FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TRINITY COLLEGE DUBLIN - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Recommendation.
BACKGROUND:
2. The case before the Court concerns the Claimant's appeal of the Recommendation of an Adjudication Officer. The dispute relates specifically to the Claimant's claim that he was unfairly overlooked for promotion. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 22nd January 2016 the Adjudication Officer issued her recommendation as follows:
"On the basis of the evidence and written submissions from both parties I find and recommend as follows:
1. The Labour Court has held in Determination No EDA131 UCD and Dr Eleanor O'Higgins that 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"
2. There was no complaint of discrimination stated by the Complainant.
3. The Complainant was afforded fair procedures in relation to his application and the appeal, which was in line with the agreed procedures.
4. I note the Decision of the TCD Visitors issued on 7th October 2014. The TCD Visitors is part of the University Statutes and is open to all to apply to have an issue determined. It is open to the Complainant to apply to have his application for promotion considered by the TCD Visitors.
I do not recommend in favour of the Complainant".
On 3rd March 2016 the Complainant appealed the Recommendation of the Adjudication Officer to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on 29th March 2017. The following is the Decision of the Court:
DECISION:
The Court has given careful consideration to the submissions of both parties to this dispute.
The Court finds that the promotions procedure applied in this case did not comply with those set out in the did not comply with Procedure 46(b) of the scheme under which they were conducted. Furthermore, the Court finds that the Senior Promotions Committee, having found that the Faculty Review Committee had failed to conduct the promotions procedure in compliance with Procedure 46(b) took the unsafe step of referring the matter back to that self-same Committee to reconsider the Claimant’s application in accordance with the rules of the competition.
The Court finds this procedure to be unsafe and holds that the outcome of that process cannot be upheld.
Accordingly the Court finds that the scores awarded to the Claimant by the Faculty Review Committee should be reviewed by an appropriate Independent Expert and, but only if appropriate and as necessary, be recalibrated in accordance with the rules of the competition. Having done so the Independent Expert will decide, on the balance of probabilities, whether or not the Claimant would or should have been promoted based on the outcome of that exercise.
The decision of the Independent Expert will be binding on both parties and will be in full and final settlement of this matter.
Should the parties fail to agree on the appointment of such an Independent Expert within 28 days of the date of this Decision the Court will nominate a suitable person to undertake that exercise.
The cost of the Independent Expert shall be borne by the College.
Signed on behalf of the Labour Court
Brendan Hayes
22nd May 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.