Complainant

Respondent

Anonymised Parties

A Lecturer

A University

Representatives

Irish Federation of University Teachers

In Person

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-00015679-001

09/11/2017

The complainant commenced employment with the respondent as a part-time Special Assistant/Senior Demonstrator in 1988. On 1 October, 1994, the complainant commenced employment as a half-time College Lecturer (Below the Bar). Where a Lecturer is appointed Below the Bar, there is provision for an application for progression across the Bar (from Lecturer Below the Bar to Lecturer Above the Bar) to be made in accordance with the terms of the “Progression Across the Merit Bar Scheme”. The Lecturer Promotions and Establishment Board (“LPEB”) considers applications for Progression Across the Merit Bar. The process is not competitive but rather is based on individual performance assessed against the following benchmarking criteria: 1) Teaching and Examining, 2) Research and Scholarly Activity and 3) Contribution to School/Department, University and Community. Candidates may appeal to the Academic Promotion Appeals Board (“APAB”) where s/he has a complaint concerning the observance of the PPEB of the agreed appeal procedures for dealing with applications.

The complainant applied but was not successful in respect of a progression round to Lecturer (Above the Bar) conducted in 2011/12. This current case relates to the complainant’s unsuccessful application for progression across the merit bar in 2106/17. The complainant claims that he has been prevented from progressing “across the bar” unfairly which, in effect, means that he is not being allowed to progress up through his payscale.

The respondent does not accept that the complainant was unfairly treated in respect of his application for progression and contends that the reason his application for progression was unsuccessful was due to the fact that he did not obtain the requisite score in relation to one of the assessment criteria. The respondent denies that there were any irregularities in the process as applied to the complainant by either the assessment board or on appeal.

In 2006, the complainant reached the point on the salary scale that he is now on. In 2011, the complainant applied for progression across the merit bar but the then Head of Department refused to endorse his application citing the lack of a PhD as the reason.

The complainant waited until 2017 to apply for progression across the merit bar again. He received the support of his new Head of Department and the Head of School also signed off on his application. However, the complainant was not successful again and it was submitted that the question arises as to whether there are legacy issues, unrelated to his suitability for “Progression”, that are still influencing the fact that he has now spent 12 years at the same point in the scale.

The complainant contends that the LPEB did not abide by the criteria governing the progression process when assessing his application and made a decision that was seriously in breach of the process put in place for Progression Across the Merit Bar. The ultimate determining factor in the Board’s recommendation to refuse the complainant’s application was their assessment that he “did not reach the required benchmark for research”. In particular, the Board highlighted insufficient output in peer reviewed journals which the Board noted as “limited in terms of evidence presented in your application”. The complainant submitted that this assessment points to very serious errors in the Board’s interpretation of the criteria governing their deliberations.

The complainant submitted that, in total, there were four substantive irregularities in the conduct of the process, namely:

·         Misinterpretation of parameters governing the progress process – the LPEB misinterpreted the criteria and failed to give equal recognition to peer reviewed research and scholarly outputs published in formats other than peer reviewed journals as required by the process.

·         Inconsistency within the process - at least one other candidate within the process with an equivalent number of publications in peer reviewed international journals progressed across the merit bar in the 2017 round of progressions.

·         Discipline specific scholarly publications – in addition to thirteen peer reviewed publications, the complainant contributed eight co-authored chapters to the Universities’ Atlas series. These publications were not accorded the scholarly value and recognition due to them in this process.

·         Making demands that are outside the parameters of the process – in the Progression Across the Merit Bar document there is not a single reference to any requirement to have a PhD and it was made clear to the complainant that this was not a requirement. It was submitted that the Board’s recommendation that “the Board would encourage you to complete your PhD and to publish in international peer reviewed journal whilst undertaking your PhD” lie well outside the parameters of the process.

The complainant submitted that based on the evidence presented in his application of the higher quality and breath of his research and scholarship and having satisfied all the criteria demanded by this process for progression, the Board incorrectly adjudicated his performance for “Research and Scholarship” as not having reached the standard required to progress across the merit bar. The complainant’s internationally peer reviewed publications were incorrectly regarded as not equivalent to journal publications and his atlas chapters were seriously undervalued. This was in contravention of the Assessment Criteria that should have been applied when assessing his application.

The complainant appealed the decision, not to allow his progression by way of correspondence to the Academic Promotion Appeals Board on 30 May, 2017 but his appeal was not upheld.

The respondent submitted that in 2016 applications were invited by the University for Progression across the Merit Bar. The respondent received 90 applications in total, including the complainant’s. 71 applications were recommended for progression by the LPEB.

The LPEB’s report on the outcome of its deliberations in this regard was adopted by the Academic Board on 5 April, 2017. The Academic Board is the senior University Standing Committee of the Academic Council, established in University statute, responsible for the discharge of functions delegated to it by the Academic Council. By letter dated 5 April, 2017, the complainant was advised by the LPEB that his application for progression was unsuccessful. The complainant was further advised inter alia that he achieved a “satisfactory” score in respect of Research and Scholarly Activity whereas a score of “good” is required for progression.

The complainant was notified that the Board saw good evidence of collaboration and evidence of sustained research activity. He was, however, also notified that he did not reach the required benchmark for “Research” and in particular in relation to research output in peer reviewed journals which the Board noted as limited in terms of evidence presented in his application. The complainant was further notified that in terms of Development required, the Board encouraged him to complete his PhD and to publish in international peer reviewed journals whilst undertaking his PhD to optimise his research profile in the more immediate term.

By letter dated 27 April, 2017, LPEB wrote to unsuccessful applicants bringing to their attention the appeal process (and the terms of reference of the Academic Promotion Appeals Board) should they wish to pursue same. The complainant submitted a detailed letter of appeal on 30 May, 2017 to the APAB. Having considered the complainant’s appeal at its meeting on 18 September, 2017, the APAB issued a letter to the complainant dated 11 October, 2017, stating that the APAB “determined” not to uphold the appeal on the basis that “the matters to which you complain are matters which pertain to the merits of your application and the assessment of your research scholarship etc. are matters entirely within the competence of the Promotions Board and are outside our remit ….. This Board has no power to review the merits of any application for promotion”.

The respondent does not accept that the complainant was unfairly treated in respect of his application for progression and that there is no basis to the complaint that he was treated unfairly by the LPEB and/or the APAB. The APAB did not find any irregularity in the conduct of the process in respect of the treatment of the complainant’s application.

The respondent submitted that having carefully considered the relevant details provided the complainant against the benchmarking criteria for Research and Scholarship, unanimous agreement was reached by the LPEB that the complainant’s performance in the area was “satisfactory” and not “good” or “excellent” as required for progression under the scheme. The LPEB exercised its academic judgement in this context as required under the Scheme and the complainant failed to obtain the requisite score in relation to the Research and Scholarship criteria and could not be progressed on that basis thereby rendering his application for progression unsuccessful.

The respondent relied upon the High Court case of O’Higgins -v- The Labour Court and University College Dublin[1] and the Labour Court case of University College Cork -v- A Worker[2].

The core issue in dispute between the parties relates to the decision by the LPEB not to recommend the complainant’s Progression Across the Merit Bar in 2017. The complainant contends that there were a number of substantive irregularities in terms of the manner in which the LPEB conducted the assessment process relating to his application. In particular, the complainant contends that LPEB misinterpreted the assessment criteria under the “Research and Scholarship” category by failing to give equal recognition to peer reviewed research and scholarly outputs published in formats other than peer reviewed journals as required by the process.

The complainant is seeking a recommendation to the effect that the decision of the LPEB dated 5 April, 2017 not to recommend his application for Progression Across the Merit Bar should be overturned and that he should be allowed to progress across the merit bar with effect from the aforementioned date. In effect, the complainant is seeking a review, by way of a further appeal, in relation to the manner in which his application for progression and his subsequent appeal have been dealt with under the agreed existing internal structures which govern such progression across the merit bar.

Under these existing agreed internal structures within the University, all applications for Progression Across the Merit Bar are governed by the terms of the Progression Across the Merit Bar Scheme. Under this Scheme, applications for progression are considered and assessed by the LPEB. An applicant may appeal to the APAB where s/he has a complaint concerning the observance by the LPEB of the agreed procedures for dealing with applications. The academic standards used in the process are a matter within the exclusive competence of the LPEB and a right of appeal lies solely in respect of the observance by the LPEB of the agreed procedures. There is no provision in the Scheme for any further appeal after the APAB has dealt with the matter.

I accept that the complainant strongly believes that he was unfairly treated by the LPEB and the APAB in relation to his application for progression across the merit bar. However, in fulfilling my role in terms of investigating a trade dispute under the Industrial Relations Acts, I am obliged to be guided by the requirements of good industrial relations practice. In the present case it is necessary for me to consider whether the appeals mechanism currently in place within the existing structures should be regarded as the appropriate and only forum for dealing with disputes arising from assessments/recommendations made by the LPEB or whether it would be appropriate for me, as an Adjudication Officer, to provide either an alternative or additional avenue of appeal.

In considering this matter, I note that the Labour Court had previously held in the case of University College Cork -v- A Worker AD0884 that:

“In effect, the Court is now being asked to provide a further appeal against the decision of the Promotions Board. The rules of the scheme do not provide for a further avenue of appeal to either a Rights Commissioner or to this Court. In these circumstances, the Court cannot arrogate such a role to itself …… The Court's role, under the Industrial Relations Act 1946 to 2004, is to set out its opinion on the merits of the dispute under investigation and the basis upon which it should be resolved. In the Court's opinion, the Appeals Board was the appropriate forum to address the Claimant's grievances. It is clear that those who designed and agreed the promotions scheme intended that the outcome of the Appeals Board, on matters within its remit, would be final and binding on all parties. Accordingly, it is the opinion of the Court that the dispute should be resolved on the basis of all parties accepting the decision of the Appeals Board.”

In the present case, it is clear that the LPEB exercised its academic judgment in relation to the complainant’s application for progression, as required under the Scheme, and came to the conclusion that his application did not meet the required standard in one of the assessment criteria. The complainant appealed this decision to the APAB which, in turn, did not find any irregularity in the conduct of the process in terms of the assessment of his application. I am satisfied, therefore, that the complainant’s application for progression and his subsequent appeal have been dealt with in accordance with the agreed and recognised procedures and processes under the Scheme.

In the circumstances, I am satisfied that it would be wholly inappropriate for me to carry out a substantive review of the assessment process conducted by the LPEB in relation to the complainant’s application for progression. To do so would, in effect, amount to the provision of a further avenue of appeal, in circumstances where the complainant has already availed of the appeal process within the existing agreed structures. Accordingly, I recommend that the parties should accept the decision of the Academic Promotion Appeals Board in relation to this matter.

I recommend that the parties should accept the decision of the Academic Promotion Appeals Board in relation to the complainant’s application for Progression Across the Merit Bar.    

Industrial Relations Act 1969 – University – Progression Across the Merit Bar – Unfair Treatment - Pay scales - Appeals Process