Complainant

Respondent

Parties

Paulette  Leonard

The Board of Management Farnham NS

Representatives

INTO

Claire Bruton BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00044583-001

11/06/2021

The complainant alleges that she was penalised in relation to an application she made under the Parental Leave Act 1998, both in relation to the manner in which her leave was granted and subsequently, in relation to her application for the post of Deputy Principal.

Evidence was given under oath/affirmation by the complainant, Ms Paulette Leornard, Ms Geraldine Dolan, Principal Farnham NS and Mr Vincent Mulvey, Independent Assessor on the Selection Board for the post of Deputy Principal.  All witnesses were subject to cross examination.  Submissions were received from both parties and considered by me.

The Complainant has performed the role of Primary School Teacher for the past 28 years. In early June 2020, the Complainant applied to the Respondent requesting six periods of parental leave, some of which were intended to be in September and October 2020, pursuant to her statutory right to do so as set out by section 18 of the Parental Leave Act 1998 and in line with the relevant Chapter of Department of Education Circular 54/2019. At the time of the submission of that application, there was no policy in place in the Respondent School related to applications for Parental Leave. 

 On 12th June 2020, by email, the Respondent rejected the Complainant’s request, stating;

 “The Board of Management discussed your application for parental leave at our meeting 9th June 2020. The Board of Management agreed that due to the worldwide Covid pandemic and the fact that children will have been off school nearly 6 months at the time of their return, children will need stability. Consequently, the Board of Management agreed that no discretionary leave will be granted for September/October. All other weeks of leave post Halloween will be considered in October. This you’ll understand is done in the interest of the safety and welfare of the children, staff members and parents. The Board of Management wishes to acknowledge your withdrawal of your application for Job Share.”

On the 19th day of June 2020, the Complainant wrote to the Respondent requesting that the Respondent reconsider the application for parental leave and to clarify that her application job share had not been withdrawn. Further, the Complainant, in an effort to be reasonable, outlined that she felt that “…it would be possible to forego leave in September and to postpone that leave until May/June 2021.”

 The Complainant received a reply from the Respondent dated 19th June 2020 which did not address her request for parental leave, save any leave which was intended to be “post Halloween”. 

Following that email the Complainant provided the Respondent with a further application for parental leave. The dates applied for were all post-October 2020. In error, the Complainant outlined the dates on the incorrect document, but nonetheless it is submitted that the intended dates on which the Complainant wished to avail of parental leave were set out.

 A reply was received from the Respondent on 1st July 2020, advising that the most recent application was considered at a meeting on the same date. The Respondent stated that a number of weeks parental leave sought by the Complainant in the months of November and December 2020 and January, February, March and May 2021 would not be granted due to the unavailability of one named substitute teacher.

Amended dates on which parental leave which was approved by the Respondent were follows:

•            November 16th – 20th, 2020

•            December 9th – 15th, 2020

•            February 3rd – 9th, 2021

•            March 10th- 16th, 2021

•            May 12th-18th, 2021

These partly amended dates were granted subject to a condition that the Complainant would surrender statutory leave to which she would otherwise be entitled for the school year 2020/2021.  

 By email on 7th July 2020 the Complainant contacted the Chairperson of the Respondent requesting to meet to discuss the Respondent’s which was refused.

 By letter dated the 8th July 2020 the INTO wrote to the Chairperson of the Respondent on behalf of the Complainant setting out the grounds on which the position taken by the Respondent was in breach of the Complainants rights. That letter set out a number of matters with reference to the decision of the Respondent communicated to the Complainant on 1st July 2020 which included; Concerns at the conditional approval of parental leave, subject to the availability of a named teacher and; Concerns at the inclusion of a condition by where the Respondent “expected that no other types of leave will be taken e.g. family leave, EPV days.”

The INTO, by way of letter dated 20th July 2020 stating that the Complainant’s “intention is to avail of parental leave for the 2020/21 school year.” As per the Chairperson of the Respondent’s request a further application was made by way of completing the application form provided by the Respondent.

Subsequently a notice dated July 2020, was posted in the Staff Room purporting to unilaterally impose a requirement with immediate effect, that any staff member requesting parental leave of in excess of 3 weeks were required to take same in block. No such provision is provided for in DE Circular 54/2019.

In or about mid-November 2020, the Complainant became aware of a vacancy for a Deputy Principal role in the Farnham National School.  In the period immediately prior to that, a process of consultation took place with staff in relation to the prospective roles and responsibilities would be for the role once filled. This included a Zoom meeting on 11th November 2020.

The Complainant submitted her application on 3rd December 2020 for the Deputy Principal role.

The Complainant was interviewed for the Deputy Principal role on 15th December 2020 of December 2020, by a panel comprising the Principal, the Chairperson, and independent assessor. In the circumstances, and in light of the protracted period of dispute which had not been resolved as at the date of the interview, it was entirely inappropriate for the Principal and Chairperson to sit on the interview panel for the Deputy Principal role.

It is submitted that the following submission of the request for parental leave and the subsequent request for review of same, in addition to the representations made on behalf of the Complainant by the INTO, the failure of the Respondent to resolve the dispute as per the Complainant’s original request, the fact that some members of the Board of Management adjudicating on the Complainants request for parental leave, the subsequent review, the failure to close out that process, were also members of the interview panel for the Deputy Principal position leads to a reasonable inference that the outcome of the process would not have happened but for penalisation of the Complainant for having asserted her right to and made an application for parental leave. It is further submitted that there was a bias against the Complainant as part of the Deputy Principal recruitment process which can reasonably be attributed to a subconscious bias in the Principal and Chairperson’s participation in the process as a direct result of the Complainant applying for parental leave, an application which the Respondent was clearly not favourable to, and the subsequent efforts by the Complainant and her trade union to affect a resolution.

 At interview, it is submitted that some of the questions at the interview were put to throw the Complainant off due to this subconscious bias as a form of penalisation related to her parental leave application and to favour the eventual successful candidate who did not apply for parental leave in that school year or prior to that interview. It is submitted by the Complainant that for asserting statutory rights, and rights under the Parental Leave Act 1998, she suffered acts of penalisation. As a result of this exercising of her rights, it is submitted that the Complainant was treated less favourably than other members of staff in relation to her application for parental leave, and in relation to the Deputy Principal recruitment process, less favourably than the successful candidate in the Deputy Principal recruitment process.

When the Complainant requested a review of the Respondent’s decision on her application for parental leave, she was granted her request in part, but subject to conditions and/or restrictions which other members of staff were not subject to. When she engaged with this response in an effort to resolve the issue, she was granted dates which she had not requested based on a particular substitute being available for the dates which the representatives of the Respondent were willing to grant. When she took issue with the approach of the representatives of the Respondent, she was made an offer of some of the dates she requested subject to a condition precedent that she would surrender her statutory leave for the school year 2020-2021. At this point the Complainant contacted the Chairperson of the Respondent via email requesting that the condition precedent be removed. This request was rejected by virtue of the amended dates provided in return by the Respondent. Further, the INTO made representations on the Complainant’s behalf in relation to the parental leave dispute raising objections in relation to the conditions which were applied by the Respondent.

With reference to O’Neill v Toni & Guy Blackrock, it is noted that in the determination it states:

“In the instant case what is at issue is the motive or reason for the Complainant’s dismissal. This is to be found in the thought process of the decision makers at the time the decision to dismiss the Complainant was taken…It would be palpably unfair to expect the Complainant adduce direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish the reasons for the dismissal were unrelated to his complaint under the Act.”

In this particular instance, it is submitted that the matter of the Complainant’s applying for parental leave and the interactions thereafter relating to same was “in the thought process of the decision makers”, the principal and chairperson, at the time of the Deputy Principal interview.

Preliminary Issue

The complaint in relation to the dates eventually agreed for the taking of Parental Leave were lodged with the WRC 0n 11th June 2021.  The final communication on these dates took place in July 2020.  The complaint in relation to penalisation is out of time.

Substantive issue

The Complainant joined the staff of the school in 1996. Over the course of approximately 6 years the Respondent Board has granted the Complainant her job-sharing requests. In February 2020 the Complainant applied for job sharing. The Complainant then indicated that she was considering returning to the school full time and in April 2020 she applied on an informal basis for parental leave indicating she had spoken to a named teacher in relation to providing cover. The Complainant sent requests for various dates informally in writing to the Principal in April and May 2020. By letter dated the 12th of June 2020 the Complainant was informed of the following:

“The Board of Management discussed your application for parental leave at our meeting 9th June 2020. The Board of Management agreed that due to the worldwide COVID pandemic and the fact that children will have been off school nearly 6 months at their time of return, children will need stability. Consequently the Board of Management agreed that no discretionary leave will be granted for September/October. All other weeks of leave post Halloween will be considered in October. This you'll understand is done in the interest of the safety and welfare of the children, staff members and parents. The Board of Management wishes to acknowledge your withdrawal of your application for Job Share”.

The Complainant then formally applied for parental leave in or around 25 June 2020. She did this by way of an incorrect application form. She sought parental leave on various dates in November and December2020 and January, February, March and May 2021.The Board of Management also made various determinations in relation to how parental leave would operate in the school generally and asked the Principal to post a notice on the staff notice board in relation to same in July the 2020.

The Notice stated:

“The Board of Management of Farnham National School has decided that from here onwards in the case of applications for parental leave of 3 weeks or more such leave must be taken in block. All applications for leave must be submitted to the BOM on the appropriate application forms.”

The INTO wrote to the Chair of the Respondent Board by letter dated 8th July 2020 objecting on the Complainant’s behalf to what they alleged was the unfairly restrictive approach of the Respondent and asking the Board to reconsider its position in respect of the matter.

The Chair of the Respondent Board responded by letter dated the 17th July 2020. The letter set out the history of matters and stated inter alia:

“We would ask that you clarify what exactly Ms Leonard is seeking under request that our formal application in respect of any such leave be now placed before the Board if required. The Board at this stage does not know what Ms Leonard’s wishes are and is not even clear that she wants to accept the leave that has been granted, which leave was granted by the Board despite the fact that the application was not in the correct format.

We totally acknowledge the leave entitlements of teachers. Ultimately the Board is seeking to manage a School with 16 staff members and 226 pupils in unprecedented and unhealthy times. We have to be cognisant of the safety of all staff and pupils, while trying to accommodate Ms Leonard as we always have done. Could you therefore please clarify what application/applications for leave Ms Leonard wishes to make.To facilitate the required parental leave if leave were granted on the following dates;-November 16th to November 20th, December 9th to December 15th,February 4th to February 17th, 2021, March 10th to the 16th, 2021, May 12thto May 18th, 2021, would this be to her satisfaction? If so, could she please submit the appropriate application forms with appendix A and B completed, reflecting these dates for signature by the Board before Monday the 20th July at 5:00 PM as the Board of Management will be unavailable to meet for a number of weeks.”

A further letter was received from the INTO dated the 20th of July 2020. On examining the content of the letter it was clear that the Complainant intended to apply for parental leave and would submit her application for parental leave. The content of the letter was such that the Respondent felt that there was no need to reply to same. The Respondent Board approved six weeks parental leave sought. It is noteworthy that the Complainant in fact cancelled 3 weeks of the weeks that were granted.

It must be observed that the Complainant made no further complaint in relation to the issue of parental leave and returned to school that academic year without issue or complaint.

The Respondent advertised the position of Deputy Principal on the 17th of November 2020 and the interviews were held on the 15th of December. The post was filled in accordance with Circular 0044/2019. The advertisement noted that the post would be interviewed and marked in accordance with the criteria and marking scheme in that circular.

The Complainant was invited to interview for the post and the letter inviting her to same included a two page document outlining the roles and responsibilities of the Deputy Principal. These roles and responsibilities were discussed with staff on the 11th of November 2020 and subsequently ratified by the Board of Management.

Two individuals applied for the position – the Complainant and the ultimately successful candidate. There were three interviewers – the Chair of Respondent Board, the Principal and an independent assessor. The Complainant made no objection to the make-up of the interview panel which was in accordance with the aforementioned Circular.

The Circular was detailed to all staff at a meeting on the 4th of November 2020. The composition of the interview board was explicitly discussed. The Selection Board also prepared a list of interview questions none of which were of a discriminatory nature. Both candidates were asked the same questions at interview.

The Complainant was unsuccessful not because she had applied for parental leave; she simply did not perform as well as the other candidate at interview. The successful candidate gave better answers, she provided more examples of what she had done in the past and she had a Master’s in Leadership and Management which came across in her answers. The Complainant appealed the decision to the Board of Arbitration. The Complainant was represented at this appeal hearing. Her appeal was rejected.

In relation to the promotion competition for the vacant post of Deputy Principal, the Complainant alleges that she was penalised because she sought parental leave. She appears to be assert that she was a superior candidate to the successful candidate.

The procedure utilised in this case was appropriate and fair. Notes of the interviews of each candidate were maintained. The marks on the sheets were given based on each individual's performance on the day of the interview. The fact is that performance at the interview was given the same weighting for each of the candidates equally. In relation to the claim of penalisation she has singularly failed to provide any link between the detriment complained of and the seeking of parental leave. The time that passed between the seeking of the parental leave and the appointment of the other candidate as Deputy Principal was many months.

The Labour Court in the Road Safety Authority v Hegarty &Drya HSD 142 stated:

Paul O’Neill v Toni & Guy Blackrock Limited, Labour Court Determination HSD 095, 21 ELR, 1where the Court noted that it is clear from the language of Section 27 that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

The Complainant has not established any link between the act complained of and the fact that she sought parental leave (and was granted same) many months earlier. On examining her claim form no causal link has been established. This is pure speculation on her part. If she had any real concerns about the composition of the interview panel she would have objected from the outset – she did not.

Preliminary Issue

There are two issues the subject of the complaints in relation to penalisation;  Firstly, the handling of the complainant’s request for parental leave and in particular the fact that she did not get the dates she initially applied for and that those dates she did get were subject to conditions in relation to other leave and; Secondly, that the complainant was penalised in relation to her interview for the post of Deputy Principal resulting from her exercising her rights under the Parental Leave Act 1998.

 Section 7 of the Parental Leave Act provides that the leave may be taken as a continuous period, or

(b) with the agreement of the employer or representatives of the employer and other employers and the employee or representatives of the employee and other employees, a number of periods……

In this instance the employer entered into discussions with the complainant who wished to exercise an option of taking the parental leave other than in a continuous period.  The final decision was communicated to the complainant in July 2020

Section 18 (5) of the Parental Leave Act 1998 states that;

5) A notice under subsection (4) shall be given as soon as reasonably may be after the occurrence of the dispute concerned and in any event not later than 6 months after the occurrence of the dispute

The complainant made her complaint to the WRC on 11 June 2021.  This aspect of her complaint is clearly out of time and therefore I do not have jurisdiction to hear it.

The second aspect of the complaint of penalisation relates to the competition for the post of Deputy Principal.  The outcome of this competition was made known on the 16th of December 2020.  This date falls within the six month period under which a complaint may be made and therefore I have jurisdiction to hear it.

Substantive Issue

The complainant has argued that, resulting from the interaction with both the Chairperson of the Board of Management and the Principal on the Parental Leave issue, there was a bias against her in the interview for Deputy Principal.  The respondent denies this and has submitted detailed evidence of the scoring system used and adherence to the relevant Circular Letter covering such competitions.  The respondent has also stated in submission that the time elapsed between the issue in relation to the request for parental leave and the interview process was several months and, in the evidence of the Principal, there was no residual acrimony or any animosity towards the respondent.

Evidence was also given by the independent assessor on the selection board, an Administrative Principal from another school.  In his evidence the independent assessor confirmed that, during a preparatory meeting for the interviews, one or other of the respondent’s representatives on the selection board raised the issue of the interaction which had taken place between management and the complainant in relation to her application for parental leave.  He understood this to be background information relevant to the candidate.  This evidence is clearly at odds with both the submissions made by the respondent on this issue and with the evidence given by the Principal that the parental leave incident was in the past and formed no part of the considerations relating to the promotional post.  If it was in the past and not relevant why was it mentioned to the Independent Assessor in the context of preparation for the interviews?  I note the further evidence of the Independent Assessor, that, in his assessment of the candidates, the successful candidate was the appropriate choice.  Nonetheless, the only conclusion I can draw from the raising of the incidents surrounding the complainant’s application for Parental Leave, was that this was considered relevant to her application for the post of Deputy Principal, and not in a positive way. 

Section 16 A of the Parental Leave Act (revised) provides as follows;

16A.— (1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave or force majeure leave F32[or to make a request under section 15A(2)].

(2) Penalisation of an employee includes—

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

I conclude that the complainant has been treated unfairly arising from her exercising her entitlements under the Parental Leave Act and that compensation is the appropriate remedy.

The complainant was penalised contrary to Section 16A of the Parental Leave Act and I order the respondent to pay her €20,000 in compensation

Penalisation, Parental Leave Act