Employment Equality Acts
Decision DEC-E2013-030
PARTIES
Zviko Rondozai
(Represented by Margaret Bernard, I.N.T.O.)
- V -
BoM St. Canice's Special School
(Represented by Frank Drumm, B.L.
instructed by Leahy & Partners, Solicitors)
and
Department of Education & Skills
(Represented by Helene Hannon,
H.E.O, Dept of Education & Skills)
File references: EE/2008/871 & EE/2008/872
Date of issue: 17 April 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Victimisation - Race - Gender
1. BACKGROUND
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment and victimisation on the race and gender grounds, in terms of Sections 6, and 74, contrary to Section 8 of the Employment Equality Acts
1.2 The complainant referred her claims of discrimination to the Director of the Equality Tribunal on 19 December 2008 under the Employment Equality Acts. On 30 January, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Conor Stokes - 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. As required by Section 79(1) and as part of my investigation, I proceeded to a hearing on 13 April 2012. Additional information was received up to 16 May 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she is employed by the respondent as a teacher at St Canice's Special School. She submits that she is from Zimbabwe and contends that she has experienced adverse treatment at work from 2006 onwards and that this is related to her race and/or her gender and furthermore that she was victimised for exercising her legitimate entitlement to raise a complaint under the Equality Legislation.
2.2 The complainant submitted that the less favourable treatment, which covers a number of incidents, culminated in seriously adverse treatment in the appointment process to a promotion post within the school in 2008 and her treatment in this situation included a clear denial of her right to utilise the agreed and recognised appeals procedure. These procedures and appeals process are rigorously defined following extensive negotiations between management, the Department of Education and the Teacher Unions and are statutorily recognised under the Education Act 1998.
2.3 The complainant submitted that she had previous issues in relation to her treatment by the Deputy Principal of the school and, in May 2006, raised in writing allegations of being bullied. Before the summer holidays in 2006 she approached the Principal and was promised a meeting, but this did not take place. The complainant raised these issues in a letter to the Principal Teacher on 13 June 2006 and referred to a range of incidents which she stated amounted to bullying, to a lack of respect for her and which undermined her. In this letter she stated that she could think of no possible reason other than her background or colour and she called on the Principal to address this matter at the earliest opportunity to ensure such offending and unprofessional behaviour ceased.
2.4 In late 2006 the complainant completed forms for her work permit which was due to expire in February 2007. Although assured that the forms had been forwarded, when she went to the immigration office in Limerick in early 2007 to enquire why her visa was taking so long to be processed, she found out that no application had ever been submitted. The complainant states that the Principal Teacher blamed the postal system for the delay.
2.5 The complainant submitted that in May 2007 while at work, she was expecting an important call from Zimbabwe. She submitted that she did not receive calls at work and that this was the first such call. The complainant submitted that the 'principal Teacher arrived at her classroom as she was concluding the call and spoke to her in an intimidating and humiliating manner, all the more given that one pupil was present and within earshot. The complainant submitted that she was instructed peremptorily to leave the classroom and take the call outside and she found the tone and manner of the approach particularly upsetting in the presence of a student.
2.6 The complainant submitted that some days later the Principal Teacher instructed staff to leave personal belongings, including mobile phones, in the staffroom in order to prevent students from interfering with them in class. The complainant felt that this was related to the telephone incident and went directly to the Principal Teacher. The complainant submitted that when she approached the Principal, he did not want to listen to her concerns and instructed her in a loud tone to leave the office and go to her classroom and that as she was leaving he said loudly that she could write to the School Board and also report it to the INTO.
2.7 The complainant submitted that this adverse treatment affected her health and that as a result she visited her GP who advised her that she was unfit for work and so certified her until 4 June 2007.
2.8 The complainant submitted that it was against this background that a permanent post of responsibility was advertised on 23 May 2008. The closing date for applications was 16 June and the interviews took place on 25 June 2008. The process for filling promoted posts in a primary school is outlined in Circular 07/03 from the Department of Education and Science. Under that circular equal weighting is given to three criteria during interview - willingness to undertake the duties, experience gained through length of service in the school, and capability to perform duties attaching to the post. As the longest serving of the applicants for the post, the complainant was awarded full marks for the length of service criterion at interview.
2.9 The complainant submitted that on the final school day of 2007/2008 the Principal told her that she was not being appointed to the position and she realised that the appointee was a male temporary with considerable less service in the school and with less experience of holding a post of responsibility. In contrast the complainant was a fully qualified permanent teacher who had been acting Deputy Principal for some time and had also served as a member of the Board of Management for a full term.
2.10 The complainant approached her union and her representative wrote to the Chairperson of the Board of Management to indicate that the complainant would be lodging an appeal. The circular covering the appointment allows for an appeal to be submitted within ten school days of the publication of the notice of the result of the competition. The representative tried to speak with the Principal in early July 2008 and left voicemail on his phone.
2.11 The complainant ultimately submitted a detailed letter of appeal shortly after the new school year commenced on 5 September 2008 to the Chairperson of the Board. On 10 September 2008, the Chairperson replied stating that the notice had been placed on the school notice board on 26 June 2008 and that as each of the applicants had been informed of the outcome personally at that time, and as the school remained open until the end of July, the timeframe for appeal had elapsed.
2.12 The complainant and a number of her representatives wrote to both respondents who reiterated the position as outlined in the foregoing paragraph on a number of occasions.
2.13 The complainant submitted that she took a complaint to the Tribunal and was thereafter victimised. The complainant submitted that her estranged husband wrote to the first named respondent and made a number of allegations against her. She submitted that notwithstanding that a number of allegations made by her husband had no basis in fact, the meeting to discuss the tone of the meeting to discuss the letter was strikingly hostile. The complainant's union wrote to the respondent to note that the approach of management "may amount to an act of victimisation" noting its concerns that the respondent was dealing with a number of issued which had no bearing on the complainant's employment.
2.14 The complainant submitted that on 6 March 2009, the first named respondent put the complainant on suspension allegedly relating to implements which had gone missing within the school and could have been a danger to students and staff. The complainant submits that this is further evidence of victimisation undertaken by the respondent.
2.15 The complainant submitted that the second-named respondent plays a role in the promotion process for Teachers in that the procedures are set out in a Department issued circular and it is a party to the contract of employment. The complainant further submitted that in this specific case, she relied upon the second-named respondent to supervise and enforce those procedures and when written to, failed to respond in any meaningful way.
2.16 The complainant submitted that the second-named respondent is therefore correctly cited through its involvement as a joint employer and through is failure to address serious issues and has thereby played a role in discriminating against the complainant.
3. SUMMARY OF THE 1st NAMED RESPONDENT'S CASE
3.1 The respondent submitted that the complainant commenced employment as a substitute teacher in October 2001 and as a permanent teacher from September 2002.
3.2 The respondent submitted that the scope of the complainant's submission alleges that she believes that she has been discriminated against by the respondent on the ground of race and gender over a chain of events since 2006 culminating in the process of appointment to a post of responsibility in the Summer of 2008. Additionally, the respondent submitted that the complainant claims that she has been victimised for raising equality issues with her employer during the course of her appeal regarding the appointment to that post and after she lodged a formal complaint with the Tribunal.
3.3 The respondent submitted that by way of background it is important to note that the school is located in the grounds of a psychiatric hospital and that it is a secure unit. The pupils of the school are not psychiatric patients but have serious special needs. Most of the pupils have emotional/mild psychiatric or other behavioural difficulties which makes them challenging to manage in an ordinary school environment. Some of the pupils would be in the school under special care orders from the High Court. The pupil/teacher ratio is two pupils to every teacher. The school itself is situated in a secure environment. Access to the school is through two locked doors and the school yard is surrounded by a 20 foot high wall. The windows have restricted access and there is an extensive security system in operation throughout the school. There is a secure Residential Unit attached to the school which houses the pupils making the school in effect, a boarding school for the pupils in question. The school is run by the Board of Management and the patron of the school is the Health Service Executive.
3.4 The respondent submitted that the complainant was placed on Administrative Leave in or around February 2009, and the matter is now the subject of a High Court case.
3.5 The respondent submitted that it wholly rejects the complainant's allegations and furthermore that from the submission made, she has not established a prima facie case.
4. SUMMARY OF THE 2nd NAMED RESPONDENT'S CASE
4.1 The respondent submitted that the function of the Minister for Education & Skills is to ensure that the appointment of a teacher is warranted by reference to the staff ing schedule and to ensure that the person being appointed is qualified for the post.
4.2 The respondent submitted that the Board of Management is primarily responsible for recruitment, selection, appointed, discipline and dismissal or teachers and, in carrying out those functions, the Board does not act as an agent of the Minister.
4.3 The respondent submitted that the Minister's role in relation to teachers is confined to paying salaries and superannuation benefits, determining the terms and conditions or employment, and determining the level of teacher qualifications.
4.4 The respondent submitted that Section 24(3) of the Education Act, 1998, leaves no room for doubt that it is the Board of Management which has responsibility for appointing 'teachers and other staff' to a school. The Minister's role in this regard is confined to agreeing procedures with the other partners in education regarding appointment and setting down, with the agreement of the Minister for Finance, the terms and conditions of employment.
4.5 The respondent submitted that the complainant's contention that it is the complainant's employer under the Acts should be rejected.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
Preliminary Issue - correct respondent
5.1 As a preliminary issue I must consider whether or not the Department of Education and Science is a correct respondent in this complaint.
5.2 Section 24(1) of the Education Act, 1998 empowers a school's Board of Management to appoint teachers and other staff to the school. However, this is not an absolute power and section 24(2) of that Act provides that the numbers and qualifications of teachers are subject to the approval of the Minister for Education and Science. Sections 24(5) and 24(6) of the Act provide that the terms and conditions of employment in respect of teachers, including remuneration, is determined by the Minister for Education and Science, with the agreement of the Minister for Finance.
5.3 It is clear therefore, that Boards of Management do not operate in isolation and that the Department of Education and Science has a significant role to play in the employment of teachers, particularly as regards the terms and conditions under which they are employed.
5.4 However, I note that Section 24(3) of the Education Act, 1998 affords Boards of Management autonomy as regards appointment, suspension, dismissal and discipline in respect of teachers and other staff. In addition, it appears that the use of the language, i.e. shall, leaves no room for equivocation in this regard:
'A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.'
5.5 The complainant when asked for oral submissions at the hearing simply stated that Board of Management is the primary respondent and that the Department cannot ignore concerns in relation to the promotion process, but simply wanted the tripartite relationship recognized.
5.6 In a number of previous cases, the Tribunal has found that the respective Boards of Management are the correct respondent in various instances. These decisions include DEC-E2004-032 McGinn V Board of Management St. Anthony's Boys National School, Kilcoole, Co. Wicklow and Department of Education & Science; DEC-E2004-067 Delaney vs Board of Management, Drumshanbo Central National School and Department of Education and Science; DEC-E2003/028 Bleach -v- Our Lady Immaculate Senior School & The Department of Education and Science; DEC-E2005/015 Murray -v- Scoil Mhuire and The Department of Education and Science; DEC-E2007-008 Ms. Marie Casey vs Board of Management, Coachford National School, Co. Cork and The Department of Education and Science, and the Judgement of the High Court in Tobin v Cashell & Others (1993 124 JR) and support an argument that the Department of Education and Science is not the correct respondent in relation to various complaints.
5.7 In the instant case the only evidence the Department being the correct respondent presented was to indicate that the Department was a party to negotiations to the promotion procedures along with the Unions. As no evidence to indicate that the Department is the correct respondent has been put before me, and no evidence that the complainant was less favourably treated by the Department was presented to me, I find that in the circumstances of this case, the Board of Management alone is the correct respondent and I will proceed to deal with this complaint on that basis. Therefore, the case the complaint against the 2nd named respondent must fail.
Substantive Issue
5.8 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment and victimisation on grounds of her gender and race, in terms of Sections 6 and 74 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
5.9 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
5.10 In the complainants evidence and submissions she refers to a chain of events that for a continuum of discrimination ranging June 2006 up until the Spring of 2009. The main elements alleged to constitute this chain are:
a) A lack of response to a bullying complaint wherein she cited her colour as a possible basis for the bullying (Summer 2006)
b) A delay in applying for a work permit on her behalf (Spring 2007)
c) Being admonished for taking a personal phone-call in the classroom in front of pupils (Spring 2007)
d) The cessation of the allowance for an acting post, two weeks before it should have ceased (Summer 2008)
e) not being successful in getting the role she was then occupying on a permanent basis (Summer 2008)
f) how the appeals process was conducted (Summer/Autumn 2008)
g) being interviewed following receipt of the letter from ex-husband (Spring 2009), and
h) being placed on administrative leave during the investigation of an incident regarding missing tools (Spring 2009)
5.11 It is instructive to consider the Labour court's approach in the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) wherein the Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
5.11 Having considered the evidence of all parties to this case and from the witnesses present, I am satisfied that the acts indicated at 5.10 a - c above are not linked to one another or to any later acts and do not fall within the six month timeframe envisaged by Section 77(5) of the Acts. Therefore, I am precluded from considering these incidents further.
5.12 In relation to the cessation of the allowance, written confirmation was received from the second-named respondent that this allowance was paid up to the 30 June 2008 and ceased in similar circumstances to any other person whose allowance was due to cease. Therefore, I cannot see how the complainant was less favourably treated than any other person whose payment of an allowance ceased.
5.13 In the case of South Eastern Health Board v. Brigid Burke (EDA041, 12 Jan 2004) the Labour Court stated that:
The Court accepts that it is not the responsibility of the Equality Officer or of the Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the gender or marital status of the complainant or the appointee influenced the decision of the Board.
Having considered the evidence before me in relation to how promotion process and how the interview was conducted, I do not find that any evidence that the complainant has been less favourably treated on either the race or gender ground has been adduced or that race or gender influenced the decision of the interview board, and therefore this element of the complaint must fail.
5.14 Having considered the appeals process, I find that all candidates were informed of the outcome of the interview at the same time and were informed that the notice was on the notice-board in the staffroom. Given that this particular school was open for an additional number of weeks, the appeal period was allowed to run for all applicants. Therefore I find that the complainant was no less favourably treated than the other unsuccessful candidate who was of a different race. In addition, I find that simply because the successful candidate was male and his experience was gained elsewhere, this does not give rise to facts from which less favourable treatment on the gender ground can be inferred.
5.15 The complainant further claims that she was subjected to victimisation. Under the Employment Equality Acts, victimisation is defined as follows:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
5.16 In relation to the victimisation complainants, the complainant stated that she was treated differently following the receipt of a letter from her ex-husband in relation to one incident and treated differently following some tools going missing in relation to the other incident. Therefore, I cannot conclude that the difference in her treatment was as a result of have taken or been a party to a complaint but rather can be explained by the complainants statements.
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race or gender ground has not been established and this complaint fails.
6.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation on the basis of the race or gender ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
17 April 2013