A teacher who was twice passed over for promotion at a school where he had been the first ever male teacher was not discriminated against because of his gender, the Labour Court has found.
Damian Johnston was appealing against a decision of the Workplace Relations Commission which had found that while he might have expected to secure promotion on the basis of his experience , the criteria for deciding interview outcomes had shifted on foot a Department of Education circular.
The court found Mr Johnston, a careers guidance teacher, had not managed to establish the board of management at Ardscoil Mhuire, Ballinasloe, Co Galway had either discriminated against or victimised him.
The Labour Court heard Mr Johnston, represented by Alistair Purdy SC, had made four applications for more senior positions over the course of his more than a decade working at the secondary girls school but had readily accepted the appointment of colleagues on the first two occasions as they had more seniority.
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Mr Johnston contended that every promotional post at the school had been filled by the most senior candidate until he applied for the role of Assistant Principal in November 2018 a situation the WRC had suggested appeared to have had led to teachers “waiting their turn”.
On this occasion, however, a woman colleague with less experience was successful.
Similarly when the position of Acting Assistant Principal was advertised the following April he applied but was again unsuccessful with another woman candidate with less experience than him appointed.
He said that when he subsequently sent an email raising concerns about the process he was victimised with the school denying him access to a school mobile phone, failing to respond to some of his communications and reducing his class hours.
The school’s Board of Management denied discrimination or victimisation and said that on both occasions the processes had been fair and the best candidate had been appointed. It said Mr Johnston had been offered mediation on foot of his complaints but had instead pursued a grievance procedure.
Mr Johnston argued the questions at the interviews had not been adapted to take account of the fact he was a careers guidance teacher. He said he was disadvantaged too by the fact that weight was attached to his colleague’s experience as transition year coordinator. He said every teacher to hold that role had been a woman.
He said the successful candidate had subsequently told colleagues that this experience had been an important factor in her success.
In the second instance, he argued, the successful candidate had received the same marks as him for seniority despite having less experience and he suggested that his attempts to answer questions with regard to instances in which he had demonstrated leadership with reference to his previous experience as a paramedic had been dismissed.
Mr Purdy said his client “did not get a fair crack of the whip”.
The school board argued the process had been fair on both occasions with the same questions asked of every candidate.
Then chair of the board, Gerry Doherty told the hearing the suggestion there had been a conspiracy not to give Mr Johnston the job because he was a man was “preposterous” and that he was simply looking for the best candidate for the job.
Mr Johnston had been done well in many aspects of the interviews, it was said, but his rivals had simply done better.
Rosemary Mallon BL for the school board said the complainant’s actual complaint appeared to be the fact he believed as the most senior person he should have been appointed but that this was not a complaint of discrimination on the gender ground.
She said that while it may have been custom and practice at the school for the most senior candidate to geta job it had not in fact been the case in every instance and suggested there had been two previous cases in which it had not happened.
The hearing was told a circular from the department in 2018 had also sought to phase out seniority as the key factor in such processes with a shift instead towards qualifications and leadership in the school environment.
The court ultimately found that the complainant had “not established a prima facia case of discrimination on the gender ground and therefore his complaint must fail”.
As the matters he had raised concerns about in a subsequent email had not been unlawful, it found, he had not carried out a protected act “and therefore could not have been victimised for same. On that basis this complaint must also fail”.
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