Complainant

Respondent

Anonymised Parties

Senior Executive Librarian

Local Authority

Representatives

Paul Hutchinson, B.L., instructed by Sean Ormonde & Co. Solicitors

Sarah Hearns, LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008514-001

01/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008514-002

01/12/2016

The complainant commenced employment with the respondent in January 1991. The complainant is now a Senior Executive Librarian, a full-time position with a salary of €2,109.33 per fortnight. In December 2008 the complainant was appointed an Acting Senior Executive Librarian to cover maternity leave and there followed several other appointments to that position, providing cover for various reasons. In early 2014 the respondent advertised the post of Senior Executive Librarian.   The complainant applied for the position and achieved first place on the panel from which the appointment was to be made. The panel was to have a two year duration.

A dispute arose regarding the National Workforce Plan for Libraries. One of the parties to the dispute was the complainant’s union.   In the meantime the complainant was given to understand that her appointment was imminent but, in the event, it did not materialise due to the ongoing impasse regarding the Workforce Plan.   The complainant was not appointed before the two year duration of the panel expired in April 2016.   The complainant had been diagnosed as suffering from M.E. but there is a dispute as to when the respondent became aware of this.

Following this there was a new recruitment competition for the position advertised. The complainant entered this competition under protest and was placed second on the resulting panel. No appointment has been made from this panel and new Departmental criteria will most probably result in yet a further competition for the position.

The complainant applied for and secured first place on the panel from which the position of Grade 7 Senior Executive Librarian was to be filled.

In February 2015 the complainant was informed that her appointment to the position would take place within a week or two and was congratulated by senior management in this regard.

The complainant was then advised that a difficulty had arisen due to her union’s objections to the National Workforce Plan for Libraries.

The respondent would have become aware in 2015 of the fact that the complainant had been diagnosed as suffering from ME.

The complainant through her union requested in October 2015 that the duration of the panel be extended because of these ongoing issues. No response was received from the respondent either then or when the request was later repeated.

The complainant was advised by her union that there was no objection at local level to her specific appointment going ahead but the respondent refused to act on this.

The panel expired on April 22 2016 with no appointment being made by the respondent.

A new recruitment process was initiated and the complainant was placed second on the resultant panel. The complainant has compared the 2016 results with those of 2014 and believes that they are arbitrary and illogical particularly having regard to her greater relevant experience.

In September 2016 the complainant was appointed to a new branch library. As this appointment would entail a significant amount of manual handling and in view of her medical condition the complainant sought an alternative position in Head Office but this request was ignored.

The complainant sought extended leave for December 2017 which would have facilitated her disability but was refused despite being granted same on previous occasions.

New qualifications for librarians were introduced in 2016 and the Department requires that any new permanent appointments must come from panels which conform to these new criteria. The panel formed in 2016 cannot therefore be used to make an appointment to the position that the complainant applied for.

The failure / refusal of the respondent to appoint the complainant from the original panel denied the complainant the legitimate expectation that she reasonably entertained in this regard.

The position of Senior Executive Librarian could not be filled because there was no agreement with the union in relation to the Council’s proposals.

The recruitment for the library service is also subject to the approval of the Department of the Environment.

Permanent appointments have to be filled through competition. There is no mechanism for the automatic granting of a permanent substantive post by virtue of long-term acting positions.

The workforce planning arrangements in the library service are the subject of ongoing discussions with the union on a national basis. The Council is not in a position to proceed with the filling of any vacancy in the service until such time as a suite of measures is agreed with the union and until such time as the Department sanctions any post.

The respondent only became aware of the complainant’s medical diagnosis in September 2016.   The respondent arranged for the complainant to see an Occupational Health specialist but the complainant delayed this appointment until April 2017.

These complaints were heard in conjunction with a referral under the Industrial Relations Act, 1969, contained in ADJ – 00004768.

Preliminary Issues:

The complainant’s representative advised that the complaint under the Employment Equality Act, 1998 as regards discrimination on the grounds of gender was being withdrawn but that the complaint of discrimination on the grounds of disability stood.

The respondent argued that the complainant was pursuing three claims under the Industrial Relations Act, 1969, the Employment Equality Act, 1998 and the Payment of Wages Act, 1991 and that it appeared that the claims were all based on the same set of circumstances. This raised the issue of whether this breached the principles in Henderson v Henderson. The respondent was also of the view that the complainant could not seek to pursue redress for the same matters under multiple legislation in line with the principle of res judicata. In addition the respondent queried if the matters were in breach of Section 101 of the Employment Equality Act.

For the principles of res judicata or Henderson v Henderson to apply itwould be necessary for there to have been prior proceedings between the parties. Broadly speaking, res judicata applies to an issue which is identical to an issue already decided in previous litigation.   Henderson v Henderson applies where a new issue is raised which was not decided in previous proceedings but is one that could and should have been brought forward in the previous proceedings. There were no previous proceedings between the parties and therefore neither issue is relevant.

Section 101 of the Employment Equality Act states:

(1)    If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or other person, to comply with an equal remuneration clause or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under this Part in respect of the failure to comply with the equal remuneration term or the equality clause, as the case may be.

The referral of a dispute under the Industrial Relations Act does not constitute the institution of proceedings under common law.

The complaint under the Payment of Wages Act is based on the complainant’s belief that the actions of the respondent were such as to create a legitimate expectation that she would be promoted to the position of Grade 7 Senior Executive Librarian.

Having carefully considered these matters I do not believe that there is any impediment to the hearing of the substantive issues.

Complaint under the Employment Equality Act, 1998:

The complainant was appointed as Executive Librarian in 2007. In December 2008 she was appointed as Acting Senior Executive Librarian and over the next number of years a series of similar acting appointments followed the last of which expired in July 2016. In early 2014 a competition for the post of Senior Executive Librarian was announced. The complainant applied and achieved 1st place in the panel that was formed as a result of the competition. This panel was to have a life of 2 years. In February 2015 the respondent issued proposals to the complainant’s union for a revised staffing structure for the library service which would include an additional Senior Executive Librarian position. The union responded that there was a dispute at national level in regard to the library workforce plan and that, as a result, there would not be co-operation in relation to the proposals. The respondent’s HR Department were of the view that the proposal required union agreement and approval from the Department of the Environment.

Meanwhile in January 2015 the complainant was advised by her line manager that an appointment was expected shortly and was requested to assist in making a business case seeking approval for the post. The impression that her appointment was imminent was reinforced by a conversation with the complainant’s senior Director during which she was congratulated on her upcoming appointment. Later that month the complainant was advised that the appointment could not take place due to the withdrawal of co-operation by her union. This coincided with a period when the complainant was carrying out senior grade duties without payment, a situation which continued until the end of April 2015 when she was again appointed to an acting position.

The complainant contacted her union regarding her position as no progress was being made in the resolution of the dispute. In October 2015 the union wrote to the respondent’s HR Manager requesting that the life of the 2014 panel be extended to allow for the situation to be resolved and this was followed up by an e-mail from the complainant to the same effect. No response was received to these requests, however it appears that the HR Manager was of the view that no provision existed for such an extension.

In December 2015 / January 2016, following receipt of correspondence from the union, the complainant believed that the matters in dispute at National level regarding the library service were separate from the filling of the position in her area and the appointment would not affect those negotiations. She wrote to the HR Manager requesting that sanction be sought from the union for the appointment. On 4 February 2016 a meeting took place between Management and the union and the complainant attended part of the meeting. The complainant stated that the purpose of her attendance was for the union side to confirm that they were no longer opposed to the appointment to the Senior Executive Librarian position. The minutes of that section of the meeting state the following:

Status of Library     -       Union confirmed that their members were not going to enter into local discussions as they were awaiting the issue of national guidelines on the workforce plan. M.C. attended for this part of the meeting.   M.C. stated that she had previously been congratulated on her appointment as Grade VII. This was followed by a meeting of the Management Team where a discussion took place on the proposed workforce plan for the library.   C.H. confirmed that recruitment is done by the HR department and it is only the HR department that could inform M of a promotion. Furthermore, she stated that whilst the proposed workforce plan would have been discussed at management team, the draft document would have had to be accepted by the Union and approved by the Department. P D. confirmed that the present panel would not be extended beyond 2 years.

At the end of February the complainant received a circular e-mail from her union representative stating that there had been an agreement between the parties at National level regarding workforce planning and that negotiations with management could begin on receipt of formal notification from the union’s Head Office. The complainant again requested management to proceed with her appointment but received no response. The 2014 panel expired on 22 April 2016 with no appointment being made. According to the respondent they had engaged with the union at local level without agreement being reached on the workforce plan for the library service.

A new recruitment process was initiated for the position of Senior Executive Librarian. The complainant entered under protest and was ranked in 2nd place behind a person whom the complainant contends has less experience than she has in the senior role. The complainant lodged an official complaint about her treatment with the respondent’s CEO in May 2016. No response was received to this letter or to a subsequent reminder but in a telephone conversation in August 2016 the CEO suggested that the complainant refer the issue to a third party such as a Rights Commissioner. The complainant’s acting Grade VII position had terminated at the end of July 2016.

Following this there was discussion as to the complainant’s future role and in an e-mail sent on 18 August 2016 to her line manager the complainant put forward her preferences in this regard. Possibility 1 was for a HQ based role where her experience gained in Grade VII duties could be of benefit. Possibility 2 was to be considered for the Grade VI role in a new branch library that was opening shortly. In this regard the complainant states:

“I believe it will be challenging and exciting to take the branch and build it up and develop it. I believe a new library would benefit from my combined 12 years’ experience working at Grade 6 and primarily at Grade 7 level.”

The complainant goes on to express a fear of boredom at a Grade 6 role.

On 23 September 2016 the complainant again wrote to her line manager regarding her future Grade VI role. In this e-mail, however, she states:

“At this stage I need to also address my medical / health situation and how it relates to my working life and my future role.” Further on in the letter she says: “Since 2009 I have never had to mention my long term illness of ME in the workplace, most people have not even been aware of it, but I need to address it now….”

The complainant goes on to explain how she was diagnosed with ME in 2009 and how she has managed the symptoms as best she can in order to continue working full-time. In these circumstances the complainant felt that appointment to a HQ role would best suit her situation. At about this time the complainant was given responsibility for the opening of the new branch library, a post that she felt would require significant physical effort. An appointment with an occupational health (OH) doctor had been arranged for 17 October 2016 but was cancelled at the complainant’s request as she felt that not enough information had been received from the respondent with regard to her new post to allow her to attend same.   The complainant applied in 2016 for extended leave in December 2017 as part of her management of her disability but was refused same despite previously being granted same on previous occasions. The complainant claimed that this action was part of the discrimination against her.   The complainant filed her complaint with the WRC on 1 December 2016.

The recruitment panel set up in 2016 has not been utilised. The Department introduced new qualification standards for library staff in July 2016 and, as a result, no permanent post can be filled from panels recruited under the previous rules.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If the complainant succeeds in doing so then it is for a respondent to prove the contrary.

The evidential burden that must be discharged by the complainant before a prima facie case can be said to have been established has been considered by the Labour Court (Mitchell v Southern Health Board; DEE11 (2001)) and is as follows:

The claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.   This indicates that the claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.

In evaluating the evidence, therefore, I must first decide whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts and in line with the principles outlined by the Court above.

The complainant alleges discrimination on the disability ground. Section 6(1) of the Employment Equality Acts 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)(g) of the Acts defines the discriminatory grounds of disability –

as between any 2 persons

(g) that one is a person with a disability or the other either is not or is a person with a different disability

There is a difference between the parties as to when the respondent would have become aware of the complainant’s disability. The complainant states in her submission that the respondent became aware of her condition in or about October 2015. In evidence the complainant stated that she would have informed her line manager of her condition in conversation and would have applied for extended leave in that year. The complainant accepted that she had been on sick leave on a number of occasions but that her sick certs would not have referred to ME. The complainant had been diagnosed with ME in 2009 but feared discrimination if that fact became known. The line manager in evidence was adamant in her view that the complainant advised her of her condition on 22 August 2016 in a conversation following a period of sick leave. The manager also stated that the complainant’s sick leave over the years had been due to various causes.  The manager did not advise the HR Dept. at that time of the complainant’s issue and did not discuss reasonable accommodation with the complainant. As regards the request for extended leave in 2015 the reason given was to look after relatives. The HR Manager in evidence stated that she only became aware of the complainant’s disability in September 2016 and made arrangements for the complainant to see an OH doctor but because of concerns raised by the complainant this did not happen until April 2017.

Applying the principle of the requirement to establish facts I am not satisfied that the complainant has established as a fact that on the balance of probabilities the respondent became aware of her disability in 2015. Her assertion is contradicted by the evidence of the respondent’s managers and also by her own correspondence of 23 September 2016 regarding the matter. This letter is addressed to her line manager and goes into the history of her disability. The letter makes no reference to the manager being aware of this since the previous October but states that the complainant had not mentioned her illness in the workplace before. It was also accepted that the complainant’s sick certs did not mention ME.   Weighing up the evidence before me I believe that on the balance of probabilities the respondent was not aware of the complainant’s disability until August 2016.

By that stage the panel on which the complainant had been No. 1 choice had been dissolved and the new panel put in place. As regards the national dispute in relation to the workforce plan for the library service, the respondent had taken a policy position that they required full agreement on the plan before any part of it was implemented. The suggestion that the complainant could be accommodated in a local arrangement was not therefore taken up. But again there is no evidence that this action was in any way a discriminatory action by the respondent against the complainant and it predates their knowledge of the disability.

It should be said that the complainant on a personal level had good reason to feel aggrieved at the manner in which events occurred and at the acts and omissions of the respondent’s management. The HR Manager accepted that e-mails sent by the complainant were not replied to and that best HR practice was not observed in dealing with issues raised by the complainant. There is no doubt but that the complainant had at one stage a strong belief that her appointment to the senior post was imminent. This, however, does not translate into evidence of discrimination under the Employment Equality Acts. No one was in fact appointed to the position as the respondent had not got the full agreement it required with the union and then the rules governing the appointment of library personnel changed so that no permanent appointment was possible.

As regards the issue of not acceding to the request for extended leave in December I note that it is accepted that this request had been granted previously to the complainant.   The response of the respondent was that it was their policy to rotate such leave amongst staff and that it was refused to the complainant by management on the grounds that it had already been granted to her previously. I do not believe that this response constitutes adverse or discriminatory treatment.

Complaint under the Payment of Wages Act, 1991:

The complainant states in her claim form that the respondent failed to pay her in line with a role which she was successful in attaining. In the submissions to the hearing it was argued that the complainant has an actionable legitimate expectation to the position of Grade 7 Senior Executive Librarian and that the respondent has unlawfully withheld a portion of her wages (representing the difference between her Grade 6 salary and the Grade 7 salary). These expectations were based on the actions of the respondent in placing the complainant first in the recruitment panel in April 2014, advising her that her appointment was imminent, having third parties congratulate her on her appointment, the fact that her union had advised that there was no objection to her appointment and the point that the proposed workforce plan contained a position of Grade 7 Librarian. The ensuing loss was ongoing. The respondent’s representative argued that legal basis for the issue of legitimate expectation came from a Supreme Court case, McGrath v Minister for Defence (2010). I note the following passage from that judgement:

Firstly, the public authority mast have made a statement or adopted a position amounting to a promise or representation, express or implied as to how it will act in respect of an identifiable area of its activity.

The respondent in response argued that the recruitment of staff is a function of the Director of HR under Delegation Order 14/05. Permanent appointments are filled through competition and there is no practice or precedent for granting permanent posts at a higher grade by virtue of long-term acting positions. The respondent is not in a position to proceed with filling any vacancy in the library service until such time as a suite of measures is agreed with the union and such posts are sanctioned by the Department.

The setting up of a recruitment panel and the securing of first place on that panel by the respondent did not mean that the complainant was guaranteed an appointment. When the complainant was appointed to acting up positions that appointment was accompanied by a declaration in writing to that effect duly signed by the relevant Director. At no stage can it be said that the respondent officially promised or represented that the complainant was to be appointed to the Grade 7 post. The complainant may well have been told by individual members of the staff of the respondent that the appointment was imminent but that did not amount to any type of formal appointment or promise of same.

Section 5(6) of the Payment of Wages Act states:

Where –

(a)    The total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable to him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)    None of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

Then, except insofar as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining clams under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant. Having carefully considered all the arguments I am satisfied that the payment claimed is not remuneration that is properly payable to the complainant.

Complaint No. CA-00008514-001:

This is a complaint under the Employment Equality Acts, 1998 – 2015. For the reasons set out above I have concluded that the complainant has not established facts from which an inference of discrimination can be drawn. I therefore find the complaint not to be well founded.

Complaint No. CA-00008514-002:

This is a complaint under the Payment of Wages Act, 1991. For the reasons set out above I find this complaint not to be well founded.