ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003468

Complaint for Resolution:

Date of Adjudication Hearing: 24th August 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 31^st May 2016, the complainant referred a complaint pursuant to the Industrial Relations Acts to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 24^th August 2016. The complainant is a quality assurance and compliance officer and the respondent is an Institute of Technology.

In accordance with section 13 of the Industrial Relations Act, 1969 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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.

Complainant’s Submission and Presentation:

The complainant has worked as a Grade VI in the Registrar’s department of the respondent since 2003. There are 40 odd administrative staff in the department. This matter arises following an email he received congratulating a colleague in the Registrar’s Department on her appointment in an acting capacity to the post of Student Services Officer (a Grade VII). The complainant said that he had not been informed of the competition and had not had any opportunity to advance in his time with the respondent. He commented that he and this colleague both worked in the same functional area, i.e. the Registrar’s department, but she was a member of a union and he was not. This acting appointment was made on the 5^th September 2014, but an appointment was made to the substantive role in September 2015, off a Grade VII panel. The complainant outlined that he learned that the acting vacancy had been circulated to a sub-set of the Registrar’s department and restricted to student services. This had consisted of an officer and one assistant.

In respect of the Academic Administrator & Student Affairs Manager role, the complainant said that the post holder moved to a university but no competition was run to fill the vacancy. Instead, a person was reassigned from the finance department to take up the role. The complainant was not sure what grade this person had been prior to their transfer. The complainant commented that this was a permanent role and had represented a promotional opportunity for him within the Registrar’s department. He did not have the opportunity to apply for this role nor had any of his colleagues in the Registrar’s department. If another colleague had been successful with their application, this would have created other opportunities in the department. The respondent had run a competition to fill the vacancy in finance created after the person was re-assigned into the Academic Administrator & Student Affairs Manager role. He was not able to apply for the finance role as he did not have the qualification requirement for the finance role.

The complainant outlined that the respondent was in breach of the Code of Practice for Appointments in the Civil Service and Public Service. The Code lays out principles such as opportunities should be available to all via a competition and a merits-based process. This did not occur in these instances and he had only had one opportunity to apply for advancement within the respondent.

In reply to the respondent, the complainant said that the marketing role mentioned had been a 12-month job share for 2.5 days per week. Other roles offered attracted lower rates of pay as they were lower on the scale. The complainant stated that as a Grade VI, promotion represented Grade VII and above. He said that there was no point in going sideways and that the School roles were Grade V and did not represent an opportunity for him. The complainant outlined that the filling of the Academic Administrator & Student Affairs Manager role was done without transparency and had not been advertised. He had raised this as an issue at the time. He said that management had been very unhappy with him raising these issues and that there would be a high personal cost for him. He referred to his email of the 5^th January 2015 and the conversation of the 8^th January 2015. He said that his grievance had not been taken seriously. He outlined that his role was a functional role and he should have been included in the pool for the acting Senior Staff Officer post filled in 2014. Staff should be informed of such opportunities via the intranet. This role would have helped the complainant broaden his horizons and to again deal with students.

Respondent’s Submission and Presentation:

The respondent outlined that it had a staff of 285, made up of 250 whole-time equivalents. It had 62 administrative whole-time equivalents, made up of Grade III to Grade VII roles. It was bound by Department of Education and Skills circulars. While it subscribed to the Code of Practice for Appointments in the Civil Service and Public Service, it was not bound by it. The respondent stated that it provided promotional opportunities for all and was audited frequently. Between 2010 and 2015, it ran 136 recruitment competitions. It commented that four unions represented its staff.

In respect of the Academic Administrator & Student Affairs Manager role, the respondent outlined that this had been filled by assignment of the President. It was open for a staff member to be reassigned at the same grade. In relation to the Student Services Officer (acting) role, the recruitment process had been agreed with a named union on the 18^th July 2014. It had been an interim solution to fill what was a key role in circumstances where it was not clear whether the post holder would be in a position to return to work. The recruitment process was restricted to the functional area of student services. The appointment was made on the 1^st September 2014 and the role was filled by a Grade VII on a permanent basis on the 5^th April 2015.

The respondent outlined that it was not relevant whether or not staff are members of a union. It was practice to establish panels from which appointments would be made. A panel would stay live for 12 months. There had been two panels for Grade VII roles in the period of 2005 to 2015. The respondent pointed out that the acting Senior Staff Officer role had been a short-term appointment and the substantive post had later been filled in the normal way.

Findings and reasoning:

The complainant is a longstanding member of the respondent’s Registrar’s department. He occupies a Grade VI role and this complaint, made pursuant to the Industrial Relations Acts, relates to two promotional opportunities for which he could not apply for. The respondent denies the claim and outlines the circumstances in which the acting Grade VII and Academic Administrator & Student Affairs Manager roles were filled.

I accept that the respondent is not bound by the Code of Practice for Appointments in the Civil Service and Public Service. I believe, however, that the respondent did not dispute the central tenets of the Code, i.e. appointments should be made on merit and in an open, accountable and transparent manner. I note that I have not been provided by the respondent with a “Recruitment and Selection Procedure” that might give greater detail regarding the definition of “functional area” or the policy relating to assignment.

The complainant asserts that, as a staff member in the Registrar’s department, he fell within the functional area for the Student Services Officer (acting) role. I cannot see any policy definition of “functional area” that should dissuade him of this view. Given that the definition of “functional area” was not evident in any policy, it was unfair to restrict this so that employees of the Registrar’s department were not informed of the opportunity to apply for the role.

The respondent refers its ability to assign persons to posts of the same grade. It refers to this having occurred to the complainant in 2008 when he was assigned the role of Quality Assurance Officer. This complaint relates to the assignment of the role of Academic Administrator & Student Affairs Manager role, in particular in circumstances where the back fill position in Finance required a particular qualification. Again, I look to the principle that appointments should be made on merit and in an open, accountable and transparent manner. In the absence of any policy that provides for the circumstances that posts should be filled on assignment, it is difficult to stand over the circumstances in which the Academic Administrator & Student Affairs Manager role was filled. Such an eventuality should be addressed by a “Recruitment and Selection Procedure” prepared by the respondent and which addresses the circumstances in which a senior role may be filled by assignment.

I accept that the parties approached this matter in good faith and with regard to the particular circumstances that arose with both roles. I find, however, that in the absence of a “Recruitment and Selection Procedure” prepared by the respondent, the claim is well founded. The process relating to the acting appointment and the assignment did not exhibit a selection made in an open, accountable and transparent manner. There is no guarantee, of course, that the complainant would have been successful with either application and this was not his case. He referred to general labour mobility grounds, in particular with regard to the Academic Administrator & Student Affairs Manager role.

Taking the above findings together, I find that the claim is well founded. I recommend that the respondent prepare a “Recruitment and Selection Procedure” regarding the filling of vacancies, including acting up posts and those by assignment, to ensure that vacancies are filled in an open, accountable and transparent manner. Given that the claim is well founded and the complainant has suffered loss in relation to not being able to apply for either post, I recommend that the respondent pay to the complainant the amount of €1,200.

Recommendations:

Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the complaint.

I recommend that the respondent prepare a “Recruitment and Selection Procedure” to ensure that vacancies are filled in an open, accountable and transparent manner, including acting up posts and those by assignment.

I further recommend that in the circumstances of this case, the respondent pay to the complainant the amount of €1,200 in relation to the issues arising in this claim.

Dated:   7^th March 2017