Case notes investigated by the University Ombudsman
The Complaint
A member of the academic staff lodged a complaint against the Institute of Tourism Studies (ITS) claiming that:
a) ITS terminated his secondment to the Institute on the false pretext of redundancy; he demanded to be reinstated at ITS;
b) ITS arbitrarily terminated his participation in three European Union (EU) Projects without a justifiable reason. He wanted to resume his participation in these projects arguing that the actions taken against him were invalid because the ITS Board of Governors lacked the authority to decide on such matters;
c) ITS refused to remunerate him for the extra hours of work he devoted to the above-mentioned projects; he requested to be paid the outstanding payments due to him; and
d) the ITS Management tarnished his professional reputation by falsely accusing him of spreading damaging information about the Institute; he requested ITS to retract its accusations.
Findings
The complainant started his teaching career with the Education Division of the Ministry of Education as a teacher in Secondary Schools, but was seconded to ITS in September 2007 to assist in the work of the IT Co-ordinator at the Institute. His letter of secondment did not specify the conditions under which he was being transferred. At the end of the 2010-2011 scholastic year, ITS informed the Ministry of Education that it no longer required the complainant’s services since his IT related work did not justify his employment at the Institute. As a result, the complainant was transferred back to the Education Division to provide teaching duties in State Secondary Schools as from September 2011.
In 2010, ITS, together with several similar institutions in Italy, Portugal and Cyprus, was awarded three EU projects related to training in the hospitality industry. The complainant and five other ITS personnel agreed to participate in these projects, which involved frequent visits to the participating countries by the complainant and two other colleagues. In November 2011, the ITS Board of Governors terminated the complainant’s participation in the projects on the grounds that, once he no longer worked at the Institute, he could not contribute to them constructively.
ITS also rejected the complainant’s claims for overtime payments related to the EU projects. ITS Management pointed out that while he worked at the Institute, activities associated with the EU projects were considered as forming part of the participant’s workload. In addition, ITS argued that it could not pay him for work he may have carried out on the projects after his transfer back to the Education Division since the Board of Governors had instructed him not to work on them any further.
In December 2011, the legal advisor to ITS wrote a ‘warning letter’ to the complainant accusing him of contributing to anonymous emails and a website by spreading false and malicious information on the ITS and its management team. The complainant’s lawyer replied that his client denied outright the accusations, and demanded that ITS should either substantiate or retract them.
Considerations and Observations
Claim I: Termination of Complainant’s Secondment
The complainant asserted that the ITS Board of Governors lacked the authority to decide on the cessation of his secondment to ITS, as well as on the termination of his participation in the EU projects. He argued that the Board’s role was merely advisory, not executive.
Apart from the question of whether the Board’s decisions concerning the complainant were justified or not, his claim on the Board’s jurisdiction was not borne out by its terms of reference. These, among other functions, stipulate:
“The Board will approve the appointment of the Institute’s professional cadre at a level that will ensure the achievement of the qualitative and quantitative objectives aimed for by the Institute.
The Board will oversee and appraise the effectiveness of the Institute’s academic programmes through consideration of periodic reports submitted by the Director of Studies.”[1]
In view of the above, the complainant’s claim that the Board acted beyond its powers when it terminated his secondment to ITS and his participation in the EU projects could not be sustained.
Claim II: Termination of his participation in EU projects
The complainant confirmed to the University Ombudsman that he was transferred to ITS with the full awareness that, as in the case of other seconded employees, the Education Division could recall him to provide teaching duties in its schools according to ‘the exigencies of the service’, as in fact it did in September 2011. He claimed, however, that the recall was unjustified because his services were still required at the Institute. The ITS Executive Director, however, provided data to show that in order to increase his workload, the complainant took on lecturing duties, which during most semesters averaged 10 hours per week when the average should have been 19 hours per week. The Executive Director added that originally the complainant had not been transferred to ITS to lecture in any subject but to support the work of the IT Co-ordinator at the Institute. He added that in his view, the secondment, which took place before he took office, was neither required then, nor later.
In mid-2011, the Board of Governors decided to consolidate the staff compliment by replacing ‘seconded’ and part-time personnel by regularly appointed staff and full-time lecturers.[2] To fulfil this aim, in February 2012, the Institute advertised a number of lecturing posts on a ‘definite service contract’ basis. The complainant applied for a number of these posts but was not appointed in any of them since the various Selection Boards found him to be either ineligible for the posts, or concluded that other candidates had stronger qualifications or more suitable attributes.
On the basis of the available evidence, the University Ombudsman was unable to sustain the complainant’s claim that his secondment to ITS was terminated without justification. The University Ombudsman added that in the course of the investigation, the complainant informed him[3] that he no longer wished to return to ITS under the existing management team.
Claim III: Payment of overtime work associated with EU Projects
The complainant claimed that ITS owed him remuneration for a total of 404 hours in overtime work associated with the three EU Projects referred to earlier.[4] In reply, the ITS Management submitted detailed accounts with receipts signed by the complainant confirming that he had received payment covering all travel, accommodation and subsistence allowances for the trips related to the EU projects. The Executive Director explained that all participants in the EU projects had tacitly agreed that, once they received their full salary when abroad together with a generous subsistence allowance and full travel costs, they would not seek other payments. The ITS Finance Officer confirmed that none of those involved in the EU projects had ever sought or received extra payments in this regard. He pointed out that the complainant and another lecturer with a similar claim, had only sought overtime payments following the termination of their secondment at ITS. In addition, the EU Project Manager confirmed that all the officials concerned had joined the EU projects with the understanding that they would not be paid for overtime. He further stated that he could only confirm that the complainant had worked the claimed number of hours (and probably more) on the projects, but he was not in a position to affirm that the work was carried out outside regular working hours.
The Executive Director and the Finance Officer added that as a matter of policy, extra payments by ITS were honoured only in instances when overtime work
a) was requested, justified and approved beforehand; and
b) was carried out, itemised in detail, and endorsed by the supervising officer.
None of the established procedures was followed when the complainant had submitted his claims. [5]
Claim IV: Allegations of Unprofessional Conduct
On 7 December 2011, the ITS legal advisor, on behalf of the Institute, wrote to the complainant as follows:
“According to information currently in possession of the above mentioned Institute, you are deeply involved and responsible for the sending of emails which have been anonymously sent to various persons using the email address ‘[specified e-mail address]’.”
The letter went on to state that the emails contained untrue, malicious and injurious information about ITS senior officials, and instructed the complainant to “IMMEDIATELY desist from sending further similar emails”. It also warned him that legal and libel action would be taken against him if he continued with the alleged activities. In a reply dated 20 December 2011, the complainant’s lawyer rebutted all the allegations and demanded ITS to either prove these accusations or to withdraw them.
In the course of the investigation, ITS failed to provide tangible proof of the allegations that the complainant had spread information or rumours that harmed the Institution.
During a meeting held with the ITS legal representative in the presence of a Senior Investigation Officer, the University Ombudsman expressed his concern that the availability of the ‘warning letter’ in the complainant’s personal file could prove detrimental to the complainant’s future career prospects. It was therefore agreed that ITS and the Ministry of Education would verify and ensure that copies of the letter sent to the complainant and any references to it, were not contained in the latter’s file at ITS and the Education Division and if so contained the letter or copies of it would be removed.
Conclusions
Ensuing from a careful examination of all the facts and considerations in this case, the University Ombudsman concluded as follows.
There was no doubt that on the basis of its terms of reference, the ITS Board of Governors had the power to engage or terminate the services of the Institute’s employees. The Board of Governors concluded that the institution’s academic and IT needs would be better served by personnel on ‘definite service contracts’ rather than by those on secondment. The Board decided that this applied to the complainant’s case whose workload was so low that he had to boost it by activities other than those he had been originally seconded to carry out. When he formally applied for the advertised lecturing posts, the Selection Boards found other candidates to be more qualified and more suited for the posts. The University Ombudsman found no fault in the Board of Governors’ actions especially as these
a) were taken in the best interests of the Institute and its students;
b) did not infringe on the complainant’s rights as a ‘seconded’ teacher to ITS; and
c) did not deny the complainant the opportunity to apply for the advertised ‘definite service contracts’ posts.
Similarly, the Board of Governors acted within its powers when it terminated the complainant’s participation in the EU projects once he stopped working at ITS. It also acted with due diligence – the EU projects were intimately related to services associated with teaching in the hospitality institutions, and the complainant no longer formed part of such an institution after September 2011.
The conditions under which the complainant joined the EU projects team did not contemplate the payment for overtime. In fact, he never claimed extra remuneration until the termination of his secondment to ITS in September 2011, and any work on the projects he may have carried out after this date was not sanctioned by the ITS authorities. For the above reasons, the University Ombudsman could not sustain the complainant’s claim for overtime remuneration.
The University Ombudsman stated that no institution had the right to accuse its current or former employees of unprofessional conduct without substantiating its accusations. ITS was administratively incorrect to accuse the complainant without producing any concrete proof of its allegations. In this regard, ITS acted incorrectly and the University Ombudsman upheld the complainant’s lament.
Recommendation
The University Ombudsman urged that to remove possible future ill-effects of the ‘warning letter’ on the complainant’s career, ITS and the Education Division should abide by their lawyer’s commitment to remove all copies and any other material related to this letter from his file/s at the Institute, Ministry of Education and the Education Division.
Outcome
By a letter dated 26 February 2013, the ITS Executive Director informed the University Ombudsman that the letter in question was not and had never been inserted in complainant’s personal files at the Institute, the Education Division and the Ministry of Education.