FULL RECOMMENDATION
SECTION 21; EMPLOYMENT EQUALITY ACT; 1977 PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY (REPRESENTED BY ARTHUR COX) - AND - MS. HELEN DAVIS (REPRESENTED BY THE IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Recommendation EE 05/2000.
BACKGROUND:
2. The full background to the case is contained in the Equality Officer's recommendation No. EE 05/2000.
This dispute concerns a claim by Ms. Mary Helen Davis that the Dublin Institute of Technology (the Institute) penalised her, in terms of Section 2(d) of the Employment Equality Act, 1977, for having brought previous claims in pursuance of an entitlement under the provisions of that Act.
The Institute was established by the Dublin Institute of Technology Act, 1992 and came into being on 1st January, 1993. At that time it took over certain third level colleges including their staff from the City of Dublin Vocational Education Committee (CDVEC). The claimant was included in this transfer.
In December, 1997, the claimant instituted claims against the Institute in relation to her non-appointment to the position of Head of Library Services - (EE 2/98) and Senior Librarian - (EE 3/98). The first claim (EE 2/98) was investigated by an Equality Officer and a recommendation issued in February , 1999 while the second claim (EE 3/98) was withdrawn. In July, 1998, the claimant brought a further claim to the Labour Court in which she alleged that she, the claimant, was the victim of a number of instances of discriminatory and harassing behaviour, and that the Institute had not treated her in a professional manner since January, 1998, (details supplied to the Court). The Labour Court referred the matter to an Equality Officer for investigation and recommendation, and this was issued on the 8th of March, 2000 as follows:
"Based on the foregoing I find that the Dublin Institute of Technology (DIT) did penalise Ms. Mary Helen Davis in terms of Section 2(d) of the Employment Equality Act, 1977 for having brought previous claims under this Act.
I recommend that the Dublin Institute of Technology pay Ms. Davis the sum of £2,000 in respect of the stress she experienced as a result having been so penalised."
THE INSTITUTE'S CASE
The Institute appealed the recommendation to the Labour Court on the following grounds, in accordance with Section 21 of the Employment Equality Act, 1977, on the 17th of April, 2000:-
1. The Equality Officer erred in law and in fact in concluding that the Respondent was penalised by the Appellant through her removal from the Web Advisory Group (WAG).
2. The Equality Officer erred in law and in fact when she concluded that the Appellant did penalise the Respondent in declining her permission to view her personnel file shortly after she had previously done so.
3. The Equality Officer erred in law and in fact in determining that the Appellant did penalise the Respondent in terms of Section 2(d) of the Employment Equality Act, 1977.
4. The Equality Officer erred in law and in fact and exceeded her jurisdiction in recommending that the Appellant pay to the Respondent the sum of £2,000 in respect of the alleged or any stress which she experienced as a result of being allegedly penalised.
5. The Equality Officer failed to have any or any proper regard to the totality of the evidence adduced before her.
6. The Equality Officer failed to have any or any proper regard to her own findings which were adverse to the Respondent including her findings inter alia that the Respondent had:
(a) acted in an unprofessional manner ;
(b) made a comment which would serve to frustrate the person to whom it was directed ;
(c) by her actions caused much annoyance ;
(d) having withdrawn a claim under the Act of 1997, at a late stage sought to reopen the same claim in another forum ;
(e) acted such that it was reasonable for members of management of the Appellant to be wary of communicating with the Respondent on the basis that the communication could be used against them in a manner such as in the instant case ;
(f) failed to facilitate a good working relationship with the management in the Appellant organisation ;
(g) frustrated the Appellant's attempts to facilitate the Respondent ;
(h) frustrated management and caused unwarranted concern among a group of staff ;
7. The Equality Officer erred in law and in fact in allowing the Respondent's claim in part notwithstanding that the vast majority of the complaints made by the Respondent were held by the Equality Officer to be unjustified.
8. The Equality Officer misdirected herself in law.
9. The Equality Officer applied the incorrect legal tests.
10. The Equality Officer failed in any way to properly balance the very many findings which were adverse to the Respondent against the limited findings which were adverse to the Appellant.
11. The Equality Officer erred in law and in fact in holding that the removal of the Respondent from the WAG and/or the limited refusal to permit her to examine her own personnel file were matters which could warrant a finding of penalisation against the Respondent contrary to the provisions of the Act of 1977.
THE UNION'S CASE
The Union, in its response, claims that the Appellant provided no evidence to dispute the conclusion of the Equality Officer that the Respondent was penalised by the Appellant through her removal from the WAG. The respondent never received a sustainable reason for the decision to remove her from the group. The weight of evidence supports the Equality Officer's conclusion in finding that the Respondent was penalised by the Appellant in relation to the WAG for having previously brought claims against the Institute under the Employment Equality Act, 1977.
The Union also claims that it was for the same reason that the Personnel Officer refused the request of the Respondent to view her file..."in view of the recent actions (she) brought against the Institute...".In fact, it was the only reason given to the Respondent at the time of her request. It was not a "limited" refusal as the Appellant claims in its appeal. At the Equality Officer's hearing, the Appellant claimed that the reason for the refusal was that most of the added information to the file was correspondence to or from the Respondent. This was not the reason given at the time, and was not a valid reason in any case.
A Labour Court hearing took place on the 5th of December, 2000. The following is the Court's determination:
DETERMINATION:
The claimant in her claim under the terms of Section 2(D) of the Employment Equality Act, 1977 outlined a series of instances of alleged discrimination. The Equality Officer found the Institute had not discriminated against her on all but two of these claims.
On these two claims (1) Removal from the W.A.G. and (2) Refusal to allow viewing of her Personnel File, the Equality Officer found that the Institute had penalised the claimant for her having previously brought claims under the Equality Legislation, thereby being in breach of Section 2(D) of the Employment Equality Act, 1977.
The Institute appealed against the two findings of the Equality Officer that were adverse to the Institute. The claimant did not appeal against the Equality Officer’s findings in relation to her rejected claims.
The Court in this case has, while considering all aspects of the case, concentrated on the 2 issues under appeal, (1) Removal from the W.A.G. and (2) Refusal to view Personnel file.
Web Advisory Group - W.A.G.
The Court accepts that the W.A.G. was an ad hoc group set up to facilitate the creation and development of the Institute's Web Site. This situation changed with the decision to appoint a web administrator on a full time basis in late 1997, an appointment the claimant was fully aware of, from discussions at the W.A.G. meetings.
Given this regularising of the responsibility for implementation of the Web Site, it is not surprising that the institute would seek to use the expertise and experience of the new person recruited by the Institute. The claimant herself had at the initial meeting indicated she did not see herself as the Library representative, in the longer term.
The Court can understand, given all the background issues and the atmosphere prevailing between the claimant and her employer, that she might believe that she was being discriminated against. However, while the decision could have been conveyed in a more sensitive manner, the Court is satisfied that the action was a natural progression for the project, and did not form the basis of discrimination.
The Court, therefore, upholds the Employer's appeal on this claim.
Personnel File
The Institute argued that the claimant had been allowed access to her file shortly before the incident in dispute and had subsequently had access. It was claimed that the file was being used to co-ordinate work in progress in preparing the Institute case for the Equality Officer, and that the claimant had not been penalised or suffered any loss as a result of the Institute's action.
The Union argued on behalf of the claimant that a letter written by the Institute clearly stated she was being denied access because of “action taken against the Institute”. The Court, having considered the written and oral submissions, finds that this letter of 28 November, 1998 does indicate that the refusal was based on the “recent actions” taken by the claimant. There is no satisfactory explanation as to why the Institute's position that there were documents on her file “for convenience” was not explained to the claimant at the time. It would seem to have been a simple exercise to remove any documents placed for convenience on her file rather than refuse her request.
The Court upholds the Equality Officer’s findings on this issue, and rejects the appeal.
In summary, the Court upholds the Institute's appeal in relation to the Equality Officer’s findings on the WAG, and rejects the Institute's appeal on access to her Personnel File.
The Court, accordingly, finds the Dublin Institute of Technology did penalise M/s Mary Helen Davis in terms of Section 2(D) of the Employment Equality Act, 1977 for having brought previous claims under this Act, by refusing to allow her access to her personnel file in view of the recent actions she had taken against the Institute.
The Court upholds the award of £2,000 made by the Equality Officer in this case.
Signed on behalf of the Labour Court
Finbarr Flood
20th February, 2001______________________
CON/CCChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.