Complainant

Respondent

Parties

Ross  Mc Morrow

Institute Of Technology, Sligo

Representatives

  Self represented

Terry MacNamara Ibec

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-00039478-002

31/08/2020

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

CA-00039478-004

31/08/2020

The Complainant seeks formalisation of his duties and role which he has taken on since 2013.  He also contends that the Respondent has discriminated against him.

In 2009 the Complainant was taken on as a Mechatronics Technician on an EU funded

project. The project related to the delivery of Online practical classes over the internet. This project consisted of a 4 person team: a Project Coordinator, a Development Engineer, a Mechatronics Technician and an IT Technician. In 2013 the project finished up. In order to keep the development going it was decided that the fulltime Mechatronics Technician post (with Development Engineer duties) and 0.5 of the IT Technician post would be retained. The Mechatronics position was posted in the Engineering department and the IT position was posted to the IT department. In the first month of this new arrangement it was noticed that the IT duties were not being fulfilled. After 6 months of a standoff it was decided that the Complainant, as the Mechatronics Technician would also take on the IT Technician duties. Since 2013 his post has consisted of Development Engineer, Mechatronics Technician and IT Technician duties. This hybrid post and the duties that span 3 areas has never been formalized. The Complainant considers these his established duties since he has been doing them for 7 years. Since 2013 he has worked extremely hard in this unofficial post. He has written and won awards for IT Sligo, He has designed and implemented new online practical class material and he has helped provide courses online that were previously impossible. In recent times he has noticed that the unofficial nature of his post has led to a number of issues and he is being negatively affected because of this.   His complaint is since 2013 he has been doing duties that exceed the role of his contract.

In relation to his complaint under the Employment Equality Act, the narrative is essentially the same, with the addition that the Complainant contends that he has been discriminated against on the grounds of disability, having dyslexia.

The Respondent argues that the issues put before the hearing for adjudication consist of the same set of facts put before the Labour Court and which the Court ruled against the Complainant in LCR22389 issued on 7th April 2021, where the Court stated:

“The Court has no means of assessing the validity of the Worker’s assertion, which is disputed by the Employer, that his work warrants upgrading to Senior Technical Officer nor, as sought by the Worker in the alternative, is the Court in a position to dictate to the Employer what duties are proper to be assigned to him.

The court notes that these matters are subject to collective bargaining and, in particular, that there is a comprehensive agreement in place regarding the filling of posts in the institute.  Any variations to that agreement are matters for the parties to it.  For the above reasons, the court cannot recommend concession of the worker’s claim.”

This claim was taken by the Complainant under Section 20 (1) of the Industrial Relations Act 1969.        A key issue here is that the Complainant is seeking to remedy under 3 different Acts by way of parallel duplicate proceedings for matters and issues all arising from the same set of facts and circumstances.    The Respondent does not agree that the Complainant’s current role as Technical Officer should be regraded as Senior Technical Officer on the basis of the duties and responsibilities he is currently carrying out.  The Complainant’s contract of employment is compliant with Section 3 of the Terms of Employment (Information) Act 1994 and no changes that require notification in writing as per Section 5 took place.  The Respondent further argues that as the complaints were received on 31st August 2020, the cognisable time period would therefore be from 29th February 2020 to 31st August 2020.  In relation to both complaints, the matters are clearly out of time.  The issues concerning the Complainant’s contract of employment go back to well before then, for example in relation to his allegations around change of duties, the matter goes back to March 2019, when the Senior Technical Officer came back from career break.  In relation to the Complainant’s complaint of discrimination, the Respondent was never informed of any disability suffered by the Complainant.  It is argued that the Complainant has failed to establish a prima facie case from which the inference of discrimination could be drawn.    The Complainant is a valued employee.  It is argued that he has failed to establish any link with the issues he raised and discrimination/disability.

CA-00039478-002   Terms of Employment (Information) Act 1994

Section 5 of the Act provides that whenever a change is made in any of the particulars of employment, the employer shall notify the employee in writing of the nature and date of the change not later than one month after the change has taken place.  In this case, the evidence given by the Complainant is that changes in his duties have occurred variously in 2013 and in 2019.

Section 41 (6) of the Workplace Relations Act 2015 provides that an adjudication officer shall not entertain a complaint referred after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.  Section 41 (8) provides that an adjudication officer may entertain a complaint after the expiration of the period referred to in subsection (6) but not later than 6 months after such expiration, where failure to present the complaint was due to reasonable cause. 

In this instant case, the Complainant stated in his complaint form “I was not notified in writing of a change to my terms of employment”.  He also seeks his post to be ‘formalised’ and the duties that ‘exceed the standard role’ of his contract to be taken into account.  He seeks to be regraded as Specialist Senior Technical Officer.  Aside for the fact that (a) the Terms of Employment (Information) Act 1994 was never intended to be a vehicle for a Complainant to seek regrading of his or her job and (b) the Labour Court has already adjudicated on his claim, the complaint has been submitted some 7 years after the alleged changes and is therefore in accordance with Section 41 of the Workplace Relations Act out of time.  I find the complaint therefore to be not well founded. 

CA-00039478-004   Employment Equality Act 1998

Essentially the complaints and matters raised by the Complainant refer to his long running dispute with the Employer to have his position regraded.  In this instant case, he has submitted a complaint that he was discriminated against, firstly he selected eight grounds of alleged discrimination and in the hearing confirmed that his complaint is on one ground, disability.

The applicable law

Section 6 (1) of the Act states:

“(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..

Section 6 (2) (g) states:

(2)  As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act are –

(g)   that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

The Complainant in this case did not submit that he was treated less favourably than another person who is not a person with a disability or a person with a different disability.  His case is that he was treated unfairly in relation to the distribution of duties, and the Respondent requiring certain duties to be carried out by him without the remuneration and grade he believes is warranted.

Burden of Proof

In the first case, I will examine the issue of whether the Complainant has established a prima facie case, that is the establishment of facts from which the burden of proof, which lies in the first instance with the Complainant would shift to the Respondent.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.             It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

In this case, the Respondent stated that there is no record of the Complainant suffering from dyslexia, the condition he stated that he has and in respect of which he has suffered discrimination.   The Complainant has not put forward a comparator or established facts that he has been treated less favourably than another employee in the same or similar situation.  Having considered the foregoing and oral and written submissions, I find that the Complainant has not established facts from which it may be presumed that there has been discrimination against him.  In that case, the burden of proof to establish a prima facie case has not been discharged by the Complainant.     I therefore find that the complaint is not well founded.

·          

Complaint out of time, Prima facie case not established, complaints not well founded.