Complainant

Respondent

Parties

Jana Gogova

Dublin Business School Dublin Business School

Representatives

Katherine McVeigh B.L. instructed by Hayes Solicitors

Act

Complaint 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-00050677-001

29/04/2022

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

CA-00050677-002

29/04/2022

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

CA-00050677-005

29/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00050677-006

29/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00050677-007

29/04/2022

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

CA-00050677-008

29/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 35 of the Further Education and Training Act 2013

CA-00050677-009

29/04/2022

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

CA-00050677-010

29/04/2022

It is helpful to set out the background in this case. The complainant has submitted eight complaints under this ADJ reference (and a further ten under a separate reference).

They are listed above. (CA-50677-009 appears to have been submitted in error).

A preliminary matter arises in relation to complaints in that the complainant was not an employee of the respondent but was a student undertaking a course of study.

A further preliminary issue arises in respect of the applicable time limits to the number of the cases.

Unusually, and because of the number of complaints the hearing was adjourned on the basis that if the preliminary and critical matter of the complainant’s status were to be decided in her favour a full hearing of the complaints would take place.  Otherwise, a decision would issue.

As this matter of jurisdiction was raised by the respondent as a preliminary matter its submission is listed first below.

The background to the case lies in an assignment undertaken by the complainant in the course of which it was alleged that she had committed an act of plagiarism in respect of her work.

The complainant was a student on the Higher Diploma Programme between March 19th, 2019, and July 2nd, 2021, and the Higher Diploma programme in Science and Data Analytics between October 2nd, 2015, on February 10th, 2017.

She was withdrawn from the programme on July 2nd, 2021, when she failed a module, and this was followed by an extensive process which involved a number of appeal hearings. This was with a view to reviewing the complainant’s result. Following this it appears that the complainant made the current complaint under the Employment Equality Act and other legislation.

Detail was provided by the respondent on the content of the programme which provides practical knowledge and skills in the area of computing and data science and examples were given of the various skills which were taught on the programme. (This is further considered in the Findings and Conclusions below).

In March 2021 the complainant made a third attempt to pass an assignment in the module having previously failed.

It then came to the respondent’s attention that the complainant’s material contained text that was similar to another student. It was suspected that the complainant may have procured this material online or received help from an external source.

In due course following further required enquiries it was established that the material was acquired from an online source.

Further proceedings followed and she failed to attend the hearing and the relevant academic committee awarded a mark of zero on the assignment. The complainant appealed but it was not upheld. Further details were supplied related to alleged academic impropriety, the detail of which is not relevant to the hearing or the preliminary decision.

In a comment on the substance of the discrimination complaints, the respondent points out that there were twenty students in the complainant’s initial full-time programme and forty-six in the September 2019 to 2020 part-time programme to which she transferred. There were a mix of nationalities and gender of which details were provided.

 The respondent has submitted that a power exists under the Employment Equality Act to dismiss the complaints on the grounds that they are made in bad faith or a frivolous vexatious or misconceived or relate to each other trivial matter should be exercised.

Its reason for doing so is that the complainant was at no time in employee of the respondent within the meaning of section 2 of the 1998 the act. Likewise, the respondent was never her employer and. At no time did she enter into a contract of employment with the respondent.

At no stage was she in receipt of remuneration from the respondent within the meaning of the Act.

She was not provided with vocational training within the meaning of section 12(2) of the 1998 act.

Specifically in relation to her attempt to suggest that she was on a course of vocational training this has been addressed in Commissioner of the Garda Siochána v Oberoi [2014] 25E.L.R 17. I

In that case the High Court held that the existence of a contract of employment was the starting point in a claim of discrimination under the 1998 act. The case concerned a claim of discrimination regarding vocational training. The Court held, at para 8.5.

“For there to be a contract of employment and for a person to be an employee, the requirement of mutuality of obligation must be present. That is, there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. In the absence of such mutuality, there is no contract of employment as there is no contract for services. In the absence of mutuality of obligation, I could not conclude that there was an existence of a contract of service or a contract of employment.’

The High Court continued at para 8.6

“For   a person to be employed under a contract of service or a contract personally to execute any work or service it is necessary that there be not only an obligation to perform work and an obligation to provide work but also that there be receipt of remuneration.’

The complainant also relied heavily (although mainly based on UL case law) on the suggestion that she was engaged in a course of ‘vocational training’.

The respondent submits that the course is not one of vocational training which is defined in s 12(2) of the Act as follows.

‘’ any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be concerned as exclusively concerned with training for such activity.’

The respondent further relied on Commissioner of the Garda Siochána v Oberoi on this aspect of the matter

The correct reading section 12 two of the Employment Equality Act requires that for vocational training to be within the meaning of that section, such training must be considered as being exclusively concerned with training for such an occupational activity.

Also, in Kelly v UCD (DEC-S2005-006) it was held that a Masters in Social Science degree course was outside the definition of locational training even though in that case the degree involved 50% academic work 50% practical work. It was held that the degree.

‘Was not exclusively concerned with protecting the knowledge or technical capacity to carry out an occupational activity’.

In relation to the time limits and the delay, the respondent draws attention to the complainant saying that she was gathering further information and updating her case law etc. However, this issue only acquires relevance if the complainant has locus standi in relation to the complaint.

The respondent submitted the ‘Programme Document’ for the Higher Diploma in Science and Data Analytics in support of its contention that the course is not one of vocational training but more generally ‘produces graduates who match employer needs’ (page 30) which it says is general in nature and not vocational training. 

The respondent accepts that a work placement is a part of the course (although the complainant did not undertake the work placement) but this is contracted to a third party and does not involve a contract of employment with the respondent.

The complainant has submitted that she was on a course of ‘vocational training’ and submitted a number of UK authorities in support of her case. Specifically, she says that where a work placement is built into a course then this brings it within the definition of vocational training.

The complainant made extensive submissions on the substantive matters referred to above arising from the allegation of ‘ghost writing’.

She also relied heavily (although mainly based on UK case law) on the suggestion that she was engaged in a course of ‘vocational training’. She referred to the respondent in her submission as ‘Dublin Business School-the provider of vocational training’.

The UK case relied on was Blackwood v Birmingham & Solihull Mental Health NHS Foundation trust [2016] EWCA Civ 607 CA in which the complainant was a nurse undergoing a course leading to qualification as a mental health nurse and which she submitted had parallels to her own case.

Part of her course involves a period of placement which she says brings it within the ambit of a vocational training. course.

She submits that she was of the same gender as the appellant in that case, that they had both been on a course, and that they had both suffered less favourable treatment that the decision in that case supports her position. In relation to the delay in submitting a number of cases she offers the explanation that she had applied for legal advice to the Legal Aid Board and was awaiting a reply. She says also that she was experiencing some health difficulties.

The decision on the preliminary matter in this case turn entirely on whether the complainant was engaged on a contract of employment with the respondent.

While she relied on the UK case mentioned above and seemed to be surprised that UK law does not apply in this jurisdiction, she proceeded to rely on the Blackwood case on the basis of a presumption that it was on all fours with her own case.

Her argument simply was that as she was of the same gender as the appellant in that case, as they had both been on a course, and as that they had both suffered less favourable treatment then this would suffice to bring her within the jurisdiction of the various statutes under which she makes her complaints, because the appellant, Blackwood had been successful in that case.

As noted above the respondent submitted the ‘Programme Document’ for the Higher Diploma in Science and Data Analytics in support of its contention that the course is not one of vocational training but more generally ‘produces graduates who match employer needs’ (page 30 of the document).

The programme document lists the outcome attributes that a graduate will have, and these are general in nature and not tailored to a specific vocational activity.

Specifically, it lists the type of prospective employers with whom a graduate might find employment, and these include ‘ICT companies (e.g., Google. eBay, Facebook, Amazon, Paddy Power), the pharmaceutical industry (e.g., Janssen, Merck, GSK,) and the financial services industry (e.g., Bank of Ireland AXA, EY, Accenture, Deloitte).

Looking again at the definition of vocational training which is contained in s 12(2) of the Act it is as follows.

‘’ any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be concerned as exclusively concerned with training for such activity.

It is easy to see that nurse training could be said to fall within this definition, but I find that the course on which the complainant was a student does not.

While some parts of the definition may apply to the programme (it involves ‘perfection of knowledge, presumably) it must, of course be read as a continuous whole. All of the components of the definition must be met.

But it does not provide the ‘knowledge or technical capacity for the carrying on of an occupational activity’ and more decisively is not ‘exclusively concerned with training for such activity’ as the references to prospective employers and sectors referred to in the extract from the programme document above illustrate.

This was the principle determined in Commissioner of the Garda Siochána v Oberoi and Kelly v UCD and relied on by the respondent and quoted in the respondent ‘s submission above and which I follow and apply in this case.

The course on which the complainant was a student was, in other words, a normal higher education course and the complainant’s reliance on the inclusion of a period of placement is a flimsy argument that comes nowhere near the definition in the Act above.

As noted in Kelly, the course in question involved a 50% placement and yet failed the test.

Accordingly, I find that the complainant did not have a contract of employment with the respondent and does not have the legal standing to make a complaint under any of the statutes referred to above.

For that reason, I do not have to consider the matter of jurisdiction arising from time limits.

For the reasons set out above complaint CA-00050677-001, 002, 005, 006, 007, 008, 009 and 010 are not well-founded.

Jurisdiction, contract of employment