FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : THE BOARD OF MANAGEMENT OF SCOIL MHUIRE AGUS IOSAF JUNIOR SCHOOL (REPRESENTED BY MS ROSEMARY MALLON, B.L., INSTRUCTED BY MASON, HAYES AND CURRAN SOLICITORS) - AND - MS PAMELA BRENNAN (REPESENTED BY MS NOREEN BRENNAN DONOGHUE) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00018053. This is an appeal from a decision of an Adjudication Officer (ADJ-00018053, dated 19 September 2019) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer decided that Ms Pamela Brennan’s (‘the Complainant’) complaint of discrimination on the gender ground under the Act, arising from decision of the Board of Management of Scoil Mhuire agus Iosaf National School (‘the Respondent’) not to select her for appointment as Principal on 24 July 2018, was well-founded and awarded her compensation of €93,498.00. The Respondent’s Notice of Appeal was received on 2 October 2019. The Complainant had also alleged (in her originating complaint form, received by the Workplace Relations Commission on 30 August 2018) that she had been discriminated against on both the gender and family status grounds when the Respondent did not contact her to advise her of the availability of the acting Deputy Principal post in the Respondent’s school on 25 January 2018 when she was on maternity leave. The Complainant – by Notice of Appeal received on 30 October 2019 – cross-appealed from the Adjudication Officer’s decision that this aspect of her complaint was out of time. The Complainant withdrew her appeal in relation to the alleged discrimination on the family status ground in the course of the hearing of the appeal. The Court heard the appeal and cross-appeal over three sittings on the following dates: 18 August 2020 (physical hearing in Dublin), 17 February 2021 (virtual courtroom) and 19 July 2022 (physical hearing in Dublin). The Complainant was represented by Damien Tansey Solicitors LLP on the first hearing date and subsequently by Ms Noreen Brennan Donoghue. The Court heard evidence from the Complainant and from the following witnesses on behalf of the Respondent: Dr Anne Moriarty, Sr Mary Richardson and Fr Patrick Peyton. The Factual Matrix: The Complainant joined the staff of the Respondent school in September 2014 on its establishment through the amalgamation of two previously separate local primary schools. Prior to the amalgamation, the Complainant had been Deputy Principal of one of the amalgamating schools – St Joseph’s. The Complainant retained her allowances and other entitlements as a Deputy Principal on a personal to holder basis following the amalgamation. The Complainant commenced a period of maternity leave in December 2017. In January 2018, the Principal in the Respondent school was placed on administrative leave, on a week-to-week basis. The Respondent, therefore, took steps to fill the post of Principal on an acting basis. The then Deputy Principal, Ms Gallagher, was appointed to act up as Principal and Mr Paul Colreavy, was appointed as acting Deputy Principal on a similar basis, two female teachers with longer service than Mr Colreavy having first declined the acting up role. The Complainant contends that she first became aware of this arrangement when a note was issued to parents on 26 March 2019. The Complainant wrote to the Chairman of the Board of Management, Fr Peyton, on 23 April 2018 indicating that she wished to return to work from maternity leave on 5 June 2018 and with effect from that date would assume role of Acting Deputy Principal in place of Mr Colreavy. On the final day of the school term before the summer vacation, staff were informed that the position of Principal would be filled on a permanent basis. The closing date for submission of applications was Friday, 6 July 2018. The Complainant applied for the position by letter dated 4 July 2018. There were several other applicants, including Mr Colreavy. A promotion selection panel as established in line with the provisions of Appendix E – Recruitment and Appointment for Principal Teachers in Recognised Primary Schools. The panel comprised Fr Peyton (Chairman of the Board of Management) and two independent assessors appointed from a panel of assessors approved by the Respondent school’s patron, the local diocesan bishop. The two independent assessors on the panel were Dr Anne Moriarty and Sr Mary Richardson. On 9 July 2018, the panel met to agree criteria for shortlisting candidates for the position of Principal. They agreed on the following criteria which are recorded in a handwritten document, signed and dated by each member of the panel:
Four candidates – including the Complainant and Mr Colreavy - were short-listed having regard to the foregoing criteria. The panel also prepared criteria and a marking scheme in advance of the interviews. Ten criteria were assessed and each carried ten marks:
The panel also agreed a written list of interview questions in relation to each of the foregoing criteria. Interviews were conducted on 24 July 2018. Each member of the panel individually recorded their own scores in writing for each of the four candidates when all four interviews had been completed. Mr Colreavy was selected for appointment. The Complainant was placed second, ahead of two male candidates. The Complainant was informed of the outcome of the competition by letter dated 27 July 2018. As things transpired, the news of Mr Colreavy’s selection and appointment became public knowledge in the local area before the Complainant received official confirmation that she had not been successful in her application. The Complainant expressed her dissatisfaction with this to Fr Peyton in a series of emails commencing Monday 30 July 2018. On 1 August 2018, she sent an email to Fr Peyton in which she stated,inter alia:
The Complainant referred her complaints under the Act to the Workplace Relations Commission on 30 August 2018. The Complainant’s Evidence: The Complainant told the Court that she graduated with a B.Ed degree from St Patrick’s College, Drumcondra, in 2005 and completed her Teaching Diploma in 2007-08 following her appointment to the teaching staff of St Joseph’s in 2006. She also said that she became Deputy Principal of St Joseph’s in October 2008 and retained this on a privileged basis following the establishment of the Respondent’s school in September 2014. The Complainant said she commenced her maternity leave on 1 December 2017 and this was scheduled to continue until 15 June 2018. She said that she learned of the acting-up arrangements that were in place in the school through a note that was sent home to parents on 26 March 2018. She told the Court that she did not raise a complaint about this matter with the Board of Management at this time because she didn’t want to cause upset in the school. She said, however, that she wrote to the Chairman of the Board of Management on 23 April 2018 to advise him that she was giving four weeks’ notice of her intention to return early from her maternity leave. She returned to school, she said, on 5 June 2018 and assumed the role of Acting Deputy Principal on that date, Her evidence then moved to the competition to fill the post of Principal. The Complainant told the Court that her interview lasted a mere twenty minutes and that she had only been asked a few generic questions in the course of it. Her evidence was that she had not been asked any questions about her experience or her qualifications. She explained that she had become aware of Mr Colreavy’s appointment through hearsay before she received any official notification herself. The Complainant said that she went to see the diocesan advisor to raise her objections to the appointment process. She told the Court that having reviewed the copy marking sheets completed by the members of the selection panel she noted that the Chairman had revised her marks for ‘Vision’ down by two but had not offered any explanation for this. She also expressed concern that the Chairman had taken ample notes during Mr Colreavy’s interview but had only written a few words in his note of hers. Under cross-examination, the Complainant agreed that neither the list of criteria prepared in advance of the interviews nor the questions asked at her interview were discriminatory, per se. She opined that the following question may have been asked for her benefit: ‘How would you deal with any unsuccessful candidate if you are appointed?’. However, she agreed with Ms Mallon Bl, that if it was asked of all candidates it was not discriminatory. Counsel put it to the Complainant that her belief that her interview had lasted only twenty minutes was not correct and was inconsistent with the evidence that the members of the panel would give. The Complainant replied that her interview had been less than a half hour in duration. Counsel also asked the Complainant what link she was seeking to establish between the number of words in Fr Peyton’s note of her interview compared to the number of words he had written for other candidates. Counsel pointed out that Fr Peyton had written a longer note during candidate number two’s (a male who scored lower than the Complainant) interview than he did during Mr Colreavy’s. Likewise, Fr Peyton had written a note consisting of only four words for candidate number four. In response to Counsel’s questioning, the Complainant accepted that an inference could not be drawn that the length of Fr Peyton’s notes for the individual candidates was in any way connected to a candidate’s gender. Counsel referred to the record of the marking by each of the individual panel members after the interviews concluded. She referred to Dr Moriarty’s amendment of the Complainant’s mark for ‘Relevant Experience’ which Dr Moriarty amended from 7 to 8, and Fr Peyton’s amendment of his mark under the same heading from 8 to 9. Counsel put it to the Complainant that there was a total of over 20 marks between her overall score and that of the successful candidate such that the changes made by Fr Peyton and Dr Moriarty didn’t make any material difference to the outcome of the competition. When asked by Counsel if she believed that three members of the panel had conspired to discriminate against her, the Complainant did not give an answer. Evidence of Dr Anne Moriarty: The witness outlined her extensive experience as a teacher and in leadership in the field of education. She told the Court that she has been an independent assessor on interview panels for over 16 years and sits on 6 to 8 panels per year. She confirmed that she had had no prior involvement with the Respondent school before the competition, the subject of the within appeal, took place. The witness explained that candidates are not selected for appointment on the basis of their Curriculum Vitae and that she regards the interview process as an opportunity for candidates “to put flesh on the bones” and “to convince the panel of their leadership potential”. According to the witness, a Principal must be able to react under pressure in a clear and calm manner. The witness’s evidence then turned to the shortlisting process. She told the Court that the panel decided their shortlisting criteria first, then opened the applications and considered them against the criteria and that the Complainant was shortlisted as part of that process. The witness next said that the panel moved on to agree the interview criteria in the context of the Leadership Framework. Counsel referred to the interview questions prepared by the panel in advance of the interviews and asked her about the question: “How would you deal with a staff member who have been disappointed in an application for this position?”. The witness told the Court that this question is included when two or more members of staff from the school are candidates in the competition. The witness confirmed that all questions under each of the headings were asked of each of the candidates. Counsel noted that one of the Complainant’s issues is that she had not been asked any questions about her experience or her qualifications during her interview. The witness, in reply, said that that information is implicit in a candidate’s answers to other questions and permeates the entire interview. Counsel then asked the witness about a further aspect of the Complainant’s case i.e. the extent to which Mr Colreavy’s period of acting up as Deputy Principal influenced the Panel’s decision. The witness’s evidence was that a candidate’s experience of acting up is not a relevant factor. Counsel moved on to the Complainant’s claim that her interview had only last twenty minutes. The witness said that a full hour had been allocated to each of the four candidates and that they were each interviewed for forty to forty-five minutes with fifteen minutes of a gap between interviews to ensure candidates didn’t overlap with one another. The witness was asked about her marking of the candidates. She said she gave 10 out 10 to the Complainant for ‘Relevant Qualifications’ and she gave the same mark to Mr Colreavy. She said she had scored the candidates under ‘Relevant Experience’ on a qualitative and not a quantitative basis. Hence, she raised her original mark for the Complainant under this heading from 7 to 8 and Mr Colreavy’s from 8 to 10. According to the witness, Mr Colreavy’s answers to the questions asked under this heading were very clear and rooted in models of education that guide leadership and were overall more convincing than the Complainant’s. When asked by Counsel when the marks were written up and when were they amended, the witness said that the members of the panel completed their own mark sheets individually and without discussion after the four interviews had concluded. Thereafter, she said the marks of the three panel members were collated and totalled. The witness’s evidence was that the Complainant’s use of her leadership experience in the course of her interview had been more aspirational than fleshed out with actual examples. This, according to the witness, was also true of the Complainant’s references to the new special needs model. In contrast, the successful candidate - in the witness’s view – had been more convincing, assured and fully-informed, his answers were very rooted in models underpinning leadership and he demonstrated an excellent understanding of the connections between all of the parties involved in education. Under cross-examination, the witness confirmed that the shortlisting criteria had been agreed by the panel before the applications were opened on 9 July 2018. She was asked why music and art had been included in those criteria as desirable. The witness replied that the shortlisting criteria should reflect the needs of the school. She was then asked why such a criterion was desirable for a teaching principal. The witness replied, ‘Because he or she is the leader of the school’. She also said. ‘Anyone who teaches in primary school has a background in music and art’. When asked by the Complainant’s representative why she changed the marks she had given to the Complainant and to Mr Colreavy under the heading of ‘Relevant Experience’, the witness replied that every interview is a comparative process, that her marks had been based on answers given by the candidates at interview. According to the witness, the Complainant had good relevant experience but had answered certain questions about the role of teachers nominated to the board of management incorrectly and had neglected to mention the new allocation model that has applied to special education since 2017. In answer to questions from the Court, the witness said that there had been no discussion between the members of the selection panel at any stage about the gender of the candidates. She also said that a number of the Complainant’s answers during her interview had lacked leadership language whereas the successful candidate had been more assured in his vision for the school. Evidence of Sr Mary Richardson: The witness told the Court that she had forty-one years’ experience of teaching at primary level, seventeen of which were spent as principal of a large DEIS school. This latter experience brought many challenges, she said, including the integration of children with additional needs and children of eastern European and African origin. The witness also said that she had been a member of several boards of management of primary, secondary and community schools over the years and had been an independent assessor at interviews for over twenty years. The witness was asked by Counsel for the Respondent about the suggestion advanced by the Complainant that her prior interaction with the successful candidate, Mr Colreavy, meant that she was conflicted in her capacity as an independent assessor on the panel that made the decision to recommend his appointment as Principal of Scoil Mhuire agus Iosaf. The witness told the Court that, in her capacity as Diocesan Advisor, she visited the school in March 2018. The school has two parts. She said she first called to the junior school, by appointment. Before leaving there, she asked who was in charge of the senior school. She said Mr Colreavy met her at the entrance to that part of the school and gave her a list of classes and a schedule of times. She recalled that she had been under considerable time pressure during the visit as she was on her own when normally two Diocesan Advisors would be present on a school visit. She said she took a short lunch break and returned to visiting the remaining classes in the afternoon. She enquired of the teacher in her final class who she should report to before leaving. She was again directed to Mr Colreavy whom she thanked for accommodating her visit. The witness said that she did not recognise Mr Colreavy when he attended for interview and hadn’t known what his position was in the school when she visited it in March 2018. The witness was next asked about the shortlisting criteria which she said had been collectively determined by the panel and were based on the Leadership Framework. Similarly, she said, the interview questions had been determined by the panel collectively and had been asked of all the candidates. The witness was asked about the marks she gave to the Complainant and Mr Colreavy, respectively, under the heading ‘Relevant Qualifications (8 v 10). The witness said the interview process had afforded the candidates an opportunity to flesh out their answers to the questions asked of them and, in the process, to translate theory into practice. In the witness’s opinion, the Complainant had presented the panel with an ill-defined vision for the future of the school that comprised little more than continuing with the status quo. Counsel then asked the witness why she had given the Complainant a score of 7 for ‘Relevant Experience’ and Mr Colreavy a score of 10. The witness said that she believed the Complainant demonstrated a lack of understanding of the corporate and collective role of the board of management and had expressed the view that, as a teacher, she was on the board to represent the views of teachers and to report back to them. According to the witness, such a view is not consistent with the confidentiality that inheres in the board’s discussions and the board’s prerogative to decided what is reported back via the Principal. The witness also said that the Complainant did not demonstrate an understanding of current legislation when discussing provision for children with additional needs in school. According to the witness, the Complainant didn’t demonstrate how what appeared on her curriculum vitae transferred into practice. She said, the Complainant “didn’t sell herself as expected”. She referred to her notes of the interview which she described as ‘fulsome’. Finally, she was asked by Counsel for the Respondent about the process of marking the candidates. The witness said that the members of the panel completed their marking in silence and individually once all the interviews had been completed. She added that there had been no discussion about individual candidates or their gender. Under cross-examination, it was put to the witness that the Complainant had presented the panel with a detailed written school plan but the panel had declined to accept it from her. The witness agreed that this was the case and said it had not been accepted as submitting additional documents at the interview stage was not in accordance with protocol. The witness said that the Complainant had explained very well what she was already achieving in the school. The witness also confirmed that the meeting to agree the shortlist of candidates took place after the closing date. In answers to questions from the Court, the witness confirmed that her visit to the school had taken place on 24 March 2018 and the interviews for the post of Principal had taken place the following July. The witness also said that the marks she had given to the candidates were based on listening to the answers they had given in the course of their interviews and her consideration of the candidates’ ability to articulate how their experience and qualifications translate into practice. She said her recollection was that the successful candidate had addressed the questions with conviction and had underpinned his answers by reference to the relevant legislation and guidelines. She also said that he had given personal examples based on a lived experience of leadership and thus had spoken “as a leader”. The witness also confirmed to the Court that no additional document was received or accepted from any of the other candidates on the day of interview. Evidence of Fr Patrick Peyton: The witness told the Court that had been Chairman of the Respondent Board of Management for fourteen years and had acted in a similar capacity on approximately fifteen different boards of management over the years. Counsel asked him to outline how Mr Colreavy came to be acting up as Deputy Principal of the Respondent’s school in January 2018. The witness explained that when the vacancy arose at that time, he had offered it in turn to each of the teachers in the school who were more senior than Mr Colreavy but each had declined to take it up. The witness said he didn’t contact the Complainant because she was on maternity leave at the time and he didn’t want her to feel pressurised to return early from her leave. He confirmed that the Complainant had notified him in writing, by letter dated 23 April 2018, of her intention to return to school two weeks early on 5 June 2018 to assume the role of acting Deputy Principal. Counsel asked the witness about the mark he gave the candidate for ‘School and Community’, which he had amended from 9 to 7. The witness said that he had reduced the mark because he thought that the Complainant’s presentation of the role of Principal in the community was “vague and loose”. He was asked then to explain why he had given the Complainant a total of 86 marks whereas he had given Mr Colreavy 92. The witness replied that he had known the Complainant and was aware of her excellent abilities but this hadn’t come across on the day of the interviews. The witness was next asked about the notes that he had taken during the interviews of the four candidates. He accepted that he had written only four words for candidate number 4 and only three for the complainant but had made fulsome notes during Mr Colreavy’s interview and that of that of candidate number 2. He explained this by saying the candidates in respect of whom he had taken more detailed notes had given answers that would be of benefit should they be appointed Principal but the Complainant and candidate number 2, by contrast, hadn’t “expressed themselves as to the questions being asked”. Finally, the witness stated that the members of the panel completed their marking sheets individually and in silence after the four interviews had concluded. Under cross-examination, the witness was directed to Department of Education Circular 0009/2013, “Maternity Protection Entitlements for Registered Teachers in Recognised Primary and Post Primary Schools”, dated 5 February 2013. Paragraph 20.1 of the circular provides:
That witness was asked about an assertion made in the Respondent’s written submissions to the Court to the effect that the Board of Management had satisfied itself “through consultation with the Department of Education and Skills that [Circular 11/2011] did not apply” in the circumstances the Respondent found itself in at the time. The witness replied that he had been in constant contact with a representative from the Irish National Teachers’ Organisation and was guided at all times by that person. The witness confirmed that he had participated in drawing up the shortlisting criteria. Finally, he was asked about why he had changed the mark he had given to the Complainant under ‘Relevant Experience’. He replied that he had changed the mark because of the quality of the answers the Complainant had given in the course of her interview. He said he knew she could have done a lot better and she hadn’t done justice to herself on the day. The Complainant’s Closing Submission: Ms Brennan Donoghue submitted that the Complainant’s rights under law had been ignored in January 2018 and again in March 2018 and that neither the criteria applied in the shortlisting process nor the words recorded in her interview notes had been explained. She further submitted that the Complainant had been marked down without explanation by members of the interview panel in July 2018. In her submission, the explanations offered for this by the Respondent’s witnesses during the course of the appeal were contradictory. She then submitted that the outcome of the selection and appointment process had had huge implications for the Complainant and her family, the Complainant’s long-term future, retirement and pension. She told the Court that the Complainant had been passed over for promotion in the most awful way “because somebody didn’t want to upset somebody”. In closing, Ms Brennan Donoghue submitted that the Complainant had been discriminated against because she had been on maternity leave and because the Respondent wanted a man as Principal. The Respondent’s Submission: Ms Mallon BL submits that the Complainant’s claim in relation to the acting up role was referred out of time. She said the Acting Deputy Principal role was filled in January 2018 but the Complainant hadn’t referred her complaints under the Act -including her complaints in relation the acting up issue - to the Workplace Relations Commission until 30 August 2018 and in doing so had not advanced any reasons that established reasonable cause for the delay in referring her complaint about the events of January 2018. Counsel further submitted that the Complainant’s evidence was that she only learned of the appointment of Mr Colreavy to the acting up position on 29 March 2018. However, she waited a full month before making contact with the Chairman of the Board of Management about the matter and arranging to return to work on 5 June 2018. In relation to the complaint of alleged gender discrimination in the selection and interview process, Counsel submits that the Complainant adduced no evidence in either direct examination or cross-examination that gender played a role in the panel’s decision-making process. In fact, in Counsel’s submission, the evidence of the Respondent’s witnesses established that the reason why the Complainant was unsuccessful was that she did not perform as well at interview as the successful candidate had. Finally, Counsel submits that three male candidates had been shortlisted along with the Complainant and the Complainant had been ranked second overall meaning she would have been appointed had Mr Colreavy not accepted the position. This, according to Counsel, undermines the Complainant’s suggestion that there as an underlying bias in the process. Discussion and Decision: The Complainant’s principal complaint under the Act relates to the process by which Mr Colreavy was selected and appointed as Principal of the Respondent’s school in July 2018, a process which she says was tainted by discrimination on the grounds of gender. Her representative submitted that the Respondent wanted a male to be appointed to fill the vacant position of Principal and did so, notwithstanding the Complainant’s superior qualifications and more extensive teaching experience than that of the successful male candidate. The Complainant has sought to build her case around a number of features of the selection and interview process for which she says the Respondent has not offered any explanation. Those features include, in the main, the selection panel’s decision to include music and art in shortlisting criteria, the relatively short duration of her interview (which lasted only twenty minutes, she says), the absence of any questions about her experience or qualifications during the interview, the fact that higher total marks were awarded to Mr Colreavy for his qualification qualifications and experience, the amendment of marks by the members of the interview panel and the panel’s refusal to accept a written school plan from the Complainant on the day of interview. The evidence of the Respondent’s witnesses in relation to the above matters was clear, consistent and persuasive. The Court was told, for example, by Dr Moriarty that art and music was included in the shortlisting criteria because all primary teachers have a background in art and music and they are, therefore, of particular relevance to a primary school’s leader. The Respondent’s witnesses weread idemin their evidence that all interview questions were put to the witness and each of the other candidates and all interviews, including the Complainant’s, were of forty to forty-five minutes in duration. It is not uncommon for a person in a position such as the Complainant found herself in as a job interviewee to have an inaccurate perception of how much time their interview actually lasted. Dr Moriarty also very clearly explained to the Court that although there had been no explicit questions asked about candidates’ experience or qualifications, these matters were implicit in the answers that they gave to the questions they were asked. Each of the members of the panel explained the successful candidate’s overall higher score than the Complainant’s in relation to these and other matters by reference to the quality and depth of his answers at interview which they noted were supported by reference to relevant legislation and guidelines and informed by actual examples of leadership in practice. By contrast, the panel members all said that the Complainant did not sell herself at interview and did not perform as well as she was capable of doing on the day. Evidence of this nature adduced from witnesses with such vast experience of school leadership and sitting on interview panels must be given due weight by the Court. The Court found the explanation offered by each of the panel members about how the marking process was conducted and how those who amended their original marks came to do so having reflected on the respective candidates’ performance at interview and the quality of their respective answers, to be honest and convincing and consistent with best practice. The Court also finds - in the light of the panel members’ evidence that it is not protocol to accept additional written documents from candidates on the day of interview and that no such documents were received from any other candidate -that the Complainant’s grievance about the panels’ refusal to accept the written school plan from her on the day of interview is without merit and does not support her allegation of gender discrimination. In summary, the Court finds that the features of the selection and interview process identified by the Complainant and by which she seeks to impugn that process as having been discriminatory on the gender ground have all been cogently and rationally accounted for by the Respondent’s witnesses such that the Court is fully satisfied that the candidates were ranked on the basis of their performance at interview and the quality of their answers. There is no evidence that the Complainant’s gender, or that of any of the other candidates, played any role in the panel’s assessment or decision. The evidence before the Court was that the successful candidate outperformed the Complainant by a country mile on the day and was, on that basis and that basis alone, selected for appointment to the post of Principal. The Complainant also claims that the Respondent’s decision not to inform her of the vacancy for an Acting Deputy Principal that arose in January 2018, albeit that this occurred more than six months prior to the date her complaint was received by the Workplace Relations Commission on 30 August 2018, is part of a continuum of discrimination by the Respondent against her. She submits that, in the alternative, she has demonstrated reasonable cause for the delay in referring this aspect of her complaint. She states in her written submissions to the Court that she had to investigate her rights and seek advice from her trade union at this time. She told the Court that she waited for almost a month after receiving the teachers’ note on 26 March 2018 before making contact with the Board of Management because she didn’t want to cause upset in the school. The test for reasonable cause has been considered many times by this Court and as clarified by it in a series of determinations beginning withCementation Skanska v CarrollWTC 0338, the Court has consistently held that a complainant seeking to rely on ‘reasonable cause’ must demonstrate the existence of factors that both explain and afford an excuse for their delay in referring a complaint. The Court in this case finds that seeking advice from one’s trade union, conducting research elsewhere into one’s rights or not wanting to upset people on one’s place of employment – neither individually nor cumulatively – meets the aforementioned test for reasonable cause. That Court having determined that the Complainant suffered no discrimination in the context of the selection and interview process conducted by the Respondent in July 2018, finds that the there is no basis for the Complainant’s contention that the Chairman of the Board of Management’s decision not to inform the Complainant of the vacancy that had arisen for an Acting Deputy Principal in January 2018 – albeit that decision was contrary to Circular 0009/2013 – is in a continuum of discrimination that renders it admissible although outside the applicable statutory time limit. For the foregoing reasons, the Court finds that this aspect of the complaint is also not well-founded. Having regard, therefore, to the Parties’ written submissions, the evidence adduced before it and the reasons set out above, the Court finds that the Respondent’s appeal from the decision of the Adjudication Officer succeeds. That decision is accordingly set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |
