ADJUDICATION OFFICER RECOMMENDATION.
Adjudication Reference: ADJ-00021763
Peter Glynn SIPTU
Niamh Ní Cheallaigh IBEC
Complaint/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: 05/11/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint 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 complaint.
The Complainant is a lecturer who commenced employment in the Respondent university in October 1982.
This complaint was received by the Workplace Relations Commission on 15th May 2019 and is submitted under section 13 of the Industrial Relations Act, 1969.
Summary of Complainant’s Case:
The Claimant commenced employment with the Respondent in November 1982, as a Lecturer.
Since the early 2000, following the unsuccessful outcome of recent applications over the past number of years, the Executive Dean of the Business School, advised the Claimant that for promotion to senior Lecturer he would have to have demonstrated exceptional research quality and productivity. In that context she noted that successful candidates will have published at least three or four papers in a mix ABS4*, ABS4 or ABS3 journals in the preceding five years period. She observed that the standard of research quality and productivity demanded is such for promotion to Senior Lecturer.
Faculty Review Panels (FRP) and the Academic Promotions Committees (APC) convened to consider and rank applications for promotion to the Senior Lecturer in 2012 and 2013 competitions did not apply such rigorous research productivity requirements correctly in the case of applications submitted by at least one female colleague. Consequently, the FRP/ARC erred in ranking the applicants or was unduly influenced by a persuasive case made by Dr xx.
The Complainant’s unease relates to the process concerning the promotion of a colleague X, whom the Complainant contends has a very poor research productivity record, to the Senior Lecturer grade. Dr xx has confirmed to the Complainant that colleague X made an unsuccessful application for promotion to Senior Lecturer in January 2012. Despite the rule, published in the university’s promotion guidelines document, Promotion to the Grade of Senior Lecturer: Policy, Procedures, Criteria and Guidelines 2012/2013 that “candidates who were unsuccessful after any calling notice are required to wait a nominal period of 2 years prior to submitting a further application (the two year rule)”.
The Complainant reviewed the application of colleague X in 2015 and discussed the colleague X application with Dr xx, she agreed with the Complainant’s assessment that colleague X did not meet the stringent research criteria required of having published at least three or four papers in ABS4*, ABS4 or ABS3 journals. Dr xx advised the Complainant that there were decisive factors in FRP and APC deliberations in recommending her for promotion.
The Complainant contends that his application was not considered in the area to policy, national developments and community were not considered by the FRP/APC. The Complainant believes that the FRP / APC were unduly influenced by a persuasive case put forward by Dr xx for the appointment of colleague X thereby placing him with a significant disadvantage.
Despite several attempts to resolve the matter with no success. The claimant again applied for promotion to Senior Lecturer in January 2015, assuming that the “two year rule” was not strictly applied. The Complainant’s application was returned by HR on the grounds that as his 2014 application was unsuccessful he could not apply again to 2016. The Complainant received emails from HR which confirm that there has never ever been any case where any exceptions to the two year rule have been allowed.
Clearly the rule was not applied in colleague X case in 2013. The Complainant in a conversation with Dr xx highlighted the apparent irregularities in the 2013 appointment process to Dr xx’s attention in Semester 2 of 2015. The Complainant made the decision to apply in the 2016 competition and that he expected that the requirement to have published extensively in ABS4*, ABS4 and ABS3 rated journal in the five years prior to submission would not apply in my case is it had not been applied for colleagues X progression. Dr xx advised that she could not discuss further any matters pertaining to applications submitted by others. Thirdly, after the unsuccessful outcome of the Complainant’s application in 2016 and on the advice of the Union the Complainant asked that the matter be resolved before Christmas 2017. Dr xx replied stating that she is satisfied that the “2012 process was followed appropriately”.
Prior to Dr xx’s appointment as Executive Dean, it had been the long established practice in the Business School to interview all internal candidates who had met the advertised required academic and professional qualifications for professorial positions. The Claimant applied in 2012 for the vacant position of Professor of Accounting and his application was declined. In a follow up conversation Dr xx confirmed to him that “she had decided not to follow the long established precedent of interviewing all qualifying internal candidates on that occasion”. As a result of his exclusion from that interview process there was only one uncontested candidate.
The Union now contend that the Employers application of procedures surrounding this promotional round were flawed, unfair and arbitrary in nature. The Employer did not abide by agreed procedures and applied arbitrary restrictions.
Natural justice is the source from which procedural fairness flows, and in this case, the procedures were breached and subverted by the Employer on so many occasions as to be manifestly unfair towards the Complainant.
The Union now contend that the Respondent repeatedly subverted and undermined the agreed procedures and that their application of those procedures was flawed. Consequently, these acts placed the Claimant at a significant disadvantage both financially and in academic standing.
Summary of Respondent’s Case:
The Complainant is a lecturer in the Respondent’s Business School and commenced employment with the Respondent on 25 October 1982.
On 9 February 2018 a call for promotions to Senior Lecturer grade was issued on behalf of the Respondent
The Complainant applied for promotion to the grade of Senior Lecturer. The Respondent received a total of 40 applications in 2018 for promotion to Senior Lecturer across all five faculties. This included 5 applications from within the Complainant’s faculty. Each faculty has a Faculty Promotions Committee. For ease of reference the Faculty Review Panel for the Complainant’s faculty is referred to in these submissions as the “FRP”.
The FRP met and assessed all 5 applications from within the Faculty, including the Complainant’s application. The FRP was comprised of 7 members (4 women and 3 men) two of whom were external assessors.
The FRP ranked all 5 applicants. Four of the 5 applicants were deemed eligible for promotion in the Complainants Faculty. The Complainant was not deemed eligible for promotion. The four successful applicants were sent forward to the APC (Academic Promotions Committee) for further assessment.
The next stage in the process involves a meeting of the APC to assess applications for promotion to Senior Lecturer.
On 26 September 2018 the Complainant was notified by the University that his application for promotion to the grade of Senior Lecturer was unsuccessful.
The Complainant had the opportunity to appeal the outcome of the process in respect of an alleged irregularity in procedure but opted not to. An appeal must be made within 10 working days of the applicant being notified of the outcome of the application.
It is unclear from the Complainant’s claim form where his issue in the process rests however, it is important to highlight the options available to those not deemed appointable. Other candidates who were not deemed appointable have availed of this process.
By way of background, the Complainant had previously applied for promotion to Senior Lecturer in 2014, 2016 and 2018 the subject of today’s claim.
It is important to note that the Complainant scored well in 2 out of the 3 criteria in each of his applications. In each of his previous applications he fell short in “Research and Scholarship”.
PROMOTION PROCESS FOR SENIOR LECTURER GRADE
The Respondent is committed to rewarding, retaining and attracting staff of outstanding quality who perform in ways that contribute to its reputation both nationally and internationally. High performing academic staff are the cornerstone of the Respondent’s university and a range of strategies are available to recognise, reward and retain such staff appropriately. Promotion, through an effective and rigorous process, is one of these strategies and one of great importance.
The Respondent’s academic grading system consists of Lecturers (now called ‘Assistant Professors’), Senior Lecturers (now called ‘Associate Professors’), and Professors. Internal promotional rounds take place periodically, usually each year. In these rounds, applicants from across the University compete for promotion for which they are rated, to ascertain if they are suitable for promotion.
The application process for promotions is determined by the University’s Policy, Procedures, Criteria and Guidelines for Promotion to the Grade of Senior Lecturer (the “Promotions Policy”). The current Promotions Policy was approved by the University’s Academic Promotions Committee and is published on the University’s website. The Promotions Policy provides information and guidance to applicants in relation to eligibility, the application process and the method of assessment for promotion to Senior Lecturer, the process to which the claim relates.
Applicants for promotion are assessed and scored across the three domains of core activity within the University:
Teaching and Learning
Research and Scholarship; and
Service and Contribution to the University and Society.
To be deemed eligible for promotion to Senior Lecturer, applicants are required to achieve:
A total score equal or greater to 150;
A score equal or greater than 50 in both domains (1) and (2), and
A score equal to or greater than 25 in domain (3).
Applicants are scored out of 100 in domains (1) and (2) and out of 50 in domain (3) above.
The application process is a two-stage process:
Applications are first considered by the Faculty Review Panel (“FRP”) from the applicant’s faculty. Following a review of the applicants, the FRP assigns scores to each applicant and on that basis determines who is eligible for promotion. The Chair of each FRP submits the names and scores of the eligible applicants from each faculty to the Academic Promotions Committee (“APC”) in writing together with a ranked list of all the applicants from within the faculty;
The APC reviews the FRP process to ensure its fairness and then proceeds to consider and evaluate in detail the applications of the applicants deemed eligible for promotion by the FRPs. The APC produces a University-wide ranking of the eligible applicants and recommends the highest ranked applicants in writing to the President.
In its assessment, the APC considers all evidence provided by the applicants and is informed by, but not bound by, the scores and comments of the FRP. It takes account of disciplinary difference, while also seeking to maintain broad equivalence of standards across the University. It applies its academic judgement and expertise to evaluate quantitatively the achievements of each applicant institutionally, nationally and internationally. The promotion process is evidence-based, and the onus is on the applicants to provide and present effectively the evidence that supports their claim for promotion.
In this case the FRP met on 20 June 2018 and assessed all applications (of which there were 5 from within that Faculty), including the Complainant’s application. As stated above, the Complainant was not ranked out of the 5 applications in his Faculty as he failed to attain the minimum threshold to attract a rank. The Complainant was scored across the three core academic activities as follows:
Teaching (64 out of 100). The minimum threshold for promotions in Teaching is 50 out of 100;
Research & Scholarship (38 out of 100) The minimum threshold for promotion in Research & Scholarship is 50 out of 100; and
Service & Contribution (28). The minimum threshold for promotion in Service & Contribution is 25 out of 50.
The Complainant was not deemed eligible for promotion as he did not reach the threshold required in the area of ‘Research & Scholarship’. As a result, his name, scores and ranking were not passed on to the APC.
The Promotions Policy sets out that applicants are scored separately for each core academic activity, i.e. Teaching; Research & Scholarship; and Service & Contribution. Furthermore, while applicants can have clear strengths in one or two of these domains, the University requires applicants to meet a minimum threshold across all three areas. As a result, it is possible that an applicant could have a higher performance score in one sub section of the core activity and still score lower overall when all sub sections of the core activity are collectively taken into account.
The Complainant’s claim form is limited in detail and merely states ‘been overlooked for the position of senior lecturer’ without regard to identifying any part of the process he intends to contest. In the absence of any detail the Respondent is of the view that an understanding of the overall promotions process is important to understand.
By way of background, as outlined above, there are two stages to the decision making; ranking by an applicant’s close peers in their own Faculty, followed by a University level committee, which makes a decision on a cross University basis to distribute available posts, but without overturning the original ranking at Faculty Level unless there was a procedural error (which has never happened). Therefore, the faculty ranking is the most crucial element and there is no evidence that the Complainant was treated unfairly.
The Senior Lecturer promotion process is a University-wide, merit based, competitive process designed to ensure the greatest level of fair procedures possible, in line with the University’s Equal Opportunities’ Policy. The promotions process is a competitive one. Generally, there are a limited number of vacancies. The number of vacancies is determined by budgetary constraints and also by the ratio set by the Higher Education Authority. Particularly, as public funding for Universities was reduced in the years’ following the 2008 economic downturn, there are typically many more applicants that meet the promotions threshold than the number of vacancies available.
The Labour Court case of UCD -and- O’Higgins EDA131 2013 the case concerns the Respondent’s failure to appoint the Complainant to the post of Professor in a round of promotions conducted in 2007. The Complainant in the case contends she was denied promotion on grounds of her gender. The Labour Court summarised the approach to be followed based on the authorities that it had reviewed. The important principle to be extracted from the Courts decision is contained on page 7 point 4:
‘In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result’
It was submitted that the Complainant had failed to demonstrate any tangible reason why the FRP assessment was incorrect. All applicants were assessed equally by reference to three objective criteria. The scoring procedure required that Faculty Review Panel to score each applicant out of 100 for all teaching and learning activity; 100 for Research and out of 50 for Service. In each category there are aspects of academic work that can be quantified such as numbers of modules and students taught or supervised, numbers of publications and their international ranking. However, the nature of the academic work means that some aspects are more difficult to quantify such as innovation in teaching and assessment, contribution to University life etc. Academics also have varied roles with some colleagues having greater strengths in publications and others in fund-raising and supervision of PhDs. Therefore, the University does not grade each subdivision of research separately. Colleagues can within the category have different mixes of strengths and weaknesses. No other approach could capture the mixed professional role of a modern academic. The FRP meets for a long period precisely to make a judgement call on issues highlighted by the applicant in their application.
Statistical information is relevant in the case. The University received a total of 40 applications for promotion to Senior Lecturer across all five faculties (18 male and 22 female). Six applicants were successful (three males and three females). 5 of the 40 applicants were from the Complainant’s faculty. Of these 5, there were two females and three males. Two men and two women ranked higher than the Complainant. Of the 4 applicants from the Complainants faculty who were deemed eligible for promotion, one female was promoted.
The membership of the FRP was evenly gender balanced. The membership of the FRP was comprised of four women and three men.
In summary and in conclusion, it is clear from the foregoing that:
The Complainant was not discriminated against on any ground nor has he demonstrated or identified any procedural concerns in the process. Furthermore, had he identified any procedural concerns he had the opportunity to appeal the decision which he never availed of.
The Complainant applied for promotion and was not considered eligible for promotion by the Faculty Review Panel. Only six of the 40 applicants were successful. The Complainant was one of 34 unsuccessful applicants.
There was no breach of the University’s procedures including the Promotions Policy in relation to the Complainants application for promotion.
The Respondent acknowledges that the outcome of the promotions process in 2018 is disappointing for him following previously unsuccessful applications.
Candidates are judged against predetermined objective criteria solely on the basis of evidence disclosed in their application. The Complainants application was decided upon solely by reference to the published criteria and that the members of the FRP (2 of which were external assessors) came to the conclusion that the Complainant did not meet the standard necessary to warrant eligibility for promotion.
Findings and Conclusions:
As per the document, “Promotion to the Grade of Senior Lecturer” all applicants are encouraged to take advice when applying for promotion, such advice to come from the head of school who have a supportive role to play in advising staff on how they can best advance to the grade of Senior Lecturer. There was no evidence presented at the hearing that the Complainant had sought such advice.
In the same document there is an Appeals Procedure. This procedure grants an entitlement to any applicant to make an appeal to the President, but only in respect of an alleged irregularity in procedure. The Complainant in this case did not make an appeal although he had highlighted what he perceived to be irregularities in relation to colleague X’s appointment to the position some years before this.
The Complainant appears to feel he has a right to a promotion in part to what he perceives to be irregularities in the promotion of one of his colleagues a few years ago.
From reading the material submitted at hearing the selection of candidates for promotional opportunities is based on merit and each of the selection criteria is transparent and easily understood.
The Complainant has not availed of the assistance available when applying for promotion and I feel he should have done.
I can find no merit in this complaint and my recommendation is that it is not well-founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I can find no merit in this complaint and my recommendation is that it is not well-founded.
Workplace Relations Commission Adjudication Officer: Jim Dolan
Industrial Relations Act 1969.