Worker

Employer

Anonymised Parties

A Worker

A Third Level College

Representatives

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-00048025

07/01/2022

The worker states that she has lodged an Industrial Relations complaint as a result of the employer’s failure to run a recruitment campaign for the selection of the role of Research Office Manager. The worker states that she was treated unfairly by the respondent by not having an opportunity to apply for the role of Research Office Manager. The worker is seeking a financial remedy from the employer.

The worker asserts that in relation to the matter of a selection procedure, the respondent is bound by Section 11 of RTC Act, 1992 which affirms that all vacancies must be advertised. The worker asserts that while the employer has stated that it is entitled to a “hall pass” on applying legislation and its own policy to the post of Research Office Manager; the worker disputes this assertion. The worker submits that the substance of the Research Office Manager role is administrative. The worker states that the current incumbent of the Research Office Manager role was initially appointed as a Research Projects Officer. It was stated that a Research Projects Officer is generally responsible for providing a “professional and comprehensive administrative, financial and project management service to specified projects”.

The worker states that the length of the contract (5 years) makes this a de facto permanent administrative role. The worker asserts that the TUI have already assessed the Research Office Manager role and stated it is not an academic role (teaching and learning) nor is it a specialist researcher role (which would require a PhD).

The worker states that aligning a de facto permanent administrative role to the inappropriate career framework or level in order to dilute an employee’s pension rights or to avoid running a proper selection procedure only means it has been misaligned, it does not convert the role from admin to researcher via misalignment.

The worker states that while the respondent states that no other complaints were made about the role being filled in this way, the fact of the matter is that the position was not advertised and the appointment was not announced. The worker asserted that the respondent should not be surprised that there were not many complaints regarding same given these facts. The worker states that the respondent asserts that the Research Office Manager has essential skills required to develop the research sector of the respondent. The worker contends that those skills are not unique or exceptional and not especially difficult to master.

The worker states that the litmus test about whether the legislated selection procedure should have been complied with is to consider what normally happens when an employee hits the incremental ceiling. The worker states that what happens when it is transparent is that you stay at the incremental ceiling or you apply for a job at the next level. This means that a job at the next level has to be vacant or created.

The worker states that prior to September 2020, the respondent did not have a Research Office Manager. However, once it was created it was subject to the RTC Act, section 11.  In conclusion, the worker requests

(i)                  a finding that the employer erred when it did not advertise the position in question

(ii)                a finding that the role is in substance and in name an administrative role

(iii)               recognition that the failure to advertise the role is sufficient cause for a financial penalty to be applied.

The employer refutes the complainant’s claim in its entirety. The employer asserts that the role of Research Office Manager was filled in accordance with the Researcher Career Development and Employment Framework as agreed and issued by the Irish University Association (IUA) and the Technological Higher Education Association (THEA). It states that this Framework established a career path for Research Staff that had not existed previously in Higher Education. The Employer respectfully requests that this claim fails.

The employer states that on 24 January 2014, the Institute advertised externally the position of EU Research Programme Officer. This position was created by the Institute due to the increase in external research funding and in particular due to the increase in EU funded research programmes. Within the Job Description for this position, the Experience and Qualifications for the post state; Applicants must hold a Masters or a PhD and have a minimum of three years proven track record in a research and development environment, Applicants should possess a knowledge of EU funding programmes with an appreciation of global trends in research funding and administration, Applicants should possess a knowledge of research policy at national and European level, Excellent organisational and interpersonal skills along with team-working abilities.

The Institute viewed this position as a very important part of the Research Office and integral to any future applications for funding of research. One of the main roles of the post holder was to identify and assist Principal Investigators with funding applications and in particular with EU or non-Exchequer funded applications. The entire funding for this position was to be through the Institute Research Office Overheads i.e. the Institute charges an administration charge to all external funded research projects which is administered by the Head of Research. These overheads are then used to fund a number of research and research related positions which included this position. It should also be noted that the position did not and currently does not have access to Institute State pension schemes. Following an interview selection process, a successful applicant was appointed to the role. It should be noted that no internal staff including the worker applied for this position. This employee remained in service until her resignation on 30 June 2016.

The position when advertised in February 2014 stated that the salary for the position was €51,716 to €56,442 (4 points) which was the agreed IUA Research Fellow salary scale. There were no agreed Research Salary Scales in 2014 for the THEA sector and a number of Institutes including the respondent used the agreed IUA salary scales for research posts. By using the Research Fellow salary scale in 2014, the Institute clearly indicated that it viewed the role of EU Research Programme Officer as a research-based post. There were no objections raised by any staff member or staff union to this fact on the creation, advertising, role and filling of the post.

Following the resignation of the incumbent on 30 June 2016, the Institute advertised the position externally on 13 May 2016 as a Research Projects Officer. The salary for the position remained the same as a Research Fellow with no change in salary from the 2014 advert. The Experience requirements for the post in the Job Description states: Experience Essential 1. At least 3 years’ experience researching/project managing in a research & development environment, 2. Project management 3. Experience of writing/reviewing research funding proposals. Desirable: Experience in a research office environment. Following an interview selection process, the current incumbent Ms A was appointed on a 2-year Fixed Term contract. The Employer asserts that there were no internal applicants including the worker for this position. In addition, there were no issues raised by any Institute staff union or employee with the salary or the position being part of the Research Office. In May 2018, Ms A’s contract was extended for a further period of 4 years to 18 July 2022.

On 07 September 2020, the Head of Research wrote to the Human Resource Manager requesting a change in the role of Ms A. The request stated “It is proposed to change the job title of Ms. A [my emphasis} the current Research Projects Officer to reflect the substantial efforts Ms. A {my emphasis} has made in her current role to the running of the Research Office from both a strategic and operational perspective. Her duties have been extended and she has taken on extra responsibilities in addition to gaining a high level of trust from the research community at the Institute.”  The request also included that the new salary for the position should be that of Senior Research Fellow. This position in September 2020 attracted a salary of €66,559 to €71,429. The maximum of the Research Fellow post in September 2020 was €59,622. The post would continue to be funded in full from the Institute Research Overheads monies.

The Human Resource Manager requested a number of new duties be added to the proposed role in order to reflect the new title and additional duties for the position. As the position was a Research linked position both the Human Resource Manager and the Head of Research agreed that the Terms of the Researcher Career Development and Employment Framework was applicable to the post. The Framework states clearly on Page 25 that the role of Senior Research Fellow is not an academic appointment. It was also decided that progression from Research Fellow to Senior Research Fellow was in line with 7.6 of the Framework. Ms A had been in her role for over 4 years and was deemed an essential in the Institute furthering its role in research and in particular in achieving more external funding. Ms. A was progressed to the Senior Research Fellow scale and new job title as of on 01 September 2020 as she had been on the maximum of the Research Fellow scale since July 2020.

On 07 January 2022 the worker lodged a claim with the WRC under Section 13 of the Industrial Relations Act, 1969. The worker alleged that the employer discriminated against her due to the lack of a recruitment and selection process for the role of Research Office Manager and the awarding of the position without such a process. She also claimed that the Institute had not responded to a Grievance that she had lodged with it on 14 December 2021. It was submitted that the Human Resource Manager on receipt of the WRC documentation searched his inbox and found the grievance and responded to the worker on 20 January 2022.  He informed her that she must follow the Grievance Procedure and only on non-agreement should the case then be referred to the WRC for adjudication. The worker agreed and a number of grievance meetings were convened on 08 February 2022 and 22 February 2022. The meetings failed to resolve the matter and the worker referred the matter to the WRC for adjudication.

The worker has alleged that the employer treated her unfairly due to the lack of a recruitment and selection process for the role of Research Office Manager and the awarding of the position without such a process. The employer refutes this claim in its entirety as the role was filled in accordance with the Researcher Career Development and Employment Framework as agreed and issued by the Irish University Association (IUA) and the Technological Higher Education Association (THEA). The employer also wishes to note that the staff union representing all posts which are in the Research area is the Teacher’s Union of Ireland (TUI). The TUI also filed a grievance in relation to the filling of this position within the Employer organisation. The areas of particular concern to the TUI were the following: - No formal application and agreed merit based criteria process had been agreed with them for progression through the various Research grades from Level 1 to Level 4. - Applicants must submit an application for progression to their Line Manager - Training for all Research staff on the Framework and progression requirements.

The employer submits it was Ms A’s Line Manager (Head of Research) who submitted the application for progression. The employer and the TUI agreed that new merit based criteria for progression and an application process would be developed and agreed. These are currently being finalised. Once completed these will be issued to all staff.  Where necessary if following this internal process the post remains unfilled then an external competition would be held. The employer submitted that it had progressed 4 Researchers in the previous 2 years from Research Fellow to Senior Research Fellow and 2 from Senior Post Doc to Research Fellow under the Career Framework. An internal confined competition was held for one post but the others were at the request of the Principal Investigators (Line report Managers). No objections were raised by any staff union or employee in relation to these progressions.

The worker has contended that the Research Office Manager role is an administration role and should therefore be filled in accordance with the FORSA Agreement for the filling of such roles. The employer totally refutes this as the post when originally created in 2014 and since was always linked to Research and Research salary scales. There is no equivalent role either in administration or academic grades for this position. No issue had ever previously been raised by any staff union or employee in relation to this. The worker only raised the matter when she became aware of the change in title of the position.

It was submitted that in both the IUA and THEA sectors of Third Level Education there are no salary scales, other that the IUA Research Salary Scales, dedicated to roles in the research area. There are no scales for staff who are employed in management, support or administration roles to this discipline. All Third Level Institutions assimilate these staff who are not dedicated researchers to either the IUA scales or where it is very clear from the job description to an appropriate administration or technical support scale. Many Third Level institutions use the IUA scales for posts that are similar in description to the role of Research Office Manager.  FORSA are the agreed staff union for administration posts in the TU/IOT sector and there are no agreed job descriptions for research or research related roles with them. The TUI are the staff union for research posts in the TU/IOT sector. They also accept that there are no agreed job descriptions or separate salary scales for such roles.

The worker is a Grade III Clerical Officer (entry level Administration Grade) who commenced with the employer on 07 May 2002. The Administration grades are from Grade III to Grade VII. The worker was awarded a Contract of Indefinite Duration as a Grade III on 01 September 2008. Grade III positions do not have any supervisory duties or managerial roles attached to the position. The worker states in her Complaint Form that “I think a lot of people, including myself, were entitled at least to a shot at the Research Office Manager position. We are more experienced in terms of office administration and management”. Based on the job description for the original position of Research Projects it was essential that applicants had:

·       Minimum of a Third Level qualification

·       At least 3 years’ experience researching/project managing in a research & development environment

·       Project management

·       Experience of writing/reviewing research funding proposals

The employer asserts that the worker does not possess a Third Level qualification and also does not have managerial experience in a Research environment or any other environment within the employer organisation. It was submitted that she would therefore have not been considered for interview if the post had been advertised. The employer submits that the worker has failed to discharge that she was unfairly treated by the position not going to advertisement and consequently her claim for salary compensation cannot succeed.

In conclusion, the employer contends that the role was filled in accordance with the Researcher Career Development and Employment Framework as agreed and issued by the Irish University Association (IUA) and the Technological Higher Education Association (THEA). The employer states that it is engaging with the relevant staff union (TUI) regarding the introduction of a new process and procedure for applications for progression under the Framework.

I find that the manner in which the employer awarded the role of Research Office Manager lacked openness and transparency. It is evident that there was a lack of process for the role in question. In this regard, the employer failed to advertise and run a competitive recruitment and selection process for same.

I recommend that going forward the employer devises a new procedure for progression within the Research section in the Institute which will involve the running of a competitive and advertised recruitment process for roles as they become available. It is a requirement that the new procedure will comply with the principles of openness, transparency and fairness.

I recommend that said revised procedure be completed within 3 months of the date of this recommendation.

I recommend that going forward the employer devises a new procedure for progression within the Research section in the Institute which will involve the running of a competitive and advertised recruitment process for roles as they become available. It is a requirement that the new procedure will comply with the principles of openness, transparency and fairness.

I recommend that said revised procedure be completed within 3 months of the date of this recommendation.

Industrial Relations Act