LCR21904

• “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 contruct a remedial system for retention of records.
  
  3. The University should consider becoming participatory in the Commission for Public Service Appointments process”.

This case concerns a competition to fill 10 Professorial posts, for which the Claimant was not shortlisted. The Adjudication Officer awarded €8,000 compensation on the grounds that the competition was flawed and tainted by a lack of transparency and sensitivity. The Adjudicator also recommended an internal appeals mechanism for future competitions, that an apology issue to the Claimant and that the University consider participating in the Commission for Public Appointments process.

The Claimant appealed as he was seeking an external review of the competition and the University appealed the Adjudicator’s findings and recommendations.

Union arguments

1 The Adjudicator was in error to deduce that no wrong had been identified by the failure to ensure the recusal of the Head of School, as there was evidence of conflict of interest, which was admitted in correspondence following a 2014 competition.

2 The Claimant had experience to match those shortlisted.

3 There were glaring irregularities in the procedures used in forming the selection committee.

4 The monetary award completely under-estimates the nature of the damage to the Claimant’s career and reputation, which makes it extremely difficult, if not impossible, for the Claimant to be promoted in the University.

5 The correct remedy would be an external review of the process or, failing that, a level of compensation commensurate with the loss.

Employer arguments

1 There is no evidence that the selection process was conducted unfairly or that any alleged bias on the part of the Head of School influenced the decision making process.

2 Case law was quoted, in particular the words of Justice Cooke in a similar case that ‘..it was not the function of the Labour Court to decide whether the applicant’s level of achievements were at the level of excellence she maintained’ and that qualitative judgements were ‘delegated exclusively to the specialist appraisal of the members of the committee’

3 The Adjudication Officer was incorrect in her interpretation of an Appeals Board report following a 2014 competition that two senior academics had erred in their involvement in the competition. In fact, only one academic had been so identified. In any event, this earlier competition was solely internal within the University while the competition at issue in this case is an externally advertised competition which attracted 262 applicants, of which 36 were shortlisted.

4 The Adjudicator has not indicated how the University was remiss with regard to any perceived lack of sensitivity.

5 The University still has an Appeals Board for internal competitions. The Recommendation that there be an appeals mechanism for public competitions raises considerable implications for the terms of employment of a considerable body of the University’s workers.

Recommendation

Following a competition in 2014, an Appeals Board looked at the question of a conflict of interest on the part of the Head of School in respect of the Claimant’s candidacy. The Court was given minutes of the Assessment Committee on that occasion that were used as a basis of an explanation to the Appeals Board in respect of this matter. The minutes record that it was agreed that ‘potential conflicts of interest would be declared in advance and the relevant member would speak last in relation to the relevant candidates’. They go on to record that in the case of the Claimant ‘the conflict of interest was dealt with under the agreed approach of the Board member speaking last’.

The Union argued that, having admitted to a conflict of interest, the person concerned should not have participated in the selection process in the competition that had given rise to this complaint. The University argued that any alleged conflict of interest had not been such as to warrant recusal in either competition.

The Court is concerned that a declared conflict of interest was not dealt with at all within the competition that has given rise to this complaint. While the Court is not in a position to judge the magnitude of any such conflict or to find one way or another that the outcome would have altered if any perceived conflict had been addressed, there are clear difficulties with the process in the light of this failure.

In all the circumstances, the Court is not satisfied that an external review is warranted. However, the Court accepts that the circumstances warrant compensation of €10,000 to be paid to the Claimant in full and final settlement of all claims in respect of this matter.

The Recommendation of the Adjudication Officer is varied accordingly.

Signed on behalf of the Labour Court



Tom Geraghty
CC______________________
19 February 2019Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.