DEC-E2017-066

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-066

PARTIES

VLAD TELEANCA

(Represented by Kate Kennedy BL instructed by Helena McGrath Solicitor)

V

GMIT

File Reference: ET-151601-EE-14

Date of Issue: 6th September 2017

HEADNOTES: Equality, Race, conditions of employment, promotion, training, getting a job, lecturer

1. Introduction

1.1 The Complainant Mr Vlad Teleanca referred his complaints under the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) to the Director of the Equality Tribunal on 15 December 2014. In accordance with her powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 20th March 2017 to me, Louise Boyle, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant. As required by section 79(1) of the Acts and, as part of my investigation I proceeded to hearing on 29th March 2017.

1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

2. Summary of the Complainant’s case

2.1 The Complainant alleged he was discriminated against, by the respondent, on the grounds of race in relation to getting a job, promoting him, giving him training and conditions of employment contrary to section 8 of the Acts.

2.2 The Complainant is a Romanian national and has been a lecturer in the School of Engineering in Galway Mayo Institute of Technology since 2000.

2.3 The Complainant advised that he utilised the grievance procedure including back in April 2011 as well as throughout 2013 and 2014 but his complaints have been, in effect, ignored and that when he sought legal advice he was reprimanded.

2.4 While some of the events referred to occurred back as far as 2006, it was submitted that the various complaints can be considered as separate manifestations of the same disposition to discriminate against the Complainant and thus constitute a continuum of discrimination. Reference was made to Waldron v North West Health Board (DEC-E2003-021), Louth VEC v Equality Tribunal (2009 IEHC370) and Southern Health Board v Mitchell.

2.5 Discrimination - Getting a Job

His complaint in summary was that he was told in approximately 2008 not to apply for a lecturing position that had arisen in the Department, because it was someone else’s job. He advised that albeit it was said in a friendly manner by the then head of department, he believed this was discriminatory on the basis of his race. This other person ‘whose job it was’ according to the Head of department, was an Irish female who did secure the job and he feels it unfairly disadvantaged him not being allowed to apply for it.

2.6 Discrimination - Promotion

He advised that he has no stability in terms of the modules he is required to lecture in and that he, unlike others, is required to lecturer a greater quantity of modules each semester. The result is that it makes it harder for him to acquire expertise which can then impact on his ability to get promoted. During his employment he has applied for 20 lecturing posts, was short-listed on one occasion and was unsuccessful for this post. He may have made general enquiries at the time for the reason for being unsuccessful and cited other comparators whom he felt were facilitated with regard to their promotion opportunities. It was detailed that the Respondent has withdrawn courses from the Complainant which would have been in his area of expertise and reassigned courses he had been teaching to other lecturers. In January 2013, the respondent removed 4 hours of Automation from him which had been built up previously and which was his area of expertise and he was instead put teaching Advanced Mechanical Engineering which he was uncomfortable with teaching. It was cited that in the academic year 2014-2015 the Complainant was only provided with a timetable for Semester 1 that commenced in September in September 2014 and was advised then that the hours he had been teaching for two years were gone. He advised that he was unable to develop expertise in a particular area as the modules that he was lecturing in were varied so often and that he has no input into the modules he delivers and has no identity.

2.7 Discrimination - Training

He advised that he was not allowed to seek training in 2006/2007 as he was told there was no money available. While he has since then being funded and is currently studying for a PhD funded by the Respondent, he believes he was refused back in 2006/2007 because of his race.

2.8 Discrimination - Conditions of Employment

The failure to provide him with stability of hours and modules that he could lecturer in, as well as the large quantity of modules he was regularly required to lecturer in, had a negative impact on his conditions of employment. Since he commenced lecturing he has taught approximately 30 modules often at short notice and always without being consulted. He has been used repeatedly to fill gaps in the timetable and replace other lecturers when they go on leave to conduct research to advance their careers. As detailed above the withdrawal by the Respondent of courses from the Complainant that were in his area of expertise and reassigning courses he had been teaching to other lecturers, were further indicators of discriminatory treatment. In January 2013, the respondent removed 4 hours of Automation from him which had been built up previously and which was his area of expertise and he was put teaching Advanced Mechanical Engineering which he was uncomfortable with teaching. It was cited that in the academic year 2014-2015 the complainant was only provided with a timetable for Semester 1 that commenced in September in September 2014 and was advised then that the hours he had been teaching for two years were gone. He advised that he was unable to develop expertise in a particular area as the modules that he was lecturing in were varied so often and that he has no input into the modules he delivers and has no identity. He has not progressed on the salary scale at the same rate as the Irish nationals, cited as comparators, whom it was argued had fewer qualifications but had been progressed faster on the pay scales. He states that all the Complainant’s colleagues teach their preferred course in their areas of expertise with little change to their timetable year-on-year and are able to develop areas of expertise as a result. He has advised that the respondent’s response to this has been to insist he teach a subject area that he feels unqualified to teach - Advanced Mechanical Engineering - but advised that he no longer lecturers in this. He outlined that he was advised by the HR Manager, to approach other schools to secure more hours as there were not enough hours in engineering and it was very embarrassing to have to do this. Furthermore, the Complainant advised that for years he had no office which made his role very difficult with regard to interacting with students and despite repeated requests the respondent failed to connect him to a printer.

2.9 It was submitted that these complaints, as well as the evidence offered, established a prima facie case of discrimination and that the presumption of discrimination is within the range of inferences that can be drawn from the effects established and that the burden of proof shifted to the Respondent.

3.0 Summary of the respondent’s case

3.1 The respondent rejects the claim of discrimination on the basis of race.

3.2 The respondent argued that many of the complaints are out of time.

3.3 It was advised that the Complainant had lodged a grievance with the Respondent regarding his contract in April 2011 detailing an “array of issues that comprise my grievance” and it was the Respondent’s understanding that these had been resolved in February 2012 whereby the Complainant detailed in his email to the HR Manager “I am relieved that we have come to the conclusion of this process” and the HR Manager’s reply “I am really glad we have resolved the matter”. They expressed surprise that in January 2013 he raised another grievance regarding his alleged inequality treatment during his employment which continued through 2014 but as it appeared that the Complainant would not be happy with the outcomes based on his correspondence, it was felt there was little point in continuing Stage 3 of the grievance process.

3.4 A letter to the Complainant’s solicitors in January 2015 advised that they were willing to attend mediation to resolve the issue but no agreement was reached.

3.5 Discrimination in getting a Job: With regards to getting a job, the Respondent advised that a minimum of an honours degree plus three years post qualification experience is a requirement and virtually all applicants, seeking a role of Lecturer, would have a Masters with significant work experience and that competition for such posts is highly competitive. The Complainant applied for 23 positions since 2004, 9 of which were in Engineering, 3 of the competitions were cancelled and it was claimed that he was interviewed for 4 posts which he was unsuccessful for. It was denied that the Complainant was told not to apply for the role in 2008. The reality was that the Complainant did not apply for the role and therefore, he could not be considered for the role. The Respondent cannot be held responsible for that. It was reminded that this complaint dates back to 2008.

3.6 Discrimination in Promotion

It was disputed by the Institute that the Complainant was discriminated in relation to promotion. It regularly happens that the modules that a lecturer lecturers in are varied and the quantity of modules are also varied and the Complainant was treated no differently than any other similar-type lecturer. During the hearing and following it, a large amount of information was forwarded by the Respondent detailing academic staff in the department, their nationalities, qualifications and subjects lectured in. Copies were also sent to the complainant who disputed the validity of the data which they highlighted was somewhat subjective. In effect the Respondent detailed that there are 28 academic staff, 23 of whom are Irish and 5 non-nationals of which 3 are Romanian including the Complainant. With regard to the comparator the first named comparator was appointed following a public competition to a permanent post with specific reference to energy applications and with regard to the second comparator she commenced employment following public competition which the Complainant failed to apply for. A third comparator was named at the hearing whom it was claimed was facilitated to build up his hours which the Respondent denied and stated that this third comparator had been given the same advice the Complainant had which was to build up his hours over time by asking other departments if they had lecturing hours available. The Respondent referenced that there are significant changes made in the modules delivered by staff from year to year and that it was not unusual for staff to teach 5/6 modules per annum. It was further detailed that the Complainant is on the same point of the salary scale as one of his comparators whom had been appointed through public competition and that another one of his comparators had joined the respondent before the Complainant. It was also stated that the Complainant is the only one of the three staff appointed not through a public competition that has progressed to lecturer grade.

3.7 Discrimination in Training

The Complainant had been advised previously that there were no funds available to support the training of the Complainant owing to financial restraints back in 2006/2007. This was a time of a serious recession in the country and budgets throughout the state were cut significantly. However, the respondent is currently supporting the Complainant’s PhD and has previously supported one of the Complainant’s Masters Degrees.

3.8 Discrimination in Conditions of Employment

It was disputed by the Respondent that the Complainant was discriminated in relation to conditions of employment. During the hearing and following it, large amount of information referred to above, was provided by the Institute detailing academic staff in the department, their nationalities, qualifications and subjects lectured in; much of which was disputed by the complainant. The information detailed that there with 28 academic staff 23 of whom are Irish and 5 non-nationals of which 3 are Romanian including the Complainant, it regularly happens that the modules that lecturers’ lecture in are varied and the quantity of modules are also varied and the Complainant was treated no differently than any other similar-type lecturer. The Respondent detailed the large amount of data forwarded after the hearing showed that significant change in modules delivered by staff from year to year and that it was not unusual for staff to teach 5/6 modules per annum, therefore, his conditions of employments are no different than other lecturers in terms of the requirement for them to be flexible with regard to the variation in modules and quantity of modules taught. It was advised that priority in allocation of lecturing hours is given to those appointed through open competition as if you openly advertise for a Lecturer with specific lecturing experience, then the expectation is that you provide such modules to the appointed lecturer. The Complainant has not secured a position through open competition but has a contract of indefinite duration and that he, along with other lecturers appointed to their roles in a similar manner to him, would be allocated modules available. However, it was also emphasised that all lecturers, including those appointed through open competition, would be expected to be flexible with regard to the modules they were required to teach and that there are no guarantees with regards to the modules that any lecturer lecturers in. Issues regarding printing and office space had all being resolved and were unrelated to the race of the Complainant.

4.0 Findings

4.1 Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Section 82 of the Act. In reaching my decisions, I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing and correspondence submitted by both parties after the hearing.

4.2 Discrimination – Race

Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. 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. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

4.3 In his complaint, the Complainant has raised a number of issues which prompted his referral to the Workplace Relations Commission. During his employment he had many grievances, some of which were resolved, others which main unresolved.

4.4 Included in these grievances are issues from some years before the referral of his complaint to the WRC. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It can be possible for a Complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The Complainant must, however, establish that a discriminatory act occurred within the limitation period (see the decisions of the Labour Court in Cork County VEC v. Hurley EDA 24/2011 and Arthur v London Eastern Railway [2007] IRLR58 ) which is the period that will be examined in the first instance.

4.5 In this case, the limitation period shall be for incidents that occurred 16th June 2014 to 15th December 2014 during which the Complainant felt he was discriminated against on the grounds of race. The complaints regarding discrimination in getting a job occurred in 2008 and the complaints regarding trainingoccurred in 2006/2007 when he was told there was no money available to support training. These are therefore outside the limitation period. The complaints regarding discrimination in promotion and conditions of employment occurred during the limitation period. If the complaints during the limitation period are found to be discriminatory then it may be possible to bring into the complaints the more historic incidents of discrimination as mentioned by the Complainant through their references including Waldron v North West Health Board (DEC-E2003-021) and Louth VEC v Equality Tribunal (2009 IEHC370.

4.6 Section 85(A) of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. In Graham Anthony and Co Ltd v Mary Margetts, EDA 038, in an age discrimination case, the Labour Court remarked:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”.

4.7 Promotion

It was alleged that owing to the Complainant not having any stability in terms of the modules that he lecturers in as well as the quantity of the modules that he is required to lecture in, that it has not been possible for the Complainant to establish specific expertise. The impact on him is such that his ability to apply and be shortlisted for other roles has been limited and that this has been because of his race. The Complainant initially compared himself to two Irish comparators and at the hearing amended it to include another comparator whom he alleged was treated more favourably than him with regard to his allocation of modules/quantity of modules. While the Respondent did not dispute that the modules that the Complainant has lectured on has varied, they argue that this is the same for many other similar-type lecturers. Details were provided after the hearing of the academic staff and their qualifications and the modules that they taught in as well as how these have varied, which was copied to the Complainant. He replied disputing much of the information provided alleging much of it was subjective. I have taken considerable time to review this data provided as well as his response in great detail.

4.8 In O’Higgins v UCD,EDA 131 and High Court [2013] IEHC 508, the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:

“1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts

4.In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.

5.The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result

6.A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

7.Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

8.The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution’

4.9 While the circumstances of this instant case are somewhat different as the Complainant did not actually apply for a promotion through competition, it still remains for the Complainant to prove the primary facts for which he relies on to raise an inference of discrimination.

4.10 Having reviewed the evidence in detail and taking into consideration the detailed response of the Complainant, it is clear to me that some lecturers do appear to lecturer very similar modules on a regular basis and there are some who appear to regularly lecturer less than 5 modules. However, many others appear to have their modules varied each semester as well as the quantity of modules they lecture in. While the Complainant has argued that some modules with different titles are the same modules, I find that on the whole of the evidence other lecturers have also had the quantity and the nature of the modules which they lecturer in, varied.

4.11 I would also prefer the evidence of the Respondent who detail that if you recruit for a lecturer, through open competition, looking for specific experience, it makes sense to allocate such lecturers, modules in the expertise that they were recruited for; assuming such expertise is still required. However, whether varying the type of modules each semester and varying the quantity of modules is best practice in terms of the security and stability that it gives to a lecturer, such as the complainant on a contract of indefinite duration who was not recruited through open competition), as well as best for a lecturer’s ‘identity’ (which the complainant referred to); is not for me to comment on but could be something that the Respondent could review in more detail. However, as mentioned previously, the mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination and I find that the Complainant has made numerous assertions that do not meet the level required to raise a presumption of discrimination and upon which an inference of discrimination can be drawn. I find, therefore, that he is unable to establish a prima facie case of discrimination on the grounds of race in relation to promotion.

4.12 Conditions of Employment

It was alleged that the Complainant’s conditions of employment were different to others owing to his race. Included by way of examples were the stability in terms of the modules that he lecturers in as well as the quantity of the modules that he is required to lecture which I have previously determined that he has not established a prima facie case of discrimination on the grounds of race. Other examples cited included his failure to be granted access to printing as well as reference to the delay in responding to grievances raised. I believe there was poor handling of the Complainant’s grievances including that they do not appear to have been responded to in a timely manner. It was argued by the Respondent that the Complainant has a long history of dissatisfaction with the Respondent’s actions. It would appear that some of this dissatisfaction is understandable as it appeared to take considerable time to process and resolve (when they did) some of his grievances. It seemed unclear from the correspondence who had responsibility for responding to the grievances as it was passed around from Head of Department, HR Manager, Financial Controller and others. I can understand the Complainant’s frustration with same but I also note that in February 2012 the Complainant confirmed in his email to the HR Manager “I am relieved that we have come to the conclusion of this process” and the HR Manager’s reply “I am really glad we have resolved the matter. However, while the grievances may not have been handled as speedily and as appropriately as they should have, the Complainant assertions that he was discriminated on the basis of race do not meet the level required. I find, therefore, that he is unable to establish a prima facie case of discrimination on the grounds of race in relation to condition of employment.

6. Decision

6.1 I have investigated the above complaints and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

6.2 The Complainant has failed to establish a prima facie case of discrimination on the race ground in relation to his complaints and I dismiss the complaints.

6.3 I would recommend that the Respondent review their process for handling grievances and the speed in which they do same, such that it is clear where responsibility lies with regard to grievances and any follow-up actions in relation to same.

6.4 I would further recommend that the Respondent review their process with regard to the allocation of modules to lecturers each semester and the quantity of modules in line with best practice.

_________________________________

Louise Boyle

Adjudication Officer/Equality Officer

6th September 2017