EQUALITY OFFICER'S DECISION NO: DEC-E/2014/087
PARTIES
Ms. Marie Ó Faoláin
(Represented by Carney McCarthy Solicitors)
Vs
City of Dublin, Vocational Educational Committee, Adult Ed. Service
FILE NO: EE/2011/774
DATE OF ISSUE: 15th of December, 2014
1. Dispute
This dispute involves a claim by Ms. Marie Ó Faoláin against the City of Dublin, Vocational Education Committee, Adult Education Service that she was discriminated against on the grounds of age, in terms of section 6 (2) of the Employment and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to her dismissal and other when she was dismissed from her job and replaced by a younger employee whom it was alleged held a qualification which the complainant did not have. It later emerged that her replacement did not have the said qualification and it is submitted that the only reason for dismissing her was due to her age.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 22nd of November, 2011.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 3rd of February, 2014 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 5th of June 2014.
3. Summary of complainant’s case
3.1 It is submitted that the complainant was employed by the respondent from September 2002 to May 2011. The complainant submits that she taught FETAC (Further Education and Training Awards Council) levels 1 and 2 which were non computerised courses. It was decided in 2010 that these courses would be replaced by FETAC level 3 which would be a computerized course requiring an ECDL certificate.
3.2 It is submitted that the complainant was advised in May 2011 that her services would no longer be required as she would not be eligible to teach the FETAC level 3 course as she did not have the required computer skills, which she understood to be an ECDL qualification.
3.3 The complainant was not given an opportunity to train for teaching the new FETAC level 3 course.
3.4 The complainant was not given any details regarding the training requirements or contents of the new course. The complainant was given no choice but to accept that her employment was terminated.
3.5 In October 2011 the complainant met Ms. C who advised her that she had been given the complainant’s job. The complainant assumed that Ms. C was given her job due to the fact that Ms. C had the required ECDL qualification.
3.6 The complainant again met Ms. C some weeks later and asked her where she had done her ECDL course and whether it had been difficult. The complainant submits that Ms. C had replied “I wouldn’t know I have nothing like that”.
3.7 Following this it became clear to the complainant that she had been dismissed due to her age and not due to the fact that she did not hold an ECDL qualification as she had previously believed, as her replacement, who was younger than her, did not hold an ECDL qualification either.
3.8 The complainant submits that she was dismissed due to her age and that the respondents failure to re-engage her the following September was due to her age as she was replaced by a younger person.
4. Summary of respondent’s case
4.1 It is submitted that the complainant worked with the City of Dublin Vocational Education Committee (CDVEC) from 2002 to 2011. The complainant worked as a tutor for 4 hours a week for 25 weeks per year. The complainant taught basic literacy (reading and writing) to adults with intellectual disability.
4.2 From September 2002 to May 2008 the complainant taught Literacy and Numeracy which was not originally accredited by the Further Education and Training Awards Council (FETAC). In 2009-10 she taught General Learning at FETAC Level 1, Reading, Writing, Listening & Speaking, and Non-verbal Communication.
4.3 In May 2010 the Complainant’s students achieved FETAC level 1 award in General Learning. This programme was funded by the Department of Education under the Back to Education Initiative (BTEI).
4.4 The Department of Education and Science expects that learners funded from the BTEI scheme will progress in a variety of subjects which would be validated by the FETAC. In response to these objectives Ms. C, BTEI Co-ordinator and Mr. G, Training Officer Work Options, on behalf of St. Michaels House devised a FETAC Level 2 Certificate Programme comprising of 6 components to be delivered over 3 years progressing from Reading and Writing in 2010, to Using Technology and Computers in 2011, to Shape and Space and Using a word processing application in 2012.
4.5 The complainant was asked to deliver the Reading and Writing components in 2010-11 which was a continuation of the work she was already doing and another tutor was assigned to teach the IT modules from year two forward.
4.6 No new class formed in Reading and Writing in September 2011 as there was no demand from St Michaels House clients. There would not have been a problem if there were new entrants to the three year course in 2011-2012 and subsequent years but this was not the case
4.7 The complainant delivered two modules in the first year of a three year course. As the course was not recommenced in the second year there were no teaching hours in the complainant’s subject areas of reading and writing. The course is now in its final year and will not be repeated.
4.8 The complainant was not informed that she would need an ECDL qualification in order to teach FETAC Level 3. The course in question contained four modules in the ICT area which require a Tutor with advanced ICT skills but it was never specified that this was an ECDL qualification.
4.9 The complainant is correct in her claim that the ICT teacher does not hold an ECDL qualification but it is submitted that she does have advanced ICT skills.
4.10 The complainant never requested an opportunity to train for teaching ICT by taking ECDL. No such approaches were made to the BTEI Coordinator or to the Principal.
4.11 The complainant has submitted that the other Tutor was selected due to her age and had replaced the complainant. This is denied. That Tutor was an existing teacher employed in the college on a part-time basis on the Level 2 programme.
4.12 The complainant commenced with the Respondent as a voluntary Tutor in the Adult Literacy Service of the CDVEC in 1996. In 2002, at the age of 66 the Complainant was offered paid work as a Tutor of clients of St. Michaels House. This work is no longer available. The complainant could resume work should a suitable opportunity for group tuition in Basic Adult Literacy arise but the Adult Education Service does not operate on a roll-over basis but is driven by the needs of individual learners who come and go as their specific needs are addressed.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her dismissal and other when she was dismissed from her job and replaced by a younger employee whom it was alleged held a qualification which the complainant did not have. It later emerged that her replacement did not have the said qualification and it is submitted that the only reason for dismissing her was due to her age. 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 at the Hearing.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)…..
Section 6(2) (f) of the Acts defines the discriminatory ground of age as follows – “as between any two persons ….. that they are of different ages, but subject to Section (3) … “
5.4 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]
5.5 Dismissal and Other
5.5.1 The complainant advised the hearing that she had been employed by the respondent to teach Adult Literacy to occupants of St Michael’s house from 2002 to 2011. The complainant taught basic literacy (reading and writing) to adults with intellectual disability. The complainant advised the hearing that her employment had been terminated in May 2011 in circumstances where she was told by Ms. C that her services would no longer be required for the following year. The complainant stated that she was told she would need an ECDL qualification before taking up employment for the next course which was due to start in September 2011.
5.5.2 The complainant advised the hearing that she had, in May 2011, submitted 18 folders for her students and that Ms. C had phoned her at home to say that the external examiner had been very pleased with the complainant’s work. The respondent at the hearing agreed that the complainant’s work was of a very high standard and that this was not in dispute. The complainant stated that a short time later she had been in the classroom with Ms. C, when Ms. C had told her that she was sorry but that her services would not be needed in September as the coming course was to be computer based and she referred to the fact that the complainant did not have any qualifications in computers.
5.5.3 The complainant advised the hearing that she did not have an ECDL or any computer qualification but stated that she was surprised that Ms. C hadn’t made enquiries as to whether or not she had any such qualifications. Ms. C stated that she she knew the complainant couldn’t use a computer as she had told her this previously. Ms. C went on to state that she had designed forms/briefs for the complainant and had left spaces in the middle for the complainant to write in by hand as she knew the complainant was unable to use a computer. Ms. C stated that the complainant had told her in September that her daughter was buying her a computer for Christmas. The complainant at the hearing agreed that she was not computer literate but stated that she had very good typing skills. The complainant advised the hearing that she had been teaching a FETAC level 1 and 2 course in reading and literacy and that there had been no computer element to it. The complainant stated that she then asked Ms. C if she could get an ECDL qualification but was told that she had to have the qualification before taking up employment.
5.5.4 The complainant stated that the first time she was notified of a computer element to the course was on the day in question in May 2011 when Ms. C had come into the classroom. The complainant advised the hearing she had to accept that her employment was terminated as she had no qualifications in IT although she had received no written confirmation of such termination. The complainant advised the hearing that a few months later she met Ms. S, a colleague of hers from the CDVEC. She stated that Ms. S had apologised to her and stated that she had been given the complainant’s job. The complainant told Ms. S that she herself had no qualifications to teach the course and then asked Ms. S where she had studied to gain her ECDL qualification. Ms. S advised the complainant that she wouldn’t know as she didn’t have an ECDL qualification. The complainant submits that Ms. S was younger than her and that this is the reason the complainant was dismissed and replaced by Ms. S. The complainant stated that she had initially thought she was replaced by Ms. S as Ms. S had an ECDL qualification which the complainant did not have, but that she later concluded that she was replaced due to her age upon discovering that Ms. S did not have an ECDL qualification either.
5.5.6 The complainant advised the hearing that she had written 2 letters to Ms. O, of the respondent organisation following her discovery that Ms. S did not have any ECDL qualification. These letters were issued on 9th of October, 2011 and on 19th of October, 2011. The complainant stated that she had received no response to these letters. The respondent at the hearing stated that it had phoned the complainant on a number of occasions in order to discuss the matter with her but had failed to make contact with her. The complainant then wrote to Mr. D of the respondent organisation on 25th of November, 2011 following which she received an acknowledgement.
5.6 Documentation
5.6.1 The complainant advised the hearing that she not received any confirmation of the termination of her employment she also stated that she had no contract of employment. She stated that her employment had commenced on a voluntary basis in Colaiste Dalaigh where she had met Mr. H who had asked her if she was interested in a job in Plunkett College teaching adults with special needs. The complainant stated that there were no qualifications necessary for the job but that she had plenty of experience from her voluntary teaching in Colaiste Dalaigh. She stated that she had been interviewed by a Mr. M and was offered the job at the end of the interview. The complainant was 66 at the time of being offered the job which she accepted. The complainant advised the hearing that she had a lot of autonomy as to what material she taught and in sourcing the material herself.
5.6.2 The respondent advised the hearing that the complainant had originally worked as a voluntary tutor and that following the development of a course for St. Michael’s house it then became a job. The respondent advised the hearing that there was no formal procedure in place in 2002 when the complainant was offered the job. The position was not advertised and there was no competitive interview process. The complainant was interviewed and then offered the job. The respondent stated that formalities were not adhered to in respect of the complainant’s assignment.
5.6.3 The respondent stated that the complainant had submitted claim forms every 2 weeks in order to claim payment for her hours worked. The respondent went on to state that the complainant taught literacy and stated that one of the requirements of BTEI funding was, accreditation and progression and that students must be seen to progress through a program. The year 2010/11 was the beginning of a 3 year programme at FETAC Level 2. In the first year of this programme the complainant taught reading and writing. In year two they moved onto Computer Skills and Using Technology, and in year three moved on to Shape and Space and Using a word processing application.
5.6.4 The respondent went onto state that the Level 1 and 2 which the complainant had been teaching were not run in 2011 as there was no demand for it and that the students to whom she had taught level one were now moving on to the next level. The complainant at the hearing did not dispute this. The respondent stated that the complainant was advised in September 2010 of the 3 year plan for the progression of the course. Witness for the respondent Ms. C stated that she had approached the complainant about this in September 2010. Ms. C stated that she didn’t advise the complainant that she would not be able to teach the 2nd year but stated that she knew the complainant couldn’t use a computer as she had told her this previously. Ms. C went on to state that she had designed forms/briefs for the complainant and had left spaces in the middle for the complainant to write in by hand as she knew the complainant was unable to use a computer. Ms. C stated that the complainant had told her in September that her daughter was buying her a computer for Christmas. The complainant at the hearing agreed that she was not computer literate but stated that she had very good typing skills.
5.6.5 The respondent at the hearing denied that the complainant had only been told in May 2011 that she would not be required to the following September. Witness for the respondent Ms. C advised the hearing that the complainant was made aware of this on three occasions between September 2010 and May 2011 and had never questioned it. The respondent advised the hearing that the complainant was firstly notified of the new program in September 2010 where she was told about the 3 year strategy for the course and was advised that Years 2 and 3 encompassed computer modules and would have to be taught by someone with a computer qualification. Witnesses for the respondent Mr. G and Ms. C advised the hearing that they were both present for this discussion which took place in the classroom. Ms. C stated that she ensured that Mr. G was also present when the discussion took place as it is best practice to have a witness present for such discussions. Mr. G advised the hearing that he had worked as a support teacher with the complainant at the time and that the discussion which took place had been very amicable and straight forward. Ms. C advised the hearing that the complainant at the end of the discussion asked that the respondent ‘keep her in mind’ if anything else came up. The complainant at the hearing stated that she did not remember this discussion or conversation. The respondent stated that the complainant was later reminded of this again in April 2011 and again in a phone conversation about internal certification on 16th or 17th of May 2011. The complainant stated that she did not remember this conversation.
5.6.6 The respondent advised the hearing that the complainant, who had been working as a voluntary tutor was offered paid employment by them and taken on by them at the age of 66 and was thereafter retained in their employment for 9 years. The respondent submits that these are not the actions of an employer who would seek to discriminate on grounds of age. The respondent also added that the complainant would be called upon again if and when there was demand for the subjects/course taught by her. I am satisfied from the totality of the evidence adduced in relation to these matters that the complainant’s dismissal and failure to be re engaged by the respondent in September 2011 was unrelated to her age. I am thus satisfied that the complainant was not discriminated against by the respondent in relation to these matters.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that-
(i) the complainant was not discriminated against by the respondent on grounds of her age in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in relation to her dismissal.
(ii) the complainant was not discriminated against by the respondent on grounds of her age in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in relation to other when it failed to re instate her to her post in September 2011.
____________________
Orla Jones
Equality Officer
15TH of December, 2014
'Footnote'
[1] Labour Court Determination No. EDA0917