Worker

Employer

Anonymised Parties

A Worker

A Third Level College

Representatives

IFUT

 Arthur Cox

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-00047357

26/11/2021

The complainant applied for academic promotion to the level of Professor in March 2017 with respondent College, he is currently an Associate Professor. His application was unsuccessful. The worker states that he was dealt with in a manner inconsistent with the Employer’s own policy and when he tried to appeal the outcome, he was denied fair procedures and natural justice. He states that the internal appeals process took four years to complete its work. The worker states that an appeals committee supported his appeal and advised a solution which was subsequently rejected by the President of the College. The worker asserts that the appeals process was unfair both due to the inordinate delays experienced by him and in the outcome whereby the President, who as per policy will “normally” accept the outcome of the appeals process decided to set their recommendation aside without explanation or appeal open to the worker.

The worker states that he was subjected to a promotions policy which was unfair in the selection process and through his attempts to appeal, was manifestly irrational in the result.

The worker states that the current promotion system in the College was established in March 2016. An application is made for promotion to a Faculty Promotion Committee (FPC) which assesses the application to see if it meets the minimum benchmark (prima facie) for external review. If this case is established, international experts in the specific academic field are asked to review the quality and quantity of research work and determine if it meets the criteria for promotion.

In the within claim, the worker’s application was evaluated by the Faculty Promotions Committee (FPC) which deemed that it did not meet the prima facie benchmark for external review and consequently his application was unsuccessful.

The worker received feedback from the FPC and based on this exchange and the notes (obtained by FOI) from the FPC meeting that considered the application, he lodged an appeal to be considered by the Faculty Appeals Promotion Committee (FPAC). In his appeal he argued that the FPC made fundamental errors in its consideration of the original application and that his application did, in fact, meet the prima facie benchmark and should have been sent for external peer review. The FPAC upheld the appeal and engaged in a 'back-and-forth' with the FPC over many months without resolution.

The FPAC then recommended to the President that the member be promoted to Professor, effectively by-passing the external review stage. The College policy states that the President will”normally" accept the recommendation. Subsequently, the President wrote to the worker indicating that he was not disposed to act on their recommendation and requested a response from the worker.

The worker communicated with the President, re-iterating the reasons for the appeal, and provided a solution that would satisfy the College’s need for external assessment. Specifically, he suggested that the President could invoke a pathway based on the competitive retention pathway that creates a bespoke committee, which seeks external reviewers to evaluate cases for promotion. The President responded to state that he rejected the FPAC's recommendation and this proposal, without providing a reason other than to accept the recommendation would "undermine" the promotion process.

The worker believes the assessment of his application for promotion by the Faculty Promotion Committee was procedurally flawed. He further asserts that the appeal process was unfair due to the inordinate delay (nearly four years) in processing the case and the rejection of the recommendation of the Faculty Promotions Appeals Committee by the President without justification.

The member believes the promotions policy did not provide an opportunity for a successful appeal of a prima facie case decision as the employer assumed that candidates would just reapply (indeed he was advised of this view by both the then College President and the Director of HR).

The worker maintains that the following examples demonstrate how he was treated unfairly in this process as the College did not adhere to its own promotion procedures:

o      The Faculty Promotions Committee (FPC) did not keep accurate notes of the meeting where the decision on the prima facie case was evaluated

The procedure states that accurate notes of the meeting will be kept "in the interests of transparency, best practice and staff development". The notes received under FOI are incomplete (fewer notes than attendees) and do not suggest preparation for the meeting. Most appear to be contemporaneous with the committee's deliberations.

o      The decision-making process of the FPC is flawed as it does not assure independent assessments by the members

There is no written procedure for this step of the process, but best practice suggests that independent assessments are made prior to the meeting. Instead, the Chair asks a committee member, selected 'randomly', to provide an opinion and then asks other members for their view. This process is fraught with potential problems as there is no measure of views prior to this discussion and once opinions are expressed, they can simply be repeated. The notes acquired under FOI suggest that this may be the case.

o      The formal feedback provided by the FPC refers to issues not in the meeting notes and makes judgements outside of its expertise

The purpose of the FPC initially is to establish if a prima facie case exists for outside expert evaluation. The external review of the academic quality of the work is critical to the promotion process and it recognises that this expertise does not exist within the FPC. The feedback makes judgments on the quality of the work which is outside its abilities; this exposes the decision-making to issues of bias. The FPC acts outside its area of expertise during the prima facie stage.

o      The recommendation of the Faculty Promotions Appeal Committee (FPAC) to the FPC was ignored without cause.

The appeals process is not timely and provides no resolution. It took two years to establish the appeals committee after the member applied. The FPAC supported the appeal and returned the file to the FPC for re-examination on the prima facie case. The FPC reiterated its original decision. Its refusal to accept the decision of the appeals committee means that there is no appeals system. The committee is most reluctant to accept that it can get things wrong and therefore chooses which appeals it is prepared to concede. Effectively, they act as 'judge in their own case'.

o      The recommendation of the Faculty Promotions Appeal Committee (FPAC) to the President was ignored without cause.

The FPAC recommended to the President that the member be promoted, who according to procedure will "normally" accept this advice. The President rejected that recommendation on the grounds that accepting it would "undermine" the promotions process.

The key issue in the within referral is the denial of fair procedures and natural justice based not only on the inordinate delays the member experienced while progressing his appeal but also the irrationality of the outcome of the process.

The employer states that the worker applied for promotion to Professor from his role as an Associate Professor in April 2017. The employer submits that it fully complied with its promotions policy and procedure in assessing the worker’s application. The employer states that the worker did not meet the requirements for promotion and as such, his application was unsuccessful. The employer states that the worker was provided with an opportunity to appeal the decision of the Faculty Promotions Committee (FPC) to the Faculty Promotions Appeals Committee (FPAC). The employer asserts that due to a difference in the opinion of FPC and the FPAC, a recommendation was made to the President of the College. The President upheld the FPC’s decision.   

Summary of the Employer’s Promotions Procedure

The Framework 

(a)            The Framework outlines the parameters and high standards of performance required for promotion of the respondent staff. In particular, the Framework outlines detailed criteria across 3 pillars against which individual applications for promotion are assessed:

(i)             Research, Scholarship and Innovation;

(ii)            Teaching and Learning; and

(iii)          Leadership and Contribution.

(b)            The Framework outlines the standard required for promotion at each grade as follows:

“Taken in the round, with due consideration for discipline differences, Associate Professors are expected to be working at the level of substantial achievement, Professors at the level of outstanding achievement and Full Professors at the level of exceptional achievement.”

 A summary of the procedure for making an application for promotion under the Policy is set out below.

(a)            Stage 1 – Application

(i) Applications are submitted by interested candidates via an Application Form.

(b)            Stage 2 – Prima facie assessment

(i)             On receipt of an application for promotion, the Faculty Promotions

Committee (“FPC”) determines if there is a prima facie case to assess

the application. This assessment is based on the academic judgement of the members of the FPC. 

(ii)            The Policy states: 

“The purpose of the prima facie test is to exclude a candidate who, in the view of the Faculty Promotions Committee, has failed to meet the satisfactory standard in one or more dimension or where it is the view of the Faculty Promotions Committee that the candidate has not provided evidence in the aggregate of meeting the standard required for promotion to the appropriate grade.”

(iii)          In assessing applications for promotion, the Policy states the FPC “will consider all evidence provided by the candidate and is informed by, but not bound by, the comments of the Head of School and College Principal and the reports of External Assessors.”  

(iv)          If the prima facie test is met, the application progresses to Stage 3. If the application does not meet the requirements of the Framework, the FPC informs the applicant of the outcome and provides written and oral feedback on their application.

(c)            Stage 3 – External assessment (if applicable)

(i) Applications that meet the prima facie test are sent to subject-matter experts for an external assessment. 

(d)            Stage 4 – Appeals

(i)             An appeal of the decision of the FPC can be brought to the FPAC. The only basis of an appeal is an alleged failure by the FPC to observe due process.

(e)            Stage 5 – Review and Re-examination

(i)             The FPC and FPAC liaise on the assessment of the application.

(ii)            FPAC can make any enquiries and request the FPC to review the application on the basis of FPAC’s comments. However, the decision

on whether an application meets the prima facie test rests on the academic judgement of the FPC. 

(f)             Stage 6 – President’s role

(i)             If the FPC and FPAC have differing opinions on an application, the FPAC can refer the matter to the President. 

(ii)            The decision of the President is final and there is no further right of internal appeal. 

The employer states that the worker’s application for promotion was unsuccessful on the basis that it did not meet the requirements under the Faculty Promotions Policy.  The worker was provided a right of appeal and the FPC and FPAC gave the worker’s application full and repeated consideration, leading to a substantial back and forth between the two committees. 

A recommendation was then made to the President, in line with the Policy. The President considered all the evidence available, sought written submissions from the worker and concluded that the appeal was not upheld. The President confirmed that FPC had considered the worker‘s entire track record and had acted in accordance with the Policy. 

The College’s position is that the worker’s application was thoroughly and carefully reviewed and it was unsuccessful solely on its merits. A detailed appeals process was followed leading up to a decision by the President. The worker was given opportunities to make submissions and provided intermittent updates on the status of his application. The worker was also invited to submit another application for promotion in due course. The promotions process was implemented in its totality in assessing the worker’s application.

The employer submits that based on the reasons set out above, there is no basis on which the Adjudication Officer should look behind the process undertaken in full compliance with the College’s procedures. 

I have carefully examined all of the written and oral evidence presented by both parties in the within dispute. I note the decision of FPC that the worker’s application did not meet the requirements for promotion. The worker was provided with an opportunity to appeal the decision to FPAC. I note from the policy that where FPC and FPAC have a difference in opinion, the FPAC can refer the matter to the President and ultimately the President upheld the FPC’s decision.

In relation to the within dispute, I am cognisant of caselaw from the Labour Court where it was stated that the role of the Court is not to substitute its views on the merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process was not unfair to the candidate or was not manifestly irrational in the result.  

Having carefully examined the matter and in view of the fact that the appellate body FPAC found that there were procedural defects in the decision making process of the FPC, I recommend that the FPC re-examine the worker’s application for promotion in line with the recommendations as set out by FPAC.   

I find that the within dispute is well founded and accordingly, I recommend that the FPC re-examine the worker’s application for promotion in line with the recommendations as set out by FPAC.    

Industrial Relations Act