FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DUBLIN CITY COUNCIL (REPRESENTED BY BCM HANBY WALLACE SOLICITORS) - AND - BREEGE MURPHY (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against decision of the office of the Director of Equality Investigations Dec-E2002-031
BACKGROUND:
2. A Labour Court hearing took place on the 28th of May, 2003, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
The appeal before the Court was made under Section 83 of the Employment Equality Act, 1998, in respect of the decision of the Director of Equality Investigations in decision number DEC-E2002-031. The appeal was on the grounds that the Director of Equality Investigations erred in law and in fact and drew incorrect conclusions in relation to the decision that Dublin City Council did not discriminate against Ms Murphy, contrary to Section 74(2)(a) of the Employment Equality Act, 1998.
The Equality Officer considered the case on the basis of seven separate allegations of victimisation. The plaintiff advanced five situations in her appeal under which she alleged she had been victimised: -
- The non-payment of a car allowance.
- Telephone calls in relation to her withdrawing from a Staff Support Advisory Position.
- The way in which a Manager's order in relation to a previous case she had taken was framed.
- Diary 2001- her exclusion.
- Other incidents of penalisation.
Non-payment of car allowance:
The Complainant had claimed that she was an acting Administrative Officer in the Rates Office from May, 1998, to July, 1999, and that one month after the acting up assignment had commenced she had approached the Assistant Principal Officer to seek payment for a car allowance to which she considered she was entitled.
The states that her superior informed her that he would carry out the duties which attracted the car allowance and that her application was therefore denied. The Complainant further claimed that this allowance was granted to her predecessor in the post and was also granted to her successor in the post when she returned to her substantive grade in July, 1999, following the completion of her acting up assignment.
The Union on behalf of the Complainant stated that the Equality Officer had erred in finding that a large degree of discretion as to whether or not an individual officer receives such an allowance is devolved to the relevant head of a section, in this case the Assistant Principal Officer of the Rates Office. They argued that the Deputy Finance Officer and Treasurer retained all such powers at the time and that it was never within the gift of her superior to allocate or withdraw such an allowance.
They further stated that the fact that the Claimant’s superior in deciding to retain the car allowance ignored the fact that a car allowance was attached to a post. They stated that the allowance was always attached to the post and not the individual post holder and it was unprecedented for an individual to carry such an allowance from one post to another.
They argued that the Equality Officer was incorrect in finding that the Complainant had confirmed during the hearing that she never used her car for official purposes. The Complainant was not in a position to use her car on official business as the full range of duties attached to the post had not been assigned to her.
In relation to the Equality Officer’s view that the Council took reasonable steps to rectify the matter, the Union argued that she had been asked to inspect post boxes, which she rejected, on the grounds that the task was demeaning to her position.
The Respondents stated, quoting extracts from their regulations, that the Equality Officer was correct in the assumption that a large degree of discretion was devolved to the relevant head of the section. The fact that the matter was referred upwards for a final decision was a matter of management procedure.
They also accepted that the car allowance was attached to the post and not the post holder, but they did argue that there were special circumstances in which the Claimant’s superior might decide to retain the allowance having clearly explained his reasons in detail to the Complainant. They also stated that it was important to reiterate that the car allowance could only be given to an employee, where the employee was actually using a car. They stated that the Complainant made no complaint or observation with regard to the car allowance following the initial complaint.
The Equality Officer, having considered the evidence presented, found that the Complainant had failed on this ground to provide a prima facia case of victimisation. He found that her superior had had no involvement in her Equality Case at the time and that the decision that he made shortly after he assumed his acting-up assignment as Assistant Principal Officer to maintain the duties that attracted the car allowance and not devolve them to the Complainant was not related to the Complainant seeking redress under the 1977, Act, and was reasonable in the circumstance.
He further found that the Complainant’s failure to raise the matter with her superior during her time as acting administrative officer other than in an initial conversation, her failure to raise the matter formally with personnel until several months after she left the post, and the fact that she declined reasonable offers by the Respondents were all factors which damaged her contention that she was penalised contrary to the Act.
The Court agrees with the findings of the Equality Officer on this issue.
Staff Support Advisory Position:
The Complainant stated to the Equality Officer that she had withdrawn from the position of Staff Support Advisor and had written giving her reasons to the Human Resources Manager. Subsequently, she received a telephone call from the Personnel Officer in relation to the letter that she had sent. She believed that because she had marked it private and confidential, it should have only been dealt with by the Human Resources Manager.
The Complainant alleged that during the telephone conversations with the Personnel Officer certain things were said to her that caused her great distress and that she was extremely shocked by these comments, made by a senior official in the personnel department.
She went on to state that she had informed the Staff Welfare Officer of the content of the telephone conversation and that she also reported it in writing to the Human Resource Manager. She submitted that the Respondents did not deal with her correspondence in an appropriate manner and that the personnel manager’s comments were unwarranted and hurtful.
Union's Case:
The Union stated that the Equality Officer found in his report that the Welfare Officer was “quite sure” that the Claimant had not mentioned the Personnel Officer’s comments to her. The Union stated that what the Welfare Officer actually said was that she had no recollection of the Claimant mentioning the Personnel Officer's comments.
It was also argued that the Complainant had filed a complaint with the Equality Authority on the 25th June, 2000, and that this complaint also records the fact that the alleged comment had been reported to the Welfare Officer. The Union argued that the Equality Officer had, in deciding that the Complainant had failed to establish a prima facia case, based this decision on a glaring contradiction between a recorded witness statement and his own incorrect summary of the facts of the case.
Council Case:
The Council argued that the Welfare Officer had clearly stated to the Equality Officer that she was quite clear that the Appellant had not mentioned the alleged comment to her. The Appellant now sought to impugn the integrity of the Welfare Officer.
The Council also refers to the filing of a complaint by the Appellant with the Equality Authority in defence of this point. However, this complaint was not made until six weeks after the alleged comment. The Council states that it is simply not credible that she would have failed to report this remark to the Council in the intervening period.
The Equality Officer found that it was appropriate that the Personnel Officer deal with correspondence addressed to his superior and marked private and confidential, unless there was an over riding reason why this should not happen. He was satisfied that there was no inappropriate behaviour on the part of the Respondents in respect to the manner in which they had dealt with the Complainant’s correspondence.
In relation to the inappropriate comments during the course of the second telephone conversation, which were denied by the Personnel Officer, the Equality Officer found that the Welfare Officer when giving evidence stated that she was quite sure that the Complainant had not mentioned such a comment to her. He also felt it surprising that she had not acted on the alleged comment and reported it to the head of Human Resources.
The Equality Officer found that the Complainant had failed to establish a prima facia case of victimisation in relation to how the Respondent had dealt with her correspondence concerning her role as Staff Support Officer. The Court supports the findings of the Equality Officer in response to the issues complained of in relation to the Complainant’s role as Staff Support Officer.
Manager’s Order:
The Complainant had contended that the language used in the order was unprecedented, gratuitous and unwarranted. The Complainant contended that the wording of the order was an attempt by the Respondent to part reverse the Recommendation of the Equality Officer and to undermine her position in the organisation, as she had been successful in her claim. She had submitted that the Respondent’s behaviour in respect of the manner in which the manager’s order was prepared and signed was a further example of victimisation contrary to Section 74(2) of the Act.
The Union argued that it was not fair or reasonable for the Equality Officer to base his decision on this matter on the assumption that because the Order was restricted to senior staff the objectionable and unprecedented nature of the text is somehow lessened. The Union further went on to outline how the Equality Officer found the wording of the Order to be objectionable. The Union felt that it was only fair and reasonable to draw the conclusion that the order is without precedent and could only have come about as a result of the Complainant’s previous complaint under Equality Legislation.
Management's Position:
The Respondent noted that the Equality Officer had made a finding with regard to the language used in the Manager’s order.
However, they argued that the question at issue was whether this constituted penalisation and whether in the circumstances it constituted victimisation of the Appellant.
They did not accept the Appellant’s contention that “for us to prove victimisation it should only be necessary for us to prove that the Manager's order is erroneous, objectionable and unprecedented.” The Equality Officer was entitled and bound to consider the context of the manager’s order and not solely the content. It is not sustainable that the text of the order could have only come about as a result of the Appellant’s previous complaint and that it is not supported by the evidence.
They stated that the Equality Officer’s finding that the text of the order “sailed close to the wind” was not supported by the evidence. The Equality Officer had particular concerns over the language used in the Order which reflected the impact of the Equality Officer's previous decision on the order of the candidates on a panel following interview. However, he did not consider it to be erroneous to the extent that it attempted to reflect a totally inaccurate picture of the outcome of the Equality Officer's Recommendation. Consequently he was not satisfied that it constituted victimisation of the Complainant contrary to the Act.
The Court does not support the Equality Officer’s findings and is satisfied given the unprecedented nature of the language used in the Order, that the wording was influenced by the Complainant’s action in taking a case against the Respondents.
Diary 2001:
The Complainant stated that her name was omitted from the Diary for 2001; the names of other senior officers in her section were included. The entry in the Diary was arranged and completed by the Deputy Finance Officer and Treasurer who would have included the Complainant's name in previous editions and who was well aware of her senior position in the Rates Office at the time. This official was a member of the interview panel whose decision was the subject of investigations by an Equality Officer on foot of the previous claim. She submits that omission of her name is yet another example of the Respondent penalising her contrary to Section 74(2) of the Act.
The Union stated that it was not credible to suggest that on one hand the Deputy Finance and Treasurer would remember to point out when reading the proofs that the Claimant was no longer acting up, while on the other hand failing to remember the imminent secondment of a senior member of staff which guaranteed she would recommence in an acting up capacity thereby obviating the need for any amendment to the proof in this regard. They further argued that the Equality Officer’s statement that he was satisfied on balance that the omission of the Complainant’s name was an oversight on the part of the Respondent was an incorrect conclusion.
The Council stated that the omission was not deliberate. When the person responsible for submitting the details to the Department checked with the Deputy Finance Officer and Treasurer he informed her that the Complainant was not acting as an Administrative Officer as stated in the 2000 Diary as she was replaced.
The Equality Officer was satisfied that the omission of the Complainant’s name from the 2001 Diary was an oversight on the part of the Respondent and that the Complainant had failed to establish a prima facie case of victimisation in relation to this issue.
The Court does not agree with the Equality Officer’s finding in this matter. The Court does not accept that the omission of the Claimant from the Diary was an oversight given the information available to the person with overall responsibility and finds that the action was influenced by the Claimant’s action in taking a case against the Respondents.
Lunch Invitations:
The Complainant claimed that she had been excluded from two official lunches when she was acting as Administrative Officer in the rates office. On the second occasion when she was excluded, on enquiring, she was informed by her supervisor that he had forgotten to invite her.
The Union stated that the first lunch was arranged as an initiative to improve relations with staff in the rates office and staff in the valuation office. It was unique and had never happened before.
It was not credible for the superior to say that he cannot recall anything about the lunch and the Equality Officer erred in accepting such an implausible suggestion.
The Equality Officer was satisfied that the Appellant's superiors actions were not premised on any intent to penalise the Complainant for having taken the previous case.
The Court does not support the Equality Officers findings in this matter The Court cannot accept that the Claimant’s superior merely forgot to invite her to the lunch as outlined. This was an important occasion. Given the lack of any other explanation, the Court finds that the action was as a result of her taking her previous case.
Internal Promotion Information:
The Union claimed that the Claimant had been bypassed when the results of an internal promotion competition were circulated in her office, which was contrary to normal practice. It was claimed that the results of the promotion competitions were always distributed through the most senior member of staff, without exception.
The Management said that while it is normal practice to communicate competition results to the Head of a Section or the most senior official in that person's absence, its underlying concern is to ensure that the swiftest possible circulation of the results to the candidates, and in these instances the information is always communicated to the most senior officer.
The Equality Officer was satisfied that the Respondents actions on this issue were not premised on any attempt to cut the Complainant out of the process because of her previous case.
The Court does not agree with the Equality Officer’s findings. While accepting the Respondents need to convey promotion information as swiftly as possible the Court notes that the conveyor of the information did not even inquire if the Claimant was available to take the information. Given that the Claimant was in the office and could have received the information, the Court finds that the action to ignore her was as a result of her previous case.
Court Findings:
The Court finds that the Complainant was not penalised for taking her case against the Respondents in relation to the payment of a car allowance and in relation to the issues complained of surrounding her role as Staff Advisory Officer.
However, the Court believes on the other issues as listed above there is evidence of discrimination towards the Claimant in that she was penalised as a result of her taking her previous successful case. The Court, therefore, finds her case proven on these three issues and awards her €3,000 in compensation.
Signed on behalf of the Labour Court
Finbarr Flood
8th September, 2003______________________
GB/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.