Complainant

Respondent

Anonymised Parties

A University Senior Lecturer

A University

Representatives

Frank Jones Irish Federation of University Teachers

Paul Ryan, Employee Relations Manager.

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00014691-001

29/09/2017

This case arose following an unsuccessful shortlisting process in March 2016 . the claimant has sought an external review and the claim has been rejected by the Employer in the case .

The Claimant has worked as a Lecturer at the University since January 1986. He currently works as a Senior Lecturer, engaged in teaching and research. In February 2016, he applied for a chair in his discipline and was not shortlisted for interview. He was represented by his Union.

The Claimant had a relatively successful career at the University until the 2004 appointment of the Head of Department. In 2014, the claimant applied for a Professor (Scale 2) position and was declined. He appealed the decision to the Appeals Board. The claimant received an outcome to this process on April 1, 2016, where his appeal succeeded and he was re-interviewed, but remained unsuccessful. The outcome of his appeal identified a lack of transparency and objectivity in the process, a long-standing conflict between the claimant and Head of Department and a tainted recruitment process.

The University advertised 10 Professorial posts in late 2015 with a closing date for applications of 15 February 2016. The Claimant applied and was not shortlisted.

The Claimant contended that the process was flawed as the selection committee contained a pivotal member who had a long standing conflict of interest with the claimant ,records of competition relate documentation was not to be found and the selection committee was not appointed in accordance with the correct procedures, and was deficient with regard to specific disciplinary expertise .The Claimant submitted that the decision taken not to short list him could not be justified on objective grounds.

The Union on behalf of the claimant sought a recommendation for an external review of the process with specific terms of reference aimed at securing a place on the shortlisting process.

The Employer was represented by in house Employee Relations, who submitted a   rejection of the claim. By way of background, he outlined that the Claimant has been a Senior Lecturer since March 1999 and prior to this had worked as a lecturer since 1986 at the University.

The Employer submitted extensive detail on a public advertisement for 10 Professorial appointments launched in December 2015. There were 262 applicants, some of whom submitted dual applications. The Claimant made application for a full Professorship. On March 15,2016, The Claimant was advised that he had not been shortlisted for interview. Thirty-six candidates had been shortlisted for interview, 10 of whom were internal to the University.

The Employer outlined the procedural framework surrounding the appointments process at the University. In 2014, the Governing Body had adopted regulations which incorporated the relevant Head of School onto any Selection Committee.

In the case of the competition for the 10 Professors, the membership of the selection process was finalised in accordance with the regulations:

Chair: President

Registrar/nominee

Head of College/nominee

Head of School/nominee

Two Academics within the relevant college and Two external assessors.

A Human Resource Representative

The Claimant had applied for a full Professorship position and was not shortlisted. On April 4, 2016, the claimant was given reasons for his omission from the shortlisting process.

The Employer contended that the complainant presented at hearing and referred to a decision taken some two years ago, The University adhered to the Regulations governing the appointment. The Claimant applied for a Full Professorship incorporating 3 disciplines. One appointment was subsequently made specific to one of these disciplines.

The Employer submitted that the selection committee had decided that the claimant had not demonstrate sufficient grounds as to warrant his progression to the next stage of the competition, i.e. interview stage.

The Head of School was correctly involved in the process and the selection process was conducted fairly in an unbiased manner.

In referring to O Higgins V Labour Court and UCD [2013] IEHC 508, the Employer quoted Justice Cooke

“It was not the function of the Labour Court to decide whether the applicant’s academic achievements and publications were at the level of excellence she maintained …….”

This duty was “delegated exclusively to the specialised appraisal of the members of the Committee”

The Employer contended that meeting the minimum criteria for a job does not equate to shortlisting and the process should not be deemed as unfair because of exclusion from progression in the competition. The University pointed to a reciprocal challenge via interlocutory injunction in Buckley and UCC [2016] No 2699 P} This application arose from the instant competition also and was refused in the High Court in April 2016.

The Employer sought that the Adjudicator uphold the University position as the claimant had not been treated unfairly.

I have considered the verbal and written submissions of the parties. I note both party’s reliance on the unsuccessful application for an Injunction in the Buckley case of 2006. However, this is a claim taken under the Industrial Relations Act and my role is focussed on an investigation of a Trade Dispute, if such exists.

This is a claim for access to an external review following an unsuccessful application for a Chair in a school of the University. The claimant was not shortlisted in a process where 36 out of 262 applicants were shortlisted. I appreciate that Buckley arose from the same set of facts, albeit Buckley made a light reference to a lightly veiled expectation of automatic promotion, not relevant to this claim.

The Claimant set out a previous difficulty which the claimant experienced at competition in 2014 which was in turn scrutinised by the then University Appeals Board, now extinct. On that occasion, the claimant succeeded on appeal and was re-interviewed, albeit without success. My review of the three documents submitted concerning this process revealed a deep line of disagreement between the claimant and two senior academics at the University.

I read the Appeal outcome dated June 2016, completed by a member of the judiciary working in an independent capacity. In a strongly worded statement, the Appeals Board determined that the 2014 shortlisting

1 lacked objectivity and transparency causing the process to be tainted.

2 Two Senior Academics had erred in their involvement in the competition.

The Claimant had already made application for one of the “10 chairs “and had been denied shortlisting by the time this outcome was communicated to him in June 2016. It seems that he settled for a re-interview as a remedial action. While the claimant mentioned a defined conflict of interest with his Head of School, now retired, no documentation was submitted in advancing that contention.

It was very clear to me that the claimant believed that he had been wronged at both the 2014 and 2016 competitions. It was unclear to me just why the University in writing out the existence of the Appeals Board in 2016 does not appear to have replaced it with a comparable body. It cannot be fair or reasonable that a candidate for a competition is expected to approach the WRC to lodge an appeal. As stated, I do not have a role in deciding who the most meritious candidate is at any stage of a competition, I can however, review the procedural framework and make findings.

The Employer has disputed that the competition was unfair and emphasised that the University had delivered a coup when it succeeded in securing funding for 10 eminent posts of Chairs after a long period of reduced opportunity for promotion. They went on to confirm that the competition was run in accordance with the regulations and the claimant had accepted the presence of the selection committee.

A competition process of such magnitude was bound to raise expectations in prospective candidates. It is equally natural that candidates are disappointed when turned away at the “first fence”. It is bound to leave a residual impression. However, some two years post the closing date for the positions, the candidate has presented his case following one brief meeting at the University aimed at resolving matters. I am not satisfied that either party made strident efforts to resolve matters prior to this referral. However, I am conscious of the clear overlap in the Appeals process with that of the instant competition that justifies my investigation.

I find that given the clear sensitivities present in the protracted appeals process, the employer ought to have been more vigilant in managing the claimant’s subsequent application. I appreciate that no wrong had been identified prior to his application, to justify the recusal of the Head of School, (this was the claimant’s main contention) However, the claimant did flag the conflict of interest which arose for him with his head of school at the time of application. No details of this objection were submitted and the person has since retired and may not have shared the claimant’s views on whether a conflict of interest existed or not. However, there were sensitivities here which the University should have reflected on.

I was struck by the sporadic pattern which has followed the appointment of these 10 chairs, not all of which had been filled by the Hearing day. The Employer confirmed that an appointment was imminent in the claimant’s own discipline at Professor level. I had explored whether there was provision for a competition for an acting chair as an interim arrangement, but this was deemed impossible.

However, I was most struck by the dearth of records surrounding the competition, in reading Buckley, I noted that the University had made extensive affidavits concerning the same competition and it seems unusual that the information which informed these affidavits was not to hand either in response to the claimant’s application or for this hearing as its continued absence casts doubt on the competition and places some concerns back into the realms of transparency and objectivity.

As I understand it, the position of Chair is the zenith of an Academic career, retention of records surrounding the appointment to these positions are essential. The University is a Public Body.

I did not establish that the University had erred in relation to compilation of the Selection Committee or in relation to the unpublished external research quality review committee.

I have found that a Trade Dispute is in existence in this case. While I hold, reservations regarding the incompletion of the grievance procedure, I accept that the claimant remains troubled by his experiences at competition both in 2014/2015 and in 2016. I ascertained that he was very keen to secure a promotional post in a field where he believes that he has demonstrated the desired competences. However, I do not accept his submissions on the perceived deficits in his colleague’s levels of experience. An application for a promotion is aimed towards a higher body and it falls to all candidates to present themselves in the best possible light to prompt a positive invitation for promotion. I found that the claimant held a strong sense of feeling diminished by the involvement of his Head of School in the competition and this preoccupied him, perhaps to his detriment .

I am also mindful of the University position in this case. They received 262 applications for 10 positions and had cause to turn away over 200 applicants at the first fence. This must have been a highly onerous administrative endeavour. I appreciate that the claimant held a strong sense that he deserved to progress unfettered through the competition, however, the University is entitled to select the candidates required providing the process of selection is scrupulously fair. I have some reservations on the fairness of the selection process at the shortlisting stage, which is mainly fuelled by the dearth in documentation.

I find that there is some merit in the dispute.

I have given some thought to the claimants stated preference for an external review of the process and I cannot agree that this approach has merit at this juncture due to the extended time passed since the claimant was first advised of the University position on his shortlisting. I find that he had two opportunities to advance an objection following April 4 and June 9 2016. I am also mindful of the imminent appointment of the chair in the claimant’s own discipline and the need for a certain stability going forward. I have found that an abundance of time has already been allocated to retrospective analysis and more time may need to be focused by both parties on creating additional scope for promotion. I also find that I have gone some way in my capacity as Adjudicator   towards completing the external review sought by the claimant .

Recommendation:

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

I find that the selection process surrounding the short listing in the 2016 competition was flawed and tainted by a lack of transparency and sensitivity.

I award the claimant 8,000 euro in compensation for the distress and missed opportunity caused.

I would however, also make the following recommendations to the Employer

1 The University should provide an Internal Appeals mechanism in the event of candidate dissatisfaction regarding any aspect of a competition within 6 weeks of this recommendation.

2 The University should issue an apology to the claimant for the absence of records in the case and immediately construct a remedial system for retention of records.

3 The University should consider becoming participatory in the Commission for Public Service Appointments process.

Interview process