ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000419

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 04/03/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Complainant’s Submission and Presentation:

1. The Complainant is a Nigerian student studying law in [redacted NUI College].
2. He named the Respondent in the Workplace Relations Claim Form as the centre manager personally. He gave evidence that he did this deliberately and objected to any amendment of the Claim Form to refer to the Respondent as the Government Department only. As the Respondent’s first name and surname are redacted in the publication of this decision, I have decided not to amend the Claim form. In any event, Section 42 of the Equal Status Act sets out the applicable law in relation to vicarious liability.
3. His claim was that as a final year student in a College (details supplied) on the 1^st of September 2015 he applied to the Government Department] for an allowance.
4. Around the end of September 2015 he received a letter from the Government Department referring to this entitlement to payment of Jobseekers Allowance / Benefit. He had been in receipt of Jobseekers allowance during the summer months when he was not in college. The letter stated

“your entitlement to payment of Jobseekers Allowance / Benefit is conditional on you continuing to satisfy the conditions necessary to receipt of this payment. If you decide to participate in this, or any education you must notify this Department immediately.

The onus is on you to notify the Department of any change in your circumstances”.

1. Included with this letter was an invitation to an information seminar on Jobseekers Allowance.
2. The Complainant confirmed that he received an undated letter from the [Redact: service] office of the Government Department which was signed by a deciding officer setting out that his application for a Back to Education Allowance (BTEA) had not been successful. The reason for the decision was that he was not progressing in education as he was repeating year three of his degree course.  
3. Evidence was given that the letter was posted on the 30^th September 2015 to the complainant.
4. The letter went on to state that if he was dissatisfied with the decision and had further information, which may be relevant to his case

“you may submit your case for further consideration within 21 days from the date of this letter”.

1. The Complainant furnished an ES1 form to the Respondent dated the 4^th of October 2015. In that ES1 form he identified the protected grounds of religion and race. The form set out a series of 25 questions to the Respondent.
2. The Complainant gave evidence that attended the office of the [Redact: service] Centre without an appointment on the 8^th October 2015 and met with the manager Respondent and another staff member.
3. His claim was that the manager Respondent stated “you cannot attend third level education here. The only chance you have is a part time VEC [course], so I advise you to stop education immediately”.
4. At that meeting he completed a handwritten statement and request for information and action by the Government Department. In this he asked a question as to what social welfare payments he was entitled to and he noted that he was not entitled to the BTEA nor was he entitled to job seekers because he was studying. He went on to request that his family get their full social welfare entitlement.
5. The Complainant gave evidence that he had appealed the decision to refuse his BTEA on two occasions, once to the local office and once to an appeal officer online. He was unable to provide any evidence of these appeals and could only state that he didn’t receive any reply.
6. He stated he was not provided with the BTEA guidelines and only recently through another forum obtained the guidelines on how a review could take place.
7. The BTEA allowance was €188.00 per week and he is currently in receipt of a dependant adult allowance on his wife’s social welfare payment of €124.00 per week.
8. The Complainant set out that he continued attending lectures and for that reason the Respondent stopped his job seekers benefit. He stated that when he asked the Respondent “was it because he was black”, she replied “sort of”.
9. The Complainant alleged that he was the only student in Ireland who was not on back to education allowance.
10. The Complainant alleged that the systematic delay in dealing with his BTEA application and the treatment he received from the manager was discriminatory and as such “cost him his degree”.
11. I enquired if the Complainant could presently provide the mitigating circumstances to the : service office to review his application. The divisional head of the Government Department confirmed that if the required documentation was lodged, a review would be made and if the Complainant met the definition of mitigating circumstances, the difference between the BTEA and the dependant adult allowance would be paid retrospectively to the Complainant. The Complainant declined to take up that offer and stated that he wished me to make a decision on his complaint under the Equal Status Acts.

Respondent’s Submission and Presentation:

3. The divisional head of the  Government Department gave evidence and provided the BTEA guidelines which are available online.
4. In order to qualify for BTEA the applicant must be:

• a specific age AND
• in receipt of a qualifying social welfare payment for a specified period of time AND
• commencing the first year of a course of study AND
• the course of study is full-time day for the complete academic year, AND
• leading to a recognised qualification in a recognised AND
• jobseeker is progressing in the levels of education held and where required the Case Officer has recommended income support should be provided under BTEA

3. He referred to the guidelines on Repeat Years.

BTEA should not be approved for repeat students registered as external students and/or examination only students. Neither should approval be given for repeat students to undertake a repeat year of study on a part-time basis. In limited circumstances*, BTEA participants should be approved for payment to undertake a repeat year of study. Payment should only be approved where the participant is registered and attends as a full-time student for the repeat year. In such circumstances, only one academic year may be repeated. A BTEA participant who fails and repeats an exam, which results in a break of their previously awarded BTEA payment and who satisfies all other eligible criteria for BTEA may be approved for BTEA in order to progress to the next year of their course of study. If the break in payment is for a period longer than the academic year, they should be treated as new entrants to the scheme for payment purposes.

*Mitigating circumstances can include a long-term illness or injury requiring prolonged absence from attendance at lectures, the serious illness of an immediate family member requiring the participant undertaking a caring responsibility, discontinuance of the course by the educational institution, force majeure.

               (Emphasis added)

3. As the Complainant was repeating the third year of his degree, he was not deemed to be progressing in his education and did not qualify for a BTEA. The Respondent’s records showed that the complainant did not submit any mitigating circumstances to meet the review criteria. He gave evidence that in any circumstances the Government Department would look at his family unit to see how best they could meet the family’s needs financially.
4. The divisional head of the Government Department confirmed that an appeal may have been made by the Complainant to the Social Welfare appeals office however that it separate to the BTEA scheme. They had no record of this.  
5. On the Complainants file he still not submitted any mitigating circumstances as to why he was repeating year 3 which met the requirements of the guidelines.
6. He explained that when in receipt of BTEA, the complainant was not registered for jobseekers as he was attending college and not available for work. However once the college term ended he would automatically be transferred to job seekers allowance. As registered for job seekers allowance, he would automatically be included in circulars inviting recipients of the allowance to group information sessions. These could have happened at any time during his period of registration as a job seeker. It was coincidental that on the 29^th of September 2015 the Complainant was sent an invitation to a jobseekers information session which he received in or around the same time as his application for the BTEA was refused.
7. The manager of the [Redact: service] centre gave evidence that she met with the Complainant only on one occasion on the 8^th of October 2015. She denied the conversation took place as the Complainant alleged. She confirmed that
8. her only role was to inform the Complainant of entitlements re his wife’s claim
9. that she and another member of staff were present in the room for the entire meeting.
10. the meeting took place at 11.15am and lasted about fifteen minutes in total.
11. the meeting wasn’t heated or emotional.
12. The Complainant had not made an appointment and had only dropped into the [Redact: service] centre seeking this information.
13. The other staff member in the [Redact: service] centre gave evidence that the conversation as reported by the Complainant never took place and the words attributed to have been said by the Manager were never said.  

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 25 of the Equal Status Act, 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

4. Section 38A of the Equal Status 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 upon which he can rely in asserting that prohibited conduct has occurred in relation to him. 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. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
5. At the commencement of the hearing the Complainant wished to set out the definition of perjury. It was obvious that there was animosity by the Complainant to the Respondent.
6. The Complainant had named the Manager of the Service Centre personally rather than the : Government Department alone. At one stage during the hearing, I was informed that the complainant had made a complaint to the Ombudsman. The complainant further advised that there was going to be three further claims against the Manager of the Centre in her personal capacity.
7. I find that the Complainant was pedantic when it suited him and was fixated with a technical issue on the version of the rules of the BTEA scheme which was not relevant to his claim.
8. When a solution to his BETA claim was given to the Complainant, he declined same and stated that he wished to proceed with his Equal Status claim only. He had calculated what his college fees to date were and indicated that the wanted these to be re-imbursed by the Respondent as part of the redress which I could order under Section 27 of the Equal Status Acts.
9. I find that the Respondents evidence was far more credible than the Complainant’s. The other staff member present when the Complainant met with the Manager of the service Centre corroborated the Respondent’s version of events.
10. I do not accept that the Manager of the service centre said the words that the Complainant alleged she did. I found the Manager to be a credible witness who was aghast at being accused of making comments that she herself would have found repugnant.
11. I find that the Complainant did not meet the burden of proof in this case and as such dismiss his case.

DATED    8 June 2016