Complainant

Respondent

Anonymised Parties

A College Counsellor

An Education Institution

Representatives

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00032919-001

11/12/2019

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

CA-00033466-001

02/01/2020

The following is a summary of the Complainant’s case

The Complainant said that on 29 September 2014, she attended an interview with the College principal Mr A, for a position of College counsellor, and was notified on the 7 October 2014, that it had been ratified by the Board of Management and she started in the College on 9 October 2014. Her role was to work with students who were deemed in need of counselling.

She said that each session was held in the College, the time of the sessions were set by the College principal to fit with the College time table. At the end of each month, the Complainant said that she would invoice the College the agreed rate per session. She claims that she did not receive a written contract / statement of terms stating her hours or agreed rate of payment. She said that she was in-fact not aware of such a document until the hearing. The only written contract she said that she received from the College was on 22 September 2016, for additional hours for counselling of parents of students attending the College. She said that she saw these parents in the College premises. After one year she was asked to include hours for Post Leaving Cert students attending the College on PLC courses.

In relation to the unfair dismissal complaint, she said she had worked as a College counsellor since 2014 with continuous service for 5 years. On 4 June 2019, she received a text message from the Mr. A, which said "… the ad for the counselling hours is up on education post .ie under ... Can you please apply." She said that she was surprised with this text, but she followed his instruction and applied for her own job.

On 2 July 2019, she received an email from Mr. B from HR inviting her to attend an interview. On 4 July 2019, the Complainant telephoned Mr B to clarify details on the interview where she was informed that there was "no competencies written for that interview" and it would be a technical based interview. She was interviewed on 9 July.

She said that she received a letter on 15 July 2019, with a contract to provide 3 hours a week for 10 weeks delivering counselling to a group of parents of College students she worked with. She said that this was the 3rd year receiving these PAYE hours which began on 22 September 2016. On 17 July 2019 as she had not received any information regarding the outcome of the interview, she emailed the Respondent inquiring as to the results. She said that she received an email back stating that regrettably she had not been successful and had come 3rd on the panel. She said that she was extremely upset and disappointed at this result however she accepted that someone more qualified with more experience got her job.

On 30 September 2019 the Complainant having heard from a colleague that the first person on the panel had turned down the position following the interview, her hopes of her old job were reignited. She emailed Mr. B reminding him that she was still on the panel for the counselling position and requested feedback regarding the interview. Mr. B advised her to obtain feedback from the Principal as he had sat on the interview board. The Complainant said in the meantime she was organising the work in relation to the adult counselling group in the College.

On 15 October 2019 the College re-advertised the position of Guidance Counsellor with additional hours from 11hrs to 22hrs and a special interest in personal counselling, also chair the pastoral care committee and attend associated meetings; and to work closely with the behavioural learning teacher. The Complainant said that all these duties, with the exception of chairing the pastoral care committee, was the job she did for 5 years.

On 16 October 2019 the Complainant said that she rang Mr. B to inquire about the panel and he told her that the panel was dissolved, and the post was being advertised again with extra hours.

On 24 October 2019 she said that she received an email inviting her to interview for 30 October 2019. On 31 October 2019, the Complainant said that she received an email stating she had not been successful. She said that she returned an email requesting feedback, scoring and the questions set used for the interview, and on 1 November 2019 she received a score sheet. On 11 November 2019, she requested information from Mr B regarding the interview and to confirm when she would find out the results and the panel. He responded later that day to say that the interview board did not create a panel and that he had sent a reminder to the board members requesting it to be in contact directly with her. On 28 November 2019 she contacted HR to say she had not received any follow up about the interview. She noticed that on the same day the same position of Guidance Counsellor was re-advertised for the 3rd time on educationposts.ie. The advert stated this was a re-advertisement. In the additional information about the post the position had the following notice added, "Essential: Qualifications in accordance with Memo V7 of the Department of Education & Skills", and the post has changed from "pro-rata to fixed term".

The Complainant said that she tried to login into her online account in relation to vacancies in order to apply and she was rerouted to her 2nd application which told her she has already applied for this post. She rang the Respondent and had her account reactivated.

On 13 December 2019, the Complainant was invited to attend a meeting in the College with the Principal, where he informed her that there was insufficient applicants to warrant an interview to be held for the College’s Guidance Counsellor role, and he offered her a substitute teacher role, based on her prior two interviews for role of Guidance Counsellor providing counselling to students (she said that was the same role which she had being undertaking up until Sept 2019) and he provided her with a new employee information pack.

On 16 December 2019, she sought clarification from the Respondent as to why she was not offered the opportunity to interview for the post. She asked whether there was a policy document for minimum applications before interviews will take place. She said that om 20 December she received an email from the Respondent stating that there were no applications from suitably qualified candidates, namely with Teaching Council registration for post-primary teaching and recognised qualifications in guidance counselling. Therefore, they were not proceeding with interviews. She said that she was informed that having taken the decision that it would be unfair to interview again as she could not be offered a contract (fixed term) for the post advertised other than a casual unqualified substitute contract without interview. The Complainant said that this was an entirely different arrangement. The Complainant said that she is of the opinion that the post she had undertaken for the last five years had been regraded or reclassified and this has put her at an unfair disadvantage and is discriminatory.

The following is a summary of the Respondent’s case.

The Respondent said that the Complainant commenced a working relationship with it in October 2014 where she provided counselling services to students, in a College, by way of contract for service. The Respondent said that arrangement changed in the academic year when the Complainant also commenced as a substitute unqualified part time teacher in the role of Guidance Counsellor. Finally, the Respondent said the Complainant began work under a contract of service in the academic year 2015/2016 as a tutor with the respondent on a contract of services basis, which remains in place to this day.

The Respondent said that in October 2014 the Complainant began providing counselling services for students within the College. These student sessions were as required, and she invoiced the College on a monthly basis. The Respondent said that the Complainant is registered with the Teaching Council under the category “Further Education”. She runs further education programs for the Respondent.

The Respondent said that an advertisement was placed for the College for a Guidance Counsellor (pro rata teacher contract) in June 2019. The Complainant applied for the post and was placed third on the panel. The position was not filled and was re advertised in October 2019, where the previous panel had dissolved. She applied again but was not successful and not panelled. As the position was not filled, it was advertised a third time in November 2019 and as there was no qualified applicants, no interviews were held.

The Respondent said since it could not fill the role, the Complainant was offered a temporary contract on the basis as an unqualified teacher in order to provide some of the services of a guidance Counsellor and that arrangement commenced in January 2020.

The Respondent said that for a qualified permanent contract of employment teacher position the holder must meet the requirements as set out in Memo V7 of the Department of Education and Skills. It said that the Respondent is not allowed to circumvent that requirement. The Respondent said that the post that the Complainant is referring to requires this qualification and she does not qualify, which it said she does not dispute.

The Respondent said that to be clear the Complainant had two working relationships with the College. The first as a counsellor which ran from October 2014 to June 2019 and it was provided on a contract for service basis, where the Complainant invoiced the College on a monthly basis. The Respondent said that following unsuccessful attempts to recruit a suitably qualified pro rata Guidance Counsellor teacher the Complainant was offered and accepted a part time unqualified substitute teacher contract and she is currently working more hours than ever before.

The Respondent said that the Complainant held a contract of service as a substitute teacher from 2017/2018 and currently holds a contract of service, no dismissal took place.The Respondent said that as the Complainant does not hold the required qualifications, she can only be employed on a substitute teacher basis or a contract for service basis.

The second working relationship is the further education program as a tutor which began in 2015 with 30 hours per academic year and it continues to this day. There has been no dismissal. The Respondent said that she is currently working more hours than she has ever in the past and has suffered no loss.

In relation to the Employment Equality Act complaint, the Respondent said that it is well established in law that the burden of proof is with the Complainant to establish facts from which it can be inferred that she was treated less favourably than another based on the discriminatory ground. The Respondent cited the decision in Margretts v Graham Anthony & Company Limited [2003] EDA038, Southern Health Board v Michell [2001] DEE011ELR 201 and Melbury Development v Arthurs Valpetters EDA0917 in support of that principal. The Respondent claims that the Complainant has not reached that standard.

The Respondent said that the Complainant alleged that she was discriminated against by reason of gender in not getting a job, in promotion and conditions as per Section 6(1)(a) and Section 6(2)(a) of the Act. However, the advertisements for the Guidance Counsellor post (in June, October and December) that she applied for contained an “essential requirement” for the successful candidate namely, “Qualifications in accordance with Memo V.7 of the Department of Equation & Skills”. That means that the successful candidate must be a qualified post primary teacher and must hold the approved qualification set out for a Guidance teacher. The Respondent said unfortunately the Complainant is not a qualified post primary teacher nor does she hold the specified educational requirements deemed as the “essential requirements” for the post. The Respondent said that is the reason she was not considered for the post.

The Respondent also deems that as the Complainant’s case is based on gender discrimination, she would have to show that her comparator is a male jobholder who also has not met the criteria but was offered and had taken the job. The Respondent said that comparator does not exit.

The Respondent said notwithstanding the submission above, the Complainant’s case under the Unfair Dismissals Act is out of time. It said based on her own evidence she was dismissed as of 4 June 2019 whereas the Complaint was not lodged with the WRC until 11 December 2019, thus outside the six-month period.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The Respondent said that the Workplace Relations Commission has no jurisdiction to hear the complaint as the Complainant lodged the complaint outside the permitted 6-month period from the date of the alleged dismissal, which it disputes.

I note that the first question that I must address therefore is whether I have jurisdiction to investigate the case under the Unfair Dismissals Acts, 1977 – 2015. I note that the time period in relation to my jurisdiction is set out under Section 41(6) and Section (8) of the Workplace Relations Act 2015, which provides as follows;

“(6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates.

...

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

I have considered carefully the submissions of the parties. I note the Complainant’s case that the 4 June 2019 was the date she was informed that she should apply for the job she had been doing for a number of years and that is the date that she realised that her job was gone. However, in cross examination she said that she had finished up much earlier in May 2019. The Complainant’s only defence on lodging her complaint outside of the six-month period is that she sought advice on what to do and decided to file a complaint with the WRC while simultaneously lodging a complaint with SCOPE within the Department of Employment Affairs and Social Protection, which took her some time to do.

It is evident the employment status of the Complainant was a matter of some dispute between the parties. The Complainant did not provide any services to the Respondent after May 2019. She accepts that the invitation to apply for her interview for, what she claims is her own position, was dismissal. The Respondent said that there was no dismissal; she currently holds two employment contracts with it. It said that the counselling services she had previously provided for the Respondent was on a contract for service basis. However, by her own account her claim is out of time. I find the applicable time period for making a complaint of unfair dismissal by the Complainant is six months beginning on the date of contravention to which the complaint commenced. The complaint was lodged with the WRC on 11 December 2019 and six months previously is the 10 July 2019. I have no case made out or evidence presented to extend the time period for reasonable cause as per Section 41(8) of the Workplace Relations Act 2015. I note the evidence that she was not employed with the Respondent at that time.

The complaint is out of time and accordingly I find therefore that the Complainant has not been unfairly dismissed.

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 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

The Relevant Law

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(a) of the Acts defines the discriminatory ground where one is a woman and the other is a man (in this Act referred to as “the gender ground”). The Complainant has cited the successful candidate on the two occasions as her comparator.

It is noted that in Section 8 of the Employment Equality Act 1998 - the employer shall not discriminate against an employee or prospective employee in relation to access to employment.

There is no doubt that if the Complainant had interviewed for the same job three times and had made the panel three times and the panel had placed her comparator, who was male, on the top of the panel but failed to take up the position and then she was not offered the job as next on the panel and if no reason was given then she would clearly have established a prima facie case of discrimination. The burden of proof would shift on to the Respondent to adduce evidence to show that, when viewed in their proper context, the facts relied upon do not support the inference of discrimination raised by the Complainant.

I note that the Respondent’s evidence must also be considered in establishing if the Complainant has met the burden of proof. To this regard I note the Labour Court decision in the case of Dyflin Publications Limited v. Ivana Spasic, EDA 823, where it stated,

“the Court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

It is an uncontested fact that the advertisement for the post in all three occasions has an “essential requirement of - Qualifications in accordance with Memo V.7 of the Department of Education & Skills”. It is an uncontested fact that the Complainant did not have the qualifications, and therefore could not be offered the position of Guidance Counsellor as was advertised by the Respondent.

I therefore must determine that the Complainant has not established a prima facie case that she was not offered the post on the basis of her gender as she alleges. I cannot find that the Respondent has behaved unlawfully or otherwise discriminated against the Complainant.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complaint is out of time and accordingly I find it is not well founded.

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.

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that the Complainant has failed to establish a prima facie case of direct discrimination on grounds of gender in terms of Section 6(2). Accordingly, her complaint fails.