Complainant

Respondent

Parties

Paulina  Adamczak

City Of Dublin Education & Training Board

Complainant

Respondent

Anonymised Parties

Representatives

James McEvoy; Work Matters Ireland

Catherine Kelly; Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057924-001

26/07/2023

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

CA-00057924-002

26/07/2023

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

CA-00060784-001

02/01/2024

The complainant is employed by the respondent as an assistant staff officer. Employment commenced on the 14th November 2019 and is ongoing.

The complaints were received by the Workplace Relations Commission on 26th July 2023 and the 2nd January 2024.

1.0: INTRODUCTION:

1.1 The Complainant is advancing a claim that she was discriminated against by the

Respondent on the basis of Race and or Disability, contrary to the Employment Equality Act, 1998, as amended.

1.2 The Complainant is also submitting that she was Penalised/Victimised for raising a Grievance in relation to her employment relationship within the Respondent.

1.3 The Complainant is a Polish national

1.4The Complainant suffers a Disability

1.5 The Complainant commenced employment with the Respondent on 19th October 2019, in the capacity of Clerical Officer, Grade 3, on a Fixed Term Contract.

1.6 There followed an excessive number of Fixed Term Contracts. Many, if not all, of these were not complaint with legislation.

1.7 The Complainant believes these were issued to circumvent legislation and deny her rights to permanent employment.

1.8 This treatment is less favourable than that afforded to her colleagues of Irish nationality, those holding a Contract of Indefinite Duration, working on a Fixed Term Contract and those of her colleagues who do not suffer a disability.

1.9 The Complainant was only, afforded her rights and placed in a permanent position following a complaint of Discrimination to the Respondent.

2.0: BACKGROUND:

2.1The first Fixed Term Contract had an end date of 30th November 2020.                                         

2.2However, the Complainant remained in employment long after the expiry date. For a period of 28 months, the Complainant remained employed by the Respondent without any reference to the matter of employment status.                                                                                                                           

2.3 In this period the Complainant worked in different positions. Given the length of time involved the Complainant considered that her position with her employer was permanent.

2.4 On February 28th, 2022, the Complainant was appointed to the position of Assistant Staff Officer, Grade 4. This was another Fixed Term contract.

2.5 While this was a concern for the Complainant, this was a promotion and she verbally accepted the appointment.

2.6 However, this contract was not provided to the Complainant until March 24th, 2023. The expiry date was December 31st, 2022. The reason given for not offering a Permanent Contract is funding.

2.7 Notwithstanding the absence of the contract, here too, the Complainant remained in her position beyond the expiry date, without any communication from the Respondent as to her employment status.

2.8 There was no further communication from the Respondent until March 21, 2023, (three months after the expiry date and 28 months subsequent to the expiry of her last written contract) when Mr Bill Austin, Human Resources Manager, issued a letter to the Complainant in which he informs the Complainant of an “until further notice” extension to her employment.

2.9 Notwithstanding the fact that the previous contract had expired, Mr Austin, gives no explanation as to why there was no offer of a CID, he also provides no reason for the extension.

2.10 On 24th March 2023, the Complainant contacted Nadine, HR Administrator, to address queries in relation to the most recent changes in her Terms & Conditions of Employment. There were three specific queries.

•                 There is no mention of my current grade on the document.

•                 There is no date of expiry on the document as it relates to my employment.

•                 I do not understand why we are transferring other general terms and conditions of my employment with CDETB, except The Unfair Dismissal Act 1997 - 2007.

2.11 Nadine responded to provide a copy of the “previous contract” and a letter which she said, “should” have been received at the time this contract was extended. As mentioned previously, the Complainant had received no such letter.  

2.12 On 27 March 2023, Jordan, HR Administration responded (by email at 11.02 am), explaining that the Complainants contract is both Fixed Term & Fixed Purpose, but provides no cessation date and no specific purpose attached to the contract.

2.13 On March 27, 2023, the Complainant was contacted, (by email 8.08pm) by Ms Audrey Matthews, HR Manager. This communication informs the Complainant that the permanent post-holder of the Assistant Staff Officer, Grade IV position, would not be returning to the post.

2.14 Therefore, Ms Mathews informs the Complainant the position has been offered, on a permanent basis to another employee, who is to commence on a date yet to be ascertained. The name of this employee is Onan Maxwell, who is an Irish National.

2.15 The Complainant is told she will remain in the position until a start date for this employee can be confirmed; following which she will be informed of her next appointment.

2.16 Not only was the Complainant not informed of the vacancy to which this person was appointed, she was not made aware that her own position had become available as a permanent post or given the opportunity to apply for this position.

2.17 The Complainant submits that the change in the position of the Respondent since the communication from Mr Austin, is because she sought clarity in relation to her Term and Conditions and Employment Status. This constitutes a further act of Penalisation against the Complainant.

2.18 Despite these assertions the Complainant was not, at any point, made aware that her post was Fixed Purpose, to cover an absent employee. The reason given, in the most recent written contract is.

In accordance with Section 8 of the Protection of Employees (Fixed Term) Work Act 2003 you are not being offered a contract of indefinite duration as your employment is subject to continuity of DE funding for CDETB programme(s).  

2.19 This is evidence that there is no genuine reason that the post should be offered on a Fixed Term basis, other than to avoid providing the Complainant with a Permanent Contract.

2.20 The uncertainty of not just the end date but also the role & location reinforces this. This offer represents the sixth Contract of Employment with the Company and another situation in which the Respondent intends to circumvent legislation and discriminate against the Complainant.

2.21 The inconsistency in the reasons provided by Mr Austin & Ms Matthews compound this fact.

2.22 The Complainant submits that the Respondent behaviour is at odds with the provisions under the Protection of Employees (Fixed Term) Work Act 2003, the very legislation on which the Company seeks to rely.

2.22.1 The relevant legislation provides:

Where an employee is employed on a fixed term contract the fixed term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is –

a.      Arriving at a specific date

b.      Completing a specific task, or

c.      the occurrence of a specific event

No such information was issued to the complainant.

2.22.2 Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contact and the failure to offer a contract of indefinite duration, at the latest by the date of renewal.

2.22.3 The respondent has not complied with this section of the legislation.

2.22.4 In latter communications, the Complainant has been informed that the contract is “Specific Purpose” to cover an absent employee. However, this was never mentioned to the complainant or expressed in any contract. The expired written contract (not provided to the complainant) gives unsecured funding as the reason prohibiting the Respondent offering a Contract of Indefinite Duration.

INTRODUCTION

The Complainant has brought complaints of penalisation under the Protection of Employee (Fixed Term Work) Act 2003, the Protection of Employee (Part Time Work) Act 2003 and complaints under the Employment Equality Acts on the grounds of disability and race, for discrimination in getting a job and victimisation.

PRELIMINARY ISSUES

Jurisdiction - Part Time Workers Act.

1.The most recent hearing date notification refers to a claim under the Protection of Employee (Fixed Term Work) Act 2003, with Complaint Reference CA: - 00057924. However, the said complaint form did not include this claim, but rather contained a claim under the Protection of Employee (Part Time Work) Act 2003. The complaint under the Part Time Workers Act persists in the Complainant’s submission to the WRC and it is not clear whether the Complainant is proceeding with this claim but in any event, it is submitted that she is/was not a part time worker and accordingly lacks locus standi under the Act and respectfully, that the Adjudication Officer lacks jurisdiction under the said Act.

Jurisdiction – Fixed Term Workers Act

2. Furthermore, the Complainant’s Complaint pursuant to the Protection of Employees (Fixed Term Workers) Act 2003, CA: -00060784, was submitted on 2 January 2024. This complaint is manifestly out of time. None of the Complaint specific details occurred within six months of the complaint form being lodged.

3. Further, the Complainant had been issued a CID in June 2023, effective from January 2023. The Complainant was not a fixed term worker when she lodged her complaint form or in the six months prior to the Complaint form being lodged on 2 January 2024 and accordingly the Complainant does not have locus standi as a fixed term worker. Even if, which is not accepted, the Complainant’s complaint under the Part time workers Act were to be treated as claim under the Fixed Term Workers Act, it is submitted that the same principle applies.

4. This precise issue was addressed in Laura O’Connor v An Garda Siochana (ADJ – 00036375) a recent decision published in March 2024. In that case, the Complainant had coincidentally also entered into a CID in June 2023. The Adjudication Officer noted:

 However, as I explained to the parties at the hearing, my jurisdiction derives from the 2003 Act and is not conferred by the agreement or acquiescence of the parties. I must satisfy myself that the complainant was a fixed term employee within the meaning of the 2003 Act at the material time of referral of the complaint form or in the 6 months cognisable period because otherwise she can have no legal standing to maintain a complaint under the 2003 Act.

The Adjudication Officer found that the Complainant did not have locus standi in that case.

5. In the present case, the Complainant’s CID was confirmed in June 2023, and it was agreed and accepted that she had been employed on a CID since January 2023. It is submitted that accordingly she lacks locus standi under the Act and respectfully, that the Adjudication Officer lacks jurisdiction.

Addendum Submission

6. The matters outlined in the Addendum Submission on behalf of the Complainant, appear to relate to an application made in March 2024 and therefore post-date both complaint forms. As these events do not fall within the reckonable period for any claim, it is submitted that the Adjudication Officer lacks jurisdiction in relation thereto.

Other

7. Strictly without prejudice to the foregoing matters, it is submitted that the matters at issue are already resolved, and the claims are moot.

8. The matters set out as fact in the Complainant’s submission are denied and misrepresent the position. In particular, there is no reference to the Complainant (who at the time held a Grade III post), having applied, interviewed for and being successfully appointed to the Panel for Fixed Term Grade IV positions, established in January 2022.

BACKGROUND

The submission below is made Without Prejudice to the Preliminary Issues set out above. 

9. The Complainant commenced employment with the Respondent in or around November 2019, on a fixed term Grade III contract, with an end date of November 2020. From the commencement of her employment, the Complainant worked in a 50/50 role split between Crumlin Youthreach and the CDU (Curriculum Development Unit).

10.The Countrywide Covid lockdown from March 2020, resulted in a paper-based HR department having to adapt to working remotely. The Respondent’s HR files are heavily paper based, and the team were without access to the personnel files. It was for this reason, and nothing to do with the Complainant’s nationality or disability, that the end date of the Complainant’s fixed term contract in November 2020 was overlooked. Arguably her substantive Grade III employment between December 2020 and February 2022, was not on a fixed term basis.

11.In or around March 2021, a panel was established from which Permanent Assistant Staff Officer Grade IV positions were to be filled (hereinafter referred to as ‘the Permanent Panel’). The Permanent Panel, as with all panels, operated in agreement with the Trade Unions and the agreed practices are well established. In accordance therewith, the Respondent had/has no option but to fill Grade IV permanent vacancies from the Permanent Panel. The Respondent does not seek information in relation to nationality during a selection process but believes that the panel was made up of employees of Irish and other races. There were 198 applicants for this competition with 28 successful candidates being placed on the Permanent Panel. The Permanent Panel remained in place until exhausted and all persons were appointed, irrespective of race.

12.In or around December 2021, a competition for Fixed Term Grade IV Assistant Staff Officers was advertised, from which a panel would be formed (hereinafter referred to as “the Temporary Panel”). The Complainant applied and was successful in her application and was placed on the Temporary Panel. The successful candidates for the panel were of Irish and other nationalities, including the Complainant.

13.By letter dated 31 January 2022, pursuant to her place on the Temporary Panel as aforesaid, and in accordance with the normal operation of the Panel, the Complainant was offered a Temporary Grade IV position in Head Office in Ballsbridge, in the Finance Department.

14.The Complainant accepted this temporary role and for this reason was issued with a fixed term contract, commencing 28 February 2022 (not March 2023 as per the Complainant’s submission) with a stated end date of 31 December 2022. This contract was for the fixed term acting Grade IV position in Banking/Finance, which the Complainant had accepted. The Complainant’s implication that the contract was issued as some kind of manipulation of her employment status is a gross misrepresentation of what occurred.

15.The Complainant took up the said position in Ballsbridge Head Office but did not like the role. Audrey Matthews will give evidence of having approximately five conversations with the Complainant, wherein she expressed that she found the role to be boring and sought an alternative role. Despite raising that said issue, the Complainant did not at any stage during these conversations, refer to having a disability or requiring any accommodation in terms of location or otherwise. Ms Matthews had no idea that the Complainant had a disability. The “neurology” letter provided by the Complainant does not appear to have been provided to the Respondent at any stage, and if, which is denied, it was, the relevant personnel were not aware of it at any material time.

16.In order to facilitate and assist the Complainant in relation to her finding the finance position boring and to her considerable benefit, Ms Matthews made enquiries and advised the Complainant that an alternative fixed term position may become available in Ballsbridge College, in order to fill the role of SD on a Temporary basis, as SD had been offered a temporary acting up position elsewhere. Ms Matthews facilitated a discussion between the Complainant and SD and it was agreed that the Complainant would move to this role. It is entirely disingenuous of the Complainant to now assert that she had not been aware that she was filling the role in that capacity, when she herself had discussed the role with SD, the permanent post holder. Furthermore, this arrangement amounted to more favourable treatment of the Complainant than that of her colleagues. The assertion of an effort to conceal a ‘disingenuous use of fixed term contracts’ is outrageous in the circumstances. The justification stated in the written fixed term contract related to the Finance role. The Complainant was facilitated with a move, which she not only agreed to but actively sought, which had a different reason, of which she was well aware i.e. to fill SD’s role in a temporary acting up capacity.

17.On or about 21 March 2023, the Complainant was issued with a contract extension in the Grade IV position.

18.In or around this time, SD was appointed permanently elsewhere. Accordingly, a permanent vacancy arose for the position that was being back filled by the Complainant on a temporary basis. The Complainant was notified accordingly on 24 March 2023, by email from Ms Matthews, Head of Recruitment.

19. As there was a permanent panel in operation, in accordance with the established practice, as agreed with the Trade Unions, it was necessary to offer that permanent position to the next person on the Permanent Panel. This is the sole basis on which the role was offered and had absolutely nothing to do with the nationality or disability of the Complainant or OM. Had OM turned down the role, it would have been offered to the next person on the panel, again irrespective of their nationality and/or any disability. The fact that the temporary position filled by the Complainant was to continue until OM was in a position to take up the role was entirely legitimate, in accordance with the operation of the panels and did not constitute discrimination or victimisation or penalisation on the grounds of race or disability. Nor was it in anyway related to the Complainant seeking clarity in relation to her Terms and conditions or employment status.

20.The Complainant was well aware of how the panels operated, having applied for and been placed on the Temporary Panel and having been appointed to temporary positions from this panel. She was offered a further fixed term Grade IV position in Whitehall to her benefit and to accommodate her. At no point was her employment with the Respondent in doubt. At all times she was offered alternative grade IV posts and if she did not wish to accept them, she could return to her substantive Grade III post.

21.By email of 28 March 2023 the Complainant contacted Mr Austin seeking to raise a grievance and requesting a copy of the Grievance Procedure. Mr Austin replied enclosing the Grievance Procedure and also giving the Complainant the option of a review of her file, noting: …..

“You retain the right to have the matters dealt with formally however should you feel it is appropriate, a review by me might provide some clarity, you can always request matters be dealt with formally following this also.

Once you notify me of your preferred option I will arrange matters”.

22.By email of 11 April 2023 Lisa Doherty confirmed that she would be eligible for a CID in her Grade III post from 25 November 2023, being the fourth anniversary of her employment. It is abundantly clear that the Respondent was actively seeking to observe the Complainant’s entitlements under the Fixed Term Workers Act, which were made more complex by her position on the Temporary Panel and placement in fixed term Grade IV acting up roles.

23.The Complainant agreed to the option of a review by Mr Austin and corresponded again by email of 18 April 2023. She wrote again the following day, modifying the dates.

24.Mr Austin acknowledged the correspondence but was at that time on leave. The Complainant was then on holidays and this was followed by Mr Austin being on a period of sick leave. Any delay in responding to the Complainant was due to the leave of both parties and in any event was not excessive.

25.By email of 17 May 2023, Mr Austin stated that he was of the opinion that the Complainant may qualify for a CID at Grade IV from 1 January 2023 and had asked the Respondent’s legal advisors to review and confirm. Power v HSE has shed new light on the status of employees in acting up fixed term roles. This is a complex issue and giving the matter due and proper consideration most certainly does not amount to penalisation and/or victimisation and/or discrimination.

26.By email of 26 May 2023, Mr Austin confirmed his opinion that the Complainant had a CID at Grade IV as and from 1 January 2023 and that Lisa Doherty would make the appropriate arrangements. Mr Austin’s conclusion was the most favourable interpretation of the Complainant’s employment history possible. It is of note that the Complainant did not seek to invoke the Grievance Procedure following Mr Austin’s review of her file.

27.The Complainant was issued with a Contract of Indefinite Duration on 20 June 2023 effective from 1 January 2023.

28.The only permanent post available at that time was in Crumlin and this was offered to the Complainant. By email of 28 June 2023 the Complainant confirmed that she wished to accept the offer. Although, she enquired whether it was possible to stay in her current location, when Mr Austin confirmed that the position was based in Crumlin, she did not raise any further issue. An issue raised about probation was also addressed and resolved. At no point during these exchanges did the Complainant state that she could not work in Crumlin because of her disability. There was no question of the move to Crumlin being to penalise her or discriminate against her or to victimise her. It was the next available Grade IV permanent role, and the Respondent was not aware of any good reason as to why the Complainant should be treated other than being offered that position.

29.Further to the foregoing, and in further response the Complainant’s submission, it is denied that after the Complainant’s initial fixed term contract, there “followed an excessive number of fixed term contracts”, many of which were not compliant with legislation. It is expressly denied that any contracts were issued to circumvent legislation or deny the Complainant her rights to permanent employment. The Complainant’s alleged beliefs at paragraph 1.7 of the submission on her behalf, are no more than mere assertions. On the contrary the complainant was issued with fixed term contracts for acting up positions, having applied for the relevant panel and having accepted the said positions. When she sought a review, the most favourable interpretation possible was applied.

30.It is further denied that the Complainant was afforded less favourable treatment than colleagues of an Irish nationality or who do not suffer a disability. Arguably she was afforded more favourable treatment in being moved to the role in Ballsbridge CFE when she was dissatisfied with the role in Finance.

31.It is denied that the Complainant was only placed in a permanent post following a complaint of discrimination. The Respondent reviewed her file at her request and deemed that she should be awarded a CID at Grade IV, notwithstanding previous confirmation of her entitlement to a CID in her substantive employment at Grade 3. The said contract was backdated to January 2023. Again, there was no detriment whatsoever to the Complainant.

32.The Complainant has provided one response to an unsuccessful application that falls outside of the reckonable period for any of her complaints. In any event, feedback to job applications is given on request and the Complainant made no such request.

33.Although also outside of the reckonable period for the claim, the Complainant recently advised that the commute was causing her a difficulty due to her MS diagnosis. The Complainant was referred to Medmark in order to ascertain what accommodations may assist her and has now been offered an alternative role, which is evidence of the Respondent’s approach to providing accommodations, once aware they are required.

LEGAL SUBMISSION

Claims under the Protection of Employment (Fixed Term Work) Act 2003 and Protection of Employees (Part Time Work) Act 2001.

34.It is submitted that the Adjudication Officer lacks jurisdiction in relation to the claim under the Protection of Employees (Part Time Work) Act 2001

35.It is submitted that the Adjudication Officer lacks jurisdiction in relation to the claim under the Protection of Employees (Fixed Term Work) Act 2003 as the Complainant was not a fixed term employee at the time of submitting her complaint form or within the six months prior to submitting either complaint form, as set out above.

36.Strictly without prejudice to the issue of jurisdiction, it is submitted that the Complainant has been awarded a CID and the alleged breaches of the Act are unfounded as set out above. The fixed term nature of her employment was only at issue insofar as the Complainant was in temporary acting up grade IV roles and the Complainant was awarded a CID at the grade IV level. The Complainant was not penalised for raising any issue with her fixed term status. The complaints are without foundation.

Claim under the Employment Equality Acts

Reckonable Period

37.The Complainant submitted her complaint under the Employment Equality Acts on 26 July 2023. The Reckonable period for the claim is therefore 27 January 2023 to 26 July 2023.

Comparators

38.The Respondent does not collect information on nationality or disability as part of the selection process. If, which is not accepted and falls to be proven by the Complainant, the comparators were of a different race and/or disability to the Complainant, it is noted as follows:

a. The Complainant was treated in precisely the same manner as OM. Both were appointed in accordance with their places on their respective panels with no regard for nationality or disability.

b. SD was not in a comparable situation to the Complainant.

c. CD was based in the Banking/Finance section. The Complainant had been actively seeking a move from that Department. She had numerous conversations with Ms Mathews advising that she found the working boring and wanted a more creative role. The Complainant was therefore facilitated with a role in Ballsbridge CFE and following discussion with the permanent post holder (SD), took up that temporary position. The Complainant was treated more favourably than CD in that when she was dissatisfied with the role she accepted in finance, she was facilitated with an alternative role in Ballsbridge College.

39.It is submitted that these comparisons provide evidence contrary to discrimination and/or victimisation.

Grounds relied upon

40.The Complainant makes an assertion at paragraph 3.2 of her submission that the Respondent is aware of the Complainant’s disability. It is not outlined how or when the Respondent allegedly became so aware. It is the position of the Respondent that although it is now aware of the Complainant’s MS diagnosis, none of the personnel involved in issuing the Complainant with fixed term contracts were aware of any medical condition or disability at the material time. Recent events prove that once on notice that accommodations may be required, the Respondent took immediate and appropriate steps to address this.

41.The Respondent does not seek any information in relation to race during a selection process. The placement of the Complainant in temporary Grade IV roles was a result of her application, interview, and successful placement on the temporary Grade IV panel. This operated in precisely the same manner for employees on the panel of all nationalities. The Complainant’s implication that she did not understand why she was being given fixed term contracts is entirely disingenuous, given that she had applied for the temporary role. It is notable and misleading that the Complainant’s application and appointment to the Temporary Panel, is entirely absent from her submission.

Burden of Proof

42.Section 85 of the Employment Equality Acts states: 85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

43.Section 85A requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. It is only if she succeeds in doing so, and only then, that is it for the Respondent to prove the contrary.

44.The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

45.In Melbury v. Valpeters the Labour Court stated that the Complainant must establish facts from which discrimination may be inferred and that it is required to be of sufficient significance to raise a presumption of discrimination and that:

 …... Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.

46.The established test for deciding if the probative burden shifts is set out in Southern Health Board v Mitchell [2001] E.L.R. 201 in which the Court considered the extent of the evidential burden that a Complainant must discharge before the Respondent is fixed with the burden of proof. The Court held:

The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.

47.It is submitted that the Complainant has failed to establish facts from which it may be presumed that discrimination on the grounds of race and/or disability occurred or that victimisation occurred.

Mere Assertions

48.In asserting discrimination, the Complainant relies upon her own beliefs. It is submitted that such beliefs are mere assertion that cannot be elevated to the status of evidence.

49. It is further submitted that the mere fact that the Complainant may have been of a different race or disability to her colleagues does not constitute evidence that she was discriminated against. This is an unsubstantiated assertion. In the case of Co. Louth VEC v Don Johnson (EDA 0712) the Labour Court stated:

The mere fact that a younger employee and an employee of a different gender was promoted in preference to the complainant could not in itself constitute a basis upon which discrimination on the age or gender ground could be inferred.

Discrimination in getting a job

50.Discrimination is defined in Section 6 of the Act as follows:

1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

51.The treatment afforded to the Complainant was firstly not less favourable than her colleagues in a comparable situation. The appointments that the Complainant mentions, were wholly as a result of the operations of the Temporary and Permanent Grade IV Panels, in accordance with established practices and agreement with the Trade Unions. The Complainant’s colleagues were treated in exactly the same way in comparable situations. The panels had both Irish and non-Irish employees and appointments were made in order, regardless of race or disability.

52.At all material times, neither Ms Matthews, Ms Doherty, Mr Austin nor anyone else involved in issuing contracts to the Complainant were aware of the Complainant having a disability.

53.The move to Ballsbridge CFE was to facilitate the Complainant and to her benefit.

54. The oversight in relation to the end date of the Complainant’s first fixed term contract does not fall within the reckonable period but for completeness, was wholly a result of Covid restrictions.

55.It is submitted that the Complainant has failed to establish any less favourable treatment in a comparable situation on the grounds of race or disability.

Victimisation

56.Section 74 subsection (2) of the Acts defines victimisation as follows:

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.”

57.The Complainant has not identified the protected act on which she relies. However, she submits at paragraph 4.11 of her submission that she was transferred because she raised a complaint of discrimination. It is assumed this relates to the move to Crumlin, but again this is mere assertion.

58.The Recruitment team were not aware of the grievance raised to the HR Manager.

59.In the case of ESB International v Mumtaz (EDA 1935) the Labour Court considered a claim of Victimisation, finding as follows:

“The seminal case in setting out the test for penalisation / victimisation is Toni & Guy Blackrock Limited v Paul O’ Neill Determination no HSD095 where the Court held that “in order to make out a complaint of victimisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by the Act. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.” In this case, the detriment complained of was being referred to the ESB Doctor. The Court, having reviewed the Respondent’s attendance policy, is satisfied that the referral was triggered in line with the policy and therefore was not penalisation. In those circumstances the complaint must fail”.

60.In this case the detriment complained of appears to be that the Complainant was offered a role in Crumlin. Firstly, this was entirely within the Respondent’s policies where the Respondent needed to find a Grade IV permanent role for the Complainant, in the circumstances.

61.Furthermore, it is submitted that this was not a detriment at all. The Complainant had previously been advised of her entitlement to a CID at Grade III. Having reviewed the file, Mr Austin found that she was entitled to a CID at Grade IV. This was to her benefit. The position in Crumlin was only giving effect to that beneficial finding.

62.Further and in accordance with the Labour Court’s decision in the ESB case, it is necessary to consider the motives or reasons which influenced the decision maker. In this case, the only motive or reason for offering the role in Crumlin was to appoint the Complainant to a Grade IV position on a permanent basis. The Respondent’s findings to the Complainant’s grievance were supportive of the Complainant and the Respondent had no ulterior or clandestine motive.

63. The Complainant accepted the role and did not raise any issue beyond her initial queries.

64.It is submitted that the Complainant has failed to establish any facts that support an inference of victimisation.

CONCLUSION

65.In conclusion, it is submitted that the Adjudication Officer lacks jurisdiction in relation to the claims under the Protection of Employees (Part Time Work) Act and the Protection of Employees (Fixed Term Work) Act. Without prejudice, it is submitted that the Respondent at all times acted appropriately and in compliance with the Complainant’s legal rights in the context of the operation of the Temporary Panel, of which the Complainant was aware and on which she had sought to be placed. The Adjudication Officer is asked to dismiss the Complainant’s claims under these Acts.

66.Furthermore, it is denied that the Complainant was discriminated against in getting a job or that she was victimised. It is submitted that the Complainant has failed to raise an inference of discrimination or victimisation. She was treated in precisely the same manner as her Irish colleagues in comparable situations. At no material time was her disability within the contemplation/knowledge of any of the Recruitment Team. She has failed to identify or establish on cogent evidence, facts from which it may be presumed that she was discriminated against on the race or disability ground or victimised. It is submitted that he has failed to shift the burden of proof to the Respondent.

67.Without prejudice, if any inference of discrimination or victimisation arises, it is clearly rebutted by the facts set out above

Two complaint forms were received from the complainant. The first complaint form was received on the 26th July 2023 and the second complaint form was received on 2nd January 2024.

First Complaint.

The first complaint form contained two complaints, these were CA – 00057924 – 001 and CA – 00057924 – 002.

CA – 00057924 – 001

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

In this complaint the complainant is alleging that she was discriminated against on the grounds of disability and race when it came to getting a job. The complainant further contends that she has been victimised.

CA – 00057924 – 002.

A complaint seeking adjudication by the Workplace Relations Commission under section 16 of the Protection of Employees (Part – Time Work) Act, 2001.

Second Complaint

The second complaint form was received by the Workplace Relations Commission on 2nd January 2024.

The second complaint form contained one complaint; this was CA – 00060784 – 001.

In this complaint the complainant is alleging that she was penalised under section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

In the Respondent’s preliminary issues section, they have clearly stated the following:

1.The most recent hearing date notification refers to a claim under the Protection of Employee (Fixed Term Work) Act 2003, with Complaint Reference CA: - 00057924. However, the said complaint form did not include this claim, but rather contained a claim under the Protection of Employee (Part Time Work) Act 2003. The complaint under the Part Time Workers Act persists in the Complainant’s submission to the WRC and it is not clear whether the Complainant is proceeding with this claim but in any event, it is submitted that she is/was not a part time worker and accordingly lacks locus standi under the Act and respectfully, that the Adjudication Officer lacks jurisdiction under the said Act.

2. Furthermore, the Complainant’s Complaint pursuant to the Protection of Employees (Fixed Term Workers) Act 2003, CA: -00060784, was submitted on 2 January 2024. This complaint is manifestly out of time. None of the Complaint specific details occurred within six months of the complaint form being lodged.

3. Further, the Complainant had been issued a CID in June 2023, effective from January 2023. The Complainant was not a fixed term worker when she lodged her complaint form or in the six months prior to the Complaint form being lodged on 2 January 2024 and accordingly the Complainant does not have locus standi as a fixed term worker. Even if, which is not accepted, the Complainant’s complaint under the Part time workers Act were to be treated as claim under the Fixed Term Workers Act, it is submitted that the same principle applies.

4. This precise issue was addressed in Laura O’Connor v An Garda Siochana (ADJ – 00036375) a recent decision published in March 2024. In that case, the Complainant had coincidentally also entered into a CID in June 2023. The Adjudication Officer noted:

 However, as I explained to the parties at the hearing, my jurisdiction derives from the 2003 Act and is not conferred by the agreement or acquiescence of the parties. I must satisfy myself that the complainant was a fixed term employee within the meaning of the 2003 Act at the material time of referral of the complaint form or in the 6 months cognisable period because otherwise she can have no legal standing to maintain a complaint under the 2003 Act.

The Adjudication Officer found that the Complainant did not have locus standi in that case.

5. In the present case, the Complainant’s CID was confirmed in June 2023, and it was agreed and accepted that she had been employed on a CID since January 2023. It is submitted that accordingly she lacks locus standi under the Act and respectfully, that the Adjudication Officer lacks jurisdiction.

In the instant case I note that the Respondent offered a review of the complainant’s personnel file, this offer was accepted by the complainant. The outcome of the review resulted in the complainant being granted a Contract of Indefinite Duration at Grade IV from 1st January 2023.

Looking at the dates of both complaint forms it should be noted that both were submitted after 1st January 2023 and the question of locus standi must be considered.

In conclusion I accept the argument made by the Respondent that the Complainant does not have locus standi to pursue these complaints and I must therefore find that the complaints submitted by the Complainant are not well found.

In conclusion I accept the argument made by the Respondent that the Complainant does not have locus standi to pursue these complaints and I must therefore find that the complaints submitted by the Complainant are not well found.