Equality Officer's Decision
DEC-E2010-097
Paul Cotter
versus
Cork College of Commerce
(represented by Stephen O'Sullivan B.L. instructed by O'Flynn Exhams Solicitors
File reference: EE/2007/154 and EE/2007591
Date of issue: 14th June 2010
Keywords: Employment Equality Acts, Gender, Access to Employment, Conditions of Employment, Victimisation
1. Dispute
1.1 This dispute concerns a complaint by Mr Paul Cotter against Cork College of Commerce which is run by City of Cork Vocational Education Committee. The complainant alleges that he was discriminated against on the ground of gender in relation to access to employment and his conditions of employment and access to promotion contrary to the Employment Equality Acts 1998-2008 [hereinafter referred to as the 'Acts']. He is also claiming victimisation.
1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 26th March 2007. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 19th January 2009 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 27th November 2009. The final piece of correspondence was received from the respondent's representative on 28th January 2010.
Summary of the complainant's case
2.1 Mr Cotter is currently employed on a part-time basis on a contract of indefinite duration as a teacher of Law by City of Cork VEC. He obtained the degree of LLM in 2000. For the academic year 2000 to 2001, he held the position of part-time law teacher with the respondent at Coláiste Stiofáin Naofa College of Further Education. In July 2001, he was interviewed and obtained the position of Law Teacher with the respondent at Cork College of Commerce. He commenced in September 2001 on a pro-rata contract for 20 hours. This was a fixed-term renewable contract. 22 teaching hours is regarded as a full time contract. His contract was renewed each September until 2004. Around this time Mr Cotter was informed by the Deputy Principal of Cork College of Commerce, Ms A, that two hours were being removed from his contract. He submits her reasons were ambiguous. His new contract was 18 hours pro-rata.
2.2 The following year (on 12th September 2005), Mr Cotter submits he was summoned to Ms A's office. She said that as student numbers were falling, his contract for that academic year would only be for 8 hours. According to the complainant, Ms A said he may be able obtain additional hours with different colleges under the aegis of City of Cork VEC. He maintains that she said that this was because enrolments did not match acceptances but that she did not give exact figures.
2.3 After his hours had been cut, Mr Cotter submits that his criminal law hours were being taught by Ms B who did not have a legal qualification nor had she taught Criminal Law previously. Mr Cotter holds a BCL and an LLM. Criminal Law is one of his areas of expertise. In September 2006 when an other teacher retired Ms B was awarded Land Law teaching hours. He submits that Ms B never studied or passed an exam in Land Law nor had she taught the subject previously. As a result of this alleged more favourable treatment to Ms B, the complainant submits he is forced to divide his time between Coláiste Stiofáin Naofa and Cork College of Commerce.
2.4 Mr Cotter also claims victimisation. His contract is four hours short of a full-time contract. He maintains it was previously custom and practice to give extra hours to people on part-time contracts when other staff were unavailable e.g. career breaks etc. Mr Cotter used to benefit from these 'top-up' hours. However, he submits that since lodging his complaint he has not been offered any of these hours.
2.5 He also submits he was victimised when he attended an interview for Assistant Principal in 2007 and the interview panel was chaired by a board member of Cork VEC. He submits that the Chairperson would have been aware that a complaint had been made to the Equality Tribunal. He came third out of three - he submits that this shows subjective as well as objective bias. He cites the Supreme Court case Dublin Wellwoman v Ireland as an authority.
Summary of respondent's case
3.1 As a preliminary issue, the respondent submits that any alleged discrimination is not continuous and ongoing and that Mr Cotter has failed to comply with the requirements of section 77 of the Acts in that he did not make his complaint within six months of the date of the alleged discriminatory act.
3.2 The respondent submits that due to reducing student numbers in September 2005, there simply was not enough class hours to facilitate teachers being allocated the same hours as in 2004/2005 and 2003/2004. The respondent submits that the reduction in teaching hours allocated was not exclusive to Mr Cotter.
3.3 The respondent points out that when one teacher retired in 2006 most of his hours were allocated to Mr Cotter which was more hours allocated than to than any other teacher. In the allocation of teaching hours, permanent whole-time members of staff get preference. The respondent submits that far from victimising the complainant, Ms A went out of her way to ensure that Mr Cotter would receive hours at Coláiste Stiofain Naofa (being another unit of City of Cork VEC) for the purpose of mitigating the impact of the reducing numbers of students in the College of Commerce.
3.4 The respondent submits that Mr Cotter and Ms B were equally qualified in accordance with Departmental guidelines (Circular 32/92) to teach in this particular course:
A degree in subjects relevant to the course from a recognised degree- awarding authority
OR
The degree of a recognised degree-awarding authority and either
(a) an appropriate qualification in an area relevant to the course
OR
(b) three years approved experience (including industrial and teaching experience) in the appropriate area.
The respondent submits that all teachers of law with them satisfy these minimum qualifications. They point out that City of Cork VEC is not a University. submits the fact that a teacher has better qualifications does not, of itself, entitle him to more teaching hours. Cork VEC submits that they never questioned Mr Cotter's qualification or the extent thereof. Ms B has a Commerce degree, Higher Diploma in Computer Science and Ceard Teastais Gaeilge and has been a permanent member of staff since 1998.
3.5 The respondent submits as evidence a chart outlining the hours taught in respect of the teacher who teach law modules at City of Cork VEC and that Mr Cotter teaches more hours than some male and some female teachers. The respondent submits that this shows gender is not a consideration.
3.6 The respondent denies victimisation. Since Mr Cotter has made his complaint he has had ten hours teaching in the College of Commerce and eight hours teaching at Coláiste Stiofáin Naofa. In 2006, he applied for and obtained an additional promotional post of Special Duties in Coláiste Stiofain Naofa. The following year he applied for an Assistant Principal position. He was called to interview but was not successful. He appealed this decision and the appeal was conducted by an independent arbitrator. The arbitrator upheld the interview panel's decision. The respondent submits they are obliged under the Department of Education Circular 43/00 to have a member of the Vocational Education Committee to chair interview boards. In a written statement, Ms C (Chairperson of the interview panel) said that she was not aware of the Mr Cotter's complaint to the Tribunal. In distinguishing the facts of this case from the Supreme Court case cited by the complainant, City of Cork VEC states that there is a difference between a High Court judge and a chairperson of an interview panel.
Conclusions of the Equality Officer
Preliminary issue
4.1 I reject the respondent's argument that the complaint is out of time. Regarding the issue of time limits, Section 77 (6)(a) clearly provides for a situation where a continuous act of discrimination alleged to have occurred. Mr Cotter was informed that his hours were being cut in September 2004. This is the first date of alleged discrimination. However, there are incidents since then and Ms B continues to have more teaching hours than Mr Cotter does so therefore the alleged discrimination is deemed to be ongoing. Therefore, I have jurisdiction to investigate this complaint
4.2 There are four issues for me to decide:
(i) Was the complainant discriminated against by City of Cork VEC in relation to access to employment on the grounds of gender as per Section 8 (1)(a) of the Acts?
(ii) Was the complainant discriminated against by City of Cork VEC in relation to his conditions of employment as per Section 8 (1)(b) of the Acts on the ground of gender?
(iii) Did the complainant suffer discriminatory treatment on the ground of gender in relation to access to promotion in terms of Section 8 (8) of the Acts?
(iii) Was the complainant victimised within the meaning of Section 74 (2) of the Act?
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is gender.
4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
Access to Employment
4.4 No arguments were made claiming gender discrimination regarding access to employment (Mr Cotter was already an employee of City of Cork VEC) so this strand of his complaint fails.
Conditions of Employment
4.5 Mr Cotter claims that he was discriminated on the grounds of gender because a woman with fewer qualifications in legal studies than him obtained more teaching hours. Mr Cotter has raised an inference of discrimination. However, the respondent points out that Ms B is sufficiently qualified to teach Law subjects within the meaning of Circular 32/92. Ms B was also a permanent full-time employee while Mr Cotter was employed under a part-time Contract of Indefinite Duration. That a full-time female employee appears to have been treated more favourably regarding the allocation of teaching hours seems to be the essence of Mr Cotter's complaint rather than a gender discrimination complaint. I have no jurisdiction under the Protection of Employees (Part-Time Work) Act 2001.Therefore, I find that the respondent has rebutted this inference of discrimination on the ground of gender regarding conditions of employment.
Access to Promotion
4.7 The arguments made by Mr Cotter regarding the promotion to Assistant Principal were not based on gender but on victimisation so I will examine it as such.
4.8 I am satisfied that the complainant has not established a prima facie case of discrimination on the ground of gender regarding access to promotion.
Victimisation
4.9 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.10 The complainant submits that coming third out of three in a promotion competition to Assistant Principal following a complaint made by him to this Tribunal constitutes victimisation. He also maintains that the Chairperson of the interview panel was aware of his gender discrimination complaint. The complainant did not adduce any evidence to demonstrate that the recruitment process for this position was tainted by bias. In direct evidence, the respondent submits that they did not inform the Board of City of Cork VEC of Mr Cotter's complaint. The CEO stated it would not be their policy to bring every grievance made by an employee to the Board's attention. While the chairperson of the interview panel was not present at the Hearing, she did supply a written statement saying she was not aware of Mr Cotter's complaint. VECs are obliged to have a member of the Vocational Education Committee on the interview board. Mr Cotter did obtain a promotion (albeit not as senior as Assistant Principal) subsequent to his complaint of gender discrimination to his employer. Regarding not obtaining additional teaching hours following his complaint, Cork VEC submitted evidence to show enrolments were down and this supports their argument that it was not in their gift to give additional hours. Having evaluated all the evidence adduced to me, I find that the complainant was not victimised within the meaning of the Acts.
Decision
I have concluded my investigation of Mr Cotter's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) the respondent did not discriminate against the complainant regarding access to employment contrary to Section 8 (1)(a) of the Acts
(ii) the respondent did not discriminate against the complainant in relation to his conditions of employment contrary to Section 8 (1)(b) of the Acts on the ground of gender
(iii) the respondent did not discriminate against the complainant in relation to access to promotion in terms of Section 8 (8) of the Acts on the ground of gender
(iv) The respondent did not victimise the complainant within the meaning of 74(2) of the Acts.
Therefore, I find against the complainant.
_________________
Orlaith Mannion
Equality Officer
14th June 2010