ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00028080

Parties:

Dispute:

Date of Adjudication Hearing:  22/02/2021

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following 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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

Summary of Employee’s Case:

This is a claim that Employee was unfairly denied promotion to the post of Senior Lecturer in Education by his Employer. It was advertised in the School of Education on 14 September 2018 and he submitted an application on 15 October 2018 and interviews were held on 7 December 2018. The Employee was informed by phone on Monday 10 December 2018, and was requested by e-mail on Wednesday 12 December 2018, to meet on Monday 17 December regarding interview feedback. The Employer officially informed him in writing on Monday 17 December 2018 that he was unsuccessful. He requested feedback on 14 December 2018 and received feedback on 17 December 2018. As the feedback was limited and ambiguous he made a Freedom of Information (FOI) request on 7 January 2019. On 1 May 2019, he wrote a letter outlining his concerns with the process. The Complainant sought further information from the Employer. The Employer’s reply of the 17 May 2019 was limited in scope and did not adequately address the detailed concerns raised by him. IFUT wrote to the Employer on 9 July 2019 outlining the fact that they had failed to address his concerns.IFUT met with the Employer on 1 October 2019 in relation to these concerns. A satisfactory outcome was not achieved. The Employee was clearly very well qualified to be appointed to the role of Senior Lecturer. On the facts his qualifications and experience, related to the position at issue are greater than the successful candidate yet he was passed over in favour of a less qualified and less experienced candidate. In addition, at the time of interview, the successful candidate did not meet all of the ‘essential’ requirements for the post. There is clear evidence of significant procedural flawsand omissions during the interview process. No valid criteriahave been produced to indicate why he was denied appointment to the position of Senior Lecturer. The feedback provided at every stage was limited and was deliberately ambiguous, in a clear attempt to fudge issues and in blatant breach of procedures. The Employer failed to observe due process and breached its own governance policies and procedures in relation to the interview process. The denial of natural justice is manifest in the irrationality of the result and the decision not to appoint him to the post of Senior Lecturer.  He has been employed in the University for the last 19 years and has worked in wide-ranging leadership, teaching, research, budgetary and administrative roles. The following is an outline of his experience and qualifications and the transformative and systemic change that the Complainant led in the key areas identified for the post.

The Report of the selection committee (received 17 December 2018) states: “The Candidate had a very strong commitment to research and clear international reputation. Demonstrates commitment to student centred teaching and learning.” While going some way to acknowledge his outstanding record in the objective categories of Research and Teaching, the report then resorts to the use of a ‘generic’ and ambiguous ‘get out of jail clause’: “… relative to other candidates, did not demonstrate evidence of adequate leadership experience”. This statement is at best inaccurate. It is a matter of factthat he has significantly greater school and academic leadership experience than the successful candidate. His advanced academic leadership over many years, was clearly ignored (details supplied)  

Scoring: The Employer provided the following table by way of feedback to him.

Interview Feedback

Teaching & Examining 18/25

Research & Scholarly Standing 20/25

Administration & personal skills 12/20

Seminar Presentation 6/10

Match with job description/Person Specification 12/20. He meets all of the essential criteria in the post specification. The successful candidate doesnot meet all of the essential criteriafor the post including the following examples: “Significant experience in lecturing, examining and supporting students across a range of teacher education programmes at Initial and In-service levels.” . The successful candidate’s lecturing and examining experience over a much shorter period of time is limited to a specialised field – mathematics, and algebra specifically. The successful candidate qualified as a post primary teacher but has no clinical experience in schools and has not held any Leadership positions in the sector.

“Evidence of the ability to teach, inspire and supervise students, communicate ideas and concepts in a teaching and learning environment and to undertake postgraduate supervision to

doctorate level”.  There is no evidence that the successful candidate has supervised students at doctoral level or has led students to successfully complete their doctorates. “it is desirable to secure research income generation and project management and delivery and have experience

in the role of PI or co-PI in externally-funded research projects.”

There is no evidence that the successful candidate was PI on collaborative research projects.

 “Evidence of active engagement in research and scholarly activities e.g. research supervision, examining, refereeing journal articles, editing and refereeing grant applications”. There is no evidence that the successful candidate performed such duties.  Despite the fact that the successful candidate did not meet all the essential criteria at the time of interview, he received a score of 84/100 compared with a score of 68/100 for the Employee. The flawed nature of the process is further highlighted through an analysis of the scoring of 2 of the 3 subjective criteriaused by the

Respondent: Administration and Personal Skills and Match with Job Description/Person Specification. Unfortunately, he has no way of assessing or addressing the score given for Seminar Presentation.

Match with Job Specification/Person Specification – 12/20

It is worth highlighting and quoting the advertised vacancy details for this post: The College wishes to appoint an experienced academic to the role of Senior Lecturer in Education. Reporting to the Head of School, the successful applicant will be an established scholar with an excellent track record in teaching, research and publication, and administration. The core field of specialisation will be teacher education, including continual professional development, where teaching and research are closely connected. The appointee will play a key role in the development of postgraduate studies as well as contribute to the supervision of doctoral work.”

“Essential criteria include: A PhD in education, an excellent record of research scholarship and publication; proven teaching excellence, proven administrative experience; proven ability to support curriculum development; demonstrated leadership skills, excellent interpersonal skills; and an ability to build relations and work collaboratively.”

The score awarded to the Employee (12/20) under this criterion ‘Match with Job Specification/Person Specification’ is bizarre in the extreme. Even a cursory look at his CV exposes the injustice of the score awarded. By the Employer’s own admission “The Candidate had a very strong commitment to research and clear international reputation. Demonstrates commitment to student centred teaching and learning.” He is, indisputably, an established scholar. He has an excellent track record in teaching, research, publication and administration. The core specialisation looked for – teacher education – is the Complainant’s specialisation. The Complainant possesses all of the essential criteria. He was awarded a score of just 12/20 for ‘Match with Job specification/Person Specification’.

Administration and Personal Skills

For over 19 years he has developed wide-ranging administration and personal skills. He has done so in the interest of the long-term development of his discipline (teacher education) and with the intention of being an active participant in, and contributor to, the overall intellectual life of the University, the academic discipline and society at large, matching the Essential Criteria for the position as per: “Essential Criteria 18: The ability to participate in and contribute to the overall intellectual life of the University the academic discipline and society at large.” “Essential Criteria 23: A commitment to the long-term development of the discipline.” For example: He was a post-primary school teacher and Head of Year responsible, inter alia, for staff team mentoring, CPD courses, school examination protocols, new curriculum and assessment and strategic policy developments, auditing and reporting to local authority, educational welfare and social workers (for some

180 pupils), parents, School Inspectorate and so on. He was Acting Director of the Centre of Adult Continuing Education in the Respondent University and all of the administrative and budgetary functions related to such a post. He serves on a number of School committees – MEd, Research and Innovation and Graduate Studies Committees. He serves on the Faculty’s Graduate Studies Committee and has served previously on its Curriculum and Academic Development Committee.

He has been a member of QR and Research Quality Review Committees throughout the years in the School of Education. As chair of the School of Education Research Forum, he successfully applied for significant funds to establish a new Teaching Research Laboratory for the School, a new Indoor Early Years’ teaching space and a new Outdoor Play Facility (all a first for the School of Education). Such work demanded a clear unambiguous demonstration of ‘Administration and Personal Skills’. He brought together a number of key external and internal stakeholders, led out on funding applications, reporting streams and creative design of buildings. The Complainant administers modules on the PME (Professional Master of Education) programme (Curriculum and Assessment and Professional Research Paper modules, for example). He has innovatively led out on new modules (writing specifications, learning outcomes for the academic calendar) for the Inclusive Multicultural Education and Foundations modules on the PME programme; the compulsory research seminar module for the M.Ed. programme; and as part of the two previous Cohort planning teams for PhD programmes (2008 and 2011 entries). He administers innovative curriculum delivery and assessment modes for such programmes; he is constantly involved in module and programme evaluation procedures. He has secured funding for Postgraduate students and regularly administers for their support, including refereeing, reporting and dissemination duties. He has been an academic policy coordinator for the BEd in Sports Studies programme with respect to curriculum and assessment issues; and director of the old Teaching Resource Laboratory before he led out on the newest development. He is leading out on a new programme – a teacher qualification for those working in Further Education and Adult & Community Education – which is a first for the Respondent University and which will bring with it significant academic standing visibility and income. “Selection Criteria 8: Evidence of a significant contribution to innovation in the area of teaching and examining, curriculum design, review and development with reference to teacher education in the compulsory phases of education.” He regularly administers on established and new collaborative research projects. As PI he is chiefly responsible for the management of monies, research support, service delivery, and administrative and policy reporting and procedures. He is actively involved in external and internal research supervision. He has organised numerous research seminars and conference events. He has exercised external review positions for other universities’ quality review processes – he was an external examiner to the University of Edinburgh and is currently an external examiner for the Doctorate Programme in another University. He is a key facilitator for policy development, working for example in adult education with AONTAS (nationally) and an Erasmus Mundi Programme

(internationally). He has served on external interview and awards boards. He has been an editorial board member, is currently a member of the academic expert panel with AONTAS and is a peer reviewer for a number of distinguished journals. He has been a Professional Development Research Advisor with partners CIT (Cork Institute of Technology) and CIPD (Chartered Institute of Personnel Development). He is constantly working with internal and external partners which demands much personal and administrative commitment. All of these points were clearly highlighted in the interview application process and the Complainant raised these again during the interview.

The Complainant’s administration and personal skills are clearly outstanding by any measure, yet he was given a score of 12/20.

Procedural and Governance Irregularities

There is clear evidence of significant procedural flaws and omissions during the interview process.

Breach of the Respondent’s own Conflict of Interest Policy The Employer is in breach of its own Code on Conflict of Interest in Relation to Recruitment and Promotions – one interview board member

and the successful candidate are, and were at all material times, professionally and socially known to one another. Indeed, the successful candidate was, at the time of the interview, a publicly

acclaimed ‘external collaborator’ of the interview board member in question. Yet, each and every member of the interview board put on record that they had no conflict of interest to declare.

There is no evidence that this Conflict of Interest was adequately addressed, or at all. There is no record of any discussion or management of the conflict of interest. Consequently, the interview

process could not be appropriately regulated or proceed in a fair, unbiased manner.

In a recent determination in the Labour Court it was held that there are clear difficulties with a process where conflict of interest is not dealt with: "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." [A University V an Academic LCR21904] Improper Constitution of the Interview Board: Committee members were not of the mandated ‘equal standing’ In Contravention of Section 2.2 of the Regulation on Appointment to

Academic Posts other than Professorial Posts, at least one interview board member was ‘not yet established’ and not of ‘equivalent standing’ to another interview board member. This is not an arbitrary rule. It is an essential rule in order to try and ensure the impartiality and the independence of all interview panel members. The ‘not-as-yet established’ selection committee member must report to the Head of School for an interim progress and performance report as per the respondent’s ‘Probation and Establishment Scheme’. At the end of the probation period, the staff member will get “a recommendation from Head of Academic Unit and Head of College concerning Establishment in post or otherwise”. The unequal power differential between the two committee members creates obvious difficulties in relation to the integrity of the process and in relation to achieving impartiality and objectivity.

At least one member of the interview panel had not the mandatory Interview Board Training

The Respondent’s own regulations state that any individual nominated as Chair of a Selection Committee or a member of a Selection Committee must participate in mandatory training in recruitment and selection in UCC for Chairs/Selection Committee members as per Section 2.12 of the Regulation on Appointment to Academic Other Than Professorial Posts which came into effect from 15 April 2014. “Training With effect from the date of approval of this regulation any

individual nominated as Chair of a Selection Committee must have participated in training in Recruitment and Selection for Chairs of Selection Committees, as delivered by the Department of Human Resources. With effect from one year from the date of approval of this regulation at least 50% of the internal members of the Committee must have participated in training in Recruitment and Selection for Members of Selection Committees, as delivered by the Department of Human Resources. With effect from two years from the date of approval of this regulation 100% of the internal members of the Committee must have participated in the relevant training.”

The Respondent failed in its duty to ensure all members of the Interview Panel were adequately trained. At least one member did training involves engaging with the University’s Conflict of Interest policy, including ‘unconscious bias’ awareness. In respect of the above three points – regarding conflict of interest, board constitution and mandatory UCC HR training - there is clear

evidence of significant procedural flaws and omissions during the interview process. The Respondent failed to observe due process and breached its own governance policies and procedures in relation to the interview process.

Denial of Natural Justice

The denial of natural justice is manifest in the irrationality of the result and the decision not to promote him to Senior Lecturer cannot be (and indeed has not been) justified on objective grounds.

Under the Employer’s ‘Regulation on Appointment to Academic Posts other than Professorial Posts’, members of the selection committee are required to “thoroughly familiarise themselves with each application, noting any shortcomings or anomalies in a candidate’s application…”. It is clear from the scoring, that the Employee’s long-standing good reputation, interpersonal skills, and his advanced academic leadership experience were, at best, ignored and not taken into account.

An adequate appraisal or a fair assessment of the Complainant’s attributes had not been undertaken as part of the interview process. The resort to a standard generic comment in the Respondent’s feedback “… relative to other candidates, did not demonstrate evidence of adequate leadership experience”, is at best disingenuous. The Complainant has led transformative change in teacher education in the Respondent University, through local and national engagement over the last 19 years. It is submitted that his application was treated less seriously than the application of the less experienced, yet successful candidate. The failure to promote him has never, at any material time, been justified on any objective ground.

On the basis that there are significant unexplained procedural flaws and omissions relating to the selection process and that no valid criteria were produced to indicate why he was denied promotion

or any attempt made to explain why a less qualified and less experienced candidate was appointed to the position, he states that the multiple and major procedural flaws and omissions in the interview process, combined with his superior experience and qualifications relative to the successful candidate, have established that he was unfairly denied promotion to the post of Senior Lecturer in Education by the Respondent. The cumulative effect is sufficient to constitute facts from which institutional bias, a breach of procedure and of natural justice and fairness can be inferred.

He seeks a recommendation that he be retrospectively promoted to the grade of Senior Lecturer and that he be paid in full the necessary adjustment in salary. For the avoidance of doubt, he fully recognises that the WRC does not have a role in deciding on the most meritorious candidates in the Employer’s interview process. However, he is requesting that the adjudicator use their authority to examine the evidence put forward in this case and to make findings in regard to fairness, due process, implementation of procedure and his right to natural justice.

Summary of Employer’s Case:

Findings and Conclusions:

I note that the Employee recognises that the Workplace Relations Commission does not have a role in deciding on the most meritorious candidate.

I note that at the commencement of the Interview process each member of the Selection Committee confirmed that they had no conflict of interest regarding any of the candidates.

I note that the Employee has alleged that one of the Selection Committee was known to the successful candidate both professionally and socially.

I note that the Employer has rejected this, stating that all the Selection Committee confirmed that they had no conflict of interest. I note the Employer’s position that one of the Committee had worked with the successful candidate at one time but not in recent times as to render them conflicted.

I find on the balance of probability that there was no conflict of interest.

I note that the Selection Committee reached a consensus scoring for each candidate based on the criteria, regarding the application form, seminar and interview performance based on the responses provided to the questions asked by the Selection Committee.

I note that the Committee gave the successful, candidate 84/100 and the Employee 68/100.

2) Qualifications and Experience of the Employee greater than the successful one.

I note that the Employer has affirmed that in respect of any recruitment competition, the judgements as to the degree to which an applicant meets or exceeds the standard required by the job criteria relative to another candidate are qualitative judgements as decided by the specialist evaluation of the members of the Selection Committee.

I note that the Employee was ranked no. 4 in the order of merit of appointable candidates. Therefore, the Complainant was well down the pecking order of the Committee’s final panel.

3) Successful candidate did not meet all of the ‘essential’ requirements for the post.

I note that all shortlisted candidates for any post are required to meet all of the essential criteria attaching to the post. The Selection Committee shortlisted the applicants on that basis having regard to the content of their application forms.

I note that the Employer advised that at the assessment stage following interview, the candidates were again considered with regard to the essential criteria in light of the additional information available from the responses to the questions at interview.

I note that at that stage they satisfied themselves that the successful, candidate had met the essential requirements.

I find that it does not necessarily follow that an unsuccessful, candidate had a stronger position in some areas of consideration.

I found no information to suggest that the successful candidate did not achieve the essential requirement level.

4) Evidence of significant procedural flaws and omissions during the interview process.

I note that the Employee has cited: a) the conflict of interest, b) a member of the Committee was not “established” c) a Committee member had not received the mandatory interview board training.

I note that the Employer has stated that the Employee has not provided “clear evidence” of significant procedural flaws and omissions during the interview process.

I find that a) Conflict of interest has been addressed above. b) Established:- I find that HR provided guidance on this matter to the Committee. I find that a person becomes established once he/she is appointed a Senior Lecturer. One can gain tenure by going through establishment status, internally only basis. c) Training:- I find that the Chair of the Committee must be trained, that 50 % of the panel must be trained within one year, 100 % within two years. I find that the Chair received their training in another university, so it was deemed acceptable by this university.

I did not find information to support the Employee’s allegations on these matters.

5) Denial of natural justice

I note that the Employee has stated that it was irrational not to appoint him and that the failure to appoint him cannot be objectively justified.

I can understand why the Employee is disappointed that he was not successful.

I find that there were four other candidates that were disappointed also.

I find that the Employee finished fourth on the panel and so was not a “near miss”.

I found no information to support his contention that this process was flawed.

I found no basis to suggest that the university decided deliberately to appoint the wrong person, it doesn’t make any sense whatsoever.

I have considered the allegations and the responses and I have found that the selection process was sound and correct.

Recommendation:

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

Dated:   23rd June 2021

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

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