Complainant

Respondent

Anonymised Parties

A Lecturer

An educational establishment

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014755-001

03/10/2017

The Complainant in this case is a lecturer in College 2 and feels that his grade should be higher than it is at present. College 2 was incorporated into College 1 early in 2016.

In July of 2016, following completion of an interview process, the Complainant was appointed to the role of Co-ordinator of Human Development in College 2. The duties and responsibilities of the role demonstrate that this is a senior position.   Point one of the duties and responsibilities reads:

Maintain oversight, manage and administer the HD (human development) programme and modules within the remit of HD school and within the joint honours BAJH

The role is an SL9 role, that is to say that it is remunerated at point 9 of the Senior Lecturer pay scale, currently (as from the 1st of January, 2018) this rate is €94,967 per annum. This has been a fact for many years, this can be seen in an e-mail from Dr PT dated 25th of September, 2007. Dr PT was President of College 2 from 1999 to 2012, in the mail Dr Travers states, inter alia:

The Headship of Human Development now (and for the future) carries an SL9 position.

This mail was sent to Dr JD who was the founder and the then Head of Human Development, a programme that was based in the Education Department but was offered as a BA subject to humanities students and was a cross-faculty subject (a situation that continues to date).

It was the cross-faculty nature of the programme that led Dr JD to seek a guarantee from Dr PT regarding the Headship issue as the title of Co-ordinator (an appellation so called in order not to cause confusion regarding the Head of Education where Human Development had its home). The role entitled Co-ordinator was thought to be vulnerable to a diminution when viewed alongside other more easily recognized promoted posts. In reality it had the same role and responsibilities in relation to programme running and development and required as much status at the BA Programme Board meetings etc. Dr PT provided the required guarantees for the role in his letter of Sept. 2007. Dr JD retired in 2010 as Cregan Professor and Dr MO’B was appointed his successor, a role that the Complainant currently fills albeit without the aforementioned SL9.

In response to the discrepancy, the former General Secretary of IFUT wrote to the Human Resources Manager, College 1, on the 20th of July, 2016 making the point that the Complainant had now moved into Dr MO’B’s former role that the already mentioned commitment from Dr PT i.e. that this role is an SL9 position must be honoured.   The HR Manager replied to the mail on the 20th of August to make the somewhat incredulous point that Dr MO’B’s promotion to the Head of School was a ‘continuance’ of her role as Head of Human Development.

In point of fact: The position or role of Co-ordinator was being vacated as the incumbent Dr MO’B was moving to a new position as the Head of the new School of Human Development, having been interviewed in a competitive process, a role that came with an ‘acting up’ allowance. The HR Manager’s reply stated:

In the circumstances, we do not accept that the Complainant has replaced Dr MO’B as suggested or that he is entitled to the SL9 position as sought.

This response brought surprise to both the Complainant and Dr MO’B as it was patently clear that the Complainant had indeed replaced Dr MO’B as the Co-ordinator of Human Development. The mail was answered on the 8th of September, 2016 by Mike Jennings. The letter outlines the process that the Complainant went through to secure the position and details the fact that Dr MO’B had vacated the role to take up a new position as Head of the new School of Human Development. It is important to state that the post of Head of School is not attached to any one subject per se. It is a management role within the new DCU structure where the School is located and within which many programmes and subjects exist. It is a definite senior leadership role but different in kind from the role of HD Co-ordinator. 

College 1’s HR’s Position of 18th of October, 2016

The HR Manager acknowledged receipt of the mail and responded fully and finally on the 18th of October, 2016 by way of e-mail. Paragraph 3 of the mail states:

The advertisement in question did not include that, the posts were linked to a Senior Lecturer role. This was due to the fact that it in no way equated to the responsibility or experience to that of a Senior Lecturer.

The case is that the Complainant knew before interview that the role was an SL9 role, it had been so for almost 10 years and secondly the Duties and Responsibilities of the role demonstrate that it is a senior management role with as previously stated references to:

Maintain oversight, manage and administer the HD programme….

Progress, in conjunction with the head of school and relevant staff, the development of the HD programme by building on…

Coordinate and chair Human Development subject meetings…..

Etc.

As stated on several occasions the Headship of Human Development, which became renamed (without any diminution of responsibility or scope) Co-ordinator of Human Development was considered and agreed to be a SL9 role. Part of the role now, for the Complainant, involves the running of the existing and expanding BA programme in Human Development consisting currently of some 350 students, 18 full modules, 8 full-time members of staff and some 10 part-time members of staff (the student intake has almost doubled in the past two years alone).

“The University has clarified its position relating to this matter and now considers the matter closed”.

To sum up our case and why the matter is not closed, it was natural for the Complainant to conclude that he was applying for an SL9 role, the one being vacated by Dr MO’B, as:

·         For many years, it has been a SL9 role, the previous post-holder had since 2010 been an SL9 and she held it in succession.

·         That the post – holder was leaving that said role to take up an entirely new role

·         That the role was being advertised to the HD team as ‘Co-ordinator of Human Development’

·         That the duties and responsibilities attached to the role had not lessened, and were at any rate considerably greater than those attached to the grade of Lecturer

·         That to be successful in securing the role one had to go through a competitive process

·         That there had been no negotiations with the Union to make changes to the responsibilities attached or indeed the remuneration or promoted status attached to the role

Response to Mail of 18th of October, 2016

On the 2nd of November, following meetings between IFUT’s former General Secretary and the Complainant and indeed Dr MO’B, IFUT’s General Secretary wrote to the HR Manager and copied the letter to the Employee Relations Manager (the letter was read as part of the submission).

It can be seen that this letter lays out the case as already stated and supported with documentary evidence and reaches out to management expressing a ‘hope’ that this is a mistake that will be righted.   Despite some communication between IFUT and College 1 stating that reply would be forthcoming there was no reply to IFUT’s letter of the 2nd of November.

Referral to the WRC and late response from Management

IFUT referred the matter to the Conciliation Services of the WRC on the 27th of June, 2017. The subject of this referral was:

“Non-application of a correct rate of pay to the Complainant, Lecturer, College 1”.

The referral sparked a response from the ER Manager which opens with an apology for the delay in making a response to IFUT’s General Secretary’s letter of some 6 months earlier.   The letter makes the false assertion that the Complainant’s role of Co-ordinator of Human Development does not equate in level of responsibility to that of a ‘headship’’, in doing so paragraph 2 of the letter is written as though this is consistent with management’s position from the outset, it’s not. If Dr MO’B’s new post was a ‘continuance’ as initially claimed by the HR Manager, it would have been easily proven. Though the issue is now being ignored by management, it cannot be disputed that the position applied for by the Complainant opened on foot of Dr MO’B’s move to a new role.

Management’s position since, states the reason why the role is not an SL9 role is because ‘it in no way equated in level of responsibility or experience to that of a Senior Lecturer.’

The letter repeats some of the earlier made points contained in earlier correspondence between the parties and concludes with 5 points that the employer will, no doubt, rely on as their main evidence, we have addressed these points with the more relevant and substantive issues in this case.

Attention must be drawn to the final sentence of the first paragraph of the letter from the Employee Relations Manager:

“Whatever happened in the past could not be expected to continue in the future and therefore it is inaccurate to assume that the Human Development Co-ordinator role was a continuation of previous structures and no point was it communicated in that fashion”.

That is a direct quote from the letter. It was stated that College 2 and College 1 were incorporating at the time of the Complainant securing his promotion to this role. One of the main principles of this Incorporation was clear to both sides from the outset i.e. nobody would be worse off. The mail from the previous College 2 President which is referred to in this correspondence and has been relied on earlier in this submission is clear about what happens into the future, that is to say what happens until such a time as there is agreement between the parties to move to a different arrangement, and that is that:

“The Headship of Human Development now (and for the future) carries an SL9 position”.

Conclusion and Remedy

On the basis of the above which will be supported by oral evidence as required and as deemed appropriate by you we are respectfully requesting that you rule in favour of the Complainant. We are requesting that you decide that the appropriate redress is that the Complainant be placed on the SL9 point with effect from the commencement in the role as Co-ordinator of Human Development, thank you.

BACKGROUND

1         On Monday 23 May 2016, prior to the finalisation of the Incorporation, the Interim Executive Dean, College 1 Institute of Education, emailed colleagues in College 2 seeking expressions of interest regarding “co-ordinating the subject of Human Development.” The email which had a job descriptor attached stated “If you are interested in this role please submit your expression of interest by Friday evening.” This gave a period of approximately 4.5 days to express an interest.

1.       The Complainant expressed an interest for the role as did one other colleague. The Complainant was appointed to the co-ordinator role following an interview on 7 July 2016 by a panel of four College 2 academic staff, with no external or HR representative on the board.

2.       Separate to this the Respondent advertised two senior lecturer posts on 9 June 2016 which had an application deadline of 8 July 2016 (Appendix 4). The deadline for submission was extended to 18 July 2016 and the Complainant submitted an application for the Senior Lecturer posts in line with this deadline.

3.       On 20 July 2016 IFUT submitted a letter on behalf of the Complainant effectively asserting that the Co-ordinator of Human Development role carried with it the grade of Senior Lecturer and that they wanted this grade applied to the Complainant.

4.       The HR Manager College 2, replied to this correspondence on 30 August 2016. She pointed out that the newly appointed Head of School of Human Development was Dr. MO’B and that her appointment was announced in April 2016. To provide some context, the Incorporation programme established a fifth university faculty called the Institute of Education and arising from this there were a number of new Schools established, one of which being the School of Human Development. The Head of School roles were advertised to all staff College 1 and the Incorporating Colleges. Dr. MO’B was previously the Head of the Department of Human Development in College 2. She applied for the new School of Human Development within the Institute of Education and was successful. The Complainant did not apply for this role. It was the appointment of Dr. MO’B to the new Head of School role which created the vacancy for a programme chair of the Human Development programme.

5.       The IFUT General Secretary responded on 8 September 2016 and the HR Manager responded 18 October 2016 refuting his claims. She pointed out that the role in no way equalled the level of responsibility of Senior Lecturer; there was no sanction from management for a Senior Lecturer position and that if it had been at that level it would have been a much more rigorous process in line with the usual Senior Lecturer assessment practice.

6.       The IFUT General Secretary again responded on 2 November 2016 and as far as can be determined by the Respondent, made two main claims. The first claim was that a quote from the then President of College 2 in 2007 should be honoured. The quote stated, “I am happy to confirm formally…the Headship of Human Development now (and for the future) carries an SL9 position.” The union’s assertion is that the Complainant’s appointment to the Co-ordinator of Human Development meant he was now ‘Head’ and therefore should be at Senior Lecturer (SL9) level.

7.       The second claim from the union was that while Dr. MO’B was now Head of the new School of Human Development, the Co-ordinator of Human Development role in which the Complainant was appointed was replacing her and the duties she undertook. As Dr. MO’B had been appointed to the role of Co-ordinator of Human Development at Senior Lecturer level the Complainant should also be appointed at that level.

8.       As outlined above the Incorporation was completed on 1 October 2016 and the Complainant transferred employment to the Respondent as of that date. In the following months there was back and forth discussion between IFUT and the Respondent and this culminated in the correspondence issued by the Respondent on 29 June 2017. In summary, the correspondence made the following points:

·         The role was not advertised as Headship nor did it state that the remuneration or grade was at Senior Lecturer level

·         The level of duties and responsibilities were that of subject co-ordinator and in no way equate to that of a Headship

·         The selection and appointment process in no way equated to the requirements for a Senior Lecturer position

·         The new academic structures established in College 2 pre-Incorporation did not allow for the appointment of subject co-ordinator at Senior Lecturer level

·         There was a College wide academic promotion call which included Senior Lecturer posts in Summer 2016. This was the mechanism for promotion to Senior Lecturer and the Complainant applied for promotion under this call

10     The Complainant did not accept this position and subsequently submitted his claim to the WRC.

RESPONDENT’S POSITION

1.       It is unfortunate that the role that the Complainant was appointed to was titled ‘Co-ordinator of Human Development’ because it in no way equated to the level of the role, as Head of the Department of Human Development, previously held by Dr.MO’B. This point is confirmed by the Interim Executive Dean, Institute of Education when she stated in an email to the HR Manager on 24 September 2016 “As you can see it is equivalent to programme chair duties and nothing else.” This assessment of duties has to hold weight as the Interim Executive Dean is the person who designed the job descriptor and sought expressions of interest. She also made the point as outlined above that if the process was to recruit for Senior Lecturer it would have been a lot more rigorous, and would have required the prior approval of the President of the College.

2.       The fact that the role was at programme chair level is also confirmed by Dr. MO’B in her email of 17 July 2016 when she states, “As I step down and into my new role as HoS of Human Development, the Complainant will head up the BA programme in Human Development and AB the MA.” As the email indicates the role of programme chair was split between the Complainant and another individual. In many cases a Programme Chair role will oversee both the undergraduate (BA) and postgraduate (MA) element of the programme.

3.       Programme chair is a common role within academia as each programme needs an academic to oversee its development and application. The role is typically for a temporary period (3 years normally) and carries no extra remuneration. The role is in no way linked to the Senior Lecturer grade, although a Senior Lecturer can undertake the role. This was the case in both College 2 prior to the Incorporation and in College 1. There was no extra remuneration associated with the role and there was no mention of same in the request for expressions of interest and the associated job description.

4.       By contrast the role of Co-ordinator of Human Development held by Dr. MO’B previously, was advertised in 2010 and explicitly set out that it was at Senior Lecturer level. The salary range advertised was that of Senior Lecturer at the time, €68,466 to €89,453 per annum.

5.       A comparison of the two role job descriptors clearly outlines the very significant difference between the two roles. The 2010 role clearly outlines the requirements to operate as Head of the Human Development Department. It is at a much higher level of responsibility and has a much broader remit to the 2016 role, which specifically has a programme chair oversight working in the School of Human Development and reporting to the Head of School.

6.       As outlined the role as Co-ordinator of Human Development involved being head of that particular group and undertaking the associated leadership duties which were outlined in the job description which explicitly stated that it was at Senior Lecturer grade. The role was a ‘headship’ as termed in Dr. PT’s quote which the Complainant’s claim places a lot of weight upon. While the Respondent does not place the same value on this quote it does accept that Dr. MO’B’s role had a high leadership skills requirement and therefore the grade of Senior Lecturer was appropriate.

7.       The practice at College 2 was that Headships which carried the grade of SL were advertised and filled in a two-step process, which a formally constituted Board, containing a nominee from College 1 and an external, would decide a) if candidates reached the Senior Lecturer threshold and b) if they were the best person for the role. Following such deliberation, the recommended candidate would be referred to the Governing Body of College 2 for approval. None of this happened in this case.

8.       The Complainant’s role was clearly that of programme chair and was at a significantly reduced level of responsibility compared to the 2010 role. The role reported to the Head of School of Human Development to which Dr. MO’B was appointed through open competition, a competition which the Complainant did not apply for. Dr. MO’B’s new role as Head of the School of Human Development in College 1 was a further enhancement of her previous role as Head of the Human Development Department in College 2. It therefore has to be asked why would the role of Co-ordinator of Human Development (2016) be associated with the Senior Lecturer grade, if its remit was to solely be programme chair of the BA Human Development programme and the remit to lead the Human Development group was that of the Head of School?

9.       Aside from the fact that the level of responsibility of both roles in no way equates, the expressions of interest process outlined above is not the normal or appropriate application or assessment process for a Senior Lecturer position. Senior Lecturer is a senior position within any academic institution and is highly sought after. In College 2 it was the second highest level of role available within the academic hierarchy (please see table below). To put this in context the Respondent holds an annual promotion call for the Senior Lecturer grade. There are typically 5-6 promotion opportunities available and the average number of applicants is 55. College 2 were not authorised to hold annual calls, so promotion opportunities were much more limited. However, there was a call authorised by the Department of Education and Skills in June 2016, just prior to the Incorporation. There were 2 Senior Lecturer positions available and 18 College 2 staff applied including the Complainant. The Complainant did not satisfy the minimum requirement for promotion and was deemed unqualified for promotion by the review panel.

Table 1 Academic Hierarchy and Associate Salary Ranges

10.   Given the senior nature of the Senior Lecturer grade there is an extensive application process. This is illustrated in the College 2 June 2016 call for Senior Lecturer. For a start the application period is 6 weeks as opposed to the 4.5 days as was the case for the Complainant. Applications are assessed under the three categories of Teaching; Research and Administration and Service and the assessment is conducted by a senior panel of academics with an external representative. This again contrasts significantly from the nature of assessment for the Co-ordinator of Human Development.

11.   If a Senior Lecturer role was advertised separate to this process as can occur, the role would normally be advertised externally and would always have an external assessor on the board as well as a senior HR representative. In the Respondent College 1 the interview board composition would be: Head of School, one other from the School at Professor level, one external and the Director of Human Resources or his /her nominee. This would have been the same in College 2 and the HR representative would have been from the Respondent as there was a ‘sister/linked College’ agreement in place before the Incorporation. This did not happen in the case of the expressions of interest role because the role was not aligned to Senior Lecturer level. This is because the role was an ‘in-School’ arrangement rather than a formal College appointment.

12.   To put this entire application process in context. The Complainant responded to a call for expressions of interest regarding an in-School arrangement (rather than a formal recruitment process) for a Programme Chair role titled Co-ordinator of Human Development. The role descriptor outlines the duties associated with a Programme Chair which is not in any way in line with the level of responsibility required at Senior Lecturer level. The role descriptor had no salary or grade associated with it and as a result could not have been considered to be at Senior Lecturer level. The application period was 4.5 days and only one other person expressed an interest. Yet 18 people expressed an interest in a Senior Lecturer call for 2 positions a month later. Having been assessed for the role by an internal panel the Complainant was successful in obtaining the role. If the role had been linked to Senior Lecturer the Complainant would have jumped two grades from Assistant Lecturer to Senior Lecturer, his salary would have increased from the 10th point of the Assistant Lecturer grade, €69,956 to the fifth point of the Senior Lecturer grade, €74,609 and his maximum earning potential (associated with the grade) would have increased to €84,296.This would have all been achieved through a very light touch process which is completely at odds with the normal assessment requirements for Senior Lecturer level.

13.   The timeframe of both processes should also be considered. Expressions of interest were sought on 23 May 2016, the interview was held on 7 July 2016). It must be assumed that the Complainant was aware he was successful by 20 July 2016 as this is the date in which IFUT submitted correspondence claiming he should be at Senior Lecturer level. Yet the Complainant still submitted an application for Senior Lecturer through the open call. The deadline for the application was 8 July 2016 but was extended to 18 July 2016. However, most importantly the assessment of the applications did not occur until 26 September 2016. If the Complainant was so sure he should receive a Senior Lecturer grade through the expressions of interest process why did he apply for Senior Lecturer through the open call and why did he not withdraw his application for Senior Lecturer before it was assessed on 26 September 2016?

14.   Finally, it is important to re-address the quote from Dr. PT which the Complainant’s claim places so much weight upon. As outlined earlier Dr. PT stated, “I am happy to confirm formally…the Headship of Human Development now (and for the future) carries an SL9 position.” Even if you discount all of the points made above, the Respondent would argue that this line does not hold any weight in the context of the Incorporation. When Dr. PT made this statement in 2007 he did so as President of College 2 which had no prospect at that time of merging with the Respondent. Yet the Complainant is claiming that such a line delivered 9 years previously, with no prospect at that time of College 2 not existing as a legal entity, is still as relevant as it was some 3 months before the completion of the Incorporation. This simply does not make sense and it should be stated that while Dr. PT stated, ‘now and for the future’, with respect to Dr.PT, neither he nor anyone else can claim that this means for ever more. The reality is the future that transpired for College 2 in 2016 was very different from what may have been envisaged in 2007.

CONCLUSION

1.       The Respondent acknowledges that it is unfortunate that the title of Co-ordinator of Human Development for the 2016 role was the same as that of the 2010 role. This unfortunate terminology has caused understandable confusion and misinterpretation on behalf of the Complainant. However, it is the Respondent’s position, for the reasons outlined above, that the only similarities in the roles were that of job title. As a result, the grade of Senior Lecturer should not apply to the Complainant’s role.

2.       We respectfully request that you uphold the Respondent’s position in this matter and reject the Complainant’s claim under Section 13 of the Industrial Relations Act, 1969. Thank you.

Lengthy submissions were received from both the Complainant and Respondent.

I have read the submissions through on more than one occasion and listened carefully to the arguments from both at the hearing. There are a few comments I would like to make in relation to the case.

The job descriptors for the “Co-ordinator Human Development”, one was attached to the email dated 23rd May 2016 and the other appeared in a job posting in 2010 (the successful candidate at that time was Dr. MO’B). By any stretch of the imagination these are not the same job. The 2010 job I would consider, contains a significant element of staff management whilst the 2016 does not appear to have staff management but is more programme management.

I have read the email from Dr.MO’B dated 17th July 2016 in which she quite clearly states:

“I am writing to let you know that the co-ordination of Human Development is now in transition to new co-ordinators. As I step down and into my new role as HoS of Human Development, the Complainant (name inserted) will head up the BA programme in Human Development and A.N Other (name inserted) the MA”.

There are two points I would like to mention regarding this email:

1.       She is not saying the Complainant is replacing her as Head of School, she is saying the co-ordination of programmes will be split between two individuals, one of them being the Complainant.

2.       In the Complainant’s submission (page 3) it is stated that “this response brought surprise to both the Complainant and Dr MO’B as it was patently clear that the Complainant had indeed replaced Dr.MO’B as the Co-ordinator of Human Development”. I find this difficult to accept as Dr. MO’B surely would have been privy to the developments regarding the new structure for programme co-ordination in the area of Human Development.

The General Secretary of IFUT sent an email to the HR Manager on 20/07/2016 in which he says:

“I bring this to your attention now as it is our understanding that Dr. MO’B has been succeeded just recently in this position by the Complainant (name inserted) and naturally we wish to see confirmation that the commitment given by Dr.PT is being honoured”.

This is somewhat surprising as it was sent to the HR Manager three days after the email was sent by Dr. MO’B in which she announces that:

“I am writing to let you know that the co-ordination of Human Development is now in transition to new co-ordinators. As I step down and into my new role as HoS of Human Development, the Complainant (name inserted) will head up the BA programme in Human Development and A.N Other (name inserted) the MA”.

When this email was sent by IFUT, they may well have been of the understanding that the Complainant was replacing Dr.MO’B, however the Complainant most certainly could not have been of the same understanding, he most certainly was aware of the email sent by Dr. MO’B three days earlier.

There has been much made of the email sent by Dr.PT back in 2007. Has anyone considered the reasons why this email was sent? Reading through the entire email it appears that the email was sent due to “arising from the recent developments in relation to academic career structure….” I believe this could be an indication that in 2007 changes were being made, we live in a world of constant change. In 2007 was anyone aware of the incorporation that was to take place 9 years later?

The Respondent’s representative raised the timeframe of events summarised at point 13 above and now re-stated:

The timeframe of both processes should also be considered. Expressions of interest were sought on 23 May 2016, the interview was held on 7 July 2016. It must be assumed that the Complainant was aware he was successful by 20 July 2016 as this is the date in which IFUT submitted correspondence claiming he should be at Senior Lecturer level. Yet the Complainant still submitted an application for Senior Lecturer through the open call. The deadline for the application was 8 July 2016 but was extended to 18 July 2016. However, most importantly the assessment of the applications did not occur until 26 September 2016. If the Complainant was so sure he should receive a Senior Lecturer grade through the expressions of interest process why did he apply for Senior Lecturer through the open call and why did he not withdraw his application for Senior Lecturer before it was assessed on 26 September 2016?

The Respondent has said via their submission that it is unfortunate that the role that the Complainant was appointed to was titled ‘Co-ordinator of Human Development’ when it was so different to the position advertised in 2010 and filled by Dr. MO’B. Perhaps they may be mindful of this in future.

Having considered all aspects of the complaint I cannot make a recommendation in favour of the Complainant.

For the reasons set out above the complaint fails.

Industrial Relations, Grading.