Complainant

Respondent

Anonymised Parties

A community education outreach worker

An Education and Training Board

Representatives

None

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020438-001

04/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020438-002

04/07/2018

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

CA-00020438-003

04/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00020438-004

04/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00020438-005

04/07/2018

The complainant asserts that she was constructively dismissed as well as being subjected to less favourable treatment in contravention of the Employment Equality Act and the Pensions Act and her status as a part-time worker. She asserts that she was not provided with a statement of the terms of her employment. The respondent denies the complaints.

The complainant outlines that she did not receive a contract over the 10 years of her employment (the Terms of Employment (Information) complaint; she was constructively managed out of her position (the Unfair Dismissal complaint); she was discriminated against regarding pay and pension (Employment Equality Act and the Pensions Act) and less favourable treatment because she was a part-time employee (Protection of Employees (Part Time Work) Act. The complainant exhibits an advertisement placed by the respondent after her employment ended for a Community Education Outreach Worker (22.2 hours per week on a pro-rata salary of €19,583.08). The job description cites administration and delivering tuition. The complainant outlined that colleagues were provided with contracts and pension rights and were on incremental scales. The complainant said she had exhausted all grievance procedures and a senior manager refused to engage with her grievance. The respondent had implemented Circular 19/2018 regarding incremental credit for youthreach workers, but she was not informed of this. She was treated with disrespect and unfairly and this amounted to constructive dismissal. In the letter of resignation of the 22nd June 2018, the complainant outlined her deep regret of having to resign. She set out that she had sought for ten years to get a contract reflective of her role. She outlined that she availed of the appropriate channel, but, unlike others, she was not offered a contract with incremental pay increases, holiday and sick pay, and a gratuity for retirement. She outlined that the contract offered in January 2018 did not reflect her ten years of service, nor an incremental pay scale. She said that, unlike what she had been led to believe, she was not offered a contract similar to that offered to her outreach colleagues. She said that the respondent had not responded within the two weeks and that she had been constructively managed out of the organisation. The complainant said that she received the contract of indefinite duration in January 2018. She had been raising this issue since 2012 and approached all line managers including the CEO. She never received a contract beforehand. When the complainant started, she was given the document relating to her predecessor. She was on point 3 of the ‘Youthreach Resource Worker’ scale. There was no other scale for equivalent workers other than teachers, caretakers etc. Three others were employed in 2001 as adult literacy outreach workers, but they were all employed in the same role. They were divided into three areas and were part-time workers. The complainant cited a named female colleague as her comparator. The complainant outlined that she never received an increment since the day she started, including the in the period of a whole year and a month before the embargo. She was told that the three workers had a “local” arrangement, but they told her that a Circular in2001 aligned the salaries of outreach workers and they were immediately offered a contract. The complainant did not know which Circular this was. The complainant outlined that she started in 2008 but was not on the same increments or pay scale as others. She worked 21 hours per week, while the three others worked 28 hours per week. Technically, they all had the same hours and hosted events and met the community. She provided courses to the whole of the county she was assigned to and would also facilitate or tutor groups. She said that she worked on a lot of personal development but was never paid for the tutoring as she was only paid as an outreach worker. The complainant said that the respondent rolled back the Back to Education programmes in 2012 and employed project workers. They did not tutor and only did administrative work. The complainant facilitated this work, while the female comparator may have also done adult literacy. The complainant said that the respondent never paid her for her tutoring. She was only prepared to work three days per week and in 2012, the respondent engaged two extra outreach workers. They were called “key tutors” but the only difference was that they claimed €40.85 per hour, while she only received €17 per hour. The complainant explained that her role as Community Education Outreach Worker did not fit in anywhere. She got on very well with the two key tutors, even though they were paid more for the same work. The tutors were let go as they were approaching four years working, but one (a man) remained as a tutor. She did the outreach part of the role. The complainant named another comparator, a male. The complainant said that she did the outreach part of his job as well as the facilitating work. She took the middle of the county and dealt with all of the organisations. The male comparator did the very same role as her and was also part-time. He was employed in 2013. The complainant said that the Assistant Principal emailed in June 2018 to say that she was investigating the male comparator. The complainant outlined that she was told in 2015 that she was not entitled to a pension. The complainant outlined that the advertisement for her role referred to a salary of €49,000 per year, which is the highest point on the scale. She said that this suggested that the role was subject to an incremental scale. The correspondence at the time showed that she was appointed to a named colleague’s role. The complainant outlined that she resigned on the 22nd June 2018, giving a week’s notice. She received a response from the respondent in July 2018. The respondent’s reply was a ‘nice, compassionate’ letter but did not offer any means to address her complaints. She later received a reference from her line manager. The complainant said that she did not fit into the respondent organisation. She was not on an incremental scale. She said that she was then the only remaining outreach worker. The complainant outlined that the respondent changed the title on her pay slip, from ‘outreach worker’ to ‘project worker, point 1’. This was when she moved from submitting claims to payroll. The complainant said that she felt that the respondent was changing her role by giving her the project worker role. The complainant set out her grievance in a letter to the Adult Education Officer on the 21st March 2018. She then met the Adult Education Officer, and this was the first time she felt that someone was on her side. The complainant was informed that there were ongoing negotiations and that the complainant’s case and contract would be looked at. The complainant said that she had also heard this in 2015. The respondent did not give a time frame. On the 16th March, the Department launched a programme, but she was not aware of this at the time to address these issues. The complainant said that her colleagues received a letter in August to say that they would be paid incremental credit from December 2018. The complainant outlined that she was not informed of this by the respondent until after she resigned. The complainant outlined that the adult literacy outreach workers were on an incremental scale, but she was not. The complainant said that she should also have been on an incremental scale. The complainant said that the first time she was referred to a grievance procedure was when she saw the contract in January 2018. This said that you could not raise a grievance citing the salaries of others. The grievance policy required her to go to the HR department, but her problem was with the HR department. The complainant approached the CEO and believed that she had followed procedure. She did not recall anything being said at the March meeting regarding the Workplace Relations Commission. The complainant said that she had enough, even though there was a new CEO in place. The complainant said that she moved away at the end of July as her spouse was posted overseas. She was looking for work there and learning French. The complainant had stayed home to mind her mother, who sadly died at this time. She then decided to follow her husband overseas on his last posting. The complainant said that a colleague was also in a similar role, which was clerical, and she had received back pay. The complainant identified another member of staff, also in a clerical role, who was supplied with a contract and who received back pay.

In submissions, the respondent refuted the five complaints made by the complainant. It explained that the respondent was established on the 1st July 2013 following the amalgamation of two VECs into one ETB. The respondent set out that the two Community Education Facilitators employed Community Education Outreach Workers and Project Workers who are all employed on the same terms and conditions. The complainant was one of these. The respondent outlined that it, and not the Department of Education, set the terms, conditions and role profiles of these posts. The respondent outlined that the VEC had decided to pay these roles at point 3 of the ‘Youthreach Resource Worker’ scale. The role did not attract incremental credit but came under the ambit of the national public service pay agreements as well as the Public Service Pension and Sick Pay Entitlements Circular. The respondent outlined that several employees were in the same position as the complainant and it was conducting a review of their role profiles, salary, terms and conditions of employment. The respondent acknowledged the complainant’s excellent service and her positive contribution to community education. The respondent stated that the complainant was provided with the same terms and conditions as her predecessor in the role. In respect of the Terms of Employment (Information) claim, the respondent states that the complainant was not recruited through normal channels, i.e. via Human Resources, and was not provided with a contract of employment. The respondent referred to the letter of the 27th February 2008 setting out the basic terms of employment. It referred to an email chain of October 2017 providing clarity as to pay and hours of work. The respondent outlines that the complainant was not happy to sign the contract provided to her in January 2018. In March 2018, the Adult Education Officer explained to the complainant that there was no incremental pay attached to the Community Education Outreach Worker position, but this was subject to a review. In respect of the Terms of Employment (Information) complaint, the respondent submitted that no award was just and equitable as the complainant was aware of her terms and conditions throughout her employment. Further, she was supplied with a contract in January 2018 and the main issue of pay was under review. In respect of the claim of constructive dismissal, the respondent submitted that the complainant has not established either repudiation of her contract of employment or that it was reasonable for her to resign. It stated that the complainant was paid the same as other Community Education Outreach Workers and Project Workers. This was also under review and the complainant had the option of accessing the Human Resources Manager to work through queries. The respondent submitted that it operated within the terms of the contract of employment and there was no violation of these terms. It relied on Conway v Ulster Bank UD474/1981 to submit that nothing indicated that the employer no longer intended to be bound by the contract of employment. In respect of the reasonableness test, the respondent submitted that regard must be had to whether the employer acted so unreasonably as to render the employment intolerable and whether the complainant acted reasonably in resigning. It relied on McCormack v Dunnes Stores UD 1421/2008. It submitted that the respondent had acted reasonably in particular via the Community Education Facilitator. The respondent relied on Conway v Ulster Bank to say that the complainant must utilise and exhaust grievance procedures before taking the drastic step of resigning. The respondent outlined that the complainant did not avail of the grievance procedure, even though this was provided to her with the contract of employment in January 2018. In respect of the Employment Equality Act claim, the respondent states that the complainant has not referred to any one of the nine grounds to base her claim. In respect of the Pensions Act claim, the respondent states that the complainant has not specified a ground of discrimination. It submitted that public service workers were being granted access to the Education Sector Superannuation Scheme. The respondent stated that the complainant could have accessed the pension scheme and it was willing to explore this with the complainant. At the adjudication, the respondent indicated that it would revert with more information on this. The respondent stated that it was obliged to apply the pension levy to the complainant’s salary whether or not she was a beneficiary of the pension scheme. In respect of the Part-Time Work claim, the respondent states that the complainant referred to less favourable treatment in comparison with a named individual, who retired in 2016. The respondent submitted that the comparator was not a full-time employee and was employed in Adult Literacy and not Community Education. The comparator was required to be flexible in tutoring outside normal office hours. The comparator acquired third level qualifications in education enabling her to deliver courses. The comparator did outreach education work but also delivered and planned courses, including those leading to awards under the National Framework of Qualifications. The respondent submitted that the complainant’s role was to carry out needs assessments and plan with groups but did not require her to tutor. The respondent stated that this was confirmed with the Community Education Facilitator and from reviewing class registers. The respondent outlined that the nub of the issue in this case was the rate of pay which the complainant’s role attracted. It noted that there were many roles advertised by the respondent over the ten-year period which the complainant was welcome to apply for. The respondent stated that there was a review underway regarding the terms attached to the Community Education Outreach Worker post. The respondent outlined that the male comparator was hired as a tutor and has worked in this role for many years. He was allocated additional outreach hours on top of his tutoring hours. He had two contracts of employment.

Evidence of the Adult Education Officer

The Adult Education Officer said that she was aware of the March 2018 Circular, but this was for incremental credit for Youthreach Project Workers and not for community education roles. This only applied to Youthreach positions and those working in a youthreach setting and not in community education. The reference to youthreach in the letter of appointment was only for the purpose of identifying pay. She outlined that her letter of the 31st May 2018 followed the March meeting. She had worked in similar circumstances to the complainant. The Adult Education Officer acknowledged that the review was necessary and should be completed in early 2019. It is a review across the respondent and involves community education, adult literacy and Back to Education. 15 or 20 people were not on incremental scales. The Adult Education Officer outlined that she was disappointed that the complainant resigned. The complainant was an excellent worker and the Adult Education Officer would have no hesitation in recommending her. The line of communication was then with the line manager and with hindsight, the Adult Education Officer said that she could have contacted the complainant directly. The Adult Education Officer outlined that in May she followed up on the March meeting to say that the complainant’s role was not analogous to a Youthreach resource person. She said that she had discussed with the complainant taking this to the Workplace Relations Commission. She wanted to ensure that the complainant was aware of the avenues open to her. The Adult Education Officer described the meeting as being emotional.

Evidence of the Assistant Principal

The Assistant Principal said that she may mentioned the male comparator’s name, but the complainant had not mentioned his name. The Assistant Principal outlined that the complainant raised her contract on the 8th June and referred to being pushed out. The Assistant Principal assured the complainant that this was not the case. The respondent said that there are other workers who were not on incremental scales. It submitted that the tutoring role is different and follows national qualification and lesson plans. They are paid for class contact. It said that outreach workers did not perform this despite the reference to “tuition” in the job description. The respondent outlined that the complainant never submitted a grievance and the resignation was an unreasonable step to take. It submitted that the complainant could have raised her issues with the respondent CEO.

Relevant documentation

There was a great deal of documentation in this case and I have identified the following documents and correspondence as important in assessing this case. The letter of the 27th February 2008 from the Community Education Facilitator to the respondent CEO sets out that the complainant was to be employed from the 10th March 2008 as a ‘temporary replacement’ ‘until the recruitment negotiations for a more permanent Community Education Resource Worker are resolved’. The complainant exhibited her correspondence of March 2012 where she seeks clarification of her employment, given that she was four years in the role. In the letter of the 21st June 2012, the Community Education Facilitator asks the respondent whether the complainant is entitled to a contract of indefinite duration. The email of the 17th May 2012 sets out the rate of pay for existing tutors (€45), new tutors (€40.50) and outreach (€20.50). The email of the 4th December 2013 from the Assistant Principal indicated that the complainant’s hours would increase to 22 hours 12 minutes (22.2 hours per week) following the Haddington Road Agreement. It also stated that the complainant must demonstrate that she has worked these additional hours since the 1st July 2013. On the same date, the complainant asked for clarification as she had not received increments in the past. On the 25th September 2015, the Community Education Facilitator emailed the complainant and others to say that they are entitled to a CID but not increments and pension. An email of the 12th January 2017 asks ‘my understanding from conversations with [a named manager] last year is that it is intended that the complainant be put on salary. Can you confirm the time scale for this and whether I need to do anything further in this regard?’ Circular 0055/2014 referred to during the hearing provided ‘Revised salary scales and allowances for adult education guidance counsellors and coordinators, adult education guidance information counsellors, adult literacy organisers, community education facilitators, psychologists … and youthreach resource workers.’ This also provided for new entrants, per the Haddington Road agreement. There is no specific reference to the post of ‘community education outreach worker’. Circular 19/2018 awarded incremental credit to youthreach resource and youthreach coordinators. This refers to ongoing discussions regarding previous service not analogous with the youthreach role. Clause 3.2 allows for incremental credit to be allowed for service in other listed roles. In the email of the 6th November 2017, the Community Education Facilitator asks for information regarding the complainant’s duties. Following this, the complainant emails on the 8th November 2017 to state “I am submitting this letter in response to your request to have a contract drawn up for my Community Education Outreach position in [the respondent]. I have worked alongside my colleagues for the past 9.5 years without a contract. Most have enjoyed the benefits of a permanent contract with yearly increments, holidays, sick benefit and a gratuity on their retirement while I have struggled to have the HR Department formalise my position. Therefore I would like to have a contract drawn up taking into account my years of service with back dated incremental salary and holiday pay entitlements appropriate for my years of service.’ In an email of the 9th November 2017, the Assistant Principal asks the Community Education Facilitator ‘the duties include deliver tuition where appropriate. Is tuition delivered within the hours of the contract and at the outreach worker rate?’ The Community Education Facilitator confirms that this is the case. The Assistant Principal emailed the contract of indefinite duration to the complainant on the 16th January 2018. This immediately followed the complainant’s email where she asked for an update on her application of the 3rd November 2017. The contract of indefinite duration stated that the complainant’s employment commenced on the 4th September 2017. The contract sets out the general duties of the role, including to ‘deliver tuition where appropriate within the hours and salary of this contract.’ The contracts set out the annual rate of pay and that she was entitled to join the Superannuation Scheme. The grievance procedure clause states ‘From time to time, grievances caused by misunderstanding, disagreement or general dissatisfaction may occur among staff or between [the respondent] and its employees. Full recognition is given to the significance of personal grievances and it is our policy at [the respondent] that all grievances will be dealt with without undue delay and resolved at the earliest possible stage through the agreed Grievance Procedure for staff employed at ETBs, see attached.’ The ETB grievance procedure dated the 15th February 2016, and referred to in the contract of indefinite duration, excludes ‘matters relating to improvements in pay or existing terms and conditions of employment which are of general application, i.e. matters appropriate to the collective bargaining process’. On the 23rd August 2017, the respondent CEO wrote to the complainant, stating that from the 21st August 2017, the complainant would be paid fortnightly as salary. The letter states that the complainant was no longer required to submit weekly claim forms. In her email of the 26th September 2017, the complainant refers to having been put on salary since the 2nd September 2017 and that her pay slip refers to her being a ‘Project Worker 01’. She states that she was paid for 21 hours per week when she worked 22.2 hours. In her email of the 21st March 2018, the complainant seeks the ‘same entitlements as any youthreach resource worker/outreach worker’ as she was told to expect following her appointment in 2008. She states that she was devastated that the contract sent to her in January 2018 offered less security and less salary. The complainant asked several questions: regarding her position. On the 31st May 2018, the Adult Education Officer emailed the complainant to say ‘As discussed, I have discussed your queries with colleagues on the Senior Management Team. As a result, we have recognised the need to review the roles, responsibilities and terms and conditions of all resource and project worker posts across the scheme in further education. The review will commence shortly and will result, we hope, in the identification an application of an appropriate set of terms and conditions for all resource and project workers… In relation to your query regarding the Youthreach Resource Person post, I wish to confirm that such a post is only applicable in Youthreach and/or Community Training Centre settings and where the majority of the role includes direct class teaching; as such, your post is not considered to the Youthreach Resource Person post. We will be in touch shortly with all resource and project workers with a view to commencing the review.”

The complainant as a public servant

The complainant commenced working for the respondent in March 2008 and resigned on the 22nd June 2018, giving one week’s notice. Her annual rate of pay at the end of her employment was €19,389.19. The complainant’s pay was reduced by 5% on the 1st January 2010. This was the application to the complainant of section 2 of the Financial Emergency Measures in the Public Interest (no. 2) Act, 2009. This provision applies to ‘public servants’ who are ‘employed by, or who holds any office or other position in, a public service body’. Vocational Education Committees fall within the definition of ‘public service body’. The complainant’s weekly hours were extended following the application to her of the Haddington Road Agreement. The email of the 4th December 2013 indicates that the complainant’s hours would increase to 22 hours 12 and that she must demonstrate that she has worked these additional hours since the 1st July 2013. It should be noted that the Financial Emergency Measures in the Public Interest Act, 2015 introduced a 2.5% pay increase for public servants earning less than €24,000 per year. The increase was to have effect from the 1st January 2016. The Act also provided for an increase of €1,000 for public servants earning less than €65,000 per annum. This was to have effect on the 1st September 2017, although Circular 27/2017 indicates that this was to have effect from the 1st April 2017. The Circular sets out that employees who are part-time or on an hourly rate will be paid pro-rata. The complainant asserted that she was initially paid at point 3 of the youthreach resource worker scale and she should have progressed up the scale. The respondent asserts that the reference to a point on the scale was to set out the rate of pay, as opposed to designating an entitlement to progress through the scale. The respondent did not deem the complainant’s role to be an equivalent role in terms of progression. Over the course of her employment, the complainant or her line manager sought to have her employment regularised through a contract of indefinite duration or made ‘more permanent’, as outlined in the letter confirming her appointment. As set out at the adjudication, the complainant’s employment was subject to a review at the time her employment ended. The complainant’s evidence was that she was an outreach worker who also tutored and facilitated groups. This evidence is supplemented by the ‘Community Education Outreach Worker Plan’ exhibited by the complainant, which sets out that her areas of work included tuition of 2 – 5 hours per week, with 1/3 course time for preparation. Point 10 of the General Duties cites that the complainant should ‘Deliver tuition where appropriate’. There is an email exchange of the 9th November 2017 where the Community Education Facilitator confirms that the complainant ‘delivers tuition within the hours of the contract’. The contract sent to the complainant in early 2018 confirms that the role requires her to ‘deliver tuition where appropriate within the hours and salary of this contract.’ I note that the complainant also submitted time sheets in order to be paid. Taking account of the above, I find as fact that the complainant tutored for part of her role as per her evidence. Having assessed the oral evidence of the parties as well as the documentation (consisting of letters, emails, circulars and statutory provisions), I make the following findings:

·         The complainant was a public servant, as the 2009 Act and the Haddington Road Agreement were applied to her;

·         The letter of appointment refers to the complainant’s rate of pay according to a point on a salary scale, but she did not progress up the scale;

·         It is not clear why an employer would refer to a point on a scale where the employee was to be paid per an hourly rate; why not just state the hourly rate?

·         Unlike many public servants, including employees of the respondent, the complainant was not on incremental pay (I note the respondent states that there were other colleagues in this same position);

·         The complainant and her line manager raised her employment status over the course of a decade and the issue was not resolved;

·         The respondent indicated in 2017 that the complainant would be paid a set fortnightly rate and she no longer had to submit time sheets;

·         In early 2018, she was sent a contract of indefinite duration, but which set her date of commencement as a date in 2017 and not 2008.

CA-00020438-001

This is a complaint pursuant to the Terms of Employment (Information) Act. Section 3 requires the employer to provide to the employee a statement of the main terms of their employment. As the Act stood during the course of this employment, the statement shall be provided within two months of the employment’s commencement. Again, as the law stood during this employment, section 3 requires the employer to provide information regarding some 16 aspects of the employment. This includes information as to the date of commencement, any entitlement to paid sick leave or terms and conditions relating to pensions. Section 3(4) requires that the statement be signed by the employer. The Terms of Employment (Information) Act was commenced on the 16th May 1994; it is, therefore, a longstanding feature, and requirement, of Irish employment law. It is worth noting that the Terms of Employment (Information) Act transposed the Written Terms Directive (91/533/EEC). Article 2 provides that the employer is obliged to provide information regarding some 12 essential aspects of the employment. This includes the date of commencement and entitlements to paid leave. The Directive provides that this requirement can be met through a contract of employment, a letter of engagement or a combination of documents. Article 3(1) signals that the date of commencement is one essential aspect that can be addressed through such a combination of documents. This complaint was lodged with the Workplace Relations Commission on the 4th July 2018. The complainant’s employment started on the 10th March 2008 and ended on the 29th June 2018. The respondent refers to the letter of the 27th February 2008 from the Community Education Facilitator to the CEO as well as the email of the 3rd October 2017. There is also the draft contract of employment provided to the complainant in early 2018, which she did not accept. Complaints pursuant to the Terms of Employment (Information) Act are addressed within the ambit of section 41 of the Workplace Relations Act. This provides that a complainant has six months from the ‘date of contravention’ to submit a complaint, extendable to 12 months with reasonable cause. It is established through WRC adjudication decisions that a failure to provide the statement required by section 3 is a subsisting breach throughout the course of the employment, which ends when a statement is provided or the employment ends. This is the applicable ‘date of contravention’. Where there has been a longstanding breach, the six-month limitation period provided in section 41 commences when the appropriate statement was provided, or the employment ended. Assessing the evidence, the letter of the 27th February 2008 does not suffice as a statement. It is a letter from the line manager to the CEO and omits much of the required information. While the email of the 3rd October 2017 sets out an hourly rate, calculated from a pro rata annual salary, it omits the other information required by section 3. The draft contract provided in January 2018 states a date of commencement of the 4th September 2017, when it should read 10th March 2008. It is also not signed by or on behalf of the respondent. It follows from the above that the requirements of section 3 were not met during the course of the employment. Even looking at documents and emails together, it cannot be said that the complainant received the correct information required by section 3. The earlier documents fall short in many respects, and the draft contract states the wrong date of commencement (important in calculating service) and was not signed by the employer. I find that there has been a subsisting contravention during the course of the complainant’s employment. The relevant date of contravention is, therefore, the last day of her employment. It follows that the complaint is within time. In assessing redress, I note that as a statutory provision that transposes EU law, redress must be “effective, dissuasive and proportionate”. In this case, there was much uncertainty as to complainant’s terms and conditions. This should have been addressed by a comprehensive and accurate statement, provided within the required time period. I, therefore, award the complainant the equivalent of four week’s wages, i.e. €1,491.

CA-00020438-002

This is a complaint pursuant to the Unfair Dismissals Act. The complainant resigned on the 23rd June 2018. She referred to her long battle to gain recognition for her service and for ‘justice’. The respondent accepted the resignation and supplied the complainant with a positive reference.

Legal test

In a case of constructive dismissal, it falls on the employee to prove that the employer’s actions were such as to justify her resignation. Section 1(b) of the Unfair Dismissals Act states:

“dismissal”, in relation to an employee, means— …

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.” The classic formulation of the legal test in respect of constructive dismissal was set out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” A claimant must meet one or other of the tests but is not required to meet both. In Conway v Ulster Bank UD474/1981, the EAT concluded that, in respect of the contract test, while the employer “may have misused” the transfer facility provided by the contract, it had not demonstrated that it no longer intended to be bound by the contract of employment. The EAT also held that, in respect of the reasonableness test, the claimant must substantially engage the grievance procedure before resigning.

Application to this case

In assessing the evidence in this case, I note that the complainant was a longstanding and well-regarded employee of the respondent. While her appointment is described as ‘informal’, it is clear that it went through her line manager and the CEO. Over the ten years of her employment, she raised her status, including accessing an incremental scale. She submitted time sheets in order to be paid, although this practice ended in 2017. She then went on ‘salary’ and was paid every fortnight. The complainant’s pay was reduced in line with the FEMPI legislation of 2009 and her hours extended per the Haddington Road Agreement. As noted above, she is a public servant, who was on a fixed rate of pay and not on an incremental scale. It does not appear that she benefited from pay restoration in 2017 in line with the most recent FEMPI legislation and Circular 27/2017. I note that the role was advertised in 2018 at a higher rate than that paid to the complainant before her resignation. It is clear from the documentation that the complainant repeatedly raised her position with the respondent. The complainant’s line manager also made representations on her behalf. It is also true that she did not formally engage the grievance procedure. As stated by the complainant, I note that the grievance procedure explicitly excludes pay issues. I find that the complainant substantially utilised the appropriate lines of communication open to her. I note that the respondent confirmed that the position would remain as is, although it mentioned the pending review. Taking the evidence together, I find that the complainant has discharged the onus in showing that she was constructively dismissed. As set out in the opening part of these findings, I note that the complainant was effectively left behind in the human resource infrastructure of the respondent. Her pay was pinned to a scale, but she never progressed up that scale. She complained, but there was no substantial engagement with her position over the course of years. What was initially described as ‘temporary’ became the longstanding, de facto position. I appreciate that this took place against the background of multiple issues such as the public sector moratorium and the amalgamation into an ETB. I appreciate the evidence of the Adult Education Officer, but I must assess this over the years of the complainant’s employment and her raising these issues. The complainant raised her situation again in 2017 and 2018, and while she was informed of the review, this was not actioned during the time she was employed by the respondent. I note that pay restoration does not appear to have been applied to her. It follows from the above that the claim of unfair dismissal succeeds. The complainant is entitled to an award of compensation that is just and equitable in the circumstances, taking account of the financial loss arising from the dismissal. I note that the complainant joined her spouse at his posting overseas and sought employment there. Taking account of the evidence of mitigation and the loss incurred by the complainant, I award compensation of €8,500.

CA-00020438-003

This is a complaint pursuant to the Employment Equality Act. The complainant asserts that she did not receive equal pay. The complainant does not refer to any of the nine grounds; she cites the female comparator. During the adjudication, the complainant referred to a male comparator, a tutor. I invited the complainant to submit any additional information regarding the male comparator and the question of ‘like work’. Like work is defined in section 7 of the Employment Equality Act: ‘...in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if- (a) both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work (b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or (c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions.’ Section 19 provides that where A and B represent two people of the opposite sex that: ‘(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. (2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.’ The complainant outlined that she did the very same role as the male comparator. She took one part of the county and also did facilitative work. The respondent outlined that the male comparator had two contracts of employment and was allocated additional outreach hours on top of his tutoring hours. As noted above, the complainant initially cited a different comparator, a woman but without referring to any of the nine of the discriminatory grounds. During the hearing, the complainant referred to the gender ground and a male colleague, who was a tutor. I invited the complainant to submit any additional evidence she wished regarding this comparator. I have read through the lever arch file and the other documentation. This does not indicate that the complainant and the male comparator did like work or that there was a contravention with regard to equal pay. It follows that this complaint does not succeed.

CA-00020438-004

This is a complaint pursuant to the Pensions Act. The complainant asserts that she was discriminated against her in relation to access to a pension scheme. At the adjudication, the respondent indicated that it would put a proposal to the complainant regarding this issue. The Pensions Act requires equal treatment between men and women in access to occupational pension schemes. The complainant said that she was not part of the respondent pension scheme. I have outlined above that she was a public servant. Having considered the evidence submitted before, during and after, the adjudication, I find that there is insufficient evidence to find that how the complainant was treated was a discriminatory act and a breach of the principle of equal treatment. I note that I do not have sufficiently detailed information regarding any comparator or to show that the complainant was less favourably treated relating to her gender or any other discriminatory ground. The claim, therefore, does not succeed.

CA-00020438-005

This is a complaint pursuant to the Protection of Employees (Part Time Work) Act. The complainant asserts that she was less favourably treated than a comparable full-time employee. I find that the complainant has not established that how she was treated was because of her status as a part-time employee. One comparator she cited was also part-time. I have found that the complainant was ‘left behind’ but I find that this was not related to her status as a part time employee. It follows that the complaint is not well-founded.

CA-00020438-001

I decide that the complaint of a breach of the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €1,491.

CA-00020438-002

For the reasons set out above, I decide that the complainant was unfairly dismissed and that the respondent shall pay to the complainant just and equitable compensation of €8,500.

CA-00020438-003

I decide that the complainant has not established that there was discriminatory treatment in respect of equal pay or a contravention of the Employment Equality Act.

CA-00020438-004

I decide that the complainant has not established that there was discriminatory treatment in contravention of the Pensions Act.

CA-00020438-005

I decide that the complaint pursuant to the Protection of Employees (Part Time Work) Act is not well founded.

Public servant / terms of employment / combination of documents / limitation period / constructive dismissal / reasonableness test / terms of grievance procedure