Complainant

Respondent

Parties

Ciara  Linehan

Board Of Management (Bom) Of Gaelscoil An Raithin

Complainant

Respondent

Anonymised Parties

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Representatives

  Irish National Teachers' Organisation (INTO)

Barra Faughnan BL instructed by MASON HAYES & CURRAN LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055165-001

17/02/2023

The complainant submits that she was penalised for invoking entitlements for a contract of indefinite duration (CID).

At the start of the hearing the complainant confirmed that the complaint was received by the WRC on 17/02/2023 and that the complaint in front of me was that but for asserting her right to a CID her employment would not have ended and that her employment ended as she was unsuccessful following the interview process of 22/08/2022 and that she was unsuccessful at interview as she was penalised with hostile questions owing to asserting her right to a CID and that other matters would be referred to by way of background to her complaint.

The Complainant is a primary school teacher and was employed at Gaelscoil An Raithin, from November 2017 until the end of April 2019, and then again from September 2019 to the end of August 2022. The Complainant lodged claims penalisation for asserting her right to a Contract of Indefinite Duration (“CID”), with the Respondent ultimately failing to continue to employ the Complainant, notifying the Complainant of this by way of letter which was received on 26/08/2022.  The Complainant submits that she was penalised throughout a competition process relating to two- fixed-term vacancies that were being filled at the Respondent school in August 2022.  The Complainant submits that the Respondent attempted to impede and block her access to interview during the application process for the fixed-term vacancies and the Respondent treated her less favourably during the interview process on 22/08/2022 and the complainant was unsuccessful in obtaining an offer for either of the two vacant roles due to penalisation.  The Complainant submits that there was a viable contract available in the school for the academic year beginning September 2022 and that she was entitled to be awarded a CID. The Complainant submits that she should have been awarded this contract pursuant to DE Circular 23/2015 and DE Circular 44/2019.

The INTO wrote to the school to outline the Complainant’s position in relation to CID on 13/06/2022 acknowledged by the school from the school Principal.  The Complainant did not receive any correspondence from the Chairperson of the BOM. A follow-up letter was issued by the INTO to the Principal on 20/06/2022.The Complainant made various attempts of her own to engage with the principal without success.  On 5/07/2022, the Complainant was advised by the principal that this matter was with the Board of Management (BOM) for consideration and decision.  On 22/07/2022, it came to the Complainant’s attention that two fixed-term positions were vacant at the school for the academic year 2022/20223. The Complainant found the fixed-term positions advertised on ‘educationposts.ie’,and was not notified of these positions by the school. The Complainant submitted an application in relation to both two fixed terms positions 26/07/2022 without prejudice to her entitlement and claim for CID. 

On 8/08/2022, the Complainant received an email from the Chairperson of the BOM notifying the Complainant that the two fixed term positions were covering contracts alleged to cover for job share arrangement and further that the Complainant’s application for same, could not be accepted as they were alleged to have been submitted after the deadline of 28/07/2022.  In relation to the submission deadline for the two fixed term positions which the Complainant applied for, the Complainant submits that she did not miss the deadline, one application was via registered post on 26/07/2022, with another sent via ordinary post. The INTO wrote to the school by way of email dated, 17/08/2022 outlining the circumstances in which the Complainant had submitted her application and maintaining it had been submitted within the relevant deadline including evidence of the Registered Post slip.  The Complainant submits it is her belief that Respondent would have been aware that her application was submitted in time as the Respondent would have had knowledge of the redirection of the post to the Principal’s home address. The Complainant submits it is her belief that the Respondent deliberately attempted to exclude her from the competition process. The school responded by email 17/08/2022, finally accepting that the circumstances in which the Complainant submitted her applications were within the deadline of 28/07/2022.

The Complainant submits that the school’s failure to inform her of the fixed term positions was deliberate and designed to prevent her from accessing further employment in the school for the 2022/23 school year. This submission is without prejudice to the Complainants assertion that the Respondent continued to have a viable contract which would have allowed her to be awarded CID. The Complainant attended an interview for the fixed term positions on 22/08/2022 and that she was treated unfairly throughout the interview process and described the interview environment as “very unwelcome” and “hostile”. The Complainant submits that the questions and the manner in which the interview was conducted had been designed to humiliate her. The Complainant was not successful in the interview process and was not awarded either of the two fixed term positions, which she applied for without prejudice to her previous claim to be entitled to CID.  The Complainant submits that her employment was ultimately terminated as a result of the Respondent’s failure to award her with a viable contract and/or any other contract which would have led to her continued employment with the Respondent which likely would have led to her being awarded a CID.

It is submitted that the Respondent penalised the Complainant by way of dismissing her from her employment which was wholly or partly connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration pursuant to the relevant Circulars. It is submitted that the Respondent penalised the Complainant by their failure and/or refusal to reasonably engage with the Complainant in her assertion of her right to a Contract of Indefinite Duration.  The Complainant suffered unfair and unfavourable treatment and was subject to action which was prejudicial to her employment.  It is submitted that the failure and/or refusal of the Respondent to inform the Complainant of the two vacant positions in the school is indicative of the Respondent’s intention to penalise the Complainant.  The Respondent attempted to deliberately impede and/or block the Complainant from access to the competition process in relation to the two vacant positions and led to her suffering unfair and unfavourable treatment and was subject to action which was prejudicial to her employment. It is submitted that the Respondent subjected the Complainant to unfair and unfavourable treatment during and throughout the competition process. as she was humiliated and forced to answer questions of a detailed and probing nature to which her competitors were not.

It is submitted that the Complainant was subjected to penalisation by the Respondent wherein she was not awarded either of vacant positions and in any event, was not awarded any contract whatsoever to allow to continue her employment with the Respondent. The Respondent’s failure and/or refusal to award the Complainant with either of the two vacant positions lead to her suffering unfair and unfavourable treatment and was subject to action which was prejudicial to her employment. It is submitted that the Complainant would not have been penalised throughout the competition process but for she had engaged with a trade union to make representations in relation to this matter on her behalf.

Case law cited An Art Lecturer and Teacher v A third Level Education Institute, (2018),ADJ-00013256 Clare County Council v Power FTD0812 Mount St. Michaels Secondary School v Elizabeth Morrissey (2009) FTD0915,Tony & Guy (Blackrock) Ltd v O’ Neill HSD 095A Former Employee v A German Company ADJ-00000351.

Evidence of Ciara  Linehan:

The complainant gave evidence that she graduated in 2017 and loved her job and worked there in 2018, 2019, 2021 and 2022 and that she felt things took a turn downwards in 2022.  The custom and practice was that the principal would advise when jobs became available, and this did not happen in 2022.  People knew who would get what jobs and she was nervous about interviewing and the principal told her not to be nervous.  The complainant raised the matter of a contract of indefinite duration (CID) in June and the principal did not think that maternity cover could impact a CID and the principal did not like the way the complainant completed a form.  She found out she was unsuccessful and there was another teacher with greater seniority who was successful, and the complainant was happy for her.  The complainant wanted to apply for CID in September 2022 and the complainant signed her part of the form and wanted it sorted and the principal told her the position had not been posted.  The complainant completed the application, but the department of education advised that there was no record of receipt of her application.  She went to the principal who did not seem happy that the complainant was querying this and was advised that the respondent could amend how the positions were allocated such that the complainant would be able to avail of a CID but was told by the principal that this was not an option and the relationship changed.  It was felt that there was roadblock after roadblock placed in front of her.  On 26/07/2022 there were positions advertised but she was not informed by the school the way she would be informed previously, and the complainant sent her application by ordinary post and then registered post and was told her application was late.  She was advised that the closing date was 28/07/2022 and was told her application arrived after that even though she sent it before the closing date.  An Post advised that the application had arrived at the school on time but had been redirected to the principal’s house and when it arrived at the principal’s house it was after 28/07/2022 and she would not be interviewed therefore because her application was deemed to be late.  When the respondent found out that it had in fact arrived at the school on time an interview was arranged. 

The complainant said it was a very hostile interview and felt the questions were same as every other year but more probing.  One question posed was about Irish immersion

“Is Gaelscoil í seo. Múintear na hábhair trí mheán na Gaeilge. An bua nó dua é an tumoideachas i do thuairim? Cad iad na treochtaí reatha taighde ar an tumoideachas i gcomhthéacs na hÉireann?”

“This is a Gaelscoil. The subjects are taught through the medium of Irish. Is immersion education a gift or an obstacle? What are the current research trends regarding immersion education in the Irish context?”

and she was asked could she name a researcher, and this threw the complainant and another candidate advised that she had not been asked the same question but that other candidates are fearful of giving evidence to this.  The complainant said that the principal was not smiling as she would be at the other interviews and the principal appeared hostile and smirked and that the complainant felt that but for applying for a CID she would have been treated differently as it was a different interview environment than previously.  She found this experience very humiliating and that but for asserting her rights to a CID it would have been different.  She found out that she came 9th out of 10 candidates.  She now does not have a permanent job and has to travel 66km every day and it has impacted her mental health and it has impacted her also financially.

Cross Examination:

Under cross examination the Complainant said she did not appeal the decision regarding refusal of CID and did not raise a grievance.  She expected to remain in the school and pursue the CID and did not get the text or emails from the principal that she would have received before regarding interviews and that the interview process was technically a box ticking exercise and that the principal knew who she wanted to get the job and it was not her and the principal ranked people at interview how she wanted them to be ranked.  The complainant accepted that she was ranked 3rd out of 6 in 2018, ranked 5th out of 8 in 2019, ranked 4th out of 8 in 2020 and 2nd out of 7 in 2021 and ranked 9th out of 10 in 2022 and those whom the principal wanted to get permanent jobs got them.  She denied that she used the phrase that the other interviewees Jerry and Siobhán were puppets for the interview process and that she always got a week’s notification of interview but did not get it on this occasion.  She accepted that the original tracking number given was incorrect and said that she was asked if there was any researcher that stood out and that she found this intimidating and that it was known by the principal that she would not know the answer to that question and that they did not ask other people that question, and it was not a pleasant atmosphere.  She said that the job share contract would not have allowed her to get a CID but would have allowed her to remain working there.  She said that the interview process is a tick box and that regardless of how well you do if the principal wants you then you get the job and that those interviewing are part of the tick box.

The Complainant had worked mainly as a substitute teacher and then on a one-year fixed term temporary position in the school from 2018. In both 2021 and 2022, prior to competition for fixed term contracts, the Complainant made applications for a CID to the Department of Education, with the assistance of the school, both of which were refused.

It was submitted that any matter occurring more than six months prior to the service of the Complaints Form is statute barred and the WRC is only entitled to consider for the purpose of this claim events from 18/08/2022 onwards.  The claim form was received by the WRC on 17/02/2023. The Complainant interviewed for positions in the school on five occasions. The entitlement of teachers in recognised schools to seek and/or to be awarded Contracts of Indefinite Duration is governed primarily by the terms and conditions of circulars and practices operated by the Department of Education. Boards of management such as the Respondent, are creatures of statute and are responsible for running schools pursuant to the provisions of the Education Acts governed by directives and circulars from the Department of Education.

Fixed term contracts of one type or another are very common features in education. They can be offered by schools for a variety of reasons including career breaks, job shares, maternity leaves, parental leaves, and similar situations. The primary circular for the awarding of CIDs is Circular 0023 /2015 whereby where a teacher wishes to apply for a CID, they have to make an application on a particular form with details of the employment to date and/or any potential employment in the school the following year, on foot of which a CID might be obtained, are set out in the form. They are signed off by the teacher, by the principal and the chair of the board of management of the school. The Complainant made two such applications, and on both occasions a letter came back from the Department refusing the application. The basis upon which a CID was refused on both occasions was that the contract available to the Complainant was a fixed term contract arising from a job-sharing arrangement and not another type of contract. Under the rules set down by the Department, fixed term contracts arising from a job-sharing arrangement are not ones which permit the awarding of a CID. Contracts arising from job sharing arrangements are ostensibly fixed purpose rather than fixed term contracts or a mixture of both. The Complainant's 2021/2022 fixed term contract specifically refers to it being a fixed purpose contract and letters from the Department of Education in response to the application for a CID on foot of the Complainant refused the application in the same terms.  The complainant appeared to accept the decision in 2021 and did not appeal the failure to award a CID to the adjudication process available and for the year 2022/2023 this was signed by the Complainant and by the chairperson of the board of management and by the principal and the Complainant did not appeal the refusal. There was no appeal by the employee on foot of the failure to award her a contract of indefinite duration. It was denied there was a career break contract available.  A career break temporary contract is a “viable” one for a CID, a contract arising from a job-sharing arrangement is not. The school took advice from the CPSMA and the board of management also took legal advice on the matter.

It was denied the school "sought to prevent the Complainant from participating in the interview process" and denied that there was a failure to inform the Complainant of the two jobs. They were discussed with her verbally and the subject of correspondence with her union rep before advertised. It was denied there was a deliberate attempt by the school to prevent the Complainant from participating in the process and prevent her from getting contract and therefore getting a CID. The closing date was 28th July, and the application form was received by the school after the closing date therefore the school wrote saying it could not accept the application which was thoroughly legitimate approach and the school had to protect the integrity of the process. Some confusion arose around proof of attempted delivery including the tracking number furnished by the Complainant’s union rep and the union confirmed that an incorrect tracking number had been given and demonstrated that an effort to deliver had been made on 26th July, prior to the closing date and attempted delivery on 26th failed but that the post was then re-directed because the principal was not in school during the school holidays. By virtue of the fact that there was a legitimate attempt to deliver within time, the board of management felt it could accept the application. 

It was denied the complainant was treated less favourably at interview on 22/08/2022.  At all of the five previous interviews the Complainant was interviewed by the principal and the chair of the board of management and an independent assessor. For four of the five she was interviewed by the current principal, Michele Ní Fhátharta, save for one year and she was interviewed by the current chairman of the board of management, Jerry Twomey, again except for one year. In all but one of the interviews the independent assessor was a highly respected independent assessor Siobhán Ni Mhuirthile. The process for all interviews was the same: (i) The interview panel met in advance to select the candidates to be called for interview and to determine what questions would be asked and who would ask the questions. (ii) In each process, including the impugned process, all of the candidates were all asked the same questions by the same member of the panel. (iii) In every process each member of the panel individually marked the answers to the individual questions. Thereafter they tabulated the result, and they gave the result. All of the members of the interviewing panel refute the notion and assertion that the Complainant was asked harsher questions in the 2022/2023 interview than previously asked. Also, they refute the notion and assertion that the Complainant was asked more difficult or harsher questions than her fellow candidates; the questions were all precisely the same. The respondent submitted the questions put to candidates including the specific question that was in dispute:

“Is Gaelscoil í seo. Múintear na hábhair trí mheán na Gaeilge. An bua nó dua é an tumoideachas i do thuairim? Cad iad na treochtaí reatha taighde ar an tumoideachas i gcomhthéacs na hÉireann?”

“This is a Gaelscoil. The subjects are taught through the medium of Irish. Is immersion education a gift or an obstacle? What are the current research trends regarding immersion education in the Irish context?”

The Complainant interviewed on five separate occasions and on none of those occasions did she come first. On the first three occasions when the Complainant applied for interview, she failed to get any of the fixed term positions on offer but on each occasion, she was then offered a contract as a substitute teacher.  In 2021 (as above, having already gone through the same processes she went through in the later year seeking to apply for a CID and being refused by the Department) the Complainant had her most successful interview and she came second and was offered a fixed term contract. Her performance in the competitions was that in 2018 she came 3rd out of 6 candidates and Unsuccessful, in 2019 she came 5th out of 8 candidates and Unsuccessful, in 2020 she came 4th out of 8 candidates and Unsuccessful, in 2021 she came 2nd out of 7 and Successful and in 2022 she came 9th out of 10 candidates and Unsuccessful. The ranking and positioning of candidates for jobs in any competition depends upon the nature of the job, the circumstances, the performance at interview and the strength of the competing candidates.

Of the 5 years, the Complainant only “succeeded” at interview once. As with all the competitions, the panel ranked the candidates, and these were approved by the patron. All of the candidates, including the Complainant were deemed “appointable”. Had the other candidates refused offers, the Complainant would have been offered a position. Complainant was not bowled out of being appointed. It was denied there were connections with other matters and the interview process. As at the interview in August 2022, the position of the Department was that even if the Complainant got either job, she would not qualify for a CID because it was a fixed term position arising from a job-sharing arrangement. The Complainant did not appeal this decision to the department. The assertion she was treated harshly at interview to prevent her getting one of the jobs, and thereby a CID is contradicted by the known facts. The "but for" test elucidated in the Tony and Guy case to which the representative refers doesn't come remotely close to this in any way, shape, or form at all. She sought and received documents relating to the process in a DAR and has seen the score sheets but makes no substantive allegation about it at all. The only allegation is “harsh” questioning and that is not substantiated in any way. (i) The interview process was transparent and clear. (ii) All the same questions were asked of all candidates (iii) All the candidates were treated the same way. (iv) The Complainant was unsuccessful in this instance as she had been on four of the last five occasions. There is nothing whatever in the process which could give rise to an inference, never mind proof, that the result of the competition was penalisation. The Complainant has not established any case in penalisation. This is because she was not penalised.

Evidence of Siobhán Ní Mhuirthile Independent Assessor:

The evidence of Ms Ní Mhuirthile was her background was a primary teacher and she did lecturing and has been on various education committees and worked on 3 different curricula.  With 35 years’ experience not only in primary school she is an independent assessor and has interviewed the complainant four times and her role is to ensure correct procedures with appointment of teachers.  She gives guidelines on potential questions and took charge of the questions.  They wanted to get better teachers for the school through the questions they asked, and they composed the questions, and every candidate was asked same question by same person.  Circular 44/2019 was followed and she treats each round of interviews with the appropriate circular and rules and follows the rules and regulations and is not an employee of the school and knew nothing about CIDs.  When interviewing she would make out potential or desirable answers.  They mark individually and she shares answers you might expect.  A limited answer would score 0-2 and an excellent answer would score 9-10 and has no idea who will get the job at the start, and she follows procedure and ensure due process.  She is an independent assessor with professional training and did not notice any difference in the atmosphere and the same questions were asked.  The chairperson prepares the results for the board of management selection board. 

Cross Examination:

Under Cross Examination she said an entitlement to a CID comes from department of education and she is not involved in that.  She said even if a candidate does not get a ‘potential’ answer there are many answers that can be given, and it is not possible to foresee every answer.  The question about the researcher was not on the potential list of questions and she distinctly remembered it put to the complainant and that the complainant had difficulty with naming a researcher and that it probably was not put to the other candidates.  She was not aware that the complainant was deemed a late applicant.  She starts with a blank canvas at interview, but the name of the candidate rang a bell.  There is not much talk during the interviews, and they do their individual candidate sheet and then compare and then do an aggregate score where you score your individual mark, and the aggregate sheet is kept by the Chairperson.  The complainant was asked to name a researcher, and she did not recall anyone else asked about this.

Evidence of Michele Ní Fhátharta Principal

She has been with the school since 2003 and started at the school from scratch and was 11 years as deputy principal and the school went from 20 children to now 460 children and she is passionate about education, and this is the only complaint she has ever received.  Department of education decide if there is a CID.  Job share is not considered a viable contract for CID according to department of education.  It was not appropriate to swap out a contract to allow a CID and appropriate advice was sought before decisions were made regarding CID and her role is implement the rules and not to make them.  She said that the relationship between her and the complainant did not change after the challenge on the CID, and she had wished her a pleasant summer and the complainant asked to use the witness as a reference and she was not aware of any tension between them.  She would make her orally aware of jobs but would not send texts and may have used WhatsApp to post details.  It was the complainant’s responsibility to check about forthcoming jobs.  Applications arrived for positions, and she put them together and the complainant’s application arrived after the date and such late positions cannot be considered and then it was accepted that the complainant had in fact applied on time and she had satisfied the rules for applying and shew as not stigmatised by this.  It was denied that the interview was hostile and there was no mention about CIDs as it was not relevant to the interview, and nothing was done to humiliate the complainant, and everyone is encouraged to give their best answer.  Every candidate is asked the same question and that if it was felt that the complainant had more to say they were encouraged to answer with a gentle reminder and she did not recall the complainant asked a specific question and there was no extra questions and she in fact got a score of 8 for her response to that question about the researcher and she would have considered it as getting the best out of her.  She denied that she would have known the complainant could not answer a question and denied that the interview process is a sham and denied that she makes the final call on who gets the job.  The marks are done by the interviewers separately and she denied that she smirked during the interview.  In 2018, 2019, 2020 the complainant was not successful but secured a job.  She denied that there was any deliberate misconduct to downgrade the complainant.

Cross Examination:

Under cross examination she said that the vice principal can use the electronic signature if the principal is not there.  The rules regarding viable contracts have been changed and that she sought advice and followed advice.  It was accepted there was an attempt at delivery and then the complainant got an interview and she did not make anyone aware of the postal redirection and it was her opinion that the application was late as all the others arrived in plenty of time and the complainant’s was the only late application and she did not know why there was mention that there was an attempted delivery made as the secretary or caretaker would have been at the school.  There had been cvs that arrived on time, and this did not arrive on time.  She told the complainant the positions would be advertised during the summer.  The focus of the interview is on immersion of Irish as they are a gaelscoil, and she denied that the question about naming a researcher was ever asked.  She said that the other witness may have misunderstood the question when it was put to her during her evidence and the complainant did not appear different than at previous interviews.  Everyone has an individual marking sheet, and interviewees are scored on merit, and nothing is said till the end and there is no comparison of candidates.  There is utter silence between interviewing the candidates and she listens and gives a mark and has a separate sheet with the tots and moves to the next candidate.  She did not agree that the Board of Management rely on the professional opinion of the principal and that CIDs and contracts are done in consultation with the board of management

Evidence of Jerry Twomey Chairperson.

Mr Jerry Twomey gave evidence that he has been on the board in 2007 and he is also a solicitor as well as Chairperson.  He has very little day to day involvement in the running of the school and did not remember speaking to the complainant and there was a meeting where questions were agreed in advance of the interview and then a further meeting to open the cvs.  The complainant had been interviewed by him previously and he denied that there was anything different in the atmosphere at this interview and the complainant scored well about the research question and he did not remember it been asked and that she was not prejudiced by any questions as she got a high score.  She was listed as being appointable and she got the same number of points in 2021 and 2022 but got placed differently.  He asked three short questions and then passed it over to one of the other interviewers and that he scores as they go through the candidates, and they are chatty group in between interview but do not talk about candidates and he is a numbers person, and he likes to add up the score.  He is not a puppet and is appointed by the patron.

Cross Examination:

Under cross examination he could not explain why there was a delay in reverting to the complainant about the CID query but that they were getting advice from various bodies.  He said the complainant’s application was considered late until it was proved otherwise.

The complainant submits that she was penalised and that but for asserting her right to a CID her employment would not have ended and that her employment ended as she was unsuccessful following the interview process of 22/08/2022 and that she was unsuccessful at interview as she was penalised with hostile questions.  The respondent denies the complaint.

Section 13 sets out that

13.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

Section 14 sets out

14. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of this Act shall do one or more of the following, namely—

(a) declare whether the complaint was or was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

Section 18 sets out

18.—(1) If penalisation of an employee, in contravention of section 13(1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under Part 3 and under those Acts.

(2) An individual who is a fixed-term employee under this Act and a part-time employee under the Act of 2001 may obtain relief arising from the same circumstances under either, but not both, this Act or under Part 2 of the Act of 2001.

There is significant case law arising from penalisation most notably under Safety Health and Welfare at Work Act 2005 which can be applied in this instant case whereby the Labour Court sets out there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission” Óglaigh Náisiúnta na hÉireann v McCormack (HSD/115).  It must be satisfied that a protected act or acts has or have taken place as described in the Act at Section 13. Secondly, it must be satisfied that the Complainant suffered a detriment during the relevant period as described in the Act at Section 13(2). Finally, it must be decided whether the detriment was suffered because the complainant committed a protected act.

Was there a Protected Act?

It was not denied that the complainant raised matters regarding her contract of indefinite duration and therefore the complainant, satisfies this first limb of the test.

Did the Complainant suffer a detriment during the relevant period?

The complainant did not score sufficiently well enough to be offered a position at the school and as a result her employment was terminated on 30/08/2022 and the complaint was received by the WRC on 17/02/2023 and I find that the complainant’s employment was terminated during the relevant period.

Was the detriment suffered because the complainant committed a protected act?

As detailed in O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1, a case concerning health and safety which both parties referenced:

 “the Complainant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Complainant’s dismissal.”

The Complainant must show that ‘but for’ having made a protected act the detriment would not have happened.  I note that there was reference, submissions and evidence given regarding other matters statute barred and that they are referenced by way of background to the current complaint.  It was not in dispute that the complainant was initially not given an interview as she was deemed a late applicant and provided proof that she was not in fact a late applicant and an interview was then held on 22/08/2022.  Copies of interview scoring sheets were provided and it was not in dispute that the complainant had interviewed previously, and her ranking had varied over the 5 previous years.  It was in dispute that the interview was hostile, and I note that all three witnesses for the respondent were consistent in their evidence that there was not a hostile environment. There was conflict in the evidence of the respondent’s witnesses regarding whether there was ‘utter’ silence between candidates as outlined by Ms Ní Fhátharta or the evidence of Mr Twomey that they are ‘chatty’ bunch in between interviews without discussing candidates or indeed Ms Ní Mhuirthile that there is limited talking.  It would appear from Mr Twomey and Ms Ní Mhuirthile more credible that some conversation takes place in between the interviews amongst the interviewers and that there would not have been discussion regarding the actual candidates. 

A key matter in dispute arises from whether the complainant was asked a question that other candidates were not asked.  The complainant said that she was asked to name a researcher which Ms Ní Fhátharta’s denies in its entirety.  Ms Ní Mhuirthile evidence was that she remembered this put to the complainant and that she did not recall this element asked of any other candidate.  Mr Twomey did not seem to recall.  I found Ms Ní Mhuirthile a very credible witness as she was able to speak in detail regarding the interview and in particular this part of the interview when it had been put to the complainant.  I found it somewhat unusual that Ní Fhátharta’s whose evidence lacked the detail provided by Ms Ní Mhuirthile appeared to suggest that Ms Ní Mhuirthile must not have understood the question put to her where evidence is given under affirmation.  It would appear in all the circumstances that the complainant was indeed questioned as to whether she could name a researcher and this element of a question was not asked of other candidates.  I also note that the complainant did not appear to be impeded by that element and in fact scored 8 out of 10.  Notwithstanding that the complainant scored 8 out of 10 for the question in dispute, the complainant’s ranking at interview since 2018 appear to be going in a downward trend.  Although the complainant may believe she has a reason to be unhappy that an element of a question was put to her at interview not asked of other candidates this of itself does not amount to penalisation for raising matters regarding a CID.

 The complainant’s employment ended as she was unsuccessful following the interview of 22/08/2022 and she was unsuccessful at interview as there were other candidates who scored better than her and her scoring less than other candidates was unrelated to any additional element of a question put to her at interview and her scoring less than other candidates was unrelated to her asserting her right to a CID.  I find therefore that the complainant was not penalised by asserting her right to a CID and that the complaint is not well founded and I dismiss her complaint. 

I find the complaint is not well founded and I dismiss her complaint.

Contract of indefinite duration, primary school teacher, gaelscoil, interview process