AD1696

WORKER’S ARGUMENTS:

3. 1. The appellant submitted that he was improperly denied promotion to the position of Senior Lecturer despite being eligible.

2. The appellant was successful in his appeal of the decision of the Lecturers Promotion and Establishment Board to refuse his application for promotion.

3. The appeals process which the appellant utilised was flawed and the recommendations of the Appeal Board were not properly implemented.


EMPLOYER’S ARGUMENTS:

4. 1. The employer accepted that the appellant was established as a Lecturer in 2010 and was eligible to apply for promotion from that date. In 2013 the appellant applied for the position of Senior Lecturer and equalled or exceeded the minimum marks in each of the three criteria making him eligible for promotion.

2. The appellant was ranked in thirty fifth place and as there were thirty promotional places he was not recommended for promotion. The decision was appealed to the APAB and it was recommended the appeal be allowed.

3. The employer does not accept that the appellant was "improperly denied" promotion and submits that his application was considered by the Lecturers Promotion and Establishment Board and he was not ranked in the top thirty, either before or after his appeal.

DECISION:

The matter before the Court concerns an appeal by an employee of a Rights Commissioner’s Recommendation concerning his claim that he was improperly denied promotion to the position of Senior Lecturer.

The Appellant applied for a promotional position as a Senior Lecturer in November 2012. The application required completion of two forms, one to be signed by the Head of Department, i.e. Form P3. All applications were considered by the Lecturer Promotions and Establishment Board (LPEB). Having achieved the required scores to be promoted he was informed that his overall assessment score did not place him among the successful candidates, he was therefore not recommended for promotion.

On discovering that Form P3 had been accompanied by a letter from the Acting Head of Department indicating that queries he raised had been dealt with, the Appellant decided to appeal the LPEB’s decision. He appealed it on those grounds and on the grounds of an anomaly in the scoring. This appeal was upheld by the Academic Promotion Appeals Board (APAB), which foundinter aliathat the covering letter represented“fundamental breaches of the Scheme”. It held that“if there is to be a rehearing [of the Appellant’s] application, then in view of the seriousness of the breaches, we would suggest that a fresh board of assessors be constituted”.

The Appellant stated that the matter was then referred back; however, it was the original LPEB who carried out the rehearing of the Appellant’s application. Furthermore, he submitted that both the original and the reconvened Boards was inquorate when decisions on ranking were made. Finally he stated that there was a perceived conflict of interest in that the Registrar, who was responsible for the governance of the LPEB and therefore implicitly criticised by the Appeals Board, should have recused himself from the discussion on the appeal outcome before the Governing Body, as he was also the Human Resources Director.

In response to the claim, Management stated that under the Universities Act, 1997, it must operate its internal process in accordance with its Statutes or Regulations; in this case it was governed by the UCC “Regulation on Academic Promotions to Senior Lectureship”. Paragraph 6 of the Regulations provides for appeals. Appeals can be procedural in nature only and the APAB cannot substitute its views on the academic merits of a candidate for that of the LPEB. It has no power to increase an appellant’s marks and therefore has no power to promote an appellant, irrespective of the outcome of the appeal as the Regulation does not so provide. The rules of the scheme state that Appeals Board findings are final and binding on all parties. Furthermore, University management submitted that the APAB made a suggestion and not a recommendation to the LPEB, stating that it would not have been possible for a differently constituted LPEB to conduct the ranking exercise.

The Appellant contended that the final/binding nature of the APAB decision had been previously implemented by the University as automatic promotion of candidates who were successful on appeal and that this became the established custom and practice. Management disputed this contention. In this regard, the Court sought further information from the parties.

The Court has considered the written and oral submissions of the parties and the additional information and correspondence furnished at the Court’s request. As it has been determined by the APAB that the initial selection process was flawed, the Court recommends that the Appellant should be re-interviewed for the promotional position by a newly appointed “fresh Board of assessors” as recommended by the APAB. Therefore, the Court recommends that this re-assessment of the Appellant’s application should not be conducted by any individuals, either internal or external, who were involved in the 2012/2013 process. Furthermore, the Court recommends that Management should ensure that the newly appointed Board will not be given access to the letter from the Acting Head of Department referred to above.

Accordingly, the Court overturns the Rights Commissioner’s Recommendation and the Appellant’s appeal succeeds.







Signed on behalf of the Labour Court



Caroline Jenkinson
CO'R______________________
21 March 2016Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.