Complainant

Respondent

Anonymised Parties

A Lecturer

An Institute of Technology

Representatives

Teachers' Union of Ireland

Tom Mallon B.L. instructed by CC Solicitors

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-00032049-001

07/11/2019

The Worker claims that the Employer failed to abide by the nationally agreed grievance procedure, thereby denying him a fair review process concerning a disputed promotional selection process.

The Employer disputes the Worker’s claim and said that it acted fairly.

The Worker said that on 9 February 2018 the Employer advertised a promotional Senior Lecturer (teaching) post (‘SL 1’) and he applied for the post and enquired why the SL1 Post advertised in 2016/2017 was never filled. The Employer notified him that he was shortlisted for interview on 11 February 2019.

The interviews were scheduled to be held on 28 February 2019, a full year after the closing date. The Worker said that the Employer informed the candidates that it was not possible to update CV’s in advance of the interviews, that time would be given in the interviews to answer related questions to address necessary updates. The Worker said this had an adverse impact on him as he spent an extensive amount of time in the interview updating same. He said that the allocated time for his presentation was reduced from 10 to 5 minutes. He said that contrary to the job advertisement the marking scheme was not made available and not transparent. The Worker was critical of the marking scheme and how the marks were awarded. He said he had substantially more experience and output metrics than the successful candidate, except in one area, and that candidate had not taught full time in over five years.

The Worker said that he learned on 5 March 2019 that he was not successful. He said he was placed on a panel, which he queried as it was not mentioned in the advertisement. He also sought his marks and feedback. He said this was not dealt with in a timely fashion or taken seriously and he filed a stage 2 grievance pursuant to the nationally agreed grievance procedures on 21 March 2019. This was not addressed in a timely fashion and thus moved to a stage 3 grievance on 29 May 2019. A meeting took place on 17 September 2019, where he was told an internal review of the interview process was conducted by the HR Manager and Chair of the Interview panel and a written response was on its way. Nothing was received and the grievance was advanced to a stage 4 grievance in the Workplace Relations Commission.

The Worker said, notwithstanding his and other grievances on the interview process, the successful candidate announced in January 2020 that he was appointed to the SL1 position.

The Worker states that the Employer does not have a specific review or appeal process for recruitment procedures and therefore the nationally agreed grievance procedure is the only appeal process available to him.

The Worker claims the Employer breached the nationally agreed grievance procedure and denied him fair procedures. He said, the Employer did not take his grievance seriously and failed to comply with the timeframe provided for; the Employer denied him a fair and impartial determination on the issue raised by him; the Employer carried out an internal review of its self and proclaimed that process was fair, however it produced or provided nothing in writing to him; the Employer filled the disputed post although there were outstanding grievances not completed thus denying the Worker an effective remedy to his grievance.

The Employer is an Institute of Technology (‘IT’). It said that the Worker has taken his dispute against it in relation to two issues. A dispute in relation to the lack of an appropriate appeal process following interview and the actual appeal on the decision made not to give him the job that he applied for.

The Employer said that the position applied for was highly sought after, the position had not become available for some 15 years and there was considerable interest. In relation to the appeal process the Employer said that there is ongoing negotiation between the Employer and Trade Unions at local and national level to reach agreement in relation to this. The Employer accepts that this requires attention and it is hoped that it will be addressed speedily.

The Employer said that there is a mechanism in place for the makeup of the panels or boards that carry out interviews which is set by regulations and ensures a mix of internal and external people to ensure there is no case of possible favouritism or unconscious bias.

The Employer referred to the criteria set out in the job description advertised and then refers to the scoring sheet which holds the same criteria. The Employer refers to the Worker gaining the maximum in one category and scored heavily well in the other categories. There were 14 applications, 12 shortlisted and one applicant withdrew leaving 11 quality applicants. The Worker was placed 3 on the panel.

The Employer said that the Worker has not made out a case of any bias or wrong doing. The Worker performed well at the interview, was placed on the panel, but there are two quality candidates placed ahead of him.

The Employer said that I, as Adjudicator, cannot go behind the five people interview panel, which interviewed the Worker and the other candidates and ask why the Worker was not selected and why was someone else deemed more suitable than him, unless I have a particular reason to do so. The Employer said that each and every candidate was treated the same, went through the same process and this was applied across the board; no one was afforded additional help, advantage or privilege.

It said when the IT received the appeal it carried out its own internal review of the process and found to its own satisfaction that there was no concern, it then decided to appoint the person on the panel even though the appeal process was not finished because the actual length it could take to wait for the case to be completed – WRC and possibly the Labour Court - would and could take a substantial period of time to complete. So, it had to move on.

The Employer said the whole process is set out in statute and it followed the precise process and the governing body was satisfied that it managed to do this correctly.

I have listened to the parties and have carefully considered their submissions. It’s clear that the dispute between the parties related to a competition for a promotional post.

It is the Worker’s submission that the Employer did not follow nationally agreed grievance procedure, thereby denying him a fair review of the process. He is also left without any suitable mechanism available to him to appeal the Board’s decision other than lodging a grievance through the grievance procedure. He said that in not allowing him update his CV in advance of the interview placed him at a particular disadvantage; that he was a more suitable candidate for the job over and above the successful candidate; that the Employer did not act speedily enough to deal with his grievance and prior to that grievance been fully heard it appointed the first person on the panel to the post therefore preventing him from getting the relief that he deems suitable.

The Employer’s position is that this was a very competitive interview, no one was allowed to update their CV prior to the interviews, time was set at the interview to address that – everyone was treated the same. The successful candidate was deemed more suitable based on the criteria, no bias, discrimination or other claims were made out. That on receipt of the Worker’s grievance, it carried out a review of the interview process to look again to ensure it had acted correctly. It appointed the first person on the panel to the post as the possible and potential time lag until this appeal process was completed could be timely. It echoed the Worker’s sentiment on the lack of national or local agreements to allow for an appeals process thus forcing cases through the grievance procedure.

I note the Labour Court has consistently held that it shall not interfere with the decision of an interview board, when there is no evidence of unfairness, irrational or inappropriate behaviour. In particular, I note A University v A Worker CD/16/143 Decision No. LCR21333, where it said that “The Court has consistently adopted the position that it does not substitute its decision for that of an employer‘s recruitment or promotional panel regarding the merits of a candidate … the Court can only look behind a decision in relation to appointment where there is clear evidence of unfairness in the selection process or manifest irrationality in the result.” And in the case of University of Limerick v A Worker CD/16/206 Decision no. LCR21339, when the Labour Court said “in the absence of irregularity in the conduct of the promotion process, or manifest irrationality in the result, the Court cannot seek to re-run the process …”

I have listened carefully to the case presented by both sides. I hear and understand the disappointment and frustration of the Worker’s position. However, I deem that nothing untoward was presented to me that would require me to deem it necessary to look behind the actions or the decision of the interview board in this regard. The nationally agreed grievance procedure is not the most appropriate way to review grievances of this nature, a local immediate process would be more beneficial to deal with appeals of this nature for all parties concerned.

Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the dispute. I would recommend that the Worker accepts the decision that he was unsuccessful on this occasion.

Industrial Relations Act, 1969 - nationally agreed grievance procedure - unsuccessful