Complainant

Respondent

Anonymised Parties

A Worker

A Third Level College

Representatives

Aine Kilfeather Kilfeather Keyes Solicitors

Terry Mac Namara IBEC North West

Act

Complaint/Dispute 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-00026081-001

06/02/2019

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

CA-00026081-002

06/02/2019

In her complaint form which was received by the WRC on the 6.02.2019 the claimant alleges as follows:

Application for 8.5 days Annual Leave was refused in September 2018. I followed the AL procedure for non-academic staff and gave the required notice of 1 month, I gave 3 months’ notice. There is no stipulation in the AL procedure that leave cannot be taken in September or any month of the year. It states "to facilitate planning and ensure that the operational needs of the Institute are met AL requests of greater than 5 days should be processed/requested through CORE ESS to the appropriate Head of Function or their nominee for approval ideally 1 month before proposed leave". My T&C of employment were changed when I was the only non-academic staff of the college to receive an email requesting me to take the majority of my leave in future during the month of July and August which again is not in the AL procedure and still remains in place.

I made every effort to resolve this but because of no communication from Management I was left with no alternative but to invoke the Grievance Procedure within the employment. This also broke my conditions of employment as they did not seek to resolve this matter as quickly as they should/could have. Instead they broke their own procedure by not following it and allowed for stage 1 to take place 18 working days later instead of 6 days and would not move to stage 2 at my request. They also broke my terms of employment by removing me from the payroll at the request of Mr. R. By doing so they broke my service with the respondent. They continued to break my terms and conditions of employment as they ceased to pay me while I was still on certified sick leave for work related stress caused by all of this. They also ceased to pay my mid month payment for which I had a contract even though I had returned to work. They gave no prior notice or warning of their intention to do this. They also offered that I move from my work place to another area school on my return to work, even though this was never about me moving employment, nor did I ever say that I wanted to move, but about the refusal of my annual leave. For what reason was this offered I am at a loss to know after 21 years working in the same area was it that I questioned the refusal of my annual leave?

I was singled out when I received an email on 22nd June 2018@ 9.38am that no other employee of the college received. "To take the majority of my Annual leave outside of term time particularly during the month of July and August". No other non-academic staff of this college received this email and this still remains in place. I am the only staff member who is subjected to these conditions and it is not in the AL Procedure. My Annual leave was refused when there was nothing special taking place other than the day to day running of the College. This has never happened before in the college if the procedure was followed and adequate notice was given when requesting leave. I was discriminated against when no cover could be provided for my leave as is the custom and practice in the college, and yet any other staff going on leave across the college cover was provided for them which I also provided all Summer for others in my area including management were on leave. I covered for staff and was asked to cover for staff in 2018. Why was I different to other staff   received Annual Leave of more than two weeks outside of the months of July and August and continue to do so. No explanation came forward for my refusal. A decision was made and no discussion took place. After stage 1 meeting the 7 reasons I did get after invoking the Grievance procedure 5 of these were not pertaining to me and my job. It was an ordinary two weeks at the office. People were going on holidays all around me and I was not allowed to take mine. Another staff member working in an Admin role in my office was allowed three weeks + leave the same time I requested my leave. I was told she was "different". They have discriminated me by putting a wall around me that I am "the Different One" and also that I am the one to blame. They have undermined my commitment and dedication to the School after 21 years. They have discriminated against me by questioning my judgement after working in the School for 21 years that I would leave the School at a busy time, they did this by inferring that I was running away from something. They have made me feel like a criminal and all I did was ask for my Annual Leave.

On the 24.06.2019 the claimant responded as follows to the employer’s defence of the complaint:

Employer’s Defence

Preliminary Point on Time Limits

The complainant submitted their complaint form on 06 February 2019 citing the most recent date of discrimination as being 22 June 2018. This is outside the required date of submission within six months as laid down in paragraph 41(6) of the Workplace relations Act 2015 which would have ended on 21 December 2018. The complainant was asked by the WRC to provide evidence to support a case for presenting her complaint after the expiration period of 6 months. The complainant made a submission in response indicating that "all of the delays were by management". Which is grossly inaccurate.

Claimant’s Response:

From the 22 June 2018 - 06 February 2019 = total of 155 working days in the college. 31 working weeks. The 21st December was the date that was cited as the actual close of the 6 month application duration for complainant to submit claim to WRC. 22 June 2018 – 21st December 2018 = total of 130 working days or 26 working weeks.

So a) 155 working days as opposed to 130 working days or

b) 31 weeks as oppose to 26 weeks

= difference of 25 working days or 5 weeks

To Simplify this:

College was closed for 6 working days from 23rd December -1st January (incl.) for Christmas and the New year. So this leaves 19 working days in excess of the 6 months. 6 days which was no fault of mine

2) Also the HR Manager was not available until the 7th January (another 4 working days later) due to taking additional annual leave. But I would like to draw your attention to the email I sent Mr R on the 21st December informing him that I wish to move to Stage 4 of the Grievance procedure. This was within the time frame of six months.

**Refer to (a) email 21st Dec to Mr R, Mr O and Ms O B requesting to move to

stage 4 of the internal procedure (b) email to Mr. R on the 2nd January requesting / advice on moving to stage 4 (c) email from Mr R informing me he that it was not his job to inform of this advice.

Mr Rs response to this came on the 8th January an additional 1 day after his return, see email (c) for Mr Rs response. Please also note email (a) and email (b) trying to get to the final stages of presenting this grievance to the WRC.

Until the final email from Mr R 9th January 2019 @11:47, I was unaware that I was taking a case against the college, I believed and was led to believe that I was following an internal college Procedure.

So from the hearing with Mr R, Mr O M and Ms O B on the 14th Dec until 9th January I was not aware I was taking a case against IT Sligo. All I was doing was following IT Sligo’s internal Grievance procedure. At no stage was I made aware that this was no longer an internal process.

All correspondence until then went through the HR Manager Mr R and I continued to do this, see email on the 21st Dec and again on the 2nd Jan 2019. No where does it clearly state that it is the complainant who must now move the case to the WRC.

8.9 Stage 4

• If the matter remains unresolved to the satisfaction of the party invoking

the procedure, the employee or the Union on behalf of the employee will

have the option of referring the matter to the Labour Relations

Commission/Rights Commissioner Service/Conciliation service of the Labour

Relations Commission or an alternative agreed third party as soon as

practicable.

It does not say that the employee must make the direct contact with the Workplace Relations Commission. This would be unknown to you unless you were involved in a similar situation. This is also the first mention of the Labour relations Commission/Rights Commission in the internal Grievance procedure. I followed the internal Grievance Procedure of the college.

So while I awaited guidance this was pertinent to the delay in moving to the final stage 4 of the process.

3) However lets go back to the initial application, when the Grievance was submitted on the 2nd July and no hearing took place until the 25th July 2018 (18 working days later) instead of 6 days as per the Grievance procedure of the college. A meeting will normally be held within six working days of the Grievance Procedure having been invoked.

So No 1=6days No 2= 4, No 3 =18 days equals a total of 28 working days delayed by management at the start and finish of this process. Not to mention other delays during the process.

Employer’s Defence

The complainant applied for a period of annual leave in June 2018 for September 2018.The Administration manager did not approve the leave due to the busy period of the department in September with students returning to college. On 02 July 2018 the complainant invoked the grievance process and her complaint was heard at Stage 1 by Dr JB on 25 July. Dr B did not uphold the grievance and the complainant was offered to escalate the grievance to stage 2.

By letter of 02 August 2018, the complainant stated that she would not be proceeding to stage 2 of the procedure and would not be attending the meeting as arranged. At this stage the complainant could have issued her complaint to the WRC and it would have been in compliance with the requirements of 41(6) of the Workplace Relations Act 2015.

Response:

On emails to Mr. R on the 4th July 17:12 as management were unable to fulfil the requirement of Stage 1 of the Grievance procedure I requested Mr R to move to stage 2, which he refused on the 5th July at 9.03.

I would like to refer you to the grievance procedure::8.6 stage 1: If the matter is not resolved at the meeting or fails to be resolved or progressed to the satisfaction of the individual employee the matter may be referred to a Stage 2 meeting by the employee or the union on behalf of the employee within six working days of management's response or Stage 2 may be formally invoked immediately and subsequently confirmed in writing.

Dr B did not uphold the grievance and the complainant was offered to escalate the grievance o stage 2.

This I agree and invoked stage 2 of the internal procedure. I received a response to my request from Mr. R assistant acting on behalf of TR on the 1st August 2018 offering stage 2 for Friday the 3rd August at 11 am.

Employer’s Defence

By letter of 02 August 2018, the complainant stated that she would not be proceeding to stage 2 of the procedure and would not be attending the meeting as arranged.

Claimant’s Response

This is correct. The reason for this was given in a detailed letter to the HR Department that I was not offered stage 2 that in fact I was being offered Stage 3 of the Grievance procedure and not only were the college not operating within their own procedure but they were in breach of proceedings as they were not following their own procedures. I could not attend a grievance hearing that was not I n line with proceedings. See below:

8.7 Stage 2

• A meeting will be held involving the employee, the Union representative/s or work colleague and appropriate Senior Line Manager, a representative from HR and the individual’s line manager as appropriate. Management will ensure that their representatives include at least one member who is fully familiar with the issue(s) concerned. The claimant outlined the identity of the attendees at the meeting. She asserted that the management representatives had” no involvement with me or my work and knew nothing about either me or my work load”.

This was not stage 2 it was stage 3. I could not follow what was not legally right hence the reason for my decline.

Employer’s Defence

At this stage the complainant could have issued her complaint to the WRC and it would have been in compliance with the requirements of 41(6) of the Workplace Relations Act 2015.

Claimant’s Response

At no stage was I informed of this, nor is it in the internal Grievance procedure, which I followed, that you can go directly to the WRC after any stage. Is it not correct to try and resolve all issues internally and without fuss before reverting to the WRC for external resolution. In my mind the ultimate aim of all of this was to settle this internally as quickly and as amicable as possible.

Employer’s Defence

However, the complaint did not submit her complaint to the WRC and decided to reinitiate her grievance at stage 2 on 08 November 2018, a full 3 months later.

Response

A number of issues followed after I said I was not moving to stage 3 (Which should have been stage 2) after the respondent did not follow their own procedure.

How could I have moved to stage 2 when I wasn’t offered this? To add to this, another incident happened after this decision, namely another employee working in the same office space was granted three weeks annual leave during the same time as I had requested leave. This led to another level in this process. I was forced to take sick leave on work related stress from 31st August 2018 until 9th November, 10 weeks of sick leave brought on by the actions of the respondent.

During this time, I met with Mr. R in his office, at my request to again to try and resolve the issue. However this did not happen. Following on from this meeting with Mr. R on the 7th November I received an email @16: 47 form HR asking did I wish to move to the STAGE 2 of the Grievance Procedure which he had originally messed up. Mr. R never offered this in the meeting of the 23rd of October. Hence the reason for the delay of three months. I was never offer to go to stage two before this, accepting this offer to go to stage 2 was the best and only way to resolve this so I accepted. So this delay was by management.

Employer’s Defence

I draw the Adjudicator's attention to paragraph 41(6) of the Workplace relations Acts 2015 which states: -

"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 the contravention to which the complaint relates".

Section 8 of the Act further clarifies that "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".

The Labour Court's jurisprudence is conveniently summarised in Salesforce.com v

Ali Leech EDA1615 wherein the Court stated:

"The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338

Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following

terms: -

It is the Court's view that in considering if reasonable cause exists, it is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.

Hence there must be a causal link between the circumstances cited and the delay and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarge for 'good reason' in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily

on the decision of the High Court in Donal O'Donnell and Catherine O'Donnell v Dun Laoghaire

Corporation [1991] ILRM 30. Here Costello J. stated as follows:

The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely.

However, in considering whether or not there are good reasons for extending the time I think it is clear that

the test must be an objective one and the court should not extend the time merely because an aggrieved

plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff

has to show (and I think the onus under 0. 84 r. 21 is on the plaintiff) is that there are reasons

which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the applicant for an extension of time to

identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for

the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be     and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings."

The respondent submits that no such 'reasonable cause' exists and no application was made in conjunction

with the initial submission received by the WRC on 06 February

2019.

Response

In answer to the above, this is a case of two cases, the first being

1)      Following college procedure which I followed and invoked the grievance procedure, Stage 1 this was delayed for the length of time as explained above because of management and refusal by management to move to stage 2 even though I requested this.

2)      Subsequently, Failure of management to follow their own procedure and not affording me the complainant to move to Stage 2 until 3 months later because I was not offered Stage two before this or was I ever offered Stage 2 until the 7th Nov 2018. This I pointed out to management by email on the 2nd August and still I wasn’t offered to move to stage 2 until 7th November. This also points to the of 3 months delay by management.

3)      3) When I was offered Stage 2 on the 7th November I accepted this straight away. So it was management ill handling of their own procedure that delayed the process completely.

Employer’s Defense

I refer to the Complainant's complaint forms which were received by your offices on 06February 2019 relating to allegations of Discrimination on grounds of Age and discriminatory treatment under the Employment Equality Acts 1998 to 2015.

The complaint form CA-00026081-002 states that the Complainant had been "discriminated against on the grounds of age" by the respondent. Given the nature of the Complainant's complaint under the Employment Equality Acts, the Complainant is obliged to "set out the facts, the link between the ground(s) cited and the alleged discrimination, any other relevant information and, where appropriate, any legal points the complainant may wish to make." In line with the Commission's procedures into the investigation and adjudication of employment and equality complaints the Complainant is now required to supply a written statement setting out such details.

Response

This is due to the fact that I am a member of staff in the College who has great experience due to my 21 years’ service to the School of Science. I also no longer require to take leave during the school holiday months of June, July and August. I do prefer to take holidays outside of the busy holiday period. This I have done for quite a number of years now. In my earlier years when I commenced working in the college I took holidays in September for a number of reasons i.e. cheaper, the weather was more manageable and my child was not school going age. In the middle years of my working career I did take holidays during the school holidays as my requirements were different. Now, I am in a position to afford the time to go outside of the busy holiday period. My age puts me in the over 55 bracket and bargains for holidays /hotels comes outside of the bus holiday months. I have been directly discriminated here because we have an Annual Leave policy that applies to all non-academic staff with no limitations on when to take leave. Due to the email I alone received from Ms C that in future I am to take my leave during the months of July and August I I am now being disadvantaged. This has put me alone disadvantaged in my age bracket because the School have now introduced their own annual leave policy for me only outside of Institute policy.

For example: I am the only person to have received that email to take my holidays during the month of July and August. There is no other non-academic staff in this  situation. All other staff can take their holidays when they require them and cover will be provided in their area for them. This has always been the custom and practice for all non-academic staff in the college and it was also my custom and practice for the last 23 years.

Employer’s Defense

In order for the Respondent to supply any statement in defence of this instant complaint, we will require further information on the details of said complaint. Upon receipt of a statement from the Complainant, the Respondent will be in a position to make a more detailed submission in response.

However, if this material is not provided well in advance of any future hearing date the Respondent will be prejudiced and will rely on this correspondence to advise the WRC appointed Adjudicator of same

The respondent submits that until we receive a more detailed submission from the Complainant

considering the particulars above, we are not able to respond to these complaints fully.

3.5 Section 6 of the Employment Equality Acts 1998 to 2015 reads: -

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall

be taken to occur where--

(a) 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) (in this Act referred to as the

'discriminatory grounds') which-

(i) exists,

(ii) existed but no longer exists, (iii) may exist in the

future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person-

(i) is treated, by virtue of that association, less favourably than a person who is not so associated

is, has been or would be treated in a comparable

situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by

virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for

the purposes of this Act) are- ...

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age

ground").

Response

With reference to the above I would like the college HR department i.e. Mr R to prove that no other non-academic staff got holidays outside of June, July and August. I would also ask him to prove to me with evidence that the email I received with limitations to my holidays was also given to all other non-academic staff.

I was the only person refused Annual leave of two weeks in the College this summer and to the best of my knowledge ever. It has been unheard of as the Annual leave procedure for non-academic staff has no limitation. This is a clear case of being treated less favourable than your colleagues. People were going on holidays all around me throughout the year. Even staff that were involved in audits, were away when the auditors were on site and yet I can’t be done without for two weeks when all other staff can have two weeks, three weeks in some cases, when they request it. Other staff can work outside of the college for months on end even though they are involved in managerial decisions. Others can work from home even when their area is extremely busy and their presence would be required at that time. On the other hand I can’t leave for two weeks. Why am I so important to the college and only a grade 4. Is it the fact that through my years of experience and commitment that I can be relied upon for all crises. Previously people have got a month off to go to Australia in the middle of the Academic year and this was not a problem. This has been the custom and practice of the college i.e. to work and support one another but this was not to happen in the School for 2018.

Employer’s Defence

The complainant alleges that the refusal to grant 2 weeks annual leave in September was an act of discrimination on the grounds of age. It is the respondent's argument that the complainant has not provided primary facts in her submission, in relation to the grounds claimed, on which to proceed with a viable complaint. The established practice is to expect that the complainant will in the first instance succeed in transferring the burden of proof to the respondent by presenting primary facts on the grounds claimed. The complainant has not done so and has therefore failed to establish a prima facie case to be heard.

Response

In granting leave to the other office member for 3 weeks, a week longer than my request, during the same time requested by me, despite the fact that they were only new to their position and were not a permanent member of staff made me feel humiliate, very offended and degraded. Why was a younger member of staff chosen before me to be granted holidays, this made me feel so bad, I felt that I wasn’t a valued member of staff and this showed lack of respect for me at my age. Also my length of service to the School was immaterial.

Experience, dedication and commitment were all dismissed for the younger member of staff. Was it a case that I could be treated this way because I was so long in the School and I was not going anywhere i.e. no promotion available now was it a case of just accept it or retire. I felt at this stage of my working career in the college for to treat me like this at my age was only saying one thing I.e things were only going down hill from here. It was totally unsatisfactory and made me feel dispirited and unwanted, and dare I say “sit there" like a young child were the vibes I was receiving. After all I had given 21 years of dedicated service to the college and they had picked a much younger, newer member of staff to grant Annual leave over me was not easy to comprehend. This made me feel rejected, distressed and I felt belittled and useless. Can I also add, this also made the other member of staff uncomfortable as Ms. C called to her “to enjoy her holidays”.

Employer’s Defence

Essentially, this is an Industrial Relations complaint in that the complainant was not granted annual leave at a time of her choosing in what she submits was a breach of procedures This decision was made more than one month from the date the leave was sought and was therefore in compliance with the requirements of Section 20 of the Organisation of Working Time Act 1997, Circular 0009/2014 Revised Annual Leave arrangements for staff employed by the respondent other than lecturing staff and College Annual Leave Policy, HR 001-035.

Response

The only reason that I was informed, that I was not allowed to take leave in September a month in advance was because I was being the good citizen and applied for my leave well in advance. I did this for two reasons

a) so the School were aware of my intentions and b) so that if another member was planning to take leave during the month of September that they would know when I was taking my leave. Otherwise I would not have been notified that the Annual leave procedure had changed. The above happened because I applied for leave three months in advance. However, they do not refer to the fact that this was a change in Policy of the Annual leave Procedure where it does not state as I was directed “to take my leave during the Month of July and August”. Good practice would be to inform staff before they request leave if we have a busy period coming up and we are required to be there. I never received any such notice.

Employer’s Defence

The Employment Equality Acts 1998 to 2015 prohibits direct and indirect discrimination on the grounds of age. In a departure from earlier Directives on sex discrimination, the comparator can be actual or hypothetical, as the complainant can by virtue of art.(2)(2)(a) argue that he or she has been treated less favourably than another would have been if in a comparable situation. In the complainant's submission, the only relevant reference alluding to discriminatory treatment on the grounds of age is contained in the submission made by the complainant on 18 February 2019. In this document the complainant alleges that “I am discriminate because of my age as I now wish to holiday outside of July and August which is for

younger members of society". This does not create a link between the Institutes decision not to grant the complainant annual leave in September with the complainant's age. The complainant has stated her preference to take annual leave in September and that this period of leave was not granted. As with all

grounds of discrimination, there is a shifting burden of proof applied in age discrimination complaints. This means that where in any proceedings facts are established by a complainant raising a presumption of discrimination, the burden of proof shifts to the respondent to prove the contrary. The mere fact of the complainant not being granted annual leave in September and being of a different age to a person granted annual leave for that period does not establish a prima facie case. The business reason for the non-granting of leave was clearly set out at the earliest stage to the complainant who did not accept this and was clearly

of a view that she should be granted leave at any period of her choosing regardless of business needs of the department / school.

Response

This is totally untrue. I have been discriminated against in relation to other staff in the Institute as they have got their leave throughout the year and I have not. This is the time of year for my age I like to take my holidays. I am not looking for any lively holidays, all I am looking for is peace and rest. I have always taken my holidays t this time in the last 15 to 20 years because it more relaxing and also the price is more affordable to me. The weather at this time of year is also a mitigating fact, due to my age I am unable to stand the strong rays of sun during the hottter time of June, July and August. We also have no school going kids we can opt to go at this time.

All other non-academic staff in the college has been granted leave at their request. By her own admission, the Admin manager said “I have never refused holidays before” nor has anybody else. The flexibility for admin staff is that they can take holidays at any time of the year. But I again add that we are all responsible adults and I in particular have worked in the same School for 21 + years, I take offence to the fact that you are claiming “I said that I should be granted leave whenever I wanted”. I have never ever in all my working life in the college ever expected or demanded this. I have always gone on leave in the less busier times, yes when it suited me but I also made sure that the business needs of the college were first and foremost met. I truly take huge offence to this argument. I am more than a responsible person and I have given my life and total commitment to the college even sometimes before my family life. I equally as well gave my own time outside of working hours to issues which were dedicated to the staff and college wellbeing i.e. social club events which I organized for the entire College, School of events which I was the main organizer and retirement parties where I was the single organizer.

I would like in this instance for the School to give me an example or the college of a time when I walked away from the Institute /School when it was busy or when I was required. I would also like them to reflect on how often I organised events for the college or the School with no monetary or time off for this. I was always, always here. So what points to the fact that I was now 22 years on and deciding to walk a way from the college’s needs. What were theses needs this September? I was unaware that I was needed or was going to be needed. I am a grade 4 member of staff.

Employer’s Defence

The complainant also alleges that "/ have been discriminated by being instructed to operate under a different annual leave rules than all other non-academic staff of the respondent ". This assertion again is

unfounded. All granting of annual leave is contingent upon Section 20 of the Organisation of Working Time Act 1997Sec 20(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject

(a) to the employer taking into account-

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual/eave or, as the case may be, the portion thereof concerned is due to commence, and (c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

Response

I have an email instructing me (me alone) to take my annual leave during the month of July and August and no other staff member has this to my knowledge. I am fully aware that leave will be being granted at the discretion of the employer. But the policy and precedence of the respondent is that leave could be taken when required as long as there was enough cover available in the area. There was no limitation to this leave. Bearing this in mind other staff have been granted leave when they were required and equally when they were involved in a process and their skills were more than needed. I however have never eluded work in the college. If I was needed I was there. Nobody has given me one reason why I was needed so much at this particular time.

Employer’s Defence

The Respondent submits that a notional comparator of a younger employee would have been treated no differently to the complainant in these circumstances. The Respondent submits that the complainant had failed to establish a prima facie case of discrimination on grounds of age contrary to the Employment Equality Acts, 1998 to 2015 and her complaint must be rejected in its entirety.

Response

A younger employer was in her own Department, not to mention outside of the Department treated more favourable than me. They were afforded three weeks leave from the School of Science others outside of the School were also given two weeks, three weeks leave outside of June, July and August. I ask the Institute to prove this was not the case. I ask them to prove that this was a single instance of Annual leave refusal by the Institute. Their request for leave was during the same time when I was refused. “If all hands on deck were needed” why was the younger member of staff granted leave after a short time in employment in the School before an older member of staff. All grounds being equal I was there to cover admin/management leave so why was nobody there to cover for me. This was s precedence set by the respondent. So I was not treated like all other non staff of IT Sligo, I was treated unequal to my colleagues. Also at the end of the holiday leave year, because I was not granted leave when I wanted to take leave i.e September I was informed by HR that I had to use up my leave in March. Despite my senior manager Mr B and Ms C saying it was ok to carry these days into the new working year Mr R refused this request and I was then forced to take 6 days leave in what for me was one of the busiest time of the year. At this time of 2019 or

any other year I would never ask for leave as I know I am needed due to the work load. But Mr R insisted ironically that I take my leave immaterial of the fact that it was an extremely busy time of year.

At the second hearing the claimant contended that it was a matter for HR to prove that no other non-academic member of staff got holidays outside of June, July and August. She asserted she was the sole recipient of an email directing her to take her leave at restricted times – she submitted the school had introduced their own annual leave policy for her only. She submitted that all other staff can take leave when they want and that cover would be provided for them. The claimant said she was victimised because she applied in advance for her leave. She contended that the annual leave tables submitted by the college were insufficient and that the information should have been provided across the entire population of admin grades and for a 10 year period.

The claimant rejected the respondent’s assertion that the comparator had only one contract and did not accept that the comparator was from the academic stream given the number of hours the comparator worked in the college.

The claimant asked for an opportunity to comment on the respondent’s analysis of the annual leave profiles and responded as follows:

The claimant argued that insufficient annual leave profiles were presented (10.9%) and asserted that they should have covered the entirety of the last 10 years. She also argued that comparing schools was inappropriate on the basis that all admin staff operate under the same regulations and procedures , that admin staff are constantly moving across schools .She submitted that the respondent’s figures support her contention that September is the 3rd.biggest month percentage wise for staff to take leave , that she was one of those people who wanted holidays when it was still warm and pleasant and “ would have appealed to an older age group with no school going children”. She submitted that she was aware of 2 staff members who moved to the schools and “had their leave in September for longer than I needed approved by the previous line manager”. She further submitted that the respondent’s statistics support her contention that holidays are taken throughout the year and that there are no set months. She submitted that greater restrictions were imposed on her than any other staff member and that “ the right to chose was lost for me on June 18th.”

The claimant disputed that the respondent was facilitating planning of annual leave and advanced that there was no planning – it was just straight outright refusal.

The claimant submitted that in accordance with natural justice and equality all admin staff should have been issued with the email furnished to her on the 2nd.June 2018.

The claimant challenged Mr. R’s decision to “cut me off from the payroll when I was still on certified leave” and set out her account of a chronology of the various exchanges between her and Mr. R at that time.

Preliminary Point on Time Limits

The complainant submitted their complaint form on 06 February 2019 citing the most recent date of discrimination as being 22 June 2018. This is outside the required date of submission within six months as laid down in paragraph 41(6) of the Workplace Relations Act 2015 which would have ended on 21 December 2018. The complainant was asked by the WRC to provide evidence to support a case for presenting her complaint after the expiration period of 6 months. The complainant made a submission in response indicating that “all of the delays were by management”. Which is grossly inaccurate.

The complainant applied for a period of annual leave in June 2018 for September 2018. The Administration manager did not approve the leave due to the busy period of the department in September with students returning to college. On 02 July 2018 the complainant invoked the grievance process and her complaint was heard at Stage 1by Dr. B on 25 July. Dr B. did not uphold the grievance and the complainant was offered to escalate the grievance to stage 2. By letter of 02 August 2018, the complainant stated that she would not be proceeding to stage 2 of the procedure and would not be attending the meeting as arranged. At his stage the complainant could have issued her complaint to the WRC and it would have been in compliance with the requirements of 41(6) of the Workplace Relations Act 2015.

However, the complaint did not submit her complaint to the WRC and decided to reinitiate her grievance at stage 2 on 08 November 2018, a full 3 months later.

I draw the Adjudicator’s attention to paragraph 41(6) of the Workplace relations Act 2015 which states: -

“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 the contravention to which the complaint relates”.

Section 8 of the Act further clarifies that “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”.

The Labour Court’s jurisprudence is conveniently summarised in Salesforce.com v

Alli Leech EDA1615 wherein the Court stated:

“The established test for deciding if an extension should be granted for reasonable

cause shown is that formulated by this Court in Labour Court Determination DWT0338

Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.

Here the test was set out in the following terms: -

It is the Court's view that in considering if reasonable cause exists, it is for the

complainant to show that there are reasons which both explain the delay and afford anexcuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay andthe complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarge for ‘good reason’ in judicial review proceedings pursuant to Order84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to becorrect by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v

Carroll draws heavily on the decision of the High Court in Donal O’Donnell and

Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J.mstated as follows:

The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the applicant for an

extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented that may undermine a claim that those factors were the actual cause of the delay.

Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above,a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of

proceedings.”

The respondent submits that no such ‘reasonable cause’ exists and no application was made in conjunction with the initial submission received by the WRC on 06 February 2019.

Complainant’s Submission

I refer to the Complainant’s complaint forms which were received by your offices on 06February 2019 relating to allegations of Discrimination on grounds of Age and discriminatory treatment under the Employment Equality Acts 1998 to 2015.

The complaint form CA-00026081-002 states that the Complainant had been

“discriminated against on the grounds of age” by the respondent. Given the nature of the Complainant’s complaint under the Employment Equality Acts, the Complainant is obliged to “set out the facts, the link between the ground(s) cited and the allegeddiscrimination, any other relevant information and, where appropriate, any legal pointsthe complainant may wish to make.” In line with the Commission’s procedures into the investigation and adjudication of employment and equality complaints the Complainant is now required to supply a written statement setting out such details.

In order for the Respondent to supply any statement in defence of this instant

complaint, we will require further information on the details of said complaint. Upon

receipt of a statement from the Complainant, the Respondent will be in a position to make a more detailed submission in response. However, if this material is not

provided well in advance of any future hearing date the Respondent will be prejudiced and will rely on this correspondence to advise the WRC appointed Adjudicator of same.

The respondent submits that until we receive a more detailed submission from the Complainant considering the particulars above, we are not able to respond to these complaints fully.

Section 6 of the Employment Equality Acts 1998 to 2015 reads: -

(1) For the purposes of this Act and without prejudice to its provisions relating to

discrimination occurring in particular circumstances discrimination shall

be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who

is not so associated is, has been or would be treated in a comparable

situation, and

(ii) similar treatment of that other person on any of the discriminatory

grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are— …

(f) that they are of different ages, but subject to subsection (3) (in this Act referred

to as “the age ground”).

The complainant alleges that the refusal to grant 2 weeks annual leave in September was an act of discrimination on the grounds of age. It is the respondent’s argument that the complainant has not provided primary facts in her submission, in relation to the grounds claimed, on which to proceed with a viable complaint. The established practice is to expect that the complainant will in the first instance succeed in transferring the burden of proof to the respondent by presenting primary facts on the grounds claimed.

The complainant has not done so and has therefore failed to establish a prima facie case to be heard.

Essentially, this is an Industrial Relations complaint in that the complainant was not granted annual leave at a time of her choosing in what she submits was a breach of procedures This decision was made more than one month from the date the leave was sought and was therefore in compliance with the requirements of Section 20 of the Organisation of Working Time Act 1997, Circular 0009/2014 Revised Annual Leave arrangements for staff employed by such colleges other than lecturing staff and the respondent’s Annual Leave Policy, HR 001-035.

The Employment Equality Acts 1998 to 2015 prohibits direct and indirect discrimination n the grounds of age. In a departure from earlier Directives on sex discrimination, the comparator can be actual or hypothetical, as the complainant can by virtue of art.(2)(2)(a) argue that he or she has been treated less favourably than another would have been if in a comparable situation. In the complainant’s submission, the only relevant reference alluding to discriminatory treatment on the grounds of age is contained in the submission made by the complainant on 18 February 2019. In this document the complainant alleges that “I am discriminate because of my age as I nowwish to holiday outside of July and August which is for younger members of society”.

This does not create a link between the employer’s decision not to grant the complainant annual leave in September with the complainant’s age. The complainant has stated her preference to take annual leave in September and that this period of leave was not granted. As with all grounds of discrimination, there is a shifting burden of proof applied in age discrimination complaints. This means that where in any proceedings facts are established by a complainant raising a presumption of discrimination, the burden of proof shifts to the respondent to prove the contrary. The mere fact of the complainant not being granted annual leave in September and being of a different age to a person granted annual leave for that period does not establish a prima facie case. The business reason for the non-granting of leave was clearly set out at the earliest stage to the complainant who did not accept this and was clearly of a view that she should be granted

leave at any period of her choosing regardless of business needs of the department of Science.

The complainant also alleges that “I have been discriminated by being instructed to operate under a different annual leave rules than all other non-academic staff of the college”. This assertion again is unfounded. All granting of annual leave is contingentupon Section 20 of the Organisation of Working Time Act 1997

Sec 20(1) The times at which annual leave is granted to an employee shall be

determined by his or her employer having regard to work requirements and subject

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of

which he or she is a member, not later than 1 month before the day on which

the annual leave or, as the case may be, the portion thereof concerned is due

to commence, and

(c) to the leave being granted within the leave year to which it relates or, with the

consent of the employee, within the 6 months thereafter.

The Respondent submits that a notional comparator of a younger employee would have been treated no differently to the complainant in these circumstances. The Respondent submits that the complainant had failed to establish a prima facie case of discrimination on grounds of age contrary to the Employment Equality Acts, 1998 to 2015 and her complaint must be rejected in its entirety.

At the second hearing the respondent submitted it was normal practise for the respondent not to backfill positions during annual leave cover and rejected the claimant’s assertion that she was denied cover unlike her colleagues. It was submitted that the claimant did the right thing when she applied for annual leave, that it wasn’t granted and that could not be construed as victimisation. It was contended that the claimant was pursuing an industrial relations complaint and wrongly classifying it as an equality complaint. It was submitted that the claimant had failed to present a prima facie case of discriminatory treatment on age grounds and that the fact that a younger colleague was approved for annual leave did not meet the threshold of “prima facie”. It was submitted that the claimant’s comparator was not an appropriate comparator as she was not from the admin pool and was engaged on different terms and conditions of employment to the claimant. She was on a .5 academic contract. It was submitted that it was unreasonable to expect the college to produce annual leave statistics across the entire administrative stream and that the statistics produced and submitted across the schools for a 3 year period supported the respondent’s contention that the claimant’s case was unsupported by evidence.

It was submitted that the college statistics that were furnished to the WRC demonstrated that over a 3 year period 86% of annual leave for periods of 5 days or more occurred in the 3rd quarter, with 75% occurring in July /August, 36% in August and 10% in September.

It was submitted that the claimant’s complaint was an industrial relations complaint about not receiving annual leave approval at a time of her choosing and that no prima facie case of discriminatory treatment on age grounds had been presented. It was contended that the decision not to grant the leave at the time sought had nothing to do with the claimant’s age.

I find that the complainant has failed to establish that she was discriminated against on the age ground contrary to the terms of the Employment Equality Acts.

Terms of Employment (Information) Act 1994

Summary of Complainant’s Case:

Summary of Respondent’s Case:

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 7(2) of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Preliminary Matter of Jurisdiction

The respondent has submitted that the complaint is out of time as it was not received by the WRC until the 6th Feb. 2019 – over 7 months from the time she alleges the respondent failed to notify her of a change to her terms of employment. In her complaint form, the claimant identifies the 22nd.June 2018 as “the most recent date of discrimination” and apparently the date upon which she believes she should have been notified of alleged changes to her terms and conditions of employment. I have considered all of the evidence presented by the parties with respect to time limits as well as voluminous submissions on the matter and find that there was reasonable cause for the delay in making the complaint on the following basis:

During this period the claimant was on extended sick leave owing to stress related illness – in all she was absent from work from the 31st.August 2018 and did not return until the 9th Nov. 2018. For the majority of this period the claimant was not represented. While I acknowledge there were delays in the processing of the claimant’s grievances and I accept that both parties contributed to the delay , the greater onus rested with the respondent to ensure the time limits set out in the respondent’s grievance procedure were complied with. Additionally, I find no evidence of compliance with the following provision in the grievance procedure was advanced by the respondent “Time limits laid down for Stages 2,3 and 4 under the Formal Procedure may be extended only by mutual agreement of the parties concerned”. From the claimant’s perspective her grievances crystalized when her comparator was facilitated with 3 weeks leave in September 2018.The complaint form completed by the claimant is not a prescribed form. For all of the foregoing reasons I am accepting that there was reasonable cause for the delay in making the complaint and accordingly I deem the complaint to be in time.

Section 5 of the Terms of Employment (Information) Act 1994 specifies

While I acknowledge the claimant’s grievances with respect to her alleged removal from the payroll, this does not constitute a breach of the above Section. I find no evidence was advanced by the claimant to ground a complaint of failure to notify a change to her terms and conditions of employment in circumstances where the respondent was observing their own leave procedures and acting in accordance with the provisions of the Organisation of Working Time Act 1997.

Accordingly, I find these complaints were not well founded.

Age related discrimination