SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
GAELSCOIL THULACH NA NOG
(REPRESENTED BY ARTHUR O'HAGAN SOLICITORS)
- AND -
JOYCE FITZSIMONS MARKEY
(REPRESENTED BY O'MARA GERAGHTY MCCOURT SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Application for redress under Section 77(2) of The Employment Equality Act, 1998
2. The complainant was employed by the School from April, 2001 until March, 2002, when she was dismissed. She claims she was discriminated against on the grounds of her family status and religious belief. She also claims that her dismissal was carried out in breach of fair procedures contrary to the Code of Practice on Grievance and Disciplinary Procedures.
She referred the complaint to the Labour Court in accordance with Section 77(2) of the Employment Equality Act, 1998. A Labour Court hearing took place on the 20th of April and the 11th of May, 2004.
The respondent employed the complainant as a Secretary to the school from 23rd April 2001 to 19th March 2002 when she was dismissed. At the time of her dismissal she was working five hours per week.
The school is an interdenominational Gaelscoil, which was founded in September 1998 in Dunboyne, Co. Meath. The complainant is a Catholic and had three children attending the school at the relevant time.
In June 2001 An Foras Patrunachta carried out a review of religious education as taught in the school following which it decided on the introduction of a new religious education programme.
The Principal at the time was refusing to implement this programme, as he and others believed that it discriminated against the minority religious denomination in an interdenominational school.
On 27th February 2002 the complainant wrote to the Chairperson of the Board of Management stating that an unnamed person had breached confidentiality concerning her terms of employment which had been discussed at a Board meeting.
The Board of Management requested the Principal to carry out an investigation into the matter. In that regard he met with the complainant on 7th March 2002, who told him that Ms. Maura Tiernan had discussed with her a change of hours as School Secretary and that this information had come from the O’Sullivan household (Mr. O’ Sullivan was a member of the Board).
On 12th March 2003, Mrs. O’ Sullivan, a parent of a child in the school and husband of the Board member, made a written complaint to the Chairperson of the Board of Management alleging that the complainant had behaved aggressively towards her in the school yard. She stated that during this incident the complainant referred to Mrs. O’Sullivan’s husband whom she accused of breaching confidentiality. On the same day, following a telephone conversation from Ms. Power, Ms. Fitzsimons-Markey made a written response to the allegations.
By letter dated 15th March 2002 to Ms. Fitzsimons-Markey, the Board stated that it was satisfied that there had been no breach of confidentiality and sought a retraction of the allegation and an apology.
By letter dated 18th March 2002, (delivered by hand) a solicitor acting on behalf of the complainant wrote to the Board requesting a written account of the complaint against her, seeking a written response to her own complainant. The solicitors suggested the convening of an oral hearing into both complaints and sought a copy of the schools grievance procedure and disciplinary procedure.
On 19th March 2002, Ms. Power and another member of the Board delivered a letter to the complainant’s home, informing her that at a Board meeting held on 14th March 2002, a decision was taken to dismiss her as it had decided not to continue to employ a parent as the Secretary of the school. She was given one weeks notice.
The complainant claims her dismissal was on discriminatory grounds, namely on the “family status” ground and on the grounds of “religious belief” as defined in section 6(2) of the Employment Equality Act, 1998 (the Act) and that she was dismissed in breach of Section 77 (2).
The Complainant’s Case
On appointment to the job, the complainant signed a statement accepting that she would keep all school matters confidential.
The complainant submitted to the Court a copy of a contract of employment, which she maintains was furnished to her (although typed by her) in draft form by the Principal of the school on 24th January 2002 and finalised on 28th February 2002. This contract stated that her probationary period terminated on 1st November 2001.
In her capacity as a parent of children in the school, in June 2001 the complainant expressed her views on the introduction of a new religious education programme, by written correspondence to the Secretary of An Foras Patrunachta and to the Chairperson of the Board of Management.
At the time the Principal was refusing to implement this programme, as he and others believed that it discriminated against the minority religious denomination in the interdenominational school. The complainant publicly supported the Principal in his views. She spoke to the media, hosted parent teacher meetings in her home and allowed her home address to be used in this connection.
The complainant maintains that her stance provoked personal animosity from some parents (particularly those on the Board of Management) and she believed that the Board were concerned about her views due to the sensitivity of her position as School Secretary.
The complainant submitted that the letter of 19th March 2002 dismissing her, discriminated against her on the family status ground and that further, the real motivation for her dismissal was to penalise her for supporting the Principal in his view on the new religious education programme, which she claimed also constitutes discrimination against her on the religious grounds.
Counsel for the complainant contend that the dismissal was carried out in breach of fair procedures contrary to the Code of Practice on Grievance and Disciplinary Procedures (S.I. No: 146 of 2000) particularly as she was not afforded the opportunity of confronting her accuser nor was she afforded the opportunity of being heard in her own defence.
The Respondent’s Case
The respondent accepted that Ms. Fitzsimons-Markey was dismissed by letter dated 19th March 2002. However, it denied that the dismissal constituted discrimination against the complainant contrary to the terms of section 77 of the Employment Equality Act, 1998.
The respondent maintained that the reason for her dismissal was that the Board decided, “it was inappropriate to have as Secretary to the school a person who was at the same time a parent ofa child in the school." This decision was directly related to the controversy which had arisen concerning the teaching of religion in the school. The Board was of the view that in any difficult situation a conflict could arise between a persons’ duty as a parent and their duty to the school and consequently in future no parents of children in the school would be employed as secretaries. The respondent took the view it was the conflict of interest rather than the particular controversy that caused them to reach this decision.
The respondent disputed the complainant’s contention that the motivation behind the dismissal was penalisation of those who supported the Principal.
The Board also stated that it lost confidence in the complainant following the outcome of an investigation by the Principal into the allegation of breach of confidentiality. There were also a number of matters and controversies ongoing in the school in which the complainant was involved (as was her right as a parent).
The respondent contested that a case has been made which could lead to an inference of discrimination on the religious ground.
The respondent contested the complainant’s assertion that the contract of employment submitted to the Court had been sanctioned by the Board, it held the view that this contract had been compiled by Ms. Fitzsimons-Markey herself and had not been approved by the Board.
Following the Principal’s investigation into the alleged breach of confidentiality, the Board decided to summon Ms. Tiernan to the Board on 14th March 2002 for her version of events. At that meeting Ms. Tiernan categorically denied that she had mentioned a change of hours to Ms. Fitzsimons-Markey.
The school has continued to employ a part-time Secretary and the person currently holding that position, while a parent, is not a parent of a child in the school.
Ms. Fitzsimons-Markey’s evidence.
The complainant stated that Mr. O’Dulaing, the Principal asked her to draw up her contract of employment using a sample contract from the Department of Education. She stated that her hours of work had been discussed by the Board and that a recommendation to increase them from five hours per week to fifteen hours was to be sanctioned by the Board.
She gave details of a conversation she subsequently had with Ms. Tiernan, her business partner in the running of a cr�che. Ms. Tiernan brought up the issue of the complainant’s impending increase in employment hours in the school; this was information which could only have been acquired from a Board member. The complainant was very upset at the fact that this information, which she considered was a private issue, was known to Ms. Tiernan. When she went home the complainant wrote the letter of complaint to Ms. Power.
When the complainant was interviewed as part of an investigation into the allegations, she suggested to Mr. O'Dulaing that as Ms. Tiernan and Mrs. O’ Sullivan were friends that she assumed that the breach of confidentiality had come from that household.
She recounted the details of the “altercation” in the schoolyard with Mrs. O’ Sullivan. She maintained that she was upset over the breach of confidentiality which she was convinced had come from Mrs. O’Sullivan’s husband and that she had referred to it in her brief encounter with Mrs. O’Sullivan.
She told the Court that as Secretary of the school, she was aware of the meeting called for 14th March 2002, however she was not aware of the agenda. All members were issued with invitations but Mr. O’ Sullivan’s was withdrawn at the instigation of Mr. O’Dulaing.
Ms. Fitzsimons-Markey gave evidence of the visit to her house by Ms. Power and Mr. Devenney, on 19th March 2002, when the letter of dismissal was delivered. She stated that she would not go to the door to meet them and that her husband had spoken to them. She explained how he had attempted to refuse to accept the letter of dismissal, however, it was “thrown in the door”.
In response to questioning from the respondent’s counsel, she stated that she did not accept that the school was an interdominational school, as Catholics were in the majority, and stated that it was interdominational in name only. She disagreed with the view that An Foras Patrunachta was responsible for deciding on the religious ethos of the school and held that such decisions were the subject of consultation between all facets of the school, including parents and teachers.
The complainant informed the Court that she ran a separate business entity – a cr�che, and that it had not expanded since her dismissal. She explained that her children were taken out of the school in 2003.
Mr. Aidan Devenney’s evidence
Mr. Aidan Devenney was a member of the Board of Management at the pertinent time. He stated that early in January 2002 the Board set about formalising all ancillary staff matters and to that end proceeded to discuss the task of issuing written contracts of employments. A subcommittee was set up for this purpose, however it never convened. He stated that a contract for Ms. Fitzsimons-Markey was never put to the Board for approval.
At the Board meeting on 14th March 2002 the report into the investigation of the complaint raised by Ms. Fitzsimons-Markey was discussed. Ms. Tiernan was summoned to the meeting to give evidence. Based on the categorical denial by Ms. Tiernan of the matters complained of, the Board accepted the Principal’s conclusion that the allegation was unsubstantiated. Mr. Devenney explained that Ms. Fitzsimons-Markey’s complaint had been taken very seriously, as had the complaints made by both Mrs. O’ Sullivan and Mr. O’Sullivan. The witness explained that once it was decided that Ms. Fitzsimons-Markey’s complaint was totally unfounded, the Board had lost all trust and confidence in her. The Board decided to write to Ms. Fitzsimons-Markey and seek a retraction to the complaint and an apology to Mr. and Mrs. O’ Sullivan. A letter to that effect was devised by the Board.
As a result of this finding, the Board then made a decision not to issue a permanent contract of employment to Ms. Fitzsimons-Markey and then proceeded to discuss whether she should be retained at all. He then explained there was a perception by the Board that in relation to the complainant, “there was more trouble approaching” and there was serious concern about her position as Secretary which was viewed as a potential conflict of interest in view of her role as a parent of a child in the school. The Board therefore decided to dismiss the complainant and to appoint a non-parent of a child in the school. He explained that this had been a concern even before Ms. Fitzsimons-Markey’s appointment but as there was only one applicant, she was appointed to the job and asked to sign a statement accepting that she would keep all school matters confidential.
Mr. Devenney told the Court that at this point of the meeting the Principal strenuously objected to the notion that the Board would consider dismissing her and he decided to leave the meeting in protest. The vice principal also attempted to walk out but remained when the Chairperson threatened to disband the Board as it would not have a quorum.
At this point of the meeting, the Chairperson of the Board made reference to the fact that Ms. Fitzsimons-Markey had less than a year’s service and therefore did not have the protection of the Unfair Dismissals Acts 1977 - 1993.
Mr. Devenney confirmed for the Court that even if the complainant had retracted the complaint and apologised, that she would still have been dismissed. The Board prepared a letter of dismissal, which included the sentence “it was decided by the Board of Management not to employ a parent as the Secretary of the above mentioned school”. It was the vice principal who suggested this wording in an effort “to soften the blow for Ms. Fitzsimons-Markey”.
Mr. Devenney confirmed that the complainant had not been informed beforehand that her employment was in jeopardy nor was she given notice of the reason for the Board meeting. She had not been invited to attend.
When questioned by counsel for the complainant about Ms. Fitzsimons-Markey’s views on the proposed new religious education programme, the witness confirmed she was perceived as becoming partisan in her views. The protest had a wide impact on parents and the wider community. The Principal was in open conflict with the Board and the complainant was supportive of his views. The witness stated that he would have an issue with her personal views if they interfered with her role as Secretary. However, he stated that her views did not impact on her ability to perform her duties as Secretary to the school and that no difficulties were raised by teachers/parents in this regard.
When questioned by the Court about Ms. Fitzsimons-Markey’s employment status, he stated that her status was “temporary with a view to permanency” if and when the Board approved a permanent contract. He was of the view that at the time of the meeting on 14th March 2002, that she was on probation.
He recounted how he and Ms. Power visited the complainant’s house on 19th March 2002, with the letter of dismissal.
Mr. Devenney was questioned by the Court in relation to the letter dated 18th March, addressed to Ms. Power from the complainant’s solicitors, which threatened legal action if the complainant was dismissed and made proposals on how any difficulties between the parties could be addressed. He indicated that he was aware of its contents and that it had not influenced their decision to dismiss.
Mr. Devenney stated to the Court that the complainant’s “doctrinal position had nothing to do with the reasons for her dismissal”, that the dismissal was solely related to the Board’s lack of trust and confidence in her following the unsubstantiated complaint and due to the altercation with Mrs. O’Sullivan in the school yard. He was emphatic that her dismissal had nothing to do with her status as a parent. He was of the view that the complainant was overstepping the mark by personally contacting the Chairperson of the Board at her private address on a number of occasions.
Mr. O’Dulaing was principal of the school at this time. In response to questioning by the complainant’s counsel he explained the importance of confidentiality concerning school matters for both employees of the school and Board members.
Mr. O’Dulaing gave details of his investigation into the complainant’s complaint to the Board, made on 27th February 2002. He had been requested to speak to the complainant by the Chairperson of the Board. He recounted how Ms. Power, the chairperson, told him of a conversation she had with Ms. Tiernan who was not prepared to divulge the source of the information she had heard from a member of the Board.
When questioned by the Board at the meeting on 14th March Ms. Tiernan categorically denied having any conversation concerning a change in working hours with the complainant or referring to anything a Board member said to her in this regard.
In recounting the detail of the 14th March Board meeting, he described it as “one of the nastiest meetings of the whole saga”. He stated that it was obvious that four members of the Board were intent on dismissing the complainant. His detail of the events of that meeting - up to the point where he left the meeting in protest - were similar to Mr. Devenney’s with the addition that he felt that the decision to dismiss had been made beforehand. Mr. O’Dulaing explained that Ms. Power had told him that she had contacted An Foras Patrunachta prior to the meeting to seek their approval of the dismissal.
His understanding of the reference in the letter of dismissal to the Board’s decision not to employ a parent as the Secretary of the school was that this was an excuse that would be given to the wider community for the complainant’s dismissal. He was of the view that her dismissal had nothing to do with her being a parent of children in the school and was not connected with her support of him in his stance on the controversy concerning religious education. His view of the reason behind her dismissal was the complaint made to the Board, which was found to be unsubstantiated and her altercation with Mrs. O’Sullivan in the schoolyard. He indicated to the Court that he was disgusted with the Board’s decision to dismiss and that he had suggested a stay be put on the dismissal at that point.
Mr. O’Dulaing contested the respondent’s assertion that a contract of employment for the complainant had not been agreed by the Board.
Ms. Power’s evidence
Ms. Power, a practicing solicitor was appointed as Chairperson of the Board, in January 2002. She outlined how having received the letter of complaint from Ms. Fitzsimons-Markey she initiated an investigation into the allegation. She explained that having received the letters from both Mrs. O’Sullivan and Mr. O’ Sullivan complaining about Ms. Fitzsimons-Markey’s conduct in the schoolyard, she immediately convened a special meeting of the Board to deal with each of these matters.
Ms. Power outlined that she invited Ms. Tiernan to attend the Board meeting on 14th March but did not discuss the matter in hand with Ms. Tiernan prior to this meeting. She denied seeking approval for the complainant’s dismissal from An Foras Patrunachta, prior to the meeting, as Mr. O’ Dulaing had maintained.
Ms. Power stated that the reasons for the dismissal of the complainant were as described by Mr. O’Dulaing and added that Ms. Fitzsimons-Markey’s challenge to her employer brought her to the attention of the Board. In recalling how she turned up at her office on a number of occasions, Ms. Power described the complainant as a very forceful person.
Ms. Power explained that, as the Board did not have any obligation to the complainant because she was not covered by unfair dismissal legislation, a decision was taken not to renew her contract of employment.
In response to Mr. Kerr’s questions, Ms. Power stated that she was not familiar with the principals of natural justice and fair procedures. She explained that she was not a legal advisor to the Board of Management.
Burden of Proof
It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2000). The correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court inSouthern Health Board v Dr. Teresa Mitchell, ED00/3Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities.
Consequently, the probative burden of establishing that the complainant’s dismissal was not discriminatory rests on the respondent.
The Court is satisfied that the complainant has established sufficient facts to raise an inference of discrimination: -
(i) there was a dispute concerning the timing of religious instruction to Catholic children prior to their making their first communion and that strong feelings has arisen between the two groups of which the complainant was one and the group in opposition to the complainant had a majority on the Board of Management,
(ii) the written reason for the dismissal dated 18th March 2002 was that she was being dismissed as the Board of Management has decided not to continue to employ a parent as Secretary of the school,
(iii) fair procedures were not conducted into the events leading up to the dismissal.The Court is satisfied that the primary facts established in this case do raise an inference of discrimination.
6. -(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are -
- (c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as "the religion ground"),
Section 2(1) interprets family status as having responsibility as a parent in relation to a person who has not yet attained the age of 18 years.
Section 2(1) also interprets religious belief as including religious background or outlook.
The Court’s findings
The Family Status ground
The letter dismissing the claimant states that the Board had decided not to employ a parent as the Secretary of the School. The respondent stated that what was intended was that a parent of a child in the school could no longer be employed as Secretary. This they say was sufficient to absolve them from the charge of discrimination.
The Court cannot accept this contention. Whether the claimant was the parent of a child in the school or not is irrelevant. The fact remains that as a parent of a child under the age of 18 she was subject to less favourable treatment than a person without children would have been and accordingly was dismissed in circumstances amounting to discrimination in breach of Section 77(2)(a) of the Act.
The Religious Belief ground
Gaelscoil Thulach na Nog was founded as an inter-denominational school. One of its purposes was to instil respect for all religions. Unfortunately, a bitter dispute arose as to the period when the Catholic children should receive formal instruction prior to their making their first communion. One group of parents, which included a majority of the management committee, felt that this instruction should take place during school hours with the result that children of other religions would be either sent out of class or sent home. Another group, which included the complainant and the principal of the school, were of the view that such instruction should take place after school hours. Unfortunately, relationships between the two groups deteriorated and a succession of claims and counter claims alleging misbehaviour was made by and against the complainant. Culminating in a decision taken at a Board of Management meeting to dismiss the complainant, which the Court, having heard all the evidence, finds was in breach of fair procedures.
It was accepted by all parties that the complainant’s views on the new religious education programme did not impact on her ability to perform her duties as Secretary to the school and that no difficulties were raised by teachers/parents in this regard.
Based on the evidence of all those present at the Board meeting on 14th March 2002, the Court accepts that the immediate reasons behind the complainant’s dismissal were:-
(i) her unsubstantiated complaint to the Board regarding a breach of confidentiality in relation to her working hours,
(ii) her altercation with Mrs. O’Sullivan in the school yard
(iii) the perception that her employment status was not permanent, and
(iv) the fact that her position as a parent of children in the school would lead to a conflict of interest with her duties as a Secretary
The question the Court has to decide is whether the controversy concerning the religious education of Catholic children in their preparation for first communion was a factor in the decision taken by the Board to dismiss the complainant. If so, the Court may conclude that the complainant was discriminated against on the ground of her religious belief or outlook. However, having considered all the evidence and the Court accepts that the controversy was not a factor in the decision of the Board to dismiss the complainant.
Therefore, the Court is satisfied that she was not discriminated against on the grounds of her religious belief or outlook in breach of Section 77(2) of the Act.
The claimant was discriminated against on the family status ground within the meaning of the Act, by being dismissed in circumstances amounting to discrimination in breach of Section 77(2) of the Act. The complainant seeks reinstatement and compensation. Given the bitterness of the feelings engendered between the parties and the lack of trust and confidence, reinstatement or re-engagement is not an appropriate remedy. The Court is of the view that the appropriate remedy is compensation.
Prior to the incident complained of the claimant was in receipt of the gross income of
€63.50 per week. The Court proposes to award the claimant the sum of €6500.00 compensation.
The Court so determines.
Signed on behalf of the Labour Court
6th September, 2004______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.