ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00007295

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/08/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

This dispute refers to an alleged disregard by the University to a Labour Court Recommendation (LCR2 1093) in relation to the redeployment of a lecturer to vacancies within a department of the University.

Summary of Complainant’s Case:

The Complainant submitted that in 2013 a college of education he was employed with was closed and merged with the University. The arrangements for the staff transfer were subject to wide-ranging negotiations between IFUT and the University where an agreement was made that would regulate the transfer opportunities of the lecturers.

The Complainant maintained that following the merger he was assigned as a generic lecturer in education; however, prior to the merger he had been employed in a discipline specific role. The Complainant maintained that under clause 6 of the merger agreement that the University agreed to examine ways to establish formal links between staff from the College of Education that had transferred and staff in other departments of the University. As part of this arrangement the Complainant argued that, in light of his discipline specific skill set and the existence of a discipline specific department in the University, he should have been offered a discipline specific placement in the specific department. Instead he contended that he was placed in a more general role in a newly created Department of Primary Education.

The Complainant maintained that clause 6 of the merger agreement stated, “the University agrees to examine ways to establish formal links between staffing the Department and staff in other departments”. He submittedthat no such links were established and where the University also failed to consider the possibility of joint appointments, or to examine the possibility of staff transferring to more discipline specific Departments. The Complainant also argued that the bursar who was acting as chief negotiator on behalf of the University advised that “clause 6 has been extended to give greater clarity to the possibility of joint appointment or transfer to discipline specific departments.” Notwithstanding these commitments, the Complainant maintains the situation remains unresolved.

The Complainant has argued that a post transfer placement to a discipline specific department was an imperative and a key part of his understanding of what was to occur within the merger procedures. The Complainant maintained that transfer opportunities existed for him to be appointed to a full time equivalent role within a discipline specific department that is relevant to his skill set. The Complainant argued that an integration group which was established to address these issues failed to deliver on the obligations of the University to place him to a discipline specific post when the opportunity arose for a discipline specific role. In an attempt to resolve this matter proposals were made to the University in September 2015 but as these proposals were rejected the issue was referred to the Labour Court.

The outcome of the Labour Court was a recommendation in December 2015 that recommended the Complainant should accept his current deployment and that in the event a vacancy arising at his grade in a discipline specific department in the future he should be willing to participate in the normal processes employed to fill that vacancy. The Court also recommended that the matter should continue to be kept under review over time such that where suitable opportunities are identified for the Complainant to work in the discipline specific department they are taken up on an agreed basis.

The Complainant maintains that the University has failed to honour this recommendation where he contended that the University facilitated lateral post transfer placements without open competition for some whilst the same conditions have not been applied to the Complainant. The Complainant also argued that as the University has been inconsistent by, on the one hand maintaining that his tenure is located in one department and he therefore cannot be assigned elsewhere; but on the other hand the President of the University has instructed another IFUT member to transfer laterally to a different department against his will. The Complainant noted that the President insisted he was entitled to do this because academics hold their tenure in the University and not in individual departments or schools.

In the interim the Complainant maintained that he has been working in a discipline specific department for the past 12 months on a temporary one-year contract following his appointment in an open public competition. He has argued this demonstrates that there are no impediments to the University transferring the Complainant, other than their own inexpressible refusal to do so. Furthermore, the Complainant has argued that the University has failed to honour the Labour Court Recommendation where the matter should continue to be kept under review over time such that where suitable appointments are identified for the Claimant to work within a discipline specific department that they are taken up on an agreed basis. In this regard, the Complainant argued there have been two potential vacancies in the Department since the Labour Court decision in December 2015, but there was no communication by the University with the Complainant regarding the filling of these appointments, nor was there any attempt to assess how the Complainant might work with University to help fill these vacancies. Instead the Complainant heard about a vacant post through the wider University channels and where he had to apply through open competition for this temporary post. The Complainant contended this is not within the spirit of the Labour Court recommendation.

The Complainant also noted that one of the discipline specific lectureships which became vacant in September 2016 is not to be filled in light of the Department being required to reduce its staff members. The Complainant therefore argued that the University’s decision to close this appointment, which leaves remaining academics in the Department under more pressure to complete the work, is contrary to the clause 6 of the agreement and amounts to a further disregard of the Labour Court recommendation. The Complainant also argued that the University was using a tutor grade to replace academic FTEs in the discipline specific department that the Complainant ought to be deployed in, and by the placing of tutors into the Department he contended this restricts the possibility of completing a long-term placement for him and this is also against the spirit of the agreement where the Labour Court has already recommended that posts should be filled on an agreed basis.

Summary of Respondent’s Case:

The Respondent submitted that the complaint related to matter which was subject of a Labour Court recommendation (LCR21093) dated 7 December 2015. The Respondent advised the Labour Court recommended “… That the Claimant accept that his current deployment is to the (named department) and that in the event a vacancy arises at his grade in (named department) into the future he should be willing to participate in the normal process employed to fill that vacancy. The Court also recommends that the matter should continue to be kept under review over time such that where suitable opportunities are identified for the Claimant to work with (the Department) they are taken up on an agreed basis”.

The Respondent acknowledged that in 2016 a temporary lecturing vacancy in a discipline specific department suited to the Complainant’s skill set arose and was advertised by the University. The vacancy was required for the provision of temporary cover for academic duties while a strategic review of staff in the department was carried out. The Respondent maintained that the post was specifically advertised as a one-year lecturer position and following a competitive process the Complainant was offered and accepted the post which commenced on 1 September 2016. It submitted that the post was accepted on the clear understanding that the Complainant would revert to his permanent and substantive post as lecturer on 21 August 2017 subject to the Complainant availing of one year’s sabbatical leave. The University advised that the Complainant’s substantive post had been filled on a temporary basis to provide replacement cover for him during his approve secondment and approve sabbatical leave.

The Respondent advised that IFUT wrote to the Director of Human Resources seeking to make permanent the transfer of the Complainant to the discipline specific department on the basis of the Labour Court recommendation. On 2nfd February 2017 the Director of Human Resources responded outlining that the Complainant’s secondment was temporary, that the University’s position was that future staffing requirements of the Department was subject to review, and that the provision of a permanent post for the Complainant would constitute what the Labour Court had described as “an intrusion into the normal mechanisms for filling and bake any vacancy that might arise in the future in (the name department)”.

The University maintained that in the lead up to the integration of the College of Further Education and the University, an integration group had been established in accordance with clause 6 of its agreement with IFUT, and where the transfer of the Complainant was examined by that implementation group and deemed not to be workable as was no vacancy in the Department. It had further identified that any such vacancy would require an open competition in the normal way for public appointments, that the Complainant’s position in the College of Further Education where he had come from was full-time, and where his duties remained upon the transfer.

The Respondent therefore submitted that in circumstances where the staffing requirements of the discipline specific department are under review, and the Complainant’s post has been filled on a temporary basis, the conclusions of the implementation group regarding the Complainant’s appointment are still applicable. The Respondent further concluded that any permanent vacancy arising in the discipline specific department must be filled by way of an open competition. It maintains that this decision is in accordance with the Labour Court recommendation which states “a lateral transfer between academic departments is not the normal methodology used to fill vacancies arising at the Claimants grade in (the University).”

It therefore submitted where any suitable vacancy arises, the Complainant will be actively encouraged to participate in an open competition for the relevant position, and where this is consistent with the Labour Court recommendation. On that basis, the Respondent was not of the view it was in breach of any agreement or recommendation from the Labour Court.  

Findings and Conclusions:

Having reviewed the matter and I am satisfied that to facilitate the merger between a College of Further Education and the University, an implementation group was established by agreement to consider the management of transfers brought about due to the merger. The interpretation of this agreement became a dispute between the Complainant and the University during 2015 and was subject to a Labour Court recommendation in December 2015. In this regard, the Labour Court recommendation is as follows:

The Court has carefully considered the comprehensive submissions of the parties and the points made at the hearing. The Court understands that the wish of the Claimant is to transfer to (a discipline specific department). The Claimant believes that he is not properly skilled to carry out the role required of him in (his current department) and for that reason seeks to transfer. The Respondent does not accept that the Claimant is inappropriately skilled to carry out his role in the named department.

The Court understands that a lateral transfer between academic departments is not the normal methodology employed to fill vacancies arising at the Claimants grade in the University. The Court, having considered all aspects of this matter, including the report of the joint integration group, does not find that matters of sufficient gravity had been raised by the Claimant to warrant an intrusion into the normal mechanisms for filling any vacancy that might arise in the future in (the discipline specific department)

The Court therefore recommends that the Claimant accept his current deployment is to (the named department) and that in the event a vacancy arises at his grade in (the discipline specific department) into the future he should be willing to participate in the normal processes employed to fill that vacancy. The Court also recommends that the matter should continue to be kept under review over time such that were suitable opportunities are identified for the Claimant to work with (the discipline specific department) they are taken up on an agreed basis.

The evidence presented supports that during 2016 a temporary vacancy arose in the discipline specific department which was suitable for the Complainant to fill, however there was no direct correspondence with the Complainant in relation to this appointment. Rather the post was advertised to open competition where the Complainant applied and was successfully appointed. I am not satisfied that this approach was in the spirit of the Labour Court recommendation which clearly states that were suitable opportunities are identified for the Claimant to work with (the discipline specific department) they are taken up on an agreed basis. It is clear that when the temporary appointment became available the University did not directly engage with the Complainant to work with him in relation to an agreed approach for the filling of the appointment  

It is the interpretation of the Labour Court Recommendation that is now in dispute between the parties. Specifically, the Complainant argues that there has not been effective consultation with him with regard to staffing arrangements and vacancies within the discipline specific department that he is seeking a full-time lecturing appointment within. Whilst I understand the University is relying upon a further recommendation by the Labour Court that the Complainant should be willing to participate in the normal processes employed to fill the vacancy, it is clear that the Labour Court recommendation set this within the parameters of such appointment processes relating to the Complainant were to be achieved on an agreed basis.

It is outside the scope of this hearing to recommend that the Complainant be appointed to full-time post in the discipline specific department, which clearly, he is seeking. Indeed, the Labour Court recommendation has already identified that it would not be prudent for the Court to intrude into the normal mechanisms for filling any vacancy that might arise in the Department. In this regard, I am satisfied that no significant changes have occurred that warrants an adjustment to this recommendation by the Labour Court.

However, I am satisfied that the University did not meaningfully consult with the Complainant when it was considering the temporary appointment in 2016, which the Complainant was subsequently appointed to. In so doing I find that that the University had disregarded the need to deal with this matter within a more consultative process, as recommended by the Labour Court.

Recommendation:

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

Having heard the evidence presented by the parties I am satisfied that the University, in filling the appointment for the temporary lecturer, did not adhere to the Labour Court recommendation that the matter should continue to be kept under review over time such that were suitable opportunities are identified for the Claimant to work with (the discipline specific department) they are taken up on an agreed basis.

Therefore, based on the cases presented, and the recommendation by the Labour Court, I recommend that the Complainant through his Union, and the University are to agree a process to establish transparent procedures that will apply with regard to how the matter will be kept under review, and in the event of suitable opportunities being identified for the Complainant, whether temporary or permanent, how they can be taken up on an agreed basis. I further recommend that this review process be chaired independently by a suitably experienced Chairperson to be agreed by the parties, and within its terms of reference this process have due regard to the normal mechanisms for filling such vacancies, and the overall recommendations of the December 2015 Labour Court Recommendation.

I recommend that this review process be completed within a three-month timescale from the date of issue of my recommendation.

Dated:   24/01/18

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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