ADJ-00025149 - Workplace Relations Commission A Teacher v A Board of Management

JurisdictionIreland
Judgment Date22 February 2023
CourtWorkplace Relations Commission
Docket NumberADJ-00025149
Date22 February 2023
Hearing Date08 June 2022
RespondentBoard of Management
Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant commenced employment with the Respondent on 9th November 2006. At all times the Complainant was engaged as a teacher within the Respondent organisation. The Complainant remains a permanent, full-time member of staff.

On 4th November 2019, the Complainant referred the present complaint to the Commission. Herein he alleged that he had been discriminated against on the grounds of “gender”. The complaint form further stated that the Complainant believed the Respondent had failed to promote him on discriminatory grounds and that they had victimised him thereafter. By subsequent submission, the Complainant alleged that the outcome of two internal recruitment competitions were tainted by discrimination on the part of the panel. The Complainant further alleged that the Respondent failed to investigate his grievances in relation to this matter thereafter. In denying these allegations, the Respondent submitted that the process was conducted in line with all relevant contractual and internal processes and denied any allegation of discrimination in respect of the same.

Hearings in relation to these matters were convened for numerous dates across 2019 and into 2020. Unfortunately, the progress of the matter was initially delayed by the restrictions arising from the Covid-19 pandemic and the difficulty in convening a hearing on foot of the same. Thereafter, following the Judgement of the Supreme Court in the matter of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, the matter was further adjourned to permit evidence to be taken on oath. Following the Judgement of the High Court in the matter of Burke -v- An Adjudication Officer [2021] IEHC 667, the Adjudication Officer initially designated to hear the matter recused herself from any further involvement in circumstances whereby unsworn testimony had been heard in advance of sworn evidence. On foot of the same, the hearing was designated to the present Adjudication Officer to commence anew. Following a case management session, conducted by means of the remote platform, the substantive matter was heard over two days, falling on 8th and 9th June 2022.

During the hearing of the matter, the Complainant, made an application for the matter to be anonymised in its published form. This application was grounded on the fact that the facts of the case would inevitably involve the disclosure of sensitive information relating not only to the Complainant, but to members of staff that were not party to the proceedings. The Respondent stated that they supported the Complainant’s application of the grounds cited.

In this regard, Section 4(b) of the Workplace Relations (Miscellaneous Provisions) Act, 2021 provides that, an adjudication officer may, following an application from a party to the proceedings or otherwise, due to the existence of ‘special circumstances’, direct that proceedings be conducted in private. The WRC’s guidance note in relation to the same, provides a non-exhaustive list of matter that may result in a written decision being anonymized. In this regard it is noted that the grounds cited by the Complainant do not fall under the same. It is further noted that the guidance note states that,

“Following the Supreme Court’s rulings in this area, it should be noted that the fact that the parties both consider that there are ‘special circumstances’ or that an individual or company’s reputation might be impacted by having an employment or equality complaint ventilated in public does not automatically constitute a reason for the hearing to be heard in private.”

Having considered that Complainant’s application as far as it relates to himself, I find that the same does not constitute ‘special circumstances’ within the meaning of Section 4(B) of the Act. The nature of the issues referred by the Complainant necessitates an examination of his work record and the recruitment process. The administration of justice dictates that such matters should, in the main, occur in public and discomfort on the part of the person bringing the complaint regarding the facts being made public is does not constitute ‘special circumstances’. Notwithstanding the same, I note that the facts of the matter, and the evidence provided, relate to an examination of not only the Complainant’s application but to that of the successful candidates. These persons are not party to the present dispute and the publication of the same will inevitably result in their identification, along with some person details. In such circumstances it is possible to simply describe these persons by their job title only, however the publication of the names of the parties to the dispute will render the same obsolete. Having regard to the foregoing, I find that the publication of sensitive information regarding witnesses that are not party to the proceedings constitutes ‘special circumstances’ and consequently I have exercised my discretion to anonymise the published decision.

In the course of the hearing, the Complainant gave evidence in support of this own complaint. In defending the allegations, the Respondent called six witnesses, a member from the first interview panel (referred to as “Panel Member One”), the Chairperson of the Board of Management, a member from the second interview panel (referred to as “Panel Member Two”), the Deputy Principal, with brief evidence provided by a teaching colleague and a representative of the Joint Managerial Body (referred to as “A JMB Representative”)

Bother parties exchanged lengthy submissions and replying submissions in advance of the hearing. Some procedural issues were raised in the course of the hearing. As these are not determinative of the substantive matter, they will be dealt with following a consideration of the relevant evidence.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent on 9th November 2006. At all times the Complainant’s role was describe as that of “Guidance Counsellor”.

In or around September 2018, the Respondent advertised for the vacant role of Assistant Principal. As the Complainant believed he had the requisite experience and qualifications for the role, he applied of the same. On 4th October 2018, the Complainant interviewed for the position. During this interview, much to the Complainant’s surprise, he was asked this question, “when you came back in September how did you compare the results of your subject with those of the national average?”. By response, the Complainant explained that as guidance counsellor, his role was not an examinable topic. At this point, the Complainant felt that his application had not been reviewed properly, or at all. As the only male applicant for the role, the Complainant stated that he felt that he was out of contention for the position. This suspicion was confirmed thereafter, when a female teacher with less experience was awarded the position.

Upon receiving and reviewing the results of the marking scheme, the Complainant noted that he was awarded similar marks as the successful candidate in a number of areas. This was supported by the fact that the chair of the panel outlined a number of areas where the Complainant excelled. Following the conclusion of this first interview, the Complainant discovered that the successful candidate had already been timetabled off for the position of assistant principal. Having regard to the same, the Complainant stated that he was never actually considered for the position, and that the interview process was, in effect, a foregone conclusion.

On 5th November 2018, the Complainant wrote to management voicing a number of concerns regarding the interview. In addition to the points already outlined in evidence, the Complainant stated that the Board of Management operated in a secretive manner and that the position was sanctioned by an incorrectly constituted Board of Management. The Complainant stated that he received no substantive response to these concerns.

In April 2019, the Complainant advertised for another role, that of Acting Assistant Principal. On 29th April 2019, the Complainant once more applied for this position, with an interview being arranged for 16th May 2019. Again, despite being the most experienced and long-serving candidate, the Complainant was not successful in his application. When the Complainant received feed-back in respect of this application he noted that despite scoring highly in some areas, much of his relevant experience...

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