FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE CORK - AND - A WORKER (REPRESENTED BY UNITE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Recommendation R-036334-IR-05/POB
BACKGROUND:
2. The worker is a permanent employee of the College, employed in his current post as Lecturer in Management since 1989. He applied for promotion to the grade of Senior Lecturer in the 2003/2004 competition at the College but was not successful. The worker claims that this is because he was not afforded due process and fair procedures when the promotions were made. In considering the applications the promotions board took account of three broad areas of activity as follows:(1) Teaching and Examining, (2) Research and Scholarly Standing, and (3) Contributions to Department, University and Community.Applications for promotion were assessed against "satisfactory benchmarks" in the first instance but in order to qualify for promotion candidates had to achieve excellence in two of the three categories, one of which had to be Teaching and Examining. The worker received excellence in the Research and Standing category but not in the Teaching and Examining category and this was deemed by the University as the reason why he was unsuccessful. He was ranked co-19th of the 40 candidates. He appealed the decision to the Academic Appeals Board. In reviewing appeals received, the Board found what it regarded as two procedural/technical errors which could have materially affected candidates generally. The Board reviewed all applicants but decided that the worker concerned had not been affected and his appeal failed.
The worker referred his case to a Rights Commissioner and his recommendation was as follows:
"In essence the claim is that the Governing Body failed in its duty of care towards the claimant in the discharge of their statutory responsibilities under the Universities Act 1997 in the conduct of the 2003/2004 Senior Lecturer Promotions Round. Central to the case is whether the claimant received fair treatment, in an industrial relations context, with regard to his claim.
The claimant is seeking that the Rights Commissioner reconsider the outcome of the 2003/2004 promotions process or that I issue that the claimant's application be assessed in a new form as I deem appropriate for the particular circumstances of this case.
This case is brought under the Industrial Relations Act and my primary role is to try and seek a solution that is acceptable to both parties. In this case, despite the efforts of all concerned, this was not possible. In that context, I have to make a Recommendation which may not be acceptable to one side.
The core issues of the claim from my perspective in this case revolves around whether excellence is required to be achieved by a candidate in the category of Teaching and Examination (one of three categories which candidates are assessed against) to be eligible for promotion. Based on the submissions of the parties and an examination of precedent it would appear that achieving excellence in Teaching and Examining was essential to being eligible for promotion. The Boards Assessment form states "Candidates may be promoted on the basis of excellence in two (three in the case of clinical area), which must include Teaching and Examination." The claimant did not receive this excellence assessment in Teaching and Examination at any time during the process and therefore failed to meet the key criteria for promotion. I don't consider the issues reviewed/amended under appeal to be of significance to this case. I believe the Appeals Board, chaired by a former member of the Judiciary, seemed to take account of your input regarding the method of calculating scores and revised a number of scores accordingly. It is not for me to delve into the intricacies of the Appointments procedure of the Appeals process in this Recommendation. This is a matter for the respondent to consider. It is my role to evaluate all the evidence put forward and to try and seek a solution to this specific case, in an industrial relations context. My assessment of the situation is that there were no deliberate or serious technical breaches to warrant supporting the claimant's requests. I regret that to recommend any of the two solutions proposed by the claimant is not practical, in an industrial relations context.
With regard to Mr. Malone's report into the 2003/2004 promotions round I note that he concluded "that the Appeals system worked effectively and did its job in identifying the anomalies". He also suggests "the system appears particularly complicated and open to error, especially if done by different groups." I believe the respondent should evaluate all the issues raised by the claimant and Mr. Malone's report and ensure it has done all it can to improve the process and make the governing principles more easily understood, where possible.
The worker appealed the Rights Commissioner's recommendation to the Labour Court on the 4th April, 2008, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th June, 2008, in Cork.
UNION'S ARGUMENTS:
3. 1. Rule 14 in relation to the promotions states"Candidates must demonstrate satisfactory achievement in all three categories (four categories in the case of clinical areas) but may be promoted on the basis of excellence in two (three in the case of clinical areas) which must include Teaching and Examining."There are, therefore, two ways of being promoted and the worker met the first requirement in that he had satisfactory ratings in three categories. The Rights Commissioner, however, relied solely on the second element which states that excellence in Teaching and Examining is essential. It is most unfair that an interpretation of a rule could lead to the worker not being promoted.
2. A candidate who ranked 40th in the Contribution category received a rating of "excellence" in this category whilst the worker concerned, who was ranked 14th, did not receive a rating of excellence.
UNIVERSITY'S ARGUMENTS:
4. 1. The reason that the worker concerned was not promoted is that he did not achieve excellence in the Teaching and Examining category which was deemed an essential requirement for promotion. In relation to the Contribution category the worker was deemed overall not to have met the "excellence benchmark" in this category.
2. The University has an internal Grievance Procedure which the worker could have used but did not use.
3. An independent investigation (by Mr. John Malone) found that the Appeals Board did its job in identifying and rectifying anomalies and that the appeals system seemed to have worked effectively. He also found that the Academic Promotions Schemes provide a reasonable and effective promotions framework and allow for promotions to be made on merit.
DECISION:
This matter came before the Court by way of an appeal from the recommendation of the Rights Commissioner in an investigation of a trade dispute under the Industrial Relations Acts 1946 to 2004. The substance of the Union's claim is to reverse the decision of the Promotions Board established by the College under the Academic Promotions Scheme by which the Claimant was denied promotion to the grade of Senior Lecturer.
The rules and procedures of the scheme at issue were agreed between the College and the Trade Union representing the academic staff to which the scheme relates. It provides that an aggrieved applicant for promotion may appeal to an Appeals Board established under the scheme. At the time material to this appeal the Appeals Board was made up of two Senior Academics and a Judge of the High Court who chaired the Board. It is an expert tribunal, specifically established to review decisions of the type impugned in this case. The Claimant appealed unsuccessfully to this Board.
In effect, the Court is now being asked to provide a further appeal against the decision of the Promotions Board. The rules of the scheme do not provide for a further avenue of appeal to either a Rights Commissioner or to this Court. In these circumstances, the Court cannot arrogate such a role to itself.
The Court's role, under the Industrial Relations Act 1946 to 2004, is to set out its opinion on the merits of the dispute under investigation and the basis upon which it should be resolved. In the Court's opinion, the Appeals Board was the appropriate forum to address the Claimant's grievances. It is clear that those who designed and agreed the promotions scheme intended that the outcome of the Appeals Board, on matters within its remit, would be final and binding on all parties. Accordingly, it is the opinion of the Court that the dispute should be resolved on the basis of all parties accepting the decision of the Appeals Board.
For all of the above reasons the Union's appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
20th June 2008______________________
C O'NChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.