Complainant

Respondent

Anonymised Parties

Professor of Physics

Facility for Higher Education

Representatives

Miriam Hamilton                                  Irish Federation of University Teachers

Siobhan Browne                                       HR Consultants

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-00035524-001

31/03/2020

This is a dispute concerning the promotion of the Complainant to the position of Senior Professor. Both the Respondent and the Complainant wanted this to happen but were frustrated in the implementation of this promotion. The full necessary financial package was refused by the relevant Government Department without reasons offered. The Complainant was left with a promotion which would only last three years.

The Complainant was represented by a Union Representative, and I was provided with a comprehensive submission. The Complainant additionally gave evidence on his own behalf. The Complainant believes he is entitled to a permanent promotion to Senior Professor on merit. This has been earned through his talents and achievements. The promotion he has been given is for limited duration and the Complainant rejects this limitation. In particular, the Complainant cites that there is no precedent for creating a professorship post of temporal restriction.

The Respondent was represented, and I was provided with a written submission setting out the Respondent’s submission. A preliminary issue concerning my jurisdiction was raised and I have dealt with same below. The Respondent has indicated that it wants to retain the Complainant’s services and expertise and wants to ensure he gets the permanent Senior Professorship post.

I have carefully considered the respective positions put forward by the parties herein. I was provided with comprehensive submissions by the parties and their representatives brought me through their respective points. The submissions presented are comprehensive and have served to assist in giving me as good an understanding of the intricacies of this particular workplace which I might otherwise not have hoped to achieve.

The Respondent is a stand-alone higher education body which is unusual as it is the only institution for Advanced Studies in this jurisdiction, and also as it reports directly to a Government Department (currently the Department for Higher and Further Education – previously the Department of Education) and not to the better-known Higher Education Authority which governs most third level institutions i.e. Universities such as Galway, Dublin and Trinity.

At the outset, let me clearly acknowledge the exceptional and dynamic career that the Complainant has had in his field of expertise. There is no doubt that the Complainant herein is passionate about his field of study. His evidence was engaging and enthusiastic. The Complainant is a key member of the Respondent Astronomy and Astrophysics faculty and he is acknowledged by his Employer to bring huge experience and credibility to the Institution. I do not, in the circumstances, need to cite the many, many accolades set out in the submission.

In response to his undoubted ability, the Respondent sought to reward the Complainant with a promotion known as a “Personal Chair” which is a professorship awarded in recognition of academic achievement. It is, I understand, a promotion often used in Third Level institutions though had not, to date been used in the Respondent body.

Correspondence was opened to me concerning the reasons why the Complainant was being given this recognition (letter dated 2nd of November 2017). Undoubtedly, the recently acquired substantial financial Grant awarded to the Complainant through the European Research Council was a factor, but there can be no doubt that the Complainant’s brilliance, long and loyal service and his dynamic approach were all also taken into consideration. The Respondent intended that this promotion would last until the Complainant retired and the remuneration of circa €132,000.00 was intended to be in line with the full Professorship scales that operated in TCD and UCD. I accept that the parties knew that an application would have to be made to the (then) Department of Education to sanction this promotion and the Respondent instructed it’s appropriate administrative officer to engage with the Department on its behalf. It should be noted that I am also finding as a matter of fact, that the offer which was made was known by the parties to be conditional on sanction being obtained.

The standalone and unusual status of the Respondent institution is highlighted in the operation of how appointments are made. I understand that the Government must sanction all appointments, and this is done when the relevant Minister brings the proposed name to the table. Agreement from the Minister for Finance is sought in particular. Warrants of appointment then issue from the President of Ireland on advice from the Government. It was explained to me as being akin to how members of the Judiciary come to be appointed. In this regard, the parties referred me to Sections 11 through 13 of the Arrangement of Articles for the Establishment Order of the School of Cosmic Physics of DIAS (1947).

It is useful to note that both parties freely used the Grading and salary systems in operation in the NUI institutions as ready comparators in the course of these proceedings. I have no reason to believe that this is not an appropriate comparator.

After some delay, the Department came back and stated it was not acceptable to create a post of personal chair and instead the Department preferred the option of a promotion to Senior Professor and that this position once attained would be at an elevated salary of circa €149,000.00. It is noted that the promotion to the role of Senior Professor was one more familiar in the Respondent institution as this grade was already known to the Respondent. I understand that, whilst frustrated at the delay, the Complainant was happy to allow the formal submission for this post to be made. Again, the Respondent made the application to the Department and awaited sanction.

It should be noted that the Employer herein was seeking this position as a merit-based promotion and not following an open competition. I have been advised by the parties that this is not unusual in academic circles, particularly Universities, where talent and achievement must be rewarded so as not to be lost to another campus. It is an essential tool in keeping standards high and attracting students and learning.

It was not until November 2020, that the Complainant was finally advised that he was, indeed, being offered the promotion to Senior Professor but that the post was to be limited in time and would terminate when the ERC Grant he had acquired for the Respondent body had expired. The position was also not pensionable. The Complainant was shocked at the offer being made. He had understood that the promotion was to be a permanent one. The Respondent agrees it had made the request based on it being a permanent promotion to which the Complainant was entitled. Both parties have advised me that there is no precedent across any of the Third Level and Higher education institutions for the creation of a post of Senior Professor to be fixed in time. This is significant in the context of both parties having felt in the course of the hearing that it was appropriate to compare promotions, salaries and Grading with other third level institutions, despite the singular nature of the Respondent institution. The phrase “acting up” seems to have somehow become part of the language around this promotion. To my mind “promotion” and “acting up” are two entirely different concepts and irreconcilable in terms of career progression.

Both parties have advised me that they fully understood that the Department for Education would be obliged, in considering the application before it, to apply to the Department for Public Expenditure and Reform for the appropriate finances to fund any such promotion. The parties can have, and did have, no objection to this being the case.

Quite fairly, the parties conceded that they have no idea how and when these two Government Departments engaged with one another and how the case for the Complainant’s promotion came into focus. Certainly, the parties have no idea why the promotion awarded was to be aligned with the European financial Grant which the Complainant had previously won for the Respondent body, and that the said alignment was such that the position would terminate as and when the financial Grant expired.

It became clear to me in the course of this hearing that I did not have all the facts in front of me and that certain of these facts were known only to those parties not in front of me.

To my mind, it was and continues to be open to the Complainant to bring this dispute to the attention of the relevant third parties by way of the Industrial Relations Act dispute mechanism.  This time it would be pertinent to include the relevant Government Department or Departments who had made the decision which is in dispute. Although not the Employer, I believe said parties undeniably have a fundamental input into the Contract of Employment.   At the hearing before me the Complainant had not yet determined if that was a course of action he wanted to take.

In any event, it is quite clear to me that an administrative decision has been made herein and that the said decision has severely impacted an individual in a way that the said individual was not expecting.  I would suggest that there is an inherent onus on the decision maker or makers herein to exercise its decision-making powers fairly and transparently. It seems surprising to me in these circumstances that neither the Complainant nor the Respondent was communicated with in this decision-making process. The nett result of this process is that the Complainant has been left with a decision made by unidentified persons concerning his career progression.   To his mind, the decision is perverse, without precedent and unfair. In the absence of any rational explanation provided for in this decision-making process, I am inclined to accept the Complainant’s entitlement to feel this way. There is a fundamental right to procedural fairness which has not, based on the facts presented to me, been fully recognised.

At the heart of the problem is the lack of reasons provided. Neither party before me was able to articulate why the promotion on offer was being curtailed in the way that it was. I am not saying that the there is no rational justification, there may well be one. I am simply saying that in the absence of one, the Complainant’s career path should not be adversely affected. I would also tentatively suggest that the Complainant should have been given a right of Appeal against this decision. Apparently no such right has been provided.

It is clear to me that the Respondent seeks to retain the Complainant’s talents. “Talent begets talent” is how it was put to me. The Respondent are fully aware that when the complainant accepted the position on offer (in November 2020) it was intended to be without prejudice to the Complainant’s rights to seek a permanent post. In fact, I note the workplace relations complaint form which brought this dispute before the WRC pre-dates the offer made.

The Complainant stated that he may well have to retire prematurely as his pension package will be calculated on the last three years of earnings which are elevated no but might not be in the future.

Before concluding, it is incumbent on me to address the preliminary issue raised by the Respondent concerning my jurisdiction. At the outset, the Respondent suggested I could not make recommendations in circumstances where the Complainant’s complaint concerned a rate of pay. I am satisfied that the Respondent is incorrect in this assertion as the Act precludes me from hearing disputes referred to me and concerning the rates of pay of a body of workers. In this matter I have been asked to consider the very singular situation concerning this individual worker.

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

CA-00035524-001

On the face of it I find the Complainant to have been wronged. Having already articulated my opinion on the merits of the within dispute, I am recommending the following:

I recommend that the Respondent confirm that the Complainant’s promotion should be of permanent duration subject to the age of retirement. I recommend that the time limitation so imposed should be rejected.

I recommend the Respondent vigorously apply once again to the relevant Government department(s) for the financial package required year on year to ensure that the complainant’s position is given the permanent status due.

I recommend that the Respondent demand comprehensive reasons be given for the failure to confirm the appropriate financial package in the event that there is a continued refusal to sanction same.

I recommend that the Respondent demand a right of Appeal from that decision, should that decision be in the negative.

In the alternative (or indeed concurrent to the above) I recommend bringing the hitherto unrepresented parties before the WRC to give evidence on the rationale for the decision to give a promotion to Senior Professor which has amounted to a non-promotion. This can be done by bringing a complaint under the Industrial Relations Act naming the Respondent and the relevant Departments as joint Respondents. This would be similar in nature to a teacher naming his/her school as well as the Department of Education in similar proceedings.