FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : CITY OF DUBLIN VOCATIONAL EDUCATION COMMITTEE (REPRESENTED BY WILLIAM EGAN & ASSOCIATES SOLICITORS) - AND - ROISIN LESLIE (REPRESENTED BY CULLEN & COMPANY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision R-096991-Ft-10/Jc
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on the 19th December, 2011. A Labour Court hearing took place on the 14th January, 2013. The following is the Labour Court's Decision:-
DETERMINATION:
City of Dublin VEC (the Respondent) employed Ms Roisin Leislie (the Complainant) on a fixed term contract of employment commencing in August 2008. In December 2008 the respondent advertised for Tutors – English Language & Socialisation National Refugee Programme. The Complainant applied for the position and was appointed to the post on a fixed term contract of employment in March 2009. The Respondent renewed the fixed term contracts of employment on a number of occasions thereafter.
On the 29thApril 2010 the Complainant presented a complaint to the Rights Commissioner under Section 14 of the Protection of Employees (Fixed Term Work) Act 2004 (the Act). The complaint was that, contrary to the provisions of Section 6 of the Act, she was paid less than and had less favourable conditions of employment than a number of named comparable Employees.
The Rights Commissioner investigated the complaint. She decided that the complaint was not well founded. The Complainant, under Section 15 of the Act, appealed against that Decision to this Court. The case came on for hearing on the 25thSeptember 2012. Following preliminary exchanges between the parties, the Court adjourned the matter until the 12thDecember 2012. The Court further adjourned the matter until Monday 14thJanuary 2013 when it finally came on for hearing.
The Complainant is the holder of a Bachelor of Arts Degree, a Higher Diploma in Education, a TEFL Certificate and a Joint Examining Board Teaching Diploma. She is registered with the Teaching Council as a qualified teacher. Prior to her employment with the Respondent she was employed by Integrate Ireland Language & Training (ILLT) to deliver pre vocational courses to refugees in Ballsbridge Dublin. When ILLT went into liquidation the Respondent continued the programme and employed the Complainant on a fixed-term contract of employment. Her initial fixed-term contract of employment was for the period 26thAugust to 19thDecember 2008. Her contract was renewed for a further fixed-term period until 30thJanuary 2009. The Claimant applied for incremental credit and the Respondent responded in January 2009 allowing her incremental credit for her prior teaching experience.
The advertisement for the “ESOL Tutor” post to which the Complainant was appointed stated that a candidate must possess, a Level 7 Degree or higher, a recognised certificate in English Language Teaching and significant teaching experience.
An hourly rate of pay was offered. The rate of pay equated to the rate paid to an unqualified teacher. Following discussions between the Teachers Union of Ireland and the Respondent this rate was increased and an hourly rate of pay appropriate to a qualified teacher was adopted by the CDVEC and applied to the Complainant and all others appointed out of that competition.
In 2009 the State decided to invite tenders from interested parties to co-ordinate the provision of the programme. The City of Dublin Vocational Education Committee was successful in the competition and thereafter assumed responsibility for delivering the scheme nationwide. The CDVEC decided that it should conduct an open competition for all of the posts in the programme. The Complainant was therefore required to compete for reappointment to the post she held. This time the minimum qualifications required for appointment to the post consisted of a Level 7 equivalent qualification and a Department of Education and Science recognised English language qualification. A salary of €40,000 and 20 days holidays annually attached to the post. These terms and conditions of employment were considerably less favourable than those that had applied to the Complainant when performing the same work, prior to this.
The Complainant argues that she is a fully qualified teacher and carries out the same work, like work or work of equal value as a permanent whole time teacher employed by CDVEC. The Complainant identified two Comparators employed by the CDVEC whom she argues perform the same work or work of equal value compared to the work she performs for that Employer.
Complainant’s Case
The Complainant commissioned Mr Tom Wall to compare the work she performs with that of her chosen Comparators. He did this by way of a job factor analysis in the form of a job evaluation exercise. Through this process he concluded that the Complainant and her chosen Comparators were not performing the same work or like work within the meaning of Section 5(2) (a) and 5 (2) (b) of the Act. He found that that they were performing work of equal value within the meaning of Section 5 (2) (c) of the Act. He gave evidence to the Court to this effect, describing the methods he employed and the outcome of the exercise. Ms Leslie gave evidence to the Court to the effect that she performed the work described in the job description prepared by Mr Wall. Ms Rachel Hegarty, a Comparator in this case, gave evidence to the Court to the effect that job description prepared by Mr Wall accurately describes the work that she performs.
Respondent’s Case
The Respondent argued that the Complainant’s terms and conditions of employment did not amount to an infringement of her rights under the provisions of Section 6 of the Act. It commissioned a job evaluation exercise by Mr Andrew Johnston. He compared the work performed by both the Complainant and her chosen Comparators. Mr Johnston gave evidence to the Court that he did not conduct the evaluation himself but rather trained two other people to perform it on behalf of the Employer. He said that he checked the details of the job descriptions prepared by Mr Wall with members of the Management team and they confirmed that they accurately represented the work performed by the Complainant and her chosen Comparators. He said that the Assessors carried out the assessment against the job descriptions prepared by Mr Wall and approved by Management. He said that he subsequently assessed the quality of the work done by the Assessors and approved it. He told the Court that the outcome of the evaluation conducted under his guidance was that the Complainant and Ms Leslie scored 245 points under this assessment, Ms Hegarty scored 252 points and Ms Barbara Forde scored 342 points. He said that the normal margin of error for this type of job evaluation system was +/- 15%. He said that the difference between Ms Hegarty and Ms Leslie equated to roughly 3% and was within the margin of error. He said that the difference between Ms Leslie and Ms Forde was greater than 15% and was outside the margin of error.
Dr Marie Griffin, Chief Executive CDVEC gave evidence to the Court regarding the background to the commencement and operation of the scheme and the qualification requirements for employment on the scheme.
Mr Finbar Duggan, Head of Human Resources CDVEC gave evidence to the Court regarding Ms Hegarty’s employment in the VEC. He said that she applied for and had been appointed as a Teacher of English with TEFL on foot of a public advertisement in 2002. He said that she was employed on a pro-rata part time teacher’s contract of employment and could be redeployed within the CDVEC system. He said that he could not say if the nature of the work she carried out was unique within the VEC. He said that he was sure there were other teachers employed on similar contracts and engaged in similar work.
Mr Stephen Bearpark gave evidence to the Court. He said that he was employed as the National Co-ordinator of the Back to Education Initiative and the Adult Refugee Program from 2009 until it was discontinued in 2012. He outlined the background to the scheme and the qualifications required for appointment as a teacher on the scheme. He said that the scheme was subject to annual funding by the Department of Education and Science. He said that all staff employed on the scheme were issued with fixed-term contracts contingent upon the continued availability of funding from year to year. He said that he was not disputing the job descriptions prepared by Mr Wall.
Findings of the Court.
Section 5 of the Act provides
- Comparable permanent employee
5.(1) For the purposes of this Part , an employee is a comparable permanent employee in relation to afixed-termemployee if—
- (a) the permanent employee and the relevantfixed-termemployee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevantfixed-termemployee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevantfixed-termemployee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevantfixed-termemployee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevantfixed-termemployee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
and references in this Part to a comparable permanent employee in relation to afixed-termemployee shall be read accordingly.- (a) the permanent employee and the relevantfixed-termemployee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
- (2) The following are the conditions mentioned in subsection (1) —
(a) both of the employees concerned perform the sameworkunder the same or similar conditions or each is inter-changeable with the other in relation to thework,
(b) theworkperformed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between theworkperformed or the conditions under which it is performed by each, either are of small importance in relation to theworkas a whole or occur with such irregularity as not to be significant, and
(c) theworkperformed by the relevantfixed-termemployee is equal or greater in value to theworkperformed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility andworking conditions.
The Court notes that it is common case that the Complainant and the chosen Comparators are employed by CDVEC. Accordingly they are comparable permanent employees if the Complainant and Comparator fulfil one of the conditions set out in Section 5(2) of the Act.
Both sides arranged to have experts conduct job evaluation exercises to determine whether the work performed by the Complainant and either of the Comparators satisfy the conditions set out in Section 5(2) (a), (b) or (c).
Mr Wall, the expert commissioned by the Complainant, told the Court that his analysis concluded that the Complainant and the Comparators did not perform the “same work” or “like work” within the meaning of those terms set out in the Act. As this is the uncontested evidence of the Complainant’s expert the Court accepts his view on this point.
Mr Wall gave evidence to the Court to the effect that the Complainant and both Comparators performed work of equal value. He said that job evaluation was not a science and different experts applying similar systems would come to slightly different conclusions regarding the marks to be allocated under each of the various factors and sub factors. He said that margin of error for the system was +/- 10%. He said that his analysis yielded a 6% difference in the points allocated to the work performed by the Complainant and that performed by one of the Comparators. He said that this equated to equal work within the standard margin of error that is accepted within the profession.
Mr Johnston told the Court that he did not perform the evaluation himself and accordingly the Court finds that he had no evidence to give on the rationale for the actual points awarded under the exercise he was commissioned to carry out. However he is an expert in the operation of that system and his evidence in this regard was considered by the Court. He said that the margin of error in the Hay system that the Respondent employed in this case is 15%+/-. The exercise carried out for the Respondent under his guidance revealed a 3% difference between work performed by the Complainant and one of her Comparators Ms Rachel Hegarty.
On this basis the Court takes the view that the evidence of the two experts and the outcome of the evaluation exercises submitted to the Court by both sides reveal that the Complainant and one of the Comparators Ms Rachel Hegarty perform work of equal value.
As the expert evidence from both sides concludes that the Complainant and one of the Comparators is performing work of equal value within the meaning of Section 5(2) (c ) of the Act and as the Court finds this evidence persuasive, the Court finds accordingly.
With regard to the second Comparator the Court finds that Mr Wall’s oral and written analysis is preferred over the written documentation submitted by the Respondent. Neither of the Assessors who conducted that evaluation gave evidence to the Court. Accordingly the Court has no basis for preferring their findings over those of Mr Wall whose evidence was clear, consistent and credible
Accordingly the Court finds that the Complainant and Ms Forde performed work of equal value within the meaning of Section 5(2) (c) of the Act.
Section 6 of the Act provides
- Conditions of employment for fixed-term employees:-
(1) Subject to subsections (2) and (5) , afixed-termemployee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.(2) If treating afixed-termemployee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1) ,be so treated.
(3) A period of service qualification relating to a particular condition of employment shall be the same for afixed-termemployee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.
(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to thefixed-termemployee concerned or of the same sex as him or her.
(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to afixed-termemployee whose normal hours ofworkconstitute less than 20 per cent of the normal hours ofworkof a comparable permanent employee.
(6) The extent to which any condition of employment referred to in subsection (7) is provided to afixed-termemployee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours ofworkof that employee bears to the normal hours ofworkof the comparable permanent employee concerned.
(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hoursworked by an employee.
(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation ofWorking Time Act 1997 .
The Complainant submits that the grounds advanced by the Respondent do not amount to objective grounds within the meaning of the Act, that they fail to meet the tests set out by the Court of Justice in Case 170/84, Bilka Kaufhaus [1986] E.C.R. 1607 and the application of those tests set out by this Court in Inoue v NBK Designs Ltd [2003] E.L.R. 98. She submits that the justifications advanced by the Respondent do not:-
a) Correspond to a real need on the part of the undertakingb) Are not appropriate with a view to achieving the objective pursued, and
c) Are necessary to that end
She goes on to argue that economic grounds are not a basis for treating her less favourably than her Comparator and refers the Court to the Decision in Hill & Stapleton v Revenue Commissioners & Ireland C-243/95 wherein the Court stated “ So far as the justification on economic grounds is concerned, it should be noted that an Employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that avoidance of such discrimination would involve increased costs”.
Findings
The Court has considered the submissions of both parties on this point. The Court finds that the Respondent has a real need to provide suitable training aimed at the integration of refugees into Irish society. The Court also finds that the employment of teachers to provide the training and education necessary to achieve that purpose is an appropriate way to achieve that end. However the Court does not find that providing reduced terms and conditions of employment for those teachers is a necessary way to achieve that end. The Court finds that teachers on standard terms and conditions of employment could meet the educational needs of this programme. The Court accepts that it may be more costly to do it in this way but does not accept that such a cost constitutes an objective justification for the adverse treatment of the Complainant with regard to her terms and conditions of employment.
The Court has also considered the provisions of the Public Service Agreement 2010 -2014 referred to by the Respondent. The Respondent relies on the provision in the agreement that prohibits cost increasing claims for the duration of the Agreement. The Court does not consider a vindication of one’s statutory entitlements to be comprehended by this provision. No evidence was presented to the Court that would support the Respondent’s submission that this was the intention of the parties in reaching this Agreement. Indeed the Court is not convinced that an agreement to that effect could compromise the Complainant’s rights and entitlements under this Act or under the Directive. Accordingly the Court finds that the provisions of that Agreement are not relevant to the case before it. Finally the Respondent did not cite any section of the Financial Emergency Measures in the Public Interest (Number 2) Act 2009 that limits the application of any provision of this Act. Accordingly the Court finds that this ground is not a relevant consideration is this case.
Remedy
The Court determines that the Complainant is entitled to have applied to her the terms and conditions of employment that apply to her Comparators with effect from 1st September 2009. The Court orders the Respondent to do so with effect from that date. The Court further awards the Complainant compensation in the sum of €20,000.00 compensation for the infringement of her rights under the provision of Section 6 of the Act.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
24th April, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.