seriously, to observe time limits, or to address the matters she had raised post the interview.
The Worker also said that the candidates interviewed on day three had a distinct advantage on those interviewed on day one and two. She was interviewed on day one.
The Worker said that she was better qualified than Mr. A, who was one of the successful candidates who had not engaged in teaching, research or associated events for some 10 years previously.
The Worker challenged the constitution of the interview board as required per the Ministerial Selection Procedures (1993). She queried the independence of one of the members of the interview board who was selected as “the appropriate person from business/industry other than a member of the College” as per the Ministerial Selection Procedures, she said that this person works for the College and this is a breach of the Ministerial Selection Procedures.
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 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. She also relied on the decision of the Equality Tribunal in Moore Walsh v WIT DEC-E2016-153, which set out five recommendations that the Respondent in that case should follow with regard to unfair interview processes.
The Worker said that she has suffered stress and anxiety in 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 reasons, which the Employer gave details of in its submission and at the hearing, mainly because it wanted to ensure that it correctly complied with the Ministerial Selection Procedure criteria. The Employer said that in particular there was an active grievance between an applicant and the then acting Head of a School, who was selected to be involved in the shortlisting of candidates. Therefore, it said that in the interest of fairness and impartially of the process it had to identify a different Head of School to step in and undertake this task on its behalf.
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. Some did but all interviewees were accessed on the original CV and application forms from 2016.
The Employer said that the makeup of the interview board is prescribed in its procedures and therefore it has limited options to draw from to create an interview panel. It said that each member of the interview board was asked to review the list of candidates for interview and highlight if any potential conflict of interest existed. The Employer produced the documentation sent to the five interview board members in its submission at the hearing. This included the requirement of each member to consider if there were any potential matters that the member should bring to the attention of the Employer before the interviews were set. The documents also set out the suggested area of questions for each of the candidates. The Respondent said that no issues were reported back to it from any of its board members.
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.
The Employer said that it did receive a communication from the Worker a few days in advance of the interviews raising an issue with the Chair of the interview board from some 9 years previous. It said that it listened to her concerns and offered to pass those concerns on to the Board, but the Worker said she did not want that to happen.
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 interview board’s attention.
As regards to the interview questioning, the Employer said the same questions were asked of every candidate and were designed around the job, role and duties.
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 Ministerial 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. The Worker and her 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 Ministerial 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’s 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 Court’s 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 …”
The Employer said that the two cases, Becker v Duggan and Moore Walsh v WIT relied upon by the Worker are irrelevant to the matters requiring consideration it this case.
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 her a fair review of the promotional process; the interview process was not fair; her concerns of possible bias were not dealt with; her 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 her 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, only the original applications were considered, time was set at the interview to address updates; everyone was treated the same; the successful candidates were deemed more suitable based on the criteria; the five-person interview board was composed of internal and external persons and is designed to offset any possibility of bias towards or against any candidate; the Employer carried out a check of the board members prior to the interviews to see if there were any potential conflicts and it accepted the integrity of their replies; the Employer carried out a review of the interview process to ensure it had acted correctly; it said its 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; 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. I understand that the Employer previously paused the running of this competition because there were issues that would or could damage the integrity of the process. I commend their actions there. I also recognised that it took the necessary due diligence as to the possible conflicts between the interview board and the candidates. I note the Worker raised an issue with the Employer only a few days before the interview about a possible historic difference of opinion she had with the interview board’s Chair. I note the timing of this, some two years after she had applied for the position. I note the Employer explained to the Worker how it was going to deal with the matter and the Worker did not feel that the Employer’s approach was in her best interest, and she decided to proceed as scheduled and be interviewed.
I note the interview process and would believe 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 (noted above).
However, I note the Worker raised a grievance after the competition where she raised again, inter alia, the possibility of bias, where the Chair, who the worker had the issue with, failed to sign and date her marking sheet. I have heard that this was particular to the Workers marking sheet only. I note that she asked for an explanation from the Employer and none was provided. I deem that this was a substantial failure on behalf of the Employer when considered in light of the Worker’s previous concerns of a possible conflict of interest and bias with the Chair of the interview panel. That should have been addressed. The reason(s) should have been sought and this possibly would draw a line under the whole issue of bias once and for all. However, instead it lingers on for the Worker and I accept that this has tarnished her experience.
I am satisfied that 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 Employer pays the Worker €6,000 (six thousand euro) for its failings in this matter and the adverse consequences for the Worker.
Dated: 10th July 2020
Workplace Relations Commission Adjudication Officer: James Kelly
Industrial Relations Act – internal competition – perceived bias – compensation.