Complainant

Respondent

Parties

Przemyskaw  Druks

Board of Management of Tullamore Educate Together N.S.

Representatives

  Self

Claire Bruton BL instructed by Mason Hayes and Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047473-001

01/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047473-002

01/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047473-003

01/12/2021

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

CA-00047473-004

01/12/2021

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

CA-00047473-005

01/12/2021

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

CA-00047473-006

01/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Equal Status Act 2000

CA-00047473-009

01/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00047473-010

01/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00047473-011

01/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00047473-012

01/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00047473-013

01/12/2021

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

CA-00047473-020

01/12/2021

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

CA-00047473-021

01/12/2021

The Complainant commenced working for the Respondent as a school caretaker on the 20 February 2019. He was hired on a fixed term contract which was renewed.

His employment ended on the 31 August 2021.

He worked 24 hours per week and his gross monthly pay was €1,386.32.

He described himself as the personal assistant for the school principal.

CA-00047473-001.  This complaint related to compensation for loss of annual leave entitlement. This was withdrawn at the hearing.

CA-00047473-002.  This complaint related to compensation for loss of public holiday entitlement. This was withdrawn at the hearing.

CA-00047473-003.  This complaint related to working excessive night hours. This was withdrawn at the hearing.

CA-00047473-004.  This complaint related to failure to receive the statement in writing on his terms of employment.  The Complainant's case was that he did not receive a written contract setting out his terms of employment. He was known to the school staff as his child attended the school. The previous caretaker stopped working because his wife was sick. He started the role in February 2019. He said he was told from February 2019 that this was a permanent position. He said he was never shown or given a contract of employment. He was told that he had to "run around school naked to lose this job" by the school principal and that he did not ever have to worry about the job.

CA-00047473-005.  This complaint related failure to be notified in writing of the change to his terms of employment.  The Complainant believed that he had a permanent contract and not a fixed term contract.

CA-00047473-006.  This complaint related failure to receive a statement of his core terms in writing. The Complainant gave evidence that he did not receive any written terms of his employment.

CA-00047473-009 and CA-00047473-020.  Complaint CA-00047473-009 related to a complaint of discrimination under the Equal Status Act 2000. It was accepted by both parties that this complaint should have been brought under the Employment Equality Act 1998 (as amended).

Prior to the hearing the Complainant elected to withdraw a complaint under the Unfair Dismissals Act 1977 and added an additional complaint under the Employment Equality Act 1998 (as amended).

The Complainant's employment ended on 31 August 2021. His case was that he had been discriminated on grounds of his race in his dismissal. He said that he had a "little fight" with the school principal in relation to work he did in the school for an out of hours dance teacher and a Polish teacher who rented classrooms for her school.

As far as he was concerned, he had a permanent contract. Despite same, he was advised that he had to go for an interview for his job. He could not understand why he had to go for an interview nearly three years into employment. He explained that he had worked on occasions for free and did more than he was required to do.

He said the school principal had told him that he would get the job. His evidence was that she "lied to him". Afterwards the school principal explained to him that it was not her decision.

He said the interview was "brilliant but so fake".

He was not successful in the job interview. This was despite being in the role for 2.5 years without a problem. The Complainant gave evidence that everyone liked him. He never said no to any job requested of him.  The Complainant explained how he was part of school life before he was suggested for the role of caretaker. He had been employed by the Parents Association to host basketball and badminton classes. He considered himself a friend of the school principal. She wrote letters for him and helped him to interpret documents.

The Complainant pointed out that he was not required to interview for the job in February 2019.

After the interview, the job was given to an Irish born person. As far as the Complainant was concerned, he was a better employee and should have got the role.  His case was that he was discriminated against in the selection process because of his race.

CA-00047473-0010.  This complaint related to a complaint of failure to receive his statutory minimum period of notice or payment in lieu.  No specific evidence was given in relation to this complaint.

CA-00047473-0011.  This complaint related to a complaint of failure to receive his rights during his period of notice.  No specific evidence was given in relation to this complaint.

CA-00047473-0012.  This complaint related to a complaint of failure to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration. No specific evidence was given in relation to this complaint. The Complainant's position was that he did not receive a fixed term contract at any stage during his employment.

CA-00047473-0013.  This complaint related to a complaint of failure to inform him (a fixed term employee) of opportunities for permanent employment. No specific evidence was given in relation to this complaint.

CA-00047473-0021.  This complaint related to equal pension treatment.   No specific evidence was given to me the hearing in regard to same by the Complainant.

CA-00047473-004.  This complaint related to failure to receive the statement in writing of the Complainant's terms of employment.

The Respondents case was that a written fixed term contract of employment setting out all relevant terms and conditions was provided to the Complainant by the school principal on 5 April 2019. This was for the period of 28 January 2019 to 31 August 2019. The contract was to provide cover while the permanent school caretaker was on period of paid leave to care for a family member who was seriously ill.  The Complainant was proposed as a replacement by the permanent school caretaker.

A second fixed term contract was provided to the Complainant on 30 September 2019 for a period of 1 September 2019 to 31 August 2020. This contract was to provide temporary cover for the permanent school caretaker's absence.

At third fixed term contract was presented to the Complainant on 31 July 2020. This was to cover the period 1 September 2020 to 31 October 2021.

The school principal gave evidence that she presented these contracts to the Complainant. He did not sign any of these contracts. He did not refuse to sign the contracts but referred to coming back to sign them in due course.

The third contract had increased hours from 19 to 24 due to Covid and the funding for same. The school principal explained the extra hours to him. She physically presented the contract to him. He said he did not need it until he was looking for a mortgage. She kept the contracts on her file.

The school principal was adamant that she would not have advised the Complainant that it was a permanent contract especially as the permanent school caretaker was on compassionate leave.  Ultimately, he decided not to return to his permanent position.

I was provided with copies of the three contracts referred to above.

CA-00047473-005.  This complaint related failure to be notified in writing of the change to his terms of employment.  The Respondents position was that there was no change to the Complainant's terms of employment.

CA-00047473-006.  This complaint related failure to receive a statement of his core terms in writing. I was provided with copies of the three contracts referred to above.

CA-00047473-009 and CA-00047473-020.  These complaints related to a complaint of discriminatory dismissal under the Employment Equality Act 1998 (as amended). The Respondents case was that the Complainant had failed to establish the requisite legal nexus between the alleged less favourable treatment and his race. Its case was that the Complainant was simply not treated less favourably on the grounds of his race or otherwise in relation to his unsuccessful application for the role of permanent caretaker. The filling of the role took place following a full and transparent application and interview process. The Respondent disputed that the Complainant did not achieve a permanent contract due to a complaint made against him in May 2021. It pointed out that this allegation detracts from any discriminatory reason for his non-appointment to the position of caretaker on a permanent basis.

The Chairman of the Board and school principal of the Respondent gave evidence on the contract the Complainant held for the 2.5 years of his tenure with the school and the interview process. They were both on the interview panel together with an independent person.  They explained that the school was obliged to hold an open competition to fill the role of a permanent school caretaker.  They explained that the school was not obliged to interview for the temporary filling of the vacancy created by the school caretaker’s absence. 

I was furnished with an email from the Chairperson to the Complainant prior to the interview being held. It set out that the criteria for the interview would be

Qualifications, experience and skillset

Health and Safety/child protection

Understanding of the role

Teamwork and flexibility

Communication/interpersonal skills/ethos

The school chairperson explained that all four interviewees were assessed under these five headings. The successful candidate had more experience in dealing with DIY. He was a reserve fireman and lifeguard. He held a certificate in Children First and he was a cardiac first responder.

The chairperson explained that the Complainant's interview was poor and that his answers were not as comprehensive or informative as the other candidates. The successful candidate answered the questions better and showcased his qualifications. He incorporated his skills into the answers better than the Complainant did.

When presented with this information, the Complainant's only response was that he was in the role already and couldn't understand why he had to go for an interview for the role.

The school principal gave evidence at the hearing. She explained how she got on well with the Complainant. She said that she hoped he would do well at the interview. She described how she had explained to him that it was an independent assessment and that the interview board would make the decision on the successful candidate.

She gave evidence that four candidates were interviewed for the role. When compared with the other interviewees, the Complainant was not the best on the day. There were two other candidates that were better than him.

She explained that the school is an equality-based school. There were several members of staff that were not Irish born.

CA-00047473-0010.  This complaint related to a complaint of failure to receive his statutory minimum period of notice or payment in lieu.  The Respondent's case is that the Complainant was informed in around June 2021 that his fixed term contract would not be renewed/would cease and the position of school caretaker would be advertised on a permanent basis. The Respondent's case was that no notice under the Minimum Notice and Terms of Employment Information Act 1973 was due.

CA-00047473-0011.  This complaint related to a complaint of failure to receive his rights during his period of notice.  The Respondent's case was that no notice under the Minimum Notice and Terms of Employment Information Act 1973 was due.

CA-00047473-0012.  This complaint related to a complaint of failure to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration.  The Respondents case is that the Complainant had just over 2.5 years’ service. He was not entitled to a contract of indefinite duration as per section 9 of the Protection of Employees (Fixed – Term Work) Act 2004.

CA-00047473-0013.  This complaint related to a complaint of failure to inform him (a fixed term employee) of opportunities for permanent employment. The Respondent’s case is that the Complainant was informed during his annual leave by the school principal of the advertisement of the permanent caretaker role in the school. I was furnished with copies of the WhatsApp messages between the school principal and the Complainant. On the 11 August 2021 the school principal sent him the link to the caretaker advertisement on www.educationposts.ie.

CA-00047473-0021.  The Respondent submitted that the Complainant was not in receipt of a pension during his employment and this complaint was not applicable to him.

Following the hearing I took time to consider all of the evidence presented to me both in writing and verbally.

CA-00047473-001.  This complaint related to compensation for loss of annual leave entitlement. This was withdrawn at the hearing.

CA-00047473-002.  This complaint related to compensation for loss of public holiday entitlement. This was withdrawn at the hearing.

CA-00047473-003.  This complaint related to working excessive night hours. This was withdrawn at the hearing.

CA-00047473-004, CA-00047473-005 and CA-00047473-006. These complaints related to a failure to receive the statement in writing on his terms of employment.  The legal requirements as to the minimum amount of information required to be produced by the Respondent are set down by the Terms of Employment (Information) Act 1994 as amended by the Employment (Miscellaneous Provisions) Act 2018 (hereinafter called “the Act”).

The first contract prepared by the Respondent was dated 5 April 2019 and referred to the period 28 January 2019 to 31 August 2019. The Complainant's own evidence was that he commenced working with the Respondent on the 20 February 2019.

No evidence was presented to me that the Complainant was provided with the essential information (core terms) required within five days after the commencement of employment. Additional information is required to be provided within two months of the commencement of the employment.

One of the core five terms covers the case of a temporary contract of employment, the expected duration of the contract, or if the contract is for a fixed term, the date on which it will expire.

The Act requires the provision of certain information whether or not it is relevant to the particular employment concerned. Under Section 3(ga) and Section 3(1A) (d) information must be given concerning the pay reference period used for the purposes of calculating the National minimum wage.

The statement must be signed by or on behalf of the employer.

I accept the evidence presented to me that three written contracts were prepared and given to the Complainant.  However, the Core terms were not furnished on time.  On a strict reading of the Act, there were omissions (e.g. Under Section 3(ga) and Section 3(1A)(d)) from the written contracts.  The three contracts presented to me were not signed by the Respondent.

CA-00047473-009 and CA-00047473-020.  This complaint related to a complaint of discriminatory dismissal under the Employment Equality Act 1998 (as amended).

I am required to establish if the complainant was discriminated against on grounds of race contrary to section 6 (2)(h) of the Employment Equality Act 1998 (as amended).

I must first consider if the complainant has established a prima facie case of discrimination.

Burden of Proof.

Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A of the Acts provides that facts must be

“established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her …” which it may be presumed that prohibited conduct has occurred in relation to him/her …”

No documentary evidence was filed with the WRC regarding the selection process. The interview notes were available at the hearing but not filed with the WRC prior to the hearing.  GDPR requirements were quoted as the reason for same.

Considering the role being filled, I did not expect a complicated or detailed selection process. 

The complainant is from Poland, while the successful applicant was Irish.

It is settled law that a mere difference in status (in this case race) and a difference in treatment (in the present case the fact that the Complainant was not appointed to the role of school caretaker whereas an Irish person was) is not sufficient to shift the probative burden to the Respondent. Other independent facts must be established from which an inference of discrimination can credibly be drawn.

The Complainants case was that he was the better candidate and that the decision not to appoint him was not sustainable. In Determination EDA042 Moore-Walsh v Waterford Institute of Technology the Labour Court held that in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court (and WRC) will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board. On the basis of the evidence presented to me, I cannot see any basis upon which I could hold that the conditions identified in EDA042 Moore-Walsh v Waterford Institute of Technology were present in this case.

For the foregoing reasons I do not accept that the Complainant has established facts upon which discrimination could properly be inferred. Accordingly, on the test established in Mitchell v Southern Health Board, the Complainant cannot succeed. Accordingly, I find that the Complainant was not discriminated against as alleged.

CA-00047473-0010.  This complaint related to a complaint of failure to receive his statutory minimum period of notice or payment in lieu. 

The Complainant was engaged on a fixed term contract which came to its natural end on 31 August 2021. He was not entitled to notice of the termination of his employment.

CA-00047473-0011.  This complaint related to a complaint of failure to receive his rights during his period of notice.

The Complainant was engaged on a fixed term contract which came to its natural end on 31 August 2021. He was not entitled to notice of the termination of his employment.

CA-00047473-0012.  This complaint related to a complaint of failure to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration.

Section 9 of the Protection of Employees (Fixed – Term Work) Act 2003 relates to successive fixed term contracts.  The entitlement to a contract of indefinite duration applies after four years of continuous employment.  The service of the Complainant did not exceed that length of time.

CA-00047473-0013.  This complaint related to a complaint of failure to inform him (a fixed term employee) of opportunities for permanent employment

Section 10 of the Protection of Employees (Fixed – Term Work) Act 2003 relates Information on employment and training opportunities

10(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

By the Complainants own evidence, he confirmed that the school principal informed him of the interviews for the position of school caretaker.

CA-00047473-0021.  This complaint related to equal pension treatment.   No specific evidence was given to me the hearing in regard to same by the Complainant.

CA-00047473-001.  This complaint related to compensation for loss of annual leave entitlement. This was withdrawn at the hearing.

CA-00047473-002.  This complaint related to compensation for loss of public holiday entitlement. This was withdrawn at the hearing.

CA-00047473-003.  This complaint related to working excessive night hours. This was withdrawn at the hearing.

CA-00047473-004.  This complaint related to failure to receive the statement in writing on his terms of employment.  I find this case to be well founded and I award the Complainant €1,386.32 in compensation.

CA-00047473-005.  This complaint related failure to be notified in writing of the change to his terms of employment. This complaint is not well founded.

CA-00047473-006.  This complaint related failure to receive a statement of his core terms in writing.  I find this case to be well founded. I make no award of compensation as this has been taken into account in my decision in CA-00047473-004. 

CA-00047473-009.  This complaint related to a complaint of discrimination under the Equal Status Act 2000. This complaint is not well founded.

CA-00047473-0010.  This complaint related to a complaint of failure to receive his statutory minimum period of notice or payment in lieu. This complaint is not well founded.

CA-00047473-0011.  This complaint related to a complaint of failure to receive his rights during his period of notice.  This complaint is not well founded.

CA-00047473-0012.  This complaint related to a complaint of failure to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration.  This complaint is not well founded.

CA-00047473-0013.  This complaint related to a complaint of failure to inform him (a fixed term employee) of opportunities for permanent employment. This complaint is not well founded.

CA-00047473-0020.  This complaint related to a complaint of Discrimination on grounds of race.  This complaint is not well founded.

CA-00047473-0021.  This complaint related to a pension equality.  This complaint is not well founded.

Discrimination on grounds of race.  Burden of Proof.