EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-143
PARTIES
John Mavroudis
AND
Institute of Technology, Carlow
(Represented by Arthur Cox)
File reference: EE/2007/632
Date of issue: 28 July 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Religion, Age & Race - Discriminatory Dismissal
1. DISPUTE
1.1 This dispute concerns a claim by Mr John Mavroudis against the Institute of Technology, Carlow on the grounds of religion, age and race contrary to section 6(2) of the Employment Equality Acts that he was dismissed in a discriminatory manner in terms of section 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 4 December 2007 under the Employment Equality Acts. On 20 October 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 21 April 2010 and final information was received on 3 June 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he is of Greek extraction and came to Ireland in 1965, he is a Jehovah's Witness and was 60 years of age on 25 July 2007. He worked for the respondent from 1972-76 as a lecturer in the Engineering Department. From September 1976 to August 2007 he worked for the respondent as a lecturer in Electronic Engineering (apart from a leave of absence from 1979 to 1980).
2.2 The complainant submits that in the mid 1980s Mr A, who was then a secondary school teacher, was looking for accommodation for foreign students coming to Carlow for the summer to study English. He and his wife completed the application form and were given a date when to expect a student. On that date the complainant alleges that Mr A called to the house and stated that no student would be coming to their house because they were Jehovah's Witnesses. Mr A was subsequently appointed as Chairman of the Governing Body of the respondent and was on the interview boards for four positions for which the complainant subsequently applied.
2.3 The complainant submits that since June 2001 he applied 4 times for promotion to higher posts: firstly as senior lecturer (teaching), then twice for the position of Head of School of Engineering, and finally for the position of Registrar. On each occasion he submits that the successful candidates had lower qualifications, experience, skill and seniority. He also submits that in September 2006 his PhD application was returned because the respondent said no qualified supervisor was available, even though he had been accepted by a suitable supervisor. The complainant submits that these actions amount to constructive dismissal, which occurred when he took early retirement on 30 September 2007.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that this claim is out of time in accordance with section 77 (5) of the Acts in that the last of the competitions referred to by the complainant was in September 2004 and his PhD application was dealt with in Spring 2006 and the claim was not made until 4 December 2007.
3.2 The respondent further submits that the respondent was not dismissed but retired voluntarily. He raised no grievances with the respondent before he left their employment. He applied for early retirement in May 2004 citing personal health reasons but made no mention of any work difficulties. This application was withdrawn. On 25 January 2007 the complainant wrote to the respondent proposing that he retire on 31 December 2007, he gave no reason for this other than he would 60 years of age in July 2007. Then on 13 June 2007 he asked to bring his retirement forward to 30 September 2007 because "the latest developments in the Electronics Dept have forced me to review my retirement date." He expressed his dismay that two of the courses he was involved in would no longer be running but gave no other reason and did not refer to the job applications or his PhD application. He took his early retirement on 31 August 2007.
3.3 The respondent confirmed that Mr A was a former Chairman of the governing body of the respondent and was involved in the interview boards for the four competitions referred to by the complainant. They submitted a statement from Mr A in which he confirmed that he was involved in arranging accommodation for Spanish students in the early 1980s but he was not directly involved in the allocation of students to homes. He has no recollection of the incident referred to by the complainant. He further denied that any discrimination occurred in the interview boards referred to by the complainant.
3.4 The respondent denies that any discrimination took place in relation to the complainant's applications for positions within the respondent or in relation to his PhD application and submit that the complainant has failed to establish a prima facie case of discrimination in relation to any of the grounds he has cited.
4. JOB APPLICATIONS
4.1 The first position the complainant applied for was in June 2001 when he was one of 30 candidates for ten posts of senior lecturer (teaching). He submits that he was asked questions by Mr A that would give the panel something on which to turn him down. He was unsuccessful and the one successful candidate from his Department was 8 years his junior and less experienced. The complainant stated that in protest at not being appointed he resigned as Course Director of the Honours B.Sc. in Integrated Circuit Engineering.
The respondent confirmed that Mr A was secretary to the interview board. They submit that age is not relevant and several of those appointed were similar in age and older than the complainant. Also race and racism were not taken into account. Appointments were made with regard to suitability for the posts.
4.2 The complainant submits that in September 2002 he applied for the position of Acting Registrar. His application was misplaced and ignored until an appointment had been made. He was called for an interview one week after the other candidates. He submits that his race and religion were taken into account in the interview process.
The respondent submits that there was a genuine administrative error in relation the complainant's application. It was discovered the day after the interviews took place but before a decision had been made. The interview board was re-convened a week later. Mr A was on the interview board. The board members scored the applicants separately and then the scores were brought together. They submitted this consolidated score sheet which showed that the complainant scored poorly in several areas. The post was a management role rather than academic and other applicants had management experience. This was reflected in the scores. The respondent confirmed that the other three applicants were Irish but they did not know their religion but race and religion were in no way implied in the interviews.
4.3 The complainant submits that in August 2003 he applied for the position of acting Head of School of Engineering. Although electronics was his speciality he was interested in other areas and had wide experience. He submits that individuals did not want him to progress and this amounted to discrimination on the grounds of race and religion.
The respondent submits that there was no reference to race or religion in the interview process. Mr A was chairman of the interview board but it also included an external specialist from Wales. The respondent submitted the consolidated score sheet which shows that the complainant scored poorly in relation to the management skills needed for the position.
4.4 The complainant submits that in September 2004 he applied for the permanent position of Head of School of Engineering and he had higher qualifications than the successful candidate. The complainant submits that he was discriminated against in relation to race, religion and age in the competition.
The respondent confirms that Mr A was Chairman of the interview board which also included two external specialists. They deny that any reference was made in relation to race, religion or age. Whilst the complainant was academically qualified the consolidated score sheet shows that he scored less well in the areas of people management, strategic management skills & experience.
5. PHD APPLICATION
The complainant contends that in September 2006 his PhD application was returned by the respondent because no qualified supervisor was available but he maintains that he had been accepted by a suitable supervisor.
The respondent stated that following preliminary discussions about a PhD proposal from the complainant concerns over the type of space and facilities needed for the complainant's research were being progressed. But they confirm that they did not consider the complainant's choice of supervisor to be suitable, as he was not an expert in the field of research. The complainant was asked to find someone else. In September 2006 the complainant asked what procedure he needed to follow to proceed with his PhD research and he was advised that he would have to submit a formal application to the Register. He never submitted a formal application.
Following the hearing the complainant submitted an application form which he contends he submitted to the respondent. The respondent submits that they have record of having received this form and pointed out that the area of the form in relation to supervision is blank.
6. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
6.1 I must first consider the issue raised by the respondent that the claim is out of time. It was lodged on 4 December 2007 and the last of the job applications referred to by the complainant was in September 2004 and it was September 2006 when he was told that he would have to submit a formal application form for his PhD proposal. Therefore they contend that all incidents are out of time in accordance with section 77 (5) (a) of the Employment Equality Acts, 1998 - 2007 which states: "a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence." and this may be extended if there is "reasonable cause" to 12 months.
6.2 If this were a claim of discriminatory treatment then it is quite possible that it would be out of time in accordance with section 77 (5) of the Acts, given the timing of the incidents referred to by the complainant. However, this claim is made in relation to discriminatory dismissal. The complainant alleges that he suffered constructive dismissal that resulted in him leaving the respondent's employment on 31 August 2007. This is the date of the alleged dismissal and I must take it to be the date of the alleged discrimination, therefore as the claim was made on 4 December 2007 I find that it is within the time limits.
6.3 I have to decide if the complainant was dismissed in a discriminatory manner. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
6.4 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." The complainant claims that he considered his early retirement on 31 August 2007 to be constructive dismissal and that this arose from his treatment in relation to the four job applications and his PhD application where he alleges he was discriminated in relation to race, religion and age. In correspondence with the respondent about his retirement date, that was referred to within this investigation, the complainant raised other concerns about the running of certain courses but the complainant did not raise them with the Equality Tribunal and there is no inference of discrimination around these incidents.
6.5 Section 2(1) of the Act defines a dismissal as including:
"[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so...."
The respondent cited Labour Court Determination No. EED 0410¹ which stated, "this definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 -2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the "contract" test where the employee argues "entitlement" to terminate the contract. The second or "reasonableness" test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice. The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance"
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.
Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case."
The Labour Court also stated: " Counsel for the respondent submitted that the complainant's failure to make any complaint in relation to his treatment, prior to his resignation, is fatal to his claim of constructive dismissal. The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address what ever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal"
6.6 In this claim the complainant considers that the respondent acted unreasonably in relation to the job applications and his PhD applications and this led him to leaving their employment. However, the last of the job applications occurred nearly three years before he left and he did not raise a grievance in relation to any of them . The issue about submitting a formal application form for his PhD application occurred nearly one year before he left the respondent's employment and he did not raise a grievance about this either. The respondent dealt with the complainant's early retirement request in accordance with his wishes and they were unaware of any other issues which might have precipitated his departure from their employment. No evidence has been presented that would lead me to conclude that the complainant was not in a position to raise a grievance in relation to the four job applications or his PhD application with the respondent. Furthermore, no evidence was adduced that any of the issues raised effected the complainant's day-to-day working conditions in such a way that would lead me to conclude that he considered his working conditions intolerable. I therefore cannot conclude that the respondent has failed either the contract or the reasonableness tests and I find that the complainant was not dismissed in a discriminatory manner.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not dismiss the complainant in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
28 July 2010
¹ Labour Court Determination No. EED 0410, An Employer and A Worker (Mr O)