ADJUDICATION OFFICER DECISION

 An Employee -v- A Training Board

Adjudication Decision Reference: ADJ-00002435

Complaint for Resolution:

Date of Adjudication Hearing: 06/02/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, and Section 79(6) of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

The complainant is an employee of the Respondent school. He was a teacher in Business Studies. In addition, he held a Special Duties Post in the area of Health and Safety.

He considers that he has been subjected to discriminatory treatment by his employer with respect to practices at the college. The most recent occurrence of this discrimination occurred with the finalisation of timetables for teaching staff for the school year 2015-16 which occurred in late September/early October 2015. His timetable consisting of 22 teaching hours was finalised on 21 September 2015.

Some teachers were granted a remission from their teaching timetables to undertake additional duties/responsibilities. These are outlined as follows:

(a) One female teacher is described by the college as its Access Officer. In the school year 2015-16, this teacher was afforded a timetabled remission of five hours from teaching. This teacher has been afforded office facilities commensurate with those of an Assistant Principal post holder. The teacher does not hold a promoted post of Special Duties Teacher or Assistant Principal, yet enjoys a timetabled remission greater than that afforded to an Assistant Principal post holder. The employer did not advertise the position of Access Officer in its own right or as part of any schedule of promoted posts. This arrangement has persisted over a number of years. The current holder of the position was first conferred with the position upon the retirement of an Assistant Principal who retired during the summer of 2011. The school year 2015-16 is the latest occurrence of this arrangement.

(b) Another female teacher is described as the college’s VTOS co-ordinator. She is also the holder of an Assistant Principal post titled ‘Course Director – part time courses’. In the school year 2015-16 this teacher was afforded a twelve-hour remission on her teaching timetable (over and above the four hours legitimately allowed for her Assistant Principal position).

Circular letter 45/99 titled ‘Management Structure for VTOS’ states:

“In the case of vacancies for the post of Co-ordinator or Assistant Co-ordinator arising in the future, selection should be in accordance with normal advertising and interview procedure.”

The employer did not advertise the position of VTOS co-ordinator (which lies outside the Special Duties Teacher, Assistant Principal promotion structure). He was unaware of interviews having taken place. The current VTOS co-ordinator was conferred with the position upon the retirement of a teacher in September 2009. In the absence of an advertisement and interview he believes this position to be a local arrangement between the Principal and the employee described as the VTOS co-ordinator. The school year 2015-16 is the latest occurrence of this arrangement.

(c) Another female teacher is described as the college’s QQI co-ordinator. She is a Special Duties post holder. There is no remission from teaching timetable for a Special Duties post holder.

An Assistant Principal previously undertook QQI co-ordinator duties. Subsequent to a retirement at the end of 2012-13 school year, his Assistant Principal QQI co-ordinator position was conferred to the current holder, a Special Duties teacher.

The current holder’s Special Duties position had previously been in the area of ‘Student induction and student council.’ When given the Assistant Principal duties of QQI co-ordination, the current holder was afforded office facilities commensurate with those of an Assistant Principal post holder and a timetabled remission of two hours. The school year 2015-16 is the latest occurrence of this arrangement.

(d) Another female teacher has been given a two-hour remission from her teaching timetable (school year 2015-16) for work on the college’s online learning platform, namely Moodle. While this teacher does not hold a promoted post, she has also been afforded office facilities commensurate with an Assistant Principal post holder. He am unsure as to how long this particular remission arrangement has been in place but it has occurred in the school year 2015-16.

(e) a member of staff at the college was given as Stock Taker (Fixed Assets) position. This is a short term position for which an Honorarium is paid. This appointment occurs each year in late April / early May. On 17 May 2016, He observed a female teaching colleague carrying out the duties of Stock Taker (Fixed Assets) at the college. He was never afforded the opportunity of applying for the position of Stock Taker (Fixed Assets) at the college. The employer has never advertised this position over the years. He is unaware of any selection process having taken place. The same female teacher has been reappointed to this position each year for as long as he can recall. He has been employed by the respondent since January 2002.

As the beneficiary of the position of Stock Taker (Fixed Assets) is female and being of the opposite sex, He considers that he has been discriminated against by his employer on ground of gender with respect to training or experience for or in relation to employment and promotion. They have failed to provide to with equal treatment as required by an equality clause under my contract of employment.

As the beneficiaries of the positions or arrangements outlined at (a), (b), (c), (d) (e) are female and being of the opposite sex, He believes that he has have been discriminated against by his employer on the ground of gender with respect to conditions of employment, training or experience for or in relation to employment and promotion or re-grading.

The claims under the subheadings, promotion, training and conditions of employment are linked to the five examples ( a-e )above

Respondent’s Submission and Presentation:

The case before the Adjudication Officer relates to a claim by the complainant against his employer, the respondent, that he has been discriminated against contrary to section 6(2)(a) of the Employment Equality Act, 1998 in that he has been treated less favourably than a female colleague(s) has.

The respondent rejects all the claims made by the complainant in the aforementioned submission and rejects any assertion that it has, in any way, treated the complainant in a less favourable manner than any of his colleagues.

The complainant is currently employed by the respondent as a teacher of Business Studies with a special duties post in the area of health and safety.

The complainant outlines that he has been "subject to discriminatory treatment by employer with respect to practices at the College." The complainant outlines five specific matters.

It is submitted that at no stage has any issue of discrimination or any allegation that the complainant has been treated in a less favourable manner than a female colleague, ever been brought to the attention of the College or to Head Office. The issues as outlined in the complainant's submission have not been addressed by him at a local level in any manner. The complainant is a local representative for the TUI and would be well familiar with all relevant policies and procedures.

The respondent has a comprehensive list of policies in place which have been agreed with the Unions on a national basis, one of these Unions is the TUI of which the complainant is a member and representative. At no stage has he addressed his concerns to the Union and at no stage have the Union approached the respondent to outline that an issue of this nature has arisen.

It would be expected that where an issue such as the substantive one arises, that the complainant would have sought redress locally or through the nationally agreed procedures which he has not.   

(a) The complainant alleges that one female teacher is described as the College's Access Officer and that in the year 2015-2016 she was afforded timetabled remission off five hours from teaching, she has also been afforded office facilities commensurate with that of an Assistant Principal. He goes on to say that the respondent did not advertise the position. The respondent was subject to the public service moratorium on recruitment which was in place for several years and was unable to advertise any post of any kind, the complainant will be well aware of this fact. With regard to this issue, it arose on foot of the retirement of the Director of Inclusive Learning who retired following the 2010/2011academic year. At this time the College was seeking to broaden accessibility and were following the access framework as laid down by the National Disability Authority- 'Excellence through Accessibility'.

The female teacher to whom the complainant refers in this paragraph had, for some time, been teaching students in the Central Remedial Clinic and had huge experience. She also taught web authoring.

The above-named framework had three main areas:-

1. Accessible Website and IT Facilities
2. Accessible Premises
3. Accessible Customer Services (Teaching and Learning)

The post as originally held by X only focused on the third named area and the College was seeking to broaden the scope of accessibility. Given the recruitment moratorium it was not possible to advertise the position. The female teacher had vast experience in the area and had begun working on it in her own right on her own time, she also expressed a deep interest in the area.

She was provided with a remission of two hours towards working on the Excellence through Accessibility standard for the website and three hours towards organising student support. She did not receive any payment or allowance for the work she undertook. This represented a logical move given the inability to advertise, the inability to recruit and the teacher's proven track record and expertise in the area. With regard to the assertion that this teacher was provided with office facilities commensurate with an Assistant Principal this is incorrect. The teacher was provided with a free desk in a workspace. There are other such free desks in the College currently available.

The teacher took up the task in 2011 and has remained there since that date. The complainant’s claim is out of time.

(b) With regard to the teacher who is described as the VTOS Co-Ordinator and holder of a post entitled Course Director- Part time Courses and who was provided remitted .With the moratorium in place recruitment was not possible and positions could not be advertised.

This issue arose following the retirement of a teacher in 2009 and it was a role which was very difficult to fill. The female teacher was an Assistant Principal with responsibility for coordinating the Back to Education Initiative and got four hours remitted, this comes with such a post . As her current duties involved ongoing contact with the local offices of the Department of Social Welfare, as did the VTOS coordination, she was given first refusal on the additional duties.

As the post of VTOS coordinator could not be advertised because of the moratorium a determination was made that the coordination hours could be used because of the enrolment. No addition allowance was payable.

This occurred in 2009. The complainant’s claim is out of time.

(c) The complainant makes reference to another teacher who he describes as the College's QQI Co-ordinator. This is factually incorrect, she is the QBS (Quality Business Systems} Co­ ordinator .A teacher retired from his post at the end of the 2012/2013 academic year and was the QQI Co-ordinator. The QQI Co-ordinator is another teacher who took on the role in addition to her duties as Director of Full-Time Courses. Once again, the teacher was not given "office facilities" but a free desk in a general workspace, an office does not come with such a role.

This occurred in September, 2013. The complainant’s claim is out of time.

(d) The Moodle issue. The female teacher has a Masters degree in Education and Training from Dublin City University and specialises in the area of e-learning. She volunteered to be the Computer Link teacher in her own time. There are no "office facilities" just a desk in a general workspace. No additional payment is made to the teacher.

This occurred in September, 2015. The complainant’s complain is out of time.

(e) This position was filled in 2002 and the same teacher has been carrying out that role since then. The complainant’s complaint is out of time.  

The above instances are the only issues which the complainant has highlighted and it is submitted that at no stage in his submission has he outlined in specific terms how these teachers performing their roles has resulted in him being treated in a less favourable manner.

At no stage has the complainant sought remission for any reason and it is submitted that if he had done so then the request would be considered as any other such request would. The College actively encourages teachers to pursue education and professional qualifications in all areas. It must be noted that the complainant has in fact been allowed to commence work later on Thursdays to facilitate his attendance at an employment law course.

The claimant has never sought remitted hours nor has he ever raised the issue previously.

As outlined above, the respondent was subject to the public service moratorium and had no ability or entitlement to advertise position or recruit. When work arose that needed to be done, some teachers commenced the discharge of duties in specialised areas such as the first teacher above who had expertise in the relevant area and a proven track record of working with a cohort of people with disabilities.

The claimant has failed in his submission to outline any matter by which it can be said or inferred that he has been treated less favourably than a female colleague.

In the respondent school there are currently 29 teachers, 23 of whom are female and 6 of whom are mail , including the Principal. It is submitted that when circumstances such as those outlined above (public service moratorium and the inability to advertise and/or recruit) that given that the ratio is approximately 80:20, the likelihood of a female teacher discharging additional work is higher. However this in no way infers or confirms that female teachers are in any way provided with preferable terms and conditions of employment as alleged.

The complaints lodged are vexatious and wholly without merit.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 2(1) of the Employment Equality Acts,1998 to 2015 state: -

"(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where-

(a)           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) (in this Act referred to as the 'discriminatory grounds') which-

(i)               exists,

(ii)              existed but no longer exists,

(iii)             may exist in the future, or

(iv)             is imputed to the person concerned."

Section 6(2) provides that as between any two persons, the discriminatory grounds include: -

"(a)        that one is a woman and the other is a man (in this Act referred to as 'the ground of gender').

Section 77 (5) Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates

(6)                   If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months ….”

Claim (a)

The female teacher in question commenced the new task in 2011. She has continued in that role since then. No evidence was adduced that she had to re-apply for the position annual or that she had to make some type of request annual so that she could continue to do the task. The complainant lodged his claim with the WRC in March, 2016.

I find that this claim is statute barred.

Claim (b)

The female teacher in question commenced this role in September, 2009 and has continued in that role since then. No evidence was adduced that she had to re-apply for the position annual or that she had to make some type of request annual so that she could continue to do the task. The complainant lodged his claim with the WRC in March, 2016.

I find that this claim is statute barred.

Claim (c)

The female teacher in question commenced this task in September, 2013 and has continued doing it since then. No evidence was adduced that she had to re-apply for the position annual or that she had to make some type of request annual so that she could continue to do the task. The complainant lodged his claim with the WRC in March, 2016.

I find that this claim is statute barred.

Claim (d)

The female teacher in question commenced this task on the 1^st September, 2015. The complainant lodged is claim with the WRC on the 18^th March, 2016. No application was made which could allow me extend the time limit by a further 6 months.

I therefore find that this matter is statute barred.

Claim (e)

The female teacher in question took up this position in 2002. No evidence was adduced that she had to re-apply for the position annual or that she had to make some type of request annual so that she could continue doing the task. The complainant lodged his claim with the WRC in March, 2016.

I find that this complainant is statute barred.

All of the complainant’s claims are statute barred. Accordingly I do not have jurisdiction to hear the matter.

The complainant’s claim fails.

Dated: 12th April 2017