ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00019317

Parties:

	Complainant	Respondent
Anonymised Parties	A Tutor	An Educational Establishment.

Representatives

Self

Kara Turner, Eversheds Sutherland

Complaint(s):

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-00025197-001	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-002	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-003	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-004	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-005	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-006	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-007	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-008	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-009	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-010	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-011	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-012	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-013	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-014	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00025197-015	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-016	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-017	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-018	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-019	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-020	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00025197-021	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-022	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-023	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-024	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-025	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-026	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-027	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00025197-028	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-029	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-030	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-031	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-032	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-033	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-034	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-035	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-036	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-037	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-038	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-039	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-040	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-041	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-042	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-043	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-044	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00025197-045	22/01/2019

Date of Adjudication Hearing: 30/05/2019

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 13 of the Industrial Relations Acts 1969]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).

Background:

The Complainant is a tutor and has been employed by the Respondent since 20th September 1996.

This complaint was received by the Workplace Relations Commission on 22nd January 2019.

Summary of Complainant’s Case:

CA-00025197-001

The Complainant alleges that she has had areas of work and responsibility removed from her for no justifiable reason.

CA-00025197-002

The Complainant has been studying since 2014 for a BA, BA (Hons) and a Diploma in Further Education and was encouraged by the Respondent to do these to register with the Teaching Council. She is now registered with the Teaching Council and after completing all those qualifications and registering with the Teaching Council to get a Teaching Contract. In 2016 the Respondent introduced additional BTEI classes and the Complainant was never offered any of these, all the additional hours were given to Irish tutors who were less qualified, have fewer years length of service with the Respondent and have less experience than the Complainant. The Complainant feels she has been undermined in her work and achievements and that progression within the Respondent organisation is based on merit.

CA-00025197-003

On Tuesday 27th September 2016 the Complainant went into work and was informed by the Respondent Director that they had no classes for her for the rest of the week. At a meeting with the Respondent Director he said to her in a derogatory tone “what are you going to your solicitor about now xxxxxx?”.

CA-00025197-004

From 2016 classes once taught by the Complainant were given to newly employed tutors. In February 2017 another Irish tutor who only started with the Respondent organisation in December 2016 who was not registered with the Teaching Council and had never taught any QQI Level 5 courses was given the classes taught by the Complainant.

CA-00025197-005

Allocation of teaching hours. The Complainant has been employed by the Respondent for 23 years. Additional hours are being given to Irish tutors who were employed after me and are teaching classes once taught by the Complainant. The Respondent is advertising IT teaching positions and I am employed on a part-time basis.

CA-00025197-006

Teaching hours. The Complainant was informed at a formal meeting on 24th October 2018 that the maximum hours a tutor can now work is 735 hours. The Complainant informed that other Irish tutors were doing a lot more hours than 735. On her CID contract the Complainant can only work a maximum of 22 hours a week. She was informed by the Respondent Director that other tutors have newer CID contracts and do not have this on their contracts. The Complainant was advised by the Assistant Principal Officer at a formal meeting on 24th October 2018 that it was up to her to ask for an “updated” CID contract, which she disputed. The Complainant was asked by HR if she had been telephoned regarding teaching additional hours over the 22 hours she had been allocated and she said she was not.

CA-00025197-007

In 2015 to 2016 classes in Tullamore were taken off the Complainant and given to an Irish tutor, the Complainant was given the same classes in location A that she had originally been given in location B. When the Complainant emailed the Respondent Director he said he knew nothing about the hours in location B even though he allocates the teaching hours, and nothing further was done.

CA-00025197-008

The Complainant’s CID contract states 666.3 hours of instruction, but there was a shortfall in 2014 of 205 and 205 to 2016 years. Paid the shortfall of hours in September but the Respondent was only aware of the shortfall because the Complainant had to calculate all her hours herself, she wasn’t ever informed by the Respondent that she had taught less hours than she should have on her CID contract. The Complainant contacted the Respondent Director in September 2014 as she was only given 16 hours a week and was informed that she would possibly be allocated additional hours when classes were available. The reason she had a shortfall of hours as she was under-allocated hours from September 2014 onwards and 666.3 hours was agreed at the Rights Commission Hearing in 2014.

CA-00025197-009

In 2016 to 2017 the Complainant was told by the Respondent Director to drive from location A at 1.30pm and start teaching a class in location B at 2.00pm this meant she had no lunch break and I have Type 1 Diabetes.

CA-00025197-010

In 2015 Irish individuals working on internships within the Respondent were given classes the Complainant used to teach and were not employed according to the Respondent’s Recruitment and Selection policy. The Irish individuals had no teaching experience or teaching qualifications.

CA-00025197-011

The Complainant was told to attend a training course on 5 Saturdays in April 2017 as I she was now teaching all literacy classes. The Complainant emailed the Respondent Director regarding payment for 5 Saturdays and received no response to her email.

CA-00025197-012

Assessment material was taken out of the Complainant’s Tutor Folder in 2015/2016 – she spoke to the Respondent Director on several occasions and nothing was done to establish what happened to it or who had it. The Complainant was advised by another employee that it had been given to an Irish tutor who had been given classes she had previously taught and who did not have previous experience of teaching the course. The Complainant was advised by HR to contact the centre manager which she did on 8th October 2018, who informed her she could not find her assessment material. The assessment material is the Complainant’s property which is created in her own time and not paid for devising these by the Respondent.

CA-00025197-013

2015 to 2016 the Complainant’s class started at 1.30pm to 3.30 pm on Friday afternoon and she was given no classes prior to this. When she said she could not do these classes as she was attending a BA course, the Respondent Director said if she wasn’t available she would have to forfeit those hours. Previous and subsequent classes on a Friday finish at lunchtime, as the students have private study on Friday afternoons.

CA-00025197-014

The Complainant contends that she has lost thousands of euro in pay for Locally Devised Assessment for BTEI Level 5 classes from 2016 to present as the classes have been taken off her by the Respondent Director and given to other Irish tutors who have less qualifications, experience and fewer years’ length of service. The Complainant contends that the classes she is now teaching do not attract Locally Devised Assessment payments.

CA-00025197-015

The Complainant should have received her CID in 2000 and in 2013-2014 she was only given 2 classes which was a total of 143 hours by the Respondent Director when she should have had a CID contract for 666.3 hours. The classes she was teaching were given to Irish tutors. The Complainant contends she lost over €26,000 of euro in pay for 523 hours for teaching, public holidays, pension contributions and Locally Devised Assessment pay.

CA-00025197-016

The Complainant contends that she has been the victim of penalisation since the Rights Commission hearing in 2014.

CA-00025197-017

The Complainant has been studying since 2014 for a BA, BA (Hons) and a Diploma in Further Education and was encouraged by the Respondent Director to do so and to register with the Teaching Council. She is now registered with the Teaching Council and after completing all those qualifications and registering with the Teaching Council to get a Teaching contract based on her previous hours. She has been allocated fewer hours despite the number of teaching hours being increased by the Respondent. Again, the Complainant contends that this is penalisation since the Right Commission hearing in 2014.

CA-00025197-018

On Tuesday 27 September 2016 the Complainant arrived into work to be told by the Respondent Director they had no classes for her for the rest of the week. At the meeting with the Respondent Director he said in a derogatory tone “what are you going to your solicitor about now xxxxxx?”. The Complainant contends that she has been treated in a totally unprofessional manner and that she has never been treated in such a derogatory way and spoken to in such a condescending manner in any other organisation she has worked in. The Complainant contends that this too is penalisation since the Rights Commission hearing in 2014.

CA-00025197-019

From 2016 classes once taught by the Complainant were given to newly employed tutors. In February 2017 another tutor who only started in December 2016, who was NOT registered with the Teaching Council and had NEVER taught any QQI Level 5 courses was given the classes once taught by the Complainant. In the Complainant’s opinion this is removing for no justifiable reason, areas of work responsibility from her, which she feels is penalisation since the Rights Commission hearing in 2014.

CA-00025197-020

Allocation of teaching hours. The Complainant has been employed by the Respondent for 23 years. She is on 666.3 hours and the maximum hours on a CID contract is now 735. Additional hours are being given to Irish tutors who were employed after her and are teaching classes she used to teach and have less experience and less qualifications than her and are teaching more hours than she is e.g. 727 plus. The Respondent are advertising IT teaching positions and she is employed on a part time basis. This is penalisation since the Rights Commission hearing in 2014.

CA-00025197-021

Teaching hours. The Complainant was informed at a formal meeting on 24th October 2018 that the maximum hours a tutor can now work is 735 hours and other Irish tutors are doing a lot more hours than 735. On her CID contract she can only work a maximum of 22 hours a week. She was informed by the Respondent Director that other tutors have newer CID contracts and do not have this on their contracts. The Complainant was advised by HR at a formal meeting on 24th October 2018 that it was up to her to ask for an “updated” CID contract, which she disputed. The Complainant was asked by HR if she had been telephoned regarding teaching additional hours over the 22 hours I have been allocated and I said I was not. This is penalisation since the Rights Commission hearing in 2014.

CA-00025197-022

In 2015 to 2016 classes in location B were taken off the Complainant and given to an Irish tutor, the Complainant was given the same classes in location A that she had originally being given in location B. When she emailed the Respondent Director he said he knew nothing about the hours in location B even though he allocates the teaching hours, and nothing further was done. The Complainant contends that this is penalisation since the Rights Commission hearing in 2014.

CA-00025197-023

CA-00025197-024

CA-00025197-025

CA-00025197-026

CA-00025197-027

CA-00025197-028

The Complainant contends that she has lost thousands of euro in pay for Locally Devised Assessment for classes from 2016 to present as her classes have been taken off her by the Respondent Director and given to other Irish tutors who have less qualifications, experience and fewer years’ length of service. The Complainant contends that the classes she is now teaching do not attract Locally Devised Assessment payments.

CA-00025197-029

The Complainant contends that she has been the victim of penalisation since the Rights Commission hearing in 2014.

CA-00025197-030

CA-00025197-031

CA-00025197-032

Teaching hours. I was informed at a formal meeting on 24th October 2018 that the maximum hours a tutor can now work is 735 hours and other Irish tutors are doing a lot more hours than 735. I have on my CID contract I can only work a maximum of 22 hours a week. I was informed by Tony Dalton that other tutors have newer CID contracts and do not have this on their contracts. I was advised by Pamela Nolan at a formal meeting on 24th October 2018 that it was up to me to ask for an “updated” CID contract, which I disputed. I was asked by Pamela Nolan if I had been telephoned regarding teaching additional hours over the 22 hours I have been allocated and I said I was not. This is penalisation since the Rights Commission hearing in 2014.

CA-00025197-033

From 2016 classes once taught by the Complainant were given to newly employed tutors. In February 2017 another tutor who only started in December 2016, who was not registered with the Teaching Council and had never taught any Level 5 courses was given the classes once taught by the Complainant. In the Complainant’s opinion this is removing for no justifiable reason, areas of work responsibility from her, which she feels is penalisation since the Rights Commission hearing in 2014.

CA-00025197-034

CA-00025197-035

CA-00025197-036

CA-00025197-037

CA-00025197-038

CA-00025197-039

CA-00025197-040

CA-00025197-041

In 2015 to 2016 classes in location B were taken off the Complainant and given to an Irish tutor, the Complainant was given the same classes in location A that she had originally been given in location B. When the Complainant emailed the Respondent Director he said he knew nothing about the hours in location B even though he allocates the teaching hours, and nothing further was done.

CA-00025197-042

The Complainant contends that she has lost thousands of euro in pay for Locally Devised Assessment for Level 5 classes from 2016 to present as the classes have been taken off her by the Respondent Director and given to other Irish tutors who have less qualifications, experience and fewer years’ length of service. The Complainant contends that the classes she is now teaching do not attract Locally Devised Assessment payments.

CA-00025197-043

CA-00025197-044

In October 2013 the Complainant was rang at home twice by an Administrator and once by the Respondent Director stating she had to have a student back in her class after being abusive 5 times in the class and writing a derogatory letter. The Respondent Director had a meeting with the student without the Complainant being present and it was agreed by the student that she could re-join the class. When the Complainant stated the other students in the class were complaining about her and didn’t want her in the class, she wasn’t reinstated. After receiving her CID in April 2014, she was rang at home in the middle of August 2014 by the Respondent Director to say she had to start teaching classes at the end of August, the Complainant said she had an email stating her CID was based on 2011 / 2012 year which stated she would start work on 27th September until 14th June each year.

CA-00025197-045

The Complainant submitted the complaints under the bullying procedure on 6th December 2018. Received an email from HR on 21st December 2018 stating, “Regarding your complaint under the Bullying prevention Policy, please be advised that the issues raised in your Complaint Form have been given serious consideration but are not deemed adequate to proceed with an investigation under said procedures”. At a meeting on 16th January 2019 the Complainant was advised by HR that the Chief Executive had decided that as the bullying complaints were similar to the WRC complaints they were not going to do anything regarding the bullying. The Complainant was advised by the Respondent Director at a formal meeting on 24th October that if she wanted to complain about bullying within the organisation she would have to follow the Respondent’s bullying procedures which she did.

Summary of Respondent’s Case:

INTRODUCTION

The Respondent is a statutory body providing a wide range of educational services. As a body operating in the education sector, the Respondent is subject to the jurisdiction of the Department of Education and Skills (the “Department”) and specific matters, in particular those relating to employment levels and terms and conditions of employment such as pay, retirement and superannuation, are subject to the consent of, and governed by rules prescribed by, the Department whether by way of Statute and/or circular letter.

The Complainant has referred complaints against the Respondent pursuant to the Employment Equality Act 1998, Protection of Employees (Fixed-Term) Work Act 2003 and Industrial Relations Act 1969, which complaints were received by the Workplace Relations Commission on 22 January 2019.

The WRC arranged an adjudication hearing in relation to the above complaints in Longford on 30 May 2019.

The Respondent disputes the within complaints and all claims against it in full and reserves the right to make further submissions and produce and rely on additional evidence at the hearing of this matter.

BACKGROUND

The Complainant commenced employment with the Respondent as a part-time Tutor of Information Technology in and around September 1996.

At all material times hereto, the Complainant has worked as a tutor on programmes and classes delivered in the Respondent’s Further Education and Training Service (“FET Service”).

The Complainant was granted a contract of indefinite duration (a “CID”) with the Respondent with effect from 14 April 2014.

The Respondent’s FET Service develops and provides a wide range of learning opportunities for adults throughout their designated area with the particular objective of encouraging and supporting adults who wish to return to education to avail of educational opportunities that best suit their needs.

The Respondent’s FET programmes and classes are delivered at centres throughout the designated area and include daytime and evening adult literacy classes and full-time and part-time courses in areas such as business, healthcare, Leaving Certificate and IT.

The Respondent operates a number of different education and training funding. These schemes are co-funded by the Irish Government and the European Social Fund pursuant to the Programme for Employability, Inclusion and Learning 2014-2020. The programmes and classes delivered pursuant to the aforementioned Schemes through the Respondent’s FET service are determined by the Respondent by reference to demand and curricular requirements.

The Respondent refers in particular to the Back to Education Initiative (the “BTEI”) given that it notes that a number of the complaints before the WRC relate to the number of BTEI classes/hours assigned or allocated to the Complainant.

The BTEI provides part-time further education courses for adults over the age of 18 including Junior and Leaving Certificate subjects and QQI awards from levels 2 to 6. The BTEI is administered by SOLAS on an annual basis and BTEI funding is allocated following an application process. Whilst the Chief Executive of the Respondent has overall responsibility for the organisation and management of the FET provision and funding, responsibility for management of the funding is delegated to the Director of FET.

From an employment perspective, there was agreement at national level in and around April and May 2016, following discussions between the Department of Education and Skills, Department of Public Expenditure and Reform and Teachers’ Union of Ireland (“TUI”), that a process in relation to tutors would take place which would encompass discussion of: -

the consolidation of certain education posts in Adult, Community and Further Education settings into defined grades with salary scale and public service terms and conditions; and

where teacher posts are appropriate in the Adult, Community and Further Education sector as opposed to other grades.

Arising from the foregoing, ETBs were advised at the end of March 2017 that details of a proposed conversion process agreement for staff employed in ETBs to deliver programmes under the BTEI was almost finalised.

On 15 June 2017, the Department wrote to the Chief Executives of each ETB on the matter of the conversion process for staff employed in ETBs to deliver programmes under the BTEI and enclosed details of the agreement reached regarding the conversion process. The material terms of the conversion process agreement are as follows: -

employees had the option of converting to a Teacher (qualified/unqualified) or Adult Educator;

the effective date of conversion was 1 July 2016;

future recruitment of staff to deliver programmes under the BTEI could only be to the grade of Teacher or Adult Educator; and

in the case of employees who opted to become Teachers, the employee converted on the basis of hours delivered under BTEI during normal teaching/school operation times in the 2015/16 academic year, subject to a maximum of one whole-time equivalent post (22 hours per week/735 hours per annum).

Issues subsequently arose in connection with the BTEI conversion process and the Respondent was advised that the process was being suspended pending further consultation between the Department, Education and Training Boards Ireland and TUI. The Respondent advised the Complainant of the foregoing by way of correspondence dated 25 July 2017.

On resumption of the process, the Respondent wrote to the Complainant on 17 October 2018 on the matter of the conversion process, the Complainant’s options and providing relevant information.

The Complainant, by way of consent form dated 25 March 2019, confirmed to the Respondent that she wished to convert to a teacher post.

EMPLOYMENT EQUALITY ACT (Complaint 001-015)

The Respondent has distilled the following complaint specific details as asserted by the Complainant and which are disputed by the Respondent: -

Reduced/non-allocation of BTEI classes to the Complainant from the school year 2014/15 to 2018/19.

The non-allocation of BTEI hours has affected the Complainant’s contract under the BTEI conversion process and pay for correction of assessments for BTEI classes.

Removal of BTEI classes/hours for no justifiable reason.

BTEI classes were given to other Irish tutors who were less qualified, less experience and have less service with the Respondent.

Additional BTEI classes introduced in 2016 and/or teaching hours/positions were not offered to the Complainant.

Work and achievements undermined.

A comment made to the Complainant on 27 September 2016 by the Respondent Director.

Maximum number of teaching hours.

Removal of classes in location B in 2015/16.

Shortfall in hours allocated in 2014/15 and 2015/16

Told to drive from location A at 1.30pm and start teaching a class in location B at 2.00pm

Attendance at Adult Literacy Tutor Training Course in April 2017

Assessment material taken out of tutor folder in 2015/16 and given to an Irish tutor and/or loss of assessment material in 2015/16

Working hours and timetabling of VTOS classes on Friday afternoons in 2015/16

Loss of pay for Locally Devised Assessment for BTEI Level 5 classes from 2016 to present

Allocation of 2 classes in 2013/14

Preliminary issues

The Respondent respectfully submits that the within complaints are statute barred by reason of having been referred outside the time limits provided for referral of a complaint under the Employment Equality Acts. It submits that the relevant time limits applicable to the within complaint are those provides for in section 77(5)(a) of the EEA: -

“Subject to paragraph (b), 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 occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

The complaint form, received by the WRC on 22 January 2019, details the most recent date of discrimination as having occurred on 27 September 2018. However, on review of the complaint specific details provided by the Complainant, the Respondent is unable to identify an act of discrimination alleged to have occurred on 27 September 2018 or indeed within the period of 6 months prior to the referral of the within complaint to the WRC and in this regard the Respondent refers to the dates provided by the Complainant in her complaint specific details.

The Respondent refers to the Complainant’s contract of employment and in particular the nature of her position and hours of work. The Complainant is employed with the Respondent as a tutor of IT for 666.30 hours per annum. It is further noted that the contract details a duty on the part of the Complainant to deliver whatever classes are assigned to the Complainant by the Respondent’s Board.

The Respondent respectfully submits that the Complainant has not demonstrated either in its complaint form or its submission to the WRC an act of discrimination alleged to have occurred within the period of 6 months prior to referral of the within complaint to the WRC.

Without prejudice to the foregoing, the Respondent further submits that there is no discriminatory act and or discriminatory term of the contract such as to bring the Complainant within the scope and application of section 77(6A) of the EEA which addresses situations of a single discriminatory act, regime, rule, or practice extending over a period of time and provides for treatment of such discrimination as having occurred at the end of the period. The Respondent respectfully submits that the Complainant’s assertion that her contract of employment is based on BTEI hours is misconceived. Classes/courses under the BTEI do not attach to any particular staff member and it is noted that the contract does not refer to BTEI hours and/or an entitlement to teach BTEI classes. BTEI classes and programmes are determined having regard to demand and curricular requirements in the FET service and approved funding.

The Respondent disputes that the Complainant has shown a discriminatory act/term and/or act of victimisation alleged to have occurred between 23 July 2018 and 22 January 2019 and, in such circumstances, it is submitted that the within complaint is referred out of time and therefore statute-barred.

Without prejudice to the foregoing and in the alternative

The Complainant claims discrimination on grounds of race and disability in conditions of employment, harassment and victimisation. It is denied that the Respondent discriminated against the Complainant on either ground or at all and/or harassed and/or victimised the Complainant.

The Respondent submits that the Complainant has not substantiated the claims of discrimination on any of the aforementioned grounds and in this regard refers to section 85A of the EEA on the necessity for the Complainant to establish a prima facie case of discrimination. In Southern Health board v Mitchell [2001] ELR 201, the Labour Court considered the requirements of a case of prima facie evidence as follows:

“The first requirement… is that 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 a claimant must prove on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court and they 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 is no infringement of the principle of equal treatment.”

In order to establish a prima facie case, the Complainant must satisfy the three stage test:

That the Complainant comes within a protected category pursuant to the EEA;

That there was specific treatment of the Complainant by the Respondent.

The treatment of the Complainant was less favourable than the treatment that was or would have been afforded to another person in similar circumstances.

The mere emphasis by the Complainant on her race, nationality, national origins and/or disability does not in any way discharge the prima facie burden that rests upon her in bringing this case. In Graham Anthony & Company Ltd v Margetts (EDA 038) the Labour Court further commented on the potential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established and stated as follows: -

“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 for discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

In Artur’s Valpeters v Melbury Development Limited (EDA 0917) the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:

“[T]he 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.

In this case, it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.”

The Respondent respectfully submits that the Complainant has failed to discharge this evidential burden and has failed to establish a prima facie case of discrimination and accordingly submits that her complaints should be rejected in their entirety. It is only if this initial prima facie burden is discharged and the WRC is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment under the EEA passes to the Respondent. If a Complainant does not discharge the initial probative burden required of him or her, his or her case cannot succeed, which, it is submitted, is what should be concluded in this case.

In this regard, the Respondent refers to employees who are of a different nationality/race and/or who do not have a disability who had a reduction/no BTEI classes assigned to them in 2015/16 and subsequently and to employees who had BTEI classes assigned to them in previous years but who did not have such classes assigned in 2015/16 and therefore did not fall within the scope of the national BTEI conversion process referred to herein.

In the event that the WRC were to find that the Complainant has met the prima facie case threshold, then the Respondent submits that it can more than adequately discharge the onus that would then be placed upon it to explain why the conduct in question was not discriminatory.

The Respondent submits that the complaint of victimisation is not well-founded. The Respondent refers to section 74(2) of the 1998 Act which provides that victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to:-

a complaint of discrimination made by the employee to the employer,

any proceedings by a complainant,

an employee having represented or otherwise supported a complainant,

the work of an employee having been compared with that of another employer for any of the purposes of this Act or any enactment repealed by this Act,

an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

In the first instance, the Respondent notes that the Complainant’s first reference to discrimination on grounds of nationality was at a meeting that took place under the Respondent’s grievance procedure on 24 October 2018.

The Respondent refers to the decision of the Labour Court in the Department of Defence and Barrett (EDA1017), 30 September 2010 wherein the Court summarised the three key ingredients that must exist for a complaint of victimisation to be sustained, namely that: -

the complainant must have taken an action that is “protected” under the legislation, such as a complaint of discrimination, legal proceedings related to discrimination or supporting another employee who has alleged discrimination;

the complainant must be subjected to adverse treatment, and

adverse treatment must be a reaction to the protected act having been taken.

It is submitted that there was no protected act within the meaning of section 74(2) of the 1998 Act in that the Complainant’s complaints could not reasonably be considered to relate to complaints of treatment less favourable on grounds of race and/or disability.

Whilst the Respondent denies it subjected the Complainant to any adverse treatment, it submits that the Complainant has not identified any alleged adverse treatment to which she has been subjected as a result of a protected act. In this regard, the Respondent notes that the matters complained of by the Complainant in the complaint specific details are alleged to have occurred on dates on or before 24 October 2018. In the circumstances, any alleged adverse treatment could not have occurred as a reaction to the matters set out above and in particular any complaint of discrimination made by the Complainant to the Respondent. It is respectfully submitted that a complaint of victimisation does not stand to reason.

The Respondent notes the complaint of harassment and submits that the Complainant has not submitted any detail in support of unwanted conduct related to the grounds of race and/or disability. Without prejudice to the foregoing, the Respondent relies on section 14(A)(2) of the EEA and refers to its Harassment/Sexual Harassment Prevention Policy which encompasses harassment within the meaning of the EEA and provides a complaints of harassment procedure for staff. The Respondent notes that the Complainant has not at any time prior to initiating the within complaints referred to alleged harassment or initiated the Respondent’s complaints procedures for dealing with same.

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 (COMPLAINTS 016-028)

The Complainant was granted a contract of indefinite duration by the Respondent, which she accepted in June 2014.

It is accepted that the Complainant made a complaint to the Labour Relations Commission in and around January 2014 regarding entitlement to a contract of indefinite duration, which was heard before a Rights Commissioner on 2 April 2014. The Respondent acknowledged the entitlement of the Complainant to a contract of indefinite duration, all claims were withdrawn by the Complainant at the hearing and the Rights Commissioner did not issue a decision in the case.

The Respondent disputes that the Complainant has suffered any unfavourable change in her conditions of employment/any unfair treatment or any other action prejudicial to her employment so as to ground a claim of penalisation pursuant to section 13 of the Protection of Employees (Fixed-Term Work) Act 2003 (the “2003 Act”).

Preliminary issue

The Respondent notes the statutory time limits set out in section 41(6) of the Workplace Relations Act 2015 and in particular that a complaint will not be entertained if it has been presented after the expiration of the 6 month period “beginning on the date of the contravention to which the complaint relates”.

The Respondent understands that the statutory time limit has been the subject of consideration and interpretation by the Courts and employment rights bodies. The Respondent relies in particular on the Labour Court’s approach in the case of The Institution of Engineers of Ireland v Richard Seaver (PWD 177), 24 March 2017, where it noted that the manner in which a complaint under the Payment of Wages Act 1991 Act was framed was critical for the purpose of determining whether the complaint has been presented within the relevant time limits.

The Respondent understands the complaint of penalisation to have its origins in: -

the reduction of BTEI classes on the Complainant’s timetable from 2015/16 onwards, and/or

the BTEI classes allocated to the Complainant in 2015/16, and/or

an alleged communication by the Director of Further Education and Training to the Complainant on 27 September 2016, and/or

BTEI classes allocated to other tutors in 2015 and/or 2016/17, and/or

the removal of location B classes from the Complainant and assignment of classes in location A in 2015/16, and/or

a shortfall in the Complainant’s annual hours of instruction in 2014/15 and 2015/16, and/or

allegedly being told in 2016/17 by the Director of Further Education and Training to drive from location A at 1.30pm and start teaching a class in location B at 2.00pm, and/or

allocation of VTOS classes on Friday afternoons in 2015/16, and/or

attendance on an Adult Literacy Tutor Training Course on five Saturdays in April 2017, and/or

loss of pay for Locally Devised Assessment for BTEI Level 5 classes from 2016 to present.

The Respondent refers to the dates of the alleged acts of penalisation and respectfully submits that the complaints of penalisation are statute barred as dates of alleged contravention refer to 2015/16 with the most recent alleged contravention alleged to have occurred in April 2017.

The Respondent notes that in the case of some of the alleged contraventions, the Complainant states from 2015/16 to present or onwards however the Respondent relies on the aforementioned decision of the Labour Court to submit that the six month time limit for presentation of a complaint starts running from the date of the alleged contravention.

Without prejudice to the foregoing, the Respondent submits that there was no unfavourable change in the Complainant’s conditions of employment or any other action prejudicial to her employment and further takes issue, that in the event of there being a finding that there was a change or action as aforesaid, which is denied, that same was as a result of the Complainant having invoked a right under the 2003 Act. In support of the Respondent’s submission on this point, the Respondent refers to the alleged contravention in the form of a shortfall in the Complainant’s annual hours of instruction in 2014/15 and notes that this was prior to a protected act within the meaning of section 13 of the 2003 Act.

INDUSTRIAL RELATIONS ACT 1969 (COMPLAINTS 029-045)

The Respondent notes that the Complainant has detailed bullying and harassment procedures as the industrial relations issue the subject of her referral of complaints pursuant to section 13 of the Industrial Relations Act 1969 (the “1969 Act”). However, on review of the complaint specific details in relation to the 1969 Act complaints, the Respondent submits that the complaint specific detail provided in complaints CA-00025197-029 to CA-00025197-043 is identical to those used to ground the Complainant’s complaints under the 1998 Act and 2003 Act. In the circumstances, the Respondent submits that it is misconceived and/or vexatious to categorise same as industrial relations issue relating to bullying and harassment procedures.

The Respondent notes that there is no reference by the Complainant to an industrial relations issue arising in connection with the bullying and harassment procedures at any point in the complaints referred at CA-00025197-029 to CA-00025197-043. The Respondent respectfully submits that the issues to which the Complainant refers at (029) to (043) are issues relating to hours or times of work and/or rates of pay and as such are not within the scope of the WRC’s jurisdiction pursuant to section 13 of the 1969 Act which provides: -

“ …

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

The Respondent respectfully requests a finding that the complaints (029) to (043) are statute barred under the 1969 Act.

In relation to the complaint details at CA-00025197-044, the Respondent notes that the matters referred to therein relate to matters alleged to have occurred in October 2013 and August 2014. It is further noted that the matters complained of were not raised by the Complainant at local level pursuant to the Respondent’s Bullying Prevention Policy – Complaint Procedure.

The Respondent submits that CA-00025197-045 is not a trade dispute and further that the Complainant does not have bona fide and/or legitimate complaints of bullying and harassment and it is respectfully submitted that this is expressly acknowledged by the Complainant herself in her email dated 19 December 2018 to the Respondent’s Chief Executive.

Conclusion

The Respondent disputes the Complainant’s claims in full and respectfully requests that they be rejected in their entirety and further submits that the Complainant is not entitled to any redress/the redress sought.

Findings and Conclusions:

The Complainant has made 45 complaints and these are summarised above.

Complaints numbered CA – 00025971 -001 to CA – 00025971 – 015 have been submitted under section 77 of the Employment Equality Act, 1998.

The Respondent made a very strong preliminary arguments in relation to these complaints, such arguments were as follows:

Having listened carefully at the hearing of the complaint and from reading the submissions very thoroughly I agree with arguments made by the Respondent with one exception, this being CA – 00025197 – 006. This complaint can be summarised as follows:

Whilst this complaint is not out of time, the Complainant should ask for an “updated” contract as mentioned by the Assistant Principle from Human Resources. The Complainant was not discriminated against.

The Complaints numbered CA – 00025197 – 001 to CA – 00025197 – 015 are out of time with the one exception listed above. The Complaints presented under the Employment Equality Act are out of time.

Complaints numbered CA – 00025197 – 016 to CA – 00025197 – 020 and complaints numbered CA – 00025197 – 022 to CA – 00025197 – 028 are submitted under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003.

I note that the Complainant was issued with a Contract of Indefinite Duration (CID) following a Rights Commissioner Hearing in April 2014. The Complainant is not a ‘Fixed – Term’ employee and therefore has no access to the provisions of this Act.

Complaints numbered CA – 00025197 – 016 to CA – 00025197 – 020 and complaints numbered CA – 00025197 – 022 to CA – 00025197 – 028 are not well – founded.

Complaint numbered CA – 00025197 -021 was submitted under section 16 of the Protection of Employees (Part-Time Work) Act, 2001. This is exactly the same complaint as CA – 00025197 – 032 which has been submitted under section 13 of the Industrial Relations At, 1969. I have decided that this is a parallel complaint and therefore the complaint as submitted under the Protection of Employees (Part – Time Work) Act, 2001 is not well-founded.

Complaints numbered CA – 00025197 – 029 to CA – 00025197 - 045 are submitted under section 13 of the Industrial Relations Act, 1969.

Representative for the Respondent has argued as follows:

Following scrutiny of the Industrial Relations complaints, I would comment as follows:

CA – 00025197 – 029 is identical to CA- 00025197 – 016

CA – 00025197 – 030 is identical to CA – 00025197 – 017

CA – 00025197 – 031 is identical to CA – 00025197 – 018

CA – 00025197 – 032 is identical to CA – 00025197 – 021

CA – 00025197 – 033 is identical to CA – 00025197 – 019

CA – 00025197 – 034 is identical to CA – 00025197 – 020

CA – 00025197 – 035 is identical to CA – 00025197 – 023 and CA – 00025197 – 008

CA – 00025197 – 036 is identical to CA – 00025197 – 010 and CA – 00025197 – 025

CA – 00025197 – 037 is identical to CA – 00025197 – 011 and CA – 00025197 – 027

CA – 00025197 – 038 is identical to CA – 00025197 – 013 and CA – 00025197 – 026

CA – 00025197 – 039 is identical to CA – 00025197 – 009

CA – 00025197 – 040 is identical to CA – 00025197 – 012

CA – 00025197 – 041 is identical to CA – 00025197 – 007 and CA – 00025197 – 022

CA – 00025197 – 042 is identical to CA – 00025197 – 014 and CA – 00025197 – 028

CA – 00025197 – 043 is identical to CA – 00025197 – 015

CA – 00025197 – 044 – This complaint dates back to 2013 / 2014.

CA – 00025197 – 045 – This complaint relates back to December 2018.

The Complainant has submitted the same complaints under the Employment Equality Act and the Industrial Relations Act. The Respondent opines that “In the circumstances, the Respondent submits that it is misconceived and/or vexatious to categorise same as industrial relations issue relating to bullying and harassment procedures”.

I tend to agree with the Respondent and believe the duplication of these complaints by the Complainant is misconceived.

At hearing the Respondent stated that an internal grievance process had commenced but had not been completed by the date of the hearing.

I now recommend that the parties complete the internal process in relation to the two outstanding industrial relations complaints. At hearing the Respondent voiced a willingness to complete the internal process.

The remaining claims as submitted under the Industrial Relations Act are not well founded and fail.

Decision:

Section 41 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 79 of the Employment Equality Acts, 1998 – 2015 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 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Dated: 17-08-2020

Workplace Relations Commission Adjudication Officer: Jim Dolan