Complainant

Respondent

Parties

Aoife  Cleary

St. Patrick's National School Lurgybrack

Complainant

Respondent

Anonymised Parties

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Representatives

Cleary & Co Solicitors

 Mason Hayes and Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065372-004

13/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065372-001

13/08/2024

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

CA-00065372-003

13/08/2024

The complainant, Ms Aoife Cleary, alleges that she was victimised by the respondent school, St Patrick’s National School, Lurgybrack, because of proceedings she had taken under the Employment Equality Act, against a neighbouring school.  She alleges that this victimisation took the form of discriminating against her at interview by not appointing her on two occasions; giving her inferior conditions of employment to a subsequent specific purpose post to which she was appointed and ;not providing her with written terms of employment.

Evidence was given at the hearing by the complainant Ms Cleary, and for the respondent by Mr Annraoi Cheevers and Ms Rita Gleeson, Chairperson of the Board of Management of St Patrick’s National School.  Evidence was given under oath/affirmation and each witness was cross-examined. 

Submissions made by both parties were considered by me in arriving at my decision.

After being appointed and starting work on 7 Nov 2022 on the Letterkenny Area Supply Panel (managed by St Patrick's NS) as one of 5 teachers on the panel, the complainant worked full-time until the end of the year in this role, including being the only one of the 5 teachers who was willing and able to teach as Gaeilge in the two Gaelscoileanna on the panel of 21 schools in the area. She then was interviewed on the 29 June 2023 for one of two posts advertised (there were no criteria sent out for interview and other illegalities with the interview panel) and she was phoned that evening by the Principal to say that she was unsuccessful but he couldn't indicate to where he felt the complainant was lacking.

On the 3 July 2023 the complainant had her first day of a WRC Hearing against Kilmacrennan NS in Donegal. The two schools are 15 Km from one another and share a parish priest.  On the 13 July 2023, the complaint wrote asking for her marking sheets and also asking 12 questions relating to irregularities and improper procedures at the interview process including asking them if they had spoken to anyone from Kilmacrennan NS about her WRC complaint and whether the interview panel may have been prejudiced towards her and discriminated against her at the interview on the basis of her ongoing WRC complaint with another school. To this day, the respondent has not answered these questions. The Principal responded on 31 July 2023 saying he would get back to the complainant when he was in the office.

On 15 August 2023, the Principal emailed the complainant’s marking sheets with one phrase per section as the supposed "note,". He assured the complainant that the interview process was "fair and transparent," and that the make-up of the interview panel was approved by the Board Chair and Fr. McKeever (the Diocesan Education Officer). The Principal then went on to say that circumstances had changed (someone who was appointed to the panel had secured other employment) and that he, "now must offer the complainant the role as the next person on the list according to scoring, in the interview process.”

Two new teachers were appointed to the two posts advertised. If, as the Principal said in his email, he was offering the complainant a job on the panel as the next person on the list according to scoring in the interview, then the complainant should have been appointed on the same terms and conditions as the two other teachers appointed. Both of these teachers were  appointed on fixed term contracts (ie. they got holiday pay including summer holiday) and the complainant was told she was getting "work to the end of the year," which in reality meant she was being appointed as a non-casual substitute, meaning she got no holiday pay.

As the complainant had no other option, she took the job and worked successfully to the end of the 2024 school year. The complainant had 3 meetings over the course of the 2023/24 school with the Principal where she asked for equal pay and conditions for equal work and also sought answers for her 12 questions in the summer of 2023, and none of her requests were met.  The complainant also wrote to the Bishop outlining her concerns but did not receive a satisfactory response.

The complainant was provided with a draft contract in November 2023 which she refused to sign.

The second day of the complainant’s WRC case took place on 25th June 2024. Her verbal contract with St Patrick's Lurgybrack ended on the last day of school this year, 27 June 2024. She was then interviewed for one of 3 posts on the Letterkenny Supply Panel on the 2nd July 2024, a post she had successfully been working in for nearly 2 years.  The complainant was emailed on 4 July 2024 by the Board Chairperson telling her that she was unsuccessful and would not be appointed to one of the 3 new posts. The complainant emailed back asking for her marks. The Chairperson emailed on 11 July 2024 with the scoresheets and also wrote, "The interview panel took no notes during interviews so there are no notes to share." The interviewers appeared to be writing some notes during the interview.  The complainant wrote an email back on 19 July 2024, asking a further 12 questions. She also told the school that she would be looking into lodging a WRC complaint based on their victimisation of her over the past almost 2 years. The complainant believed she was victimised on foot of her ongoing WRC case against Kilmacrennan NS and based on her requests to be receive equal pay and conditions for equal work from St Patrick's NS Lurgybrack as she was the only person of 5 on the panel who was not on a CID or a fixed term contract.

The complainant has an ongoing WRC complaint  against Kilmacrennan NS on the grounds of discrimination and terms and conditions of employment. Both of the complainant’s interviews with St. Patrick's NS Lurgybrack took place very close to her WRC hearing dates.  There were irregular aspects to her interview in St Patrick's NS Lurgybrack, which did not follow government compulsory circular 0044/19 (no criteria were provided prior to interview, there was no chairperson of the BoM present at the interview and indeed the Principal and Vice Principal were both from St Patricks and were 2 of the 3 members of the interview panel which is highly irregular).

 On the evening of 29 June 2023 the complainant was phoned by the Principal to let her know she was unsuccessful in being appointed to one of the 2 posts. The complainant had worked very successfully with all the 21 schools to which she was posted over that school year. The complainant asked the Principal for some feedback, and he mumbled awkwardly, that he "couldn't quite remember off the top of his head," and that he, "would have to check back on his notes." The interview had only happened a few hours previously and the complainant had worked with the Principal for nearly a year at this stage. He would not have forgotten his reasons for not appointing her. The complainant believes he was covering up some other reason he had for not appointing her.

The first day of the complainant’s WRC complaint against Kilmacrennan NS on ground of discrimination was heard on 3 July 2023. This happened a mere 4 days after her unsuccessful interview with Lurgybrack NS, after a very successful year teaching on the Letterkenny Supply Panel. The community of teachers within the Education system in Donegal, and perhaps other counties in Ireland, is very close-knit. It is very likely that the Principal and other staff of St Patricks Lurgybrack would have heard of the complainant’s upcoming WRC case hearing.

On 13 July 2023 the complainant wrote an email and registered letter to the Principal at the school email address, asking for her marking sheets and also asking him 12 questions, based on the irregularities with the interview process and also asking him why he offered the complainant a 2 month post in the school on the phone, and finally asking him if they had talked to anyone from Kilmacrennan NS and whether anyone on the interview panel was prejudiced against the complainant based on her WRC case.

The second day of the complainant’s WRC Hearing against Kilmacrennan NS on ground of discrimination as outlined in the Employment Equality Act 1998 and breaches of the Terms of Employment (Information) Act 1994 took place on 25 June 2024.  Her interview with the respondent took place on  2 July 2024. one week after her WRC hearing second date, both of which were detailed in national newspapers. While it is likely that the Board knew about the complainant’s first day in court prior to her interview in 2023, it is definite that the they knew about her two days in court by the time she attended her second interview in 2024.

The proceedings issued by the complainant against Kilmacrennan NS are in respect of a discrimination complaint under the 1998 Act.  As a result of these proceedings the complainant was victimised in respect of inter alia, not obtaining a job in 2023 (she subsequently obtained it by default); by virtue of having different terms and conditions to others and; by not obtaining the job in 2024.

The complainant is entitled to give evidence in respect of a continuum of victimisation with the last act having occurred in July 2024. 

Section 74(2)(b) of the Act simply states that victimisation occurs where dismissal or other adverse  treatment of an employee by his  or her employer occurs as a reaction to any proceedings by a complainant and is not limited to proceedings by a complainant against their employer.

Preliminary Issue 1 – unsustainable claim

1.            Section 74(2) of the Act defines victimisation as:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a)          a complaint of discrimination made by the employee to the employer,

(b)          any proceedings by a complainant,

(c)           an employee having represented or otherwise supported a complainant,

(d)          the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e)          an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

In Employment Equality Law, 2nd Edition, 2022, Bolger, Bruton and Kimber, the authors note at paragraph 14.44 that;

In general, the adverse treatment requirement is not demonstrated when proceedings are initiated against a former employer and the alleged reactionary treatment is taken by a new employer or prospective employer.

 In the case of the Public Appointments Service v Roddy , the Complainant alleged victimisation in a selection process linked to a complaint against a previous different employer.  The Labour Court held;

The Court is being asked to accept that the initiation of proceedings of a complaint of discrimination against a distinctly separate employer in another jurisdiction could constitute a “protected act” and be combined with his alleged adverse treatment by the Respondent in this case. There clearly is no causal connection between the taking of proceedings against another employer and his non-selection in a job competition conducted by the Respondent in this case. Therefore, in the Court’s view the facts as presented do not come within the ambit of a protected act and consequently do not come within the intendment of Section 74(2) of the Acts.

The Court further held that;

For all of the reasons referred to above the Court is satisfied that the within complaint of victimisation is unsustainable in law.

In this case the Complainant is claiming that her claim before the WRC, against a different employer, has resulted in victimisation by the Respondent herein, a separate and distinct employer.  It is submitted that the WRC proceedings against her previous employer do not constitute a protected act within the meaning of Section 74(2) of the Acts, for the purpose of proceedings against this Respondent. 

Substantive Issue.

The Complainant’s WRC complaint form was received by the WRC on 13 August 2024. The reckonable period is therefore 14 February 2024 to 13 August 2024.  The Adjudication Officer therefore lacks jurisdiction in relation to any other matters outlined on the WRC complaint form that fall outside of the reckonable period, unless the Complainant can establish victimisation that occurred within the reckonable period.           It is submitted that the only relevant event that can be identified from the complaint form, as falling within time for the complaint, is the interview process that was carried out in June/July 2024, with interviews taking place on 2 July 2024.

The Complainant’s first period of employment with the Respondent was from 7 November 2022 to June 2023, as a substitute, covering the parental leave of two teachers in St. Patrick’s NS working on the supply panel.   The Complainant’s second period of employment was as a non-casual substitute from 1 September 2023 until 27 June 2024, covering a job share/parental leave arrangement of two permanent members of staff.  The Complainant was issued with a written contract for this position which, as confirmed in her WRC Complaint form, she refused to sign.   

In June 2024, three fixed term positions – St Patrick’s National School Supply Panel Posts, were advertised. There was huge interest in the posts with 41 applicants. The process was conducted in line with circular 0044/2019.  12 candidates, of which the Complainant was one, were identified as meeting the necessary criteria and were invited for interview.  The candidates invited for interview, including the Complainant, were notified of the criteria that would be used to choose the successful candidate. The interviews took place on 2 July 2024. Scores were assigned to each candidate, based solely on their performance at interview. The Complainant was ranked ninth out of the ten candidates in interview performance.  A meeting of the Board of Management was convened on 3 July 2024 which approved the results. The Complainant was not offered one of the 2024/2025 fixed term roles as she simply did not perform well enough at interview.

By email of 4 July 2024, the Chairperson advised the Complainant that she had been unsuccessful in her application. By email of 10 July 2024 the Complainant inter alia requested her interview marks and also sought the notes and the marks of the other candidates.  The Chairperson forwarded the Complainant her interview score sheets the following day. The Complainant sent further correspondence on 19 July 2024 in which she listed a number of questions and wrongly asserted that questions outlined in previous correspondence, relating to a 2023 competition, remained unanswered. The Principal did respond by letter of 15 August 2023 and the Complainant in fact replied the same day thanking him for his “detailed” response.

The assertion that the Complainant was victimised in relation to the recruitment process is emphatically denied.  This allegation is without any foundation or evidence, amounting to no more than mere speculation.  The only person who ever mentioned or referred to the unrelated WRC proceedings, was the Complainant.  Any knowledge that the interview panel members had of the other proceedings was very limited and those proceedings were of no relevance or consequence to the interview process.  Any suggestion or assertion that the Principal had contact with the Chairperson of the Board of the other school the subject of other WRC proceedings, is simply untrue.

In accordance with her complaint form, the first hearing day of the Complainant’s other WRC claim was four days after she had been notified that she was unsuccessful in the 2023 interview with the respondent.   No details of her claim had been published when this occurred and the assertion that “it is likely” that the Principal and other staff of St Patricks Lurgybrack would have heard of her upcoming WRC case hearing is mere assertion and speculation and untrue.

In any event, the Complainant was in fact offered a position for the 2023/2024 year in accordance with her interview ranking and the available positions.  It is submitted that this is entirely inconsistent with an allegation of victimisation. 

The Respondent can only offer contracts of employment which are sanctioned by the Department of Education. The following roles were offered by the Respondent after interview, for the 2023/2024 school year:

i.       One fixed term contract to cover a staff member on secondment.

ii.      One half fixed term contract to cover a member of staff who was job sharing under the department scheme.

iii.     One specified purpose, non-casual substitute contract to cover teachers who were job sharing using parental leave.

The Complainant was offered the third of these roles based on covering the parental leave of two permanent members of staff and her contract was associated with this.  Her contract derived from the nature of the cover that she was providing.  Her assertion that she “should have been appointed on the same terms and conditions as the two other teachers appointed” is therefore incorrect.  The Principal did advise the Complainant that appointments were based on interview performance and that he could only offer available contracts.

The Complainant did contend to the Principal that she should be given a fixed term contract so that she would qualify for a Contract of Indefinite Duration (CID).  The Principal explained that he couldn’t simply “give” contracts for which there was no sanction from the Department of Education. The Complainant alleged that he had done this for others, which was entirely untrue.  On the contrary, interviews have been carried out each year, based on posts available for the school year ahead. People have interviewed for these jobs and secured employment based on their performance at interview.  If they have secured employment for a long enough duration, they may have been entitled to apply for a CID.  However, nobody has been “given” contracts so that they may qualify for a CID.

The Complainant has not identified any holidays/ annual leave entitlement that is outstanding.   To the best of the Respondent’s knowledge, the Complainant’s annual leave entitlements were fully discharged.   However, the Respondent herein is not the correct Respondent to the claim under the Organisation of Working Time Act as all payments, including for annual leave, are discharged by the Department of Education.  To the best of the Respondent’s knowledge, the Complainant was paid by the Department of Education every two weeks as her name was entered against the two teachers on parental leave, through the Online Claims Service (OLCS) operated by the Department and the Department was the Paymaster. 

Further, the Complainant was employed until June 2024 on a contract covering a job share/parental leave arrangement for two permanent members of staff, as a non- casual substitute teacher.  To the best of the Respondent’s knowledge, the Complainant was paid in accordance with that position and in accordance with the provisions of Circular 0015/2015.  

The Complainant did not advise the Respondent of any issue with annual leave in advance of issuing her WRC Complaint form and has not identified any shortfall in her annual leave entitlement in the Complaint specific details of the form.  In any event, if there is any outstanding entitlement, it is for the Department to address.

CA-00065372-003   Preliminary Issue.

The respondent has argued that the complaint is unsustainable as the alleged victimisation relates to proceedings taken by the complainant against a different employer.  The respondent has relied upon the decision in Public Appointments Service v  Kevin Roddy [EDA1019] , in which the Labour Court held;

The Court is being asked to accept that the initiation of proceedings of a complaint of discrimination against a distinctly separate employer in another jurisdiction could constitute a “protected act” and be combined with his alleged adverse treatment by the Respondent in this case. There clearly is no causal connection between the taking of proceedings against another employer and his non-selection in a job competition conducted by the Respondent in this case.

Section 74(2)(b) of the Employment Equality Act, 1998 defines victimisation as:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(b)          any proceedings by a complainant,

The Act is silent on whether or not victimisation must relate to acts of the body against whom the proceedings were taken.  The Act does not restrict potential victimisation proceedings in the way argued by the respondent in this case.  If the authors of the Act had wished to confine victimisation to actions resulting from proceedings between an employee and the employer against whom proceedings were taken they would have said so explicitly in the Act.  The Roddy case clearly states that there was no causal connection between the two employers in that particular case and the employers were in fact located in different jurisdictions.  I don’t accept that the Roddy case should be interpreted as saying there can never be victimisation unless it is within the same employment.  An example might be sister companies with the same owner which, in my view, would not be excluded by the decision in the Roddy case.  The Roddy decision related to the specific circumstances of that case.

In the current case the two employers were both national schools located quite close together, under the same patronage, and therefore it is possible that there could be a causal connection.  I therefore do not accept the preliminary argument made by the respondent.

Substantive Issue

In order to meet the burden of proof required by s.85A of the Employment Equality Acts, the employee must demonstrate that there is a causal connection between their taking of proceedings, or protected act and the adverse treatment by the employer. As victimisation is defined as discrimination for the purposes of the burden of proof required by the Employment Equality Acts, the general rules concerning burden of proof apply to victimisation. Therefore, an employee alleging victimisation is required to demonstrate the primary facts from which it can be inferred that the respondent has victimised the employee and that these facts are of a sufficient weight to raise a presumption of discrimination in order for them to meet the burden of proof required of them and for the burden of proof to shift to the employer.

In the context of penalisation within the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”) which is similar in some respects to victimisation, it has been noted that the employee must satisfy that the detriment occurred at a time when the employer knew the employee had made a complaint. If that was established, then it would be for the employer to satisfy the Court that the dismissal was unrelated to the complaint.  The decision of the Labour Court made pursuant to the 2005 Act in Toni & Guy Blackrock Ltd v Paul O'Neill  is also of assistance in demonstrating a suitable test for the burden of proof in victimisation cases, in particular where it is possible to identify a number of potential causal factors:

“Where there is more than one causal factor in the chain of events leading to the detriment, the commission of a protected act must be an operative cause in the sense that ‘but for’ the Claimant having committed the protected act he/she would not have suffered the detriment … the Claimant 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 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 complaint relied upon did not influence the Claimant’s dismissal.”

In Monaghan County Council v Mackarel EDA1213 the Labour Court elaborating on the ‘but for’ concept stated;

The undertaking of the protected act must be an “operative factor … in the sense of being anything other than a trivial influence”, and there is no requirement that the alleged protected act is the “only, or indeed the principal reason, for the decision” provided it is an “influencing factor” in the decision to impose an act of detriment on an employee.

Given that the respondent in this case was not the respondent against whom the complaint to the WRC was made, the complainant must show that her proceedings that case was a significant reason underpinning the actions complained of against this respondent.  Being simply aware of the other proceedings does not meet the threshold for establishing a prima facie case.

The complainant in this case believes she was victimised on foot of her ongoing WRC case against a different national school in the same locality and under the same patronage.  It is alleged that she was victimised in respect of; not obtaining a job in 2023 (she subsequently obtained it by default); by virtue of having different terms and conditions to others and; by not obtaining the job in 2024.

The complaint relating to the interview/selection in 2023 is out of time as it was not made within six months as required under the Act.  In any event that interview took place before the complainant’s WRC case hearing had commenced.

Interview/Selection 2024

The complainant has argued that an objective assessment of her qualifications, experience etc as detailed in her application form would indicate that she should have scored more points than she was awarded when compared to other candidates. A detailed examination of the scores awarded to each candidate in the 2024 interviews took place at the hearing.   Both witnesses for the respondent, who were on the Selection Board, stated that application forms were only used at the shortlisting stage and were not in front of the Board at the interview stage, and that points were awarded simply based on the answers given at interview.  This is a poor procedure.  If marks were being awarded for qualifications for example, to ignore the details contained in an application form seems an incomplete exercise.  I note that the complainant’s cv, as detailed in her application form, is very impressive and that the respondent was happy with her performance while working in that school. 

Another area of concern is the decision by the respondent not to take notes at interview which practice, in their view, was optional.  Such a practice is concerning and once again, poor procedure which, depending on the particular circumstances, could have serious consequences for the employer and should be avoided. There were other deficiencies in the interview process as required by the Department of Education, such as not informing candidates in advance of the criteria for selection.  Any deficiencies in the procedure (as laid down in the Departmental circulars) did not apply uniquely to the complainant but to all candidates.  The selection board took the same approach to all candidates and all candidates were equally disadvantaged.    However, poor procedure of itself, is not evidence of victimisation.

The principal witnesses for the respondent were the Principal of the school and the Chairperson of the Board of Management.  Both witnesses gave evidence that their marking of each candidate was solely based on the responses they gave at interview.  The fact that the complainant got the same score from each of the selection board members, on almost all criteria, was stated as being a coincidence. Both witnesses confirmed that they did not read the article in the newspaper covering the other case. Neither had they discussed that case with anyone including the Diocesan Educational Officer, or anyone associated with  the Kilmacrennan school. Both witnesses’ direct evidence confirmed each other’s testimony and I accept this evidence.  The discrepancies in the marks awarded to the complainant compared to other candidates arose because the selection board chose not to consider the application forms as at the interview stage of the process.  I do not believe that this procedure was motivated to disadvantage the complainant and is not evidence of victimisation.

I therefore conclude that the complainant has not made a prima facie case of discrimination (victimisation) under the Act.

Contracts and Holiday Pay

The Principal, in evidence, explained that the school was allocated a specific number of posts with varying levels of tenure/security.  In certain instances, staff replacing the substantive post holder might not be entitled to the full range of conditions, particularly in relation to non-statutory annual leave.  In the case of staff replacing a substantive post holder on Parental Leave, as the substantive post holder continued to enjoy their full annual leave, the replacement staff member did not get this additional annual leave.   It is the position of the Department, that any person replacing someone on parental leave has no entitlement to the leave as the substantive post holder is already availing of it.  This case is not being taken under the Fixed Term or Part Time legislation but on the grounds of victimisation and therefore the question is whether or not the complainant was treated differently than anyone else in a similar position would have been, because of her proceedings taken against a different school.  It is clear from the evidence given, that the ’rules’ relating to contracts were applied in the same manner to everyone.  The complainant was employed as a non-casual substitute with the corresponding terms and conditions and therefore this was not victimisation.

CA-00065372-001 Payment for holidays.

At the hearing the complainant accepted that the Department of Education is the Pay Master and that any complaint for non-payment of holidays would be against that body.  The complainant confirmed that this complaint is not being pursued against the respondent.

CA-00065372-004  Terms and Conditions of Employment

The complainant was offered a copy of her terms of employment which, because she was not happy with certain details, she refused to sign.  The Respondent can only offer contracts of employment which are sanctioned by the Department of Education and I am satisfied that the terms and conditions offered to the complainant for the 2023/2024 reflected the position of the Department. The respondent therefore, fulfilled the requirements of the Act.

CA-00065372-001: the complainant was withdrawn

CA-00065372-003:  The complainant was not discriminated against.

CA-00065372-004:  The complaint is not well founded.

Victimisation.  Another employer