FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : A UNIVERSITY - AND - A WORKER (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. An appeal of a Rights Commissioner’s Recommendation r-129564-ir-12JOC.
BACKGROUND:
2. The Claimant is a Senior Lecturer in an Irish University. He was short-listed for interview and put a very significant amount of preparation into his application. Prior to the interview process, the Claimant had real concerns that his application would not receive the fair and objective attention it deserved. Following the interview process the Claimant received just one mark less than the successful candidate. The Claimant filed a grievance which he claims was not acted on appropriately.
- The Employer said the post of Professor of Physiology became available as a result of a retirement. The post was submitted to the Higher Education Authority for approval for filling on a permanent basis. The post was advertised nationally in November 2010. Twelve applicants applied and five were short-listed for interview and seminar. The successful candidate scored one mark more than the Claimant.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 17th September 2013 the Rights Commissioner issued the following Recommendation:-
- I find that the selection process outlined in the “Regulation on appointments to professional posts” was adhered to. While no recruitment process is without opportunity for improvement, I find no evidence that any candidate was specifically disadvantaged by the process.
I find that if bias or prejudice existed that may have affected the selection process, this cannot now be substantiated and it should have been raised at the commencement of the process or prior to a candidate being selected.
I find the Claimant is held in high esteem and on that basis I am making the following recommendation.
The Claimant is provided with;
a.A sabbatical of up to a maximum 12 months to enhance his career.
b.On his return he is provided with a Post Doc to carry out research.
c.The Claimant accepts this recommendation in full and final settlement of his claim.
- I find that the selection process outlined in the “Regulation on appointments to professional posts” was adhered to. While no recruitment process is without opportunity for improvement, I find no evidence that any candidate was specifically disadvantaged by the process.
On the 25th October 2013 the Claimant appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 5th March 2014.
WORKER’S ARGUMENTS:
3. 1. There were repeated inappropriate comments made by a Professor prior to the interview, who was a member of the Interview Panel.
2. The extreme closeness of the marks should have resulted in a second interview.
3. Failure of the Governing Body to interview independent witnesses and act on the evidence of a colleague.
EMPLOYER’S ARGUMENTS:
4. 1. The University has conducted a fair, transparent and robust process in which the Claimant was not successful.
2. The University must appoint the best available candidate for the position. The Claimant makes no suggestion that he was a better candidate than the successful candidate and acknowledges that he may not have performed well at interview.
3. It took the Claimant twelve months to file his grievance. The grievance was investigated by a Sub-Committee which found the University had no case to answer.
DECISION:
It is noted that serious issues have been raised in relation to manner in which the competition in question was conducted, including an allegation of bias on the part of some members of the selection panel.
The Claimant submitted to the process in the knowledge of the matters on which he now grounds his allegation of bias. In the Court’s opinion these matters should have been raised before the interviews were held. The Court further notes that the process was reviewed by a special committee appointed by the University which found no fault with the process.
The Court accepts that a decision to hold a second interview is within the discretion of the selection panel. However, in the circumstance of this case and having regard to the closeness of the result, a decision to exercise that discretion in favour of holding a second interview would have been advisable.
Having considered the submissions of the parties and the arguments advanced in the course of the hearing, the Court cannot find any basis upon which it could disagree with the conclusion and recommendation of the Rights Commissioner. Accordingly the appeal is disallowed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
14th March, 2014.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.