A SEEMINGLY INCONGRUOUS DECISION

Um0054

Case notes investigated by the University Ombudsman

A College lecturer complained that the Malta College of Arts, Science and Technology (MCAST) discriminated against him when he was not shortlisted to sit for a selection interview for the post of Director at one of the College’s Institutes.

The complaint

A College lecturer lodged a complaint against MCAST claiming that the College treated him unfairly and discriminated against him when he was not called for a selection interview for the post of Director at one of the College’s Institutes. He argued that he possessed all the requirements for the post advertised in the call for applications. He pointed out that at the time he applied he had served as the Acting Director of the same Institute for fourteen months

Findings

In August 2012, the Director of the Institute in question resigned her post thus creating a vacancy. MCAST issued a call for applications for the vacant post and the closing date for the said applications was 17 September 2012. The call for applications contained the following eligibility requirements:

  • “A first degree in a subject directly related to one of the areas in which the Institute
  • … offers programmes of study;
  • A qualification equivalent to a Masters degree in an area related to any of the study programmes offered by the Institute OR in Management OR in Educational Leadership OR five (5) years experience in a managerial position; and
  • A minimum of five (5) years teaching/lecturing or industrial experience directly
  • related to one of the fields in which the Institute of … offers tuition.”

The complainant applied for the post citing extensive attributes including the following academic qualifications and work experiences:

i. Academic Qualifications

  • Bachelor of Arts (Honours) specialising in 3D Design Mains – Interior obtained from a British University;
  • Post-Graduate Certificate in Education (PGCE) specialising in the teaching of Art and Design in Secondary Schools obtained from the University of Malta; and
  • Several qualifications at Diploma and Certificate levels in Art and Design.

Relevant Work Experience

  • Seven years administrative and lecturing experience, as Deputy Director at an MCAST’s Institute;
  • Fourteen months administrative experience as Deputy Director at the MCAST’s Institute where the vacancy occurred; and
  • Several assignments in a specialised field conducted on behalf of educational and commercial bodies.

In his application, the complainant pointed out that since the resignation of the Director of the Institute concerned, the MCAST authorities had assigned him the duties of Acting Director, the very same post he applied for.

The Selection Board was made up of the following members:

  • the Principal, as Chairman;
  • a member of the Board of Governors; and
  • the Deputy Principal.

The Board Members evaluated sixteen applications. They initially shortlisted three candidates for a selection interview but added a fourth whose appeal at not being shortlisted was upheld by the Board of Governors. The latter acts as an Appeals Board mechanism in such cases.

The Selection Board decided that the complainant was not eligible for the post because he failed to satisfy the first requirement in the call for applications quoted above. Consequently the Board did not call him for an interview. The Board based its decision on the grounds that although the applicant held a Bachelor’s degree and a PGCE in Art and Design, this specialisation was not related to the main programmes taught at the Institute. He appealed the decision, however, MCAST’s Board of Governors upheld the Selection Board’s conclusions, following which the complainant lodged his complaint with the University Ombudsman.

Observations

The Selection Board’s decision, endorsed by the Board of Governors, was not to shortlist the complainant for a selection interview for the very post that he was holding as Acting Director. At first glance this decision appears highly incongruous. However, an analysis of the complainant’s qualifications clearly shows that his academic qualifications and teaching competences did not match the requirements for the advertised post. He possessed the academic qualifications and lecturing experiences at the required levels, but not in the subject areas taught by the Institute. There is no doubt, therefore, that he did not meet the first requirement listed in the call for applications. Consequently, the incongruence does not arise from the fact that the complainant was not shortlisted for interview for a post he was filling as Acting Director. The mismatch resulted from his appointment first as Deputy Director, and later as Acting Director in an Institute where his knowledge of the subjects taught was basic.

There are, however, several other relevant factors that require further consideration. Further insight into the events leading to the complainant’s complaint reveals that his appointment as Acting Director at the Institute was not as irrational as it may initially appear. He held the post of Deputy Director at another MCAST Institute for seven years. He requested and obtained a transfer to provide services at the Education Division when, to his great disappointment, he was not appointed Director of that Institute. Eventually, he was transferred back to MCAST, but following consultations with the Permanent Secretary at the Ministry of Education, Employment and the Family, the College authorities decided that it was in the best interest of all concerned not to re-assign him to his previous post of Deputy Director at the other Institute. Rather than render him jobless and to benefit from his acknowledged administrative skills and industry contacts, the complainant was assigned the duties of Deputy Director at another Institute, were his attributes were needed. The fact that his academic qualifications were not related to any of the subject areas taught at the Institute was not an issue since the academic aspects were well served by the Director and the other Deputy Director. Moreover and significantly, at the time of his transfer, a Deputy Director was not required to have academic qualifications related to any of the subject areas taught in the Institute.

A year later, the Institute’s Director resigned her post and the new Principal felt it necessary to appoint an Acting Director until the selection of a permanent one. His choice was limited to one of the Institute’s two Deputy Directors. In fact, it was a Hobson’s-choice since the complainant’s fellow Deputy Director declined to be considered for the post and in any case, was working on reduced hours. It is important to note that the Principal made it very clear to all concerned, including the complainant, that his services as Acting Director were of a temporary nature. The Principal also maintains that while the arrangement sufficed as a stopgap measure, the College’s policy now aims for the appointment of Institute Directors who are competent in administrative and managerial skills as well as qualified in one of the academic programmes provided by the Institute.

The September 2012 call for applications for the post of Director within the Institute in question reflected these aims and new policy, which in fact rendered the complainant ineligible for the post. The Principal emphasised13 that the new requirement (which was being applied across the board for all new appointments of Directors) and the decision not to consider the complainant for the post, were not intended to exclude, harm or spite him. Indeed, the College valued his administrative contribution to the Institute, however in the new circumstances, even if he was Acting Director, the complainant lacked the first requirement in the call for applications. One notes that the Selection Board reached identical conclusions regarding applications by Deputy Directors from other Institutes who applied for the post in question.

One also has to acknowledge that MCAST is a young institution, whose policies and directions are still at an evolutionary stage and it is to be expected that these would change as the College administration acquires new experiences.

It does not fall within the remit of the University Ombudsman to evaluate all the required attributes of applicants for the filing of vacant posts, although he can appraise and comment on clearly objective criteria such as qualifications and work experience. The responsibility of evaluating and deciding on applicants’ attributes rests mainly with the appropriate body designated by the College regulations to carry out this task, namely the Selection Board. Therefore, the University Ombudsman, does not disturb decisions reached by such bodies unless he finds erroneous evaluations of objective criteria or manifest irregularities and discrepancies or blatant discrimination. The University Ombudsman’s responsibilities are to ensure that the selection process was fair, equitable and conducted according to set and approved procedure, which are not improperly discriminatory.

Conclusion

The allocation of duties to the complainant as a temporary Acting Director of the Institute in question until the appointment of a permanent Director, created conditions to complicate the issue in this case. As stated earlier, it appeared incongruent for the MCAST authorities to assign the duties of Acting Director to an individual who, at a later stage, was declared ineligible for the post of Director in the same Institute. However, the University Ombudsman was of the opinion that when they took this decision, the MCAST authorities acted in the best interest of the institution. Equally important, they did not break any established rules or regulations then in force. A review of the situation proves the point:

On his return to MCAST the complainant already held the substantive post of Deputy Director, at a time when there were no restrictions on his eligibility to a similar position in the Institute in question. This was done with a clear understanding that his duties would be limited to administrative and managerial issues since the then Director and the other Deputy Director would assume the responsibility for the academic matters.

On the retirement of the incumbent, the Institute was functioning without a Director, and of the two Deputy Directors, only the complainant was willing to fill the temporary void.

The temporary nature of complainant’s duties as Acting Director was unequivocally explained to all concerned. There was a clear understanding that the College would eventually appoint an Institute Director, whom it considered most suitable to fulfil his or her administrative and academic roles in line with newly established eligibility criteria applicable to all Institute Directors.

MCAST had every right, indeed it was its duty, to spell out these new eligibility requirements in calls for applications for future Institute Directors, and eventually to appoint one who met both requirements. I do not find any evidence of improper discrimination in the upgrading of the eligibility criteria.

With regards to the complainant’s specific complaint, since he did not satisfy all the eligibility criteria, the University Ombudsman found that he was not discriminated against when the Selection Board did not shortlist him for an interview. Furthermore, the University Ombudsman found no evidence that the call for applications set new requirements specifically to exclude him. As stated earlier, the College had every right to set the most suitable eligibility conditions for the post of Director. The Selection Board duly evaluated the complainant’s credentials and concluded that his academic qualifications did not meet the set requirements. It was also within the Board’s discretion to reach such a conclusion, which it later justified in its report. Furthermore, the College’s Board of Governors, considered the complainant’s appeal against the Selection Board decision, but concluded that the latter’s decisions were correct and valid. In addition, the College Principal provided the University Ombudsman with a detailed reply to the complainant’s claims. As a result, the University Ombudsman did not find any flaws in this process. In reaching their decisions, the College authorities did so fairly and correctly. They treated the complainant without any discrimination, in the same manner as they dealt with other applicants.

In view of the above, the University Ombudsman concluded that the complaint cannot be upheld.

Outcome

Although not happy with the University Ombudsman’s conclusions, the complainant accepted the outcome of the case.

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