ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047831
Parties:
| Complainant | Respondent |
Parties | Brendan O Byrne | Waterford & Wexford Education Training Board The respondent |
Representatives | D. A Connors Solicitors | Robin McKenna IBEC |
Complaint(s):
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-00058810-001 | 12/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00058810-002 | 12/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00058810-003 | 12/09/2023 |
Date of Adjudication Hearing: 30/03/2026
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 & Section 79 of the Employment Equality Acts, 1998 - 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of a remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski V Ireland and the WRC [2021] IESC 24, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the WRC are now held in public and, in most cases, decisions are no longer anonymised save where an application is made that special circumstances exist. No application was made in this case.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. The parties were given an opportunity to cross examine the evidence
The following witnesses attended on behalf of the respondent Interview Board Members Ms Fionnuala Greene, (Ms G) Ms. Sarah Roche, Principal (Ms R), and Mr Senan Lillis (Mr L) as well as Anne-Marie Jones HR Manager (Ms. J).
I have taken the time to carefully review all the evidence both written and oral. Much of the evidence was in dispute between the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
Background:
These claims arise out of the complainant’s application for renewal of a fixed term contract and an interview which took place on 11 July 2023. The complainant was notified on 12 July 2023 that he was unsuccessful at interview. The complainant has lodged complaints against the Respondent pursuant to the provisions of the Employment Equality Act, 1998 and the Protection of Employees (Fixed-Term Work) Act, 2003.
The complainant asserts that the reason he was unsuccessful at interview is due to his age and alleges that he was subjected to discrimination on this ground. The complainant claims that to his knowledge the successful candidate was younger than him. He has submitted a claim under section 77 of the Employment Equality Act, 1998 in this regard.
The complainant has also submitted claims under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003, asserting that he was treated less favourably due to being a Fixed Term worker. This claim relates to the lack of an appeal process.
The complainant also submits that he was not successful at interview as he alleges if he had been successful this would have entitled him to a contract of Indefinite duration. The complainant submits that the respondent prevented his success at interview in an attempt to avoid having to give him a contract of indefinite duration (CID)
The claims were filed on 12th of September 2023. I am satisfied that the 6-month cognisable period runs from 13th of March 2023.
The respondent denies the claims submitting that the complainant was not successful he did not reach the required cut off score to be panelled for the role. |
Summary of Complainant’s Case:
The complainant submits as follows. He commenced employment with the Respondent on 23 October 2022 as a Maths teacher at Kennedy College. In 2022, the complainant applied for a second fixed-term position, which he held at the time, and was interviewed for that position in July 2023. He was unsuccessful in securing a second fixed-term position with THE RESPONDENT. He had previously interviewed for a fixed-term position in October 2022 and scored 82 out of 100. At his subsequent interview on 11 July 2023, he scored 62 out of 100. The complainant maintains that he performed similarly in both interviews, and possibly better in the second interview, but was discriminated against by the interview panel on grounds of age. He submits that he had more than the required attributes for the role and had over 10 years’ teaching experience, supported by references. He claims that the highest-scoring candidate was a newly qualified teacher with no Maths teaching experience. He also claims that the highest-scoring candidate was up to 15 years younger than him. He submits that he was directly discriminated against in the interview process on the ground of age. When informed that he had not secured the position, he sought to appeal the decision, but no appeal mechanism was available for interviews for fixed-term workers in THE RESPONDENT. He was advised that he could request feedback. He did so but submits that the employer provided only the scores for each of the competencies, with no notes, contrary to THE RESPONDENT policy. After requesting feedback, the complainant received a scoring breakdown for each of the competencies. The accompanying email stated: “our policy regarding feedback is to only provide the scores awarded for each competency”. The complainant also made a data access request for his interview notes, which were released. He contends that the notes omitted significant relevant information concerning his application, highlighting a lack of transparency in the process. He submits that THE RESPONDENT’s lack of an appeal mechanism for fixed-term workers in interview-related appeals amounts to less favourable treatment of fixed term employees comparable to permanent employees whom he submits do have a right of appeal. He asserts that this amounts to direct discrimination against him. By way of comparison, he submits that a Maths teacher on a comparable permanent contract who interviews for an Assistant Principal post, such as AP1 or AP2, has access to a clear appeal mechanism under Circular Letter 0003/2018. He further submits that the circular provides for an appeal system for appointments to permanent Principal and Deputy Principal posts in recognised post-primary schools, referring also to Department Circular 0062/2021 regarding appeals for permanent staff members. |
Summary of Respondent’s Case:
The respondent denies that it discriminated against the complainant on the grounds of age or in relation to access to employment.
The respondent submits that the complainant was interviewed on 13 October 2022 for a fixed-term Maths teacher role for the remainder of the 2022/2023 academic year, he was successful and carried out the role until end of academic year 2023
The respondent submits that the complainant was unsuccessful at interview in 2023 for a one-year fixed-term contract, following the completion of a one-year fixed-term contract awarded to him in 2022.
In June 2023, the respondent advertised a Maths teacher position for the 2023/2024 academic year. Three candidates applied, including the complainant.
After shortlisting, the complainant was emailed on 4 July 2023 and informed that he had been shortlisted for interview on 11 July 2023. The email included the interview scoring breakdown by competency and a link to the interview preparation document.
Of the three candidates interviewed, the highest score was 78. Two candidates, including the complainant, scored below 70.
The complainant was one of three candidates interviewed in 2023. Following a structured interview process, he placed third and was not successful.
The respondent submits that the complainant had no entitlement to a second fixed-term contract. The interview panel set 70 as the qualifying score for inclusion on the panel. The complainant scored 62 and was therefore not placed on the panel.
The respondent submits that, because he was not panelled, he had no entitlement to be offered the post if other candidates were unable to accept it.
Following the interview, it emerged that the successful candidate did not hold Teaching Council of Ireland registration for Maths, and that candidate’s application could not progress. As no other candidate had been panelled, the respondent was required to re-advertise the position
The respondent re-advertised role combined Maths and Geography. The complainant did not have a Geography qualification and did not apply. There were no applications for that position, so the respondent re-advertised again, this time for a Maths and Learning Support role.
The respondent submits that the complainant could have applied for that position if he wished, but he did not do so.
On 12 July 2023, Ms J, HR Manager, emailed the complainant to advise him that he had been unsuccessful. Following subsequent queries about feedback, the complainant made a subject access request and lodged a complaint with the WRC on 19 September 2023.
The respondent submits that all members of the interview panel were fully trained in conducting interviews. The three panel members had received interview training and had participated in numerous interview panels previously.
One interviewer, Ms R, Principal, had also participated in the previous interview in which the complainant had been successful. The respondent submits that five competencies were assessed at interview and that all candidates were asked the same questions.
The respondent further submits that the complainant did not sufficiently communicate his competencies during the interview, even when given additional opportunities to expand on his answers.
The complainant submits that his interview was shorter than those of other candidates. He also takes issue with questions concerning contribution to the school and the use of modern technology. |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00058810-001 | 12/09/2023 |
Findings and Conclusions:
In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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) ….” Section 6(2) of the Acts defines the discriminatory grounds of age, Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated 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”. The complainant submits that he was unsuccessful at interview because of his age. He stated that he was 39 at the time of the interview process and that the successful candidate was approx. 15 years younger than him. While he did not know the successful candidate’s exact age, he said he understood that the candidate was newly qualified. The respondent stated at the hearing that it did not hold information in relation to candidates’ ages but accepted that the successful candidate was younger than the complainant. The complainant advised the hearing that he had been successful at interview for the same role the previous year and had carried out that role for the academic year 2022/2023. He queried why he was then unsuccessful in his application for the same role one year later. The respondent in advancing it case noted that the complainant was only one year older than he had been when he had previously succeeded at interview. The complainant also acknowledged that, on the previous occasion, he had been the only candidate who applied. The complainant stated that he was asked a question at interview regarding the use of modern technology in the classroom. He submitted that this was an ageist question and was designed to favour younger candidates. The complainant at the hearing stated that he took issue with the phrasing of the question and disputed that it was phrased as recorded in the interview notes. The complainant stated that the way the question was phrased was strange. The respondent’s witness Ms. R stated that the question was asked to ascertain how candidates would use, or had used, modern technology to positively influence learning. Ms. R stated that the question specified that it was asking about how to use technology safely. The respondent indicated that in asking this question it was looking for examples of applications such as Studyclix, Cahoots, or other tools or platforms that may assist in the teaching of mathematics as well as knowledge and experience of platforms or technology which might assist different types of learning. Ms R stated that the question was not ageist and that candidates of any age would be expected to have knowledge or experience of such applications as part of current teaching methodologies. Ms S stated that the question was poorly answered by the complainant and thus he did not attain a high score for his answer. Ms. R who had also been a member of the first interview Panel when the complainant was successful in his interview for the role outlined the differences in the depth of answers provided by the complainant in the second interview compared to the first stating that the complainant in the first interview had spoken in detail about initiatives he had started in other schools and extra-curricular activities he had been involved with. The respondent advised the hearing that the complainant did not perform well at interview and had not achieved a sufficient score to be successful in his application. The respondent further submitted that the complainant appeared to approach the interview with the mindset that he already had it in the bag and stated that this was reflected in the level of effort and detail provided in his answers. The complainant stated that the respondent had not kept detailed or accurate notes of the interview questions and answers. He initially submitted that he had not been provided with the interview notes; however, it transpired at the hearing that the notes had been furnished to him. The complainant at the hearing state that he had only seen his own interview notes and not those of other candidates. The respondent at the hearing clarified that redacted copies of the other candidates interview notes had also been provided. I note that all interview notes were provided in the respondent’s submission which had also been copied to the complainant. The respondent advised the hearing that the interview notes had been provided to the complainant and had also been included as part of the respondent’s submission to the hearing. The complainant stated that he had not been awarded marks for his general contribution to the wider school community. He submits that he had contributed to the wider school community and should have received marks for this. In particular, the complainant advised the hearing that he had organised and coached a school soccer team, but that this had not been recorded in the interview notes. The three members of the interview panel gave evidence regarding the complainant’s performance at interview and provided details in respect of the competencies and areas examined and provided details of those areas/competencies where they considered that the complainant had not provided sufficient detail and therefore had not achieved the required standard. Witness for the respondent and Interview Board member a former Principal at the school Mr L gave evidence of the questions he had asked and the information he was looking for in the answers. Mr. L stated that he recalled that the complainant answers had been very short. Mr. L advised the hearing that he had put the question to candidates asking how you use your subject to contribute to school life. Mr. L stated that he would have expected that the complainant would cite examples of his involvement in extracurricular activities in answering this, but Mr. L stated that this did not come through in his answer. Mr. L stated that there was no worthwhile answer forthcoming form the complainant on this question. Mr. L stated that the complainant had not given this or any a worthwhile example when asked how he had contributed to the wider school community. Mr. L stated that, had the complainant provided that answer, he would have been asked to elaborate and would have received marks for it. The complainant in his email to the respondent after the interview results stated, “I didn’t recall the competency Contribution to the school being asked”. The complainant submits that Board members are trained to elicit relevant answers and submits that this is a clear example of a board member failing to ask a straightforward question yet making negative notes and awarding the claimant a very poor mark in this section. The complainant at the hearing had initially disputed that he was asked this question but later conceded that it had been asked of him at the interview. The complainant further submits that the Chairperson of the Board should also refer to any gaps left by the individual interviewers at the end of the interview adding that “The interviewer had access to my file with a long list of extracurricular activities”. Another member of the Interview Panel Ms. G in her evidence also stated that the complainant gave a number of short answers during the interview and failed to elaborate, even when invited to do so. Ms G stated that she had asked about skills deficits or training the candidates might benefit from Ms. G stated that the complainants answer was vague rather than reflecting on his own particular situation. Ms. G stated that she had also asked about contribution to school community but stated that the complainant had made no mention of extracurricular activities in his answer. Ms. G told the hearing that she had specifically asked whether there were any areas of school life to which the complainant had contributed other than his subject. The respondent stated that it was difficult to give marks where information was not forthcoming from the complainant in respect of the competencies being examined. The respondent’s witness Ms. R advised the hearing that she had asked the complainant to set up the senior soccer team after some senior boys had indicated an interest in forming one. She stated that the complainant initially agreed to organise the team, but she added that she had to follow up with him a number of times before it was arranged. Ms R surmised that this may have been why the complainant did not refer to organising the soccer team during the interview, as he knew she was aware of the background to the matter and his contribution, although she acknowledged at the hearing that she not the person who asked that question at interview as it was Ms. G who asked the question. The complainant advised the hearing that, although the successful candidate initially accepted the role, he did not end up taking up the position but despite this the role was not then offered to the complainant Instead, the respondent re-advertised the position. The respondent stated that the complainant had not reached the qualifying score required to be placed on the panel. It stated that the cut-off mark was 70 and that the complainant scored 62. The complainant did not dispute that he had attained a score of 62 but argued that where the successful candidate had not filled the role it should then have been offered to him. The respondent advised the hearing that the cut off mark was 70 to be panelled in the competition and stated that the complainant could not be offered the role as he had not reached the qualifying score. The respondent advised the hearing that the role was readvertised as but this time seeking a combination of Maths and Geography. The respondent did not succeed in filling the role so then readvertised it as a Maths alone position which it states the complainant could have applied for but did not apply on that occasion. The complainant at the hearing also argued that he was treated less favourably than a permanent employee due to the non-availability of an appeal process following the interview. In this regard the complainant submits that permanent teachers can avail of a n appeal process and that this is set out in a circular. The respondent advised the hearing that an appeal following interview is only available for AP1 and AP2 posts and that this is set out in a Department of Education circular. In considering this matter I am mindful that it is not for the Adjudication Officer to determine who the better candidate was. I note that O’Higgins v UCD3, is authority for the fact that it is not the role of the Adjudication Officer to substitute its views on the merits of candidates for those of the designated decision makers, the only role being to ensure that the selection process is not tainted by unlawful discrimination. The principles cited, include inter alia that The Court will not normally look behind a decision in relation to appointment unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. I also note that the complainant had been successful in his application and interview one year previously, when he was aged 38 but when he was unsuccessful in an interview for the same post a year later at age 39, he submits that it amounts to age discrimination. While I note the Complainant submits that he had more experience than the successful candidate this is not a guarantee in justifying an age discrimination case. The fact the Complainant did perform the role previously supports his case to some degree but is not definitive in supporting and assertion that he should automatically have been appointed to the role again irrespective of the suitability of other candidates and in circumstances where other candidates scored higher than him at interview. Quite rightly the job was publicly advertised and received interest from other applicants. From the interview notes it is clear that each Interviewer had a defined area to question for all candidates. I was given no evidence to suggest this was not followed. The Adjudicator cannot find any flaws in the areas and method of the selection process or the makeup of the Interview panel that would justify a finding of an unfair selection process. Given the age difference and experience between the Complainant and the successful candidate it is reasonable to assume that age discrimination falls within the possible range of assumptions. However, I am satisfied a) from my analysis of the selection process b) the evidence of the interviewers c) the composition and experience of the Interview Panel d) that the Complainant was successful in his application and was called to the interview stage, e), that while within the range of possible assumptions, the case for age discrimination has not been proven and the facts of the case show that the process used by the interview Panel had no age bias and the successful candidate was appointed after a fair and non-discriminatory process. I find that the Complainant was not discriminated against by the respondent on grounds of age in respect of the selection process. In addition, and for the sake of completeness I note that the complainant also asserts that had he been successful at interview he would have been entitled to a Contract of Indefinite duration as it would have been his second contract with the respondent in a consecutive academic year. The complainant in this regard stated that he had been employed on a fixed term contract with the respondent from October 2022 to June 2023 and has sought to assert that had he been successful at interview for a post in the academic year 2023 to 2024 he would have been entitled to a CID. In considering this matter I note that the complainant at the time of interview for the post had only had one contract with the respondent spanning a period from October 2022 to June 2023. No evidence was adduced to support this claim. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the Complainant was not discriminated against by the respondent on grounds of age in respect of the selection process |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00058810-002 | 12/09/2023 |
Findings and Conclusions:
This is a complaint under the Protection of Employees (Fixed-term Work) Act 2003 (“the Fixed-term Work Act.”) Section 6 of that Act sets out the obligation on employers to treat fixed-term workers no less favourably compared to a permanent employee: (1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee. (2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated. (3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds. (4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her. (5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee. (6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned. (7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee. (8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act 1997. The complainant’s case in this regard is that he was treated unfairly because he had no entitlement to an appeal process after he failed to reach the qualifying score at interview. The complainant in this regard submits that permanent employees do have an entitlement to an appeal process in the same circumstances. The complainant in this regard referred to circular Letter 0003/2018 Assistant Principal I, Assistant Principal II and Programme Co-ordinator posts. The respondent advised the hearing that the appeal process set out in the circular only applies to applications for AP1 or AP2 posts and Programme Co-ordinator posts. The respondent advised the hearing that any other posts whether applied for by fixed term or permanent workers do not have an appeal process under this circular. The respondent added that this does not apply to interviews for teaching roles only to those roles outlined in the circular. When this was brought to the complainant’s attention, he responded saying that it was his only comparison. The complainant in conclusion stated that the accepted that there was a difference in what he was asserting and in was covered in the circular. In considering this matter I note that the complainant did not point to any condition or term of his employment that was less favourable than the terms and conditions of a permanent employee. For this reason, I must find that his complaint under the Act cannot succeed and accordingly I declare this claim to be not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00058810-003 | 12/09/2023 |
Findings and Conclusions:
The complainant in setting out the narrative of this claim has claimed the following My employer failed to provide to employees’ representative information about fixed term work. The complainant failed to adduce any evidence to substantiate this claim and accordingly I declare this claim to be not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare this claim to be not well founded. |
Dated: 10/08/26
Workplace Relations Commission Adjudication Officer: Orla Jones
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