EED054

Complainant’s Case

The complainant denied making malicious and/or vexatious complaints. It was submitted on her behalf that as a general principle an employee is entitled to bring complaints to the attention of her employer and have them dealt with without fear of penalisation. It was further submitted that the bringing of a complaintper secannot constitute malicious or vexatious conduct. The complainant contended that she was never given an opportunity to deal with the allegation that certain of her complaints were of a malicious or vexatious nature.

The complainant disagreed with the findings of the investigation. She contended that she did not consider it to be independent in that she had previously directed her complaints to Mr O’Leary who took no action in relation to them. The investigation was not established to enquire into the conduct of the complainant and its conclusions cannot be relied upon as grounds for her dismissal. It was submitted that the dismissal of the complainant constituted victimisation within the meaning of 74(2) of the Act.

Respondent’s Case

It is the respondent’s case that an extensive investigation was conducted into all of the allegations made by the complainant. Two reports were prepared, one arising from the complainant’s letter of February 2003 and a second arising from her letter of April 2003. Both of these reports were furnished to Ms Kenny by memo dated 10th July 2003. The respondent contends that at all times the complainant was given a fair and ample opportunity to participate in the investigation and that her right to fair procedures was fully respected and vindicated.

Ms Kenny told the Court in evidence that she received the report on 10th July 2003, on which date she was working from home. She read the report and supporting documentation twice and concluded that the complainant was guilty of gross misconduct in making malicious and vexatious complaints against other employees. She decided to dismiss her with immediate effect. Ms Kenny did not discuss the content of the report with its authors. Ms Kenny believed that the company’s disciplinary procedure permitted her to dismiss the complainant for gross misconduct without notice and without warning. Moreover, the complainant had less than one years service and the disciplinary procedure was not applicable to her. Ms Kenny had consulted a member of the Board of Directors before finally deciding on the dismissal.

The respondent contended that in making malicious and vexatious complaints the complainant had irretrievably damaged the essential relationship of trust and confidence between employer and employee.

The respondent referred the Court to a decision of the Employment Appeals Tribunal in the case ofA Worker against A Company(UD258/2002) heard under the Unfair Dismissal Acts. It was submitted that this decision is authority for the proposition that an employer is entitled to rely on the findings of an enquiry into allegations of harassment of an employee in deciding if the employee had acted maliciously and with vexation.

Approach of the Court

In this case the Court is not concerned with the fairness or otherwise of the complainant’s dismissal,per se. What is alleged is that the dismissal was wholly or mainly occasioned by the complainant having in good faith made complaints of harassment. The Court did not consider it necessary to enquire into whether or not there was an objective basis in fact for the complaints made by the complainant. A person may believe that they are being harassed based on a misunderstanding or a mistaken perception of events or a misinterpretation of something which was said or done. If the purpose of their complaint is to stop the perceived harassment they will have acted in good faith whether or not the veracity of the complaint is capable of objective proof.

In this case the respondent relied exclusively on the written report of the investigation in forming the belief that the complainant had not made her complaints in good faith but had acted with malice and/or with vexation. It is not the Court’s role to reconstruct the internal enquiry or to seek to substitute its assessment of the evidence before that enquiry for that of the appointed investigators. Rather, its function is to establish if the report of the investigation provided a sufficient and sound basis, without further enquiry, for the conclusion that the complainant had acted maliciously and or with vexation upon which Ms Kenny relied in deciding to dismiss the complainant.

Burden of Proof

Ms Bolger B.L. for the respondent submitted that the complainant must prove every aspect of her case and that it is not permissible for the Court to apply a shifting burden other than in cases of alleged discrimination on the gender ground. Counsel argued that the principle of shifting the probative burden is derived from the ECJ decision inC-127/92 Enderby v Frenchay Health Authority and Secretary of State for Health[1993] ECR 1-5535 and is based on a rule of European law which has no application in cases where the discriminatory ground relied upon is derived solely from domestic law.

The Court has fully considered the careful and eloquent submissions of Counsel on this point, but for the reasons which follow it is unable to accept her arguments. In many previous determinations the Court has applied a shifting burden of proof in line with that set out in the Burden of Proof Directive, not only in gender cases, to which its wording is directed, but also to cases involving the other discriminatory grounds. In so doing the Court has sought to construe the different provisions of the Act consistently with each other. That approach is in line with the practice in the UK in applying similar legislative provisions (see most recently the decision of the Court of Appeal inIgen Ltd & Ors v Wong, [2005] EWCA 142 (18th February 2005)

The courts reasoning for this approach was set out inMassinde Ntoko v. Citibank[2004] 15 E.L.R. 116 where the Court stated:

• This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.

• 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

• (4) In this section ‘discrimination’ includes—
  
  a) indirect discrimination,
  
  (b) victimisation,
  
  (c) harassment or sexual harassment,
  
  • (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
    

• Burden of proof
  1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
  
  2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.
  
  3. Paragraph 1 shall not apply to criminal procedures.
  
  4. Paragraphs 1, 2 and 3 shall also apply to any legal proceedings commenced in accordance with Article 9(2).
  
  5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.
  

• “The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or evidence, are prima facie prospective; and retrospective effect is not given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature”

• This brings me to the subject of retrospectivity; it is necessary to State with some precision what I regard as such in a statute. Many statutes are passed to deal with events which are over and which necessarily have a retrospective effect. Examples of such statutes, often described as ex post facto statutes, are to be found in Acts of immunity or pardon. Other statutes having a retroactive effect are statutes dealing with the practice and procedure of the Courts and applying to causes of action arising before the operation of the statute. Such statutes do not and are not intended to impair or affect vested rights and are not within the type of statute with which, it seems to me this case is concerned. For the purpose of stating what I mean by retrospectivity in a statute I adopt a definition taken from Craies on Statute Law which is, I am satisfied, based on sound authority. It is to the effect that a statute is to be deemed to be retrospective in effect when it “takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past”…
  

• “From a wide range of judicial decisions I find the relevant cannon of Interpretation at common law to be this. When an Act changes the substantive, as distinct from procedural, law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act unless the Act expressly or by necessary intendment provide to the contrary”

• “….the Act must express a clear and unambiguous intention [to operate retrospectively], or there must be some circumstance rendering it inevitable that the Court should conclude that the Act is retrospective, or the change affected by the statute must be purely procedural”
  

Conclusion

The complainant made complaints alleging harassment on grounds of her race and her religion. She gave evidence that those complaints were made in good faith. She was dismissed as a result of having made those complaints. In the courts view these are facts from which victimisation may be inferred. The respondent contended that a number of the complaints were malicious and/or vexatious. It is for the respondent to establish that its belief in that regard was soundly based.

The Court has carefully studied the two reports presented by the investigators. It is not entirely clear as to why the investigators found some complaints not proven and others malicious or vexatious. Nonetheless that was the conclusion which the investigators reached on the evidence before them. The complainant had not cooperated with the investigation and in consequence her side of the story was not reflected in the report apart from what was contained in her letters. In that respect the report was, through no fault of the investigators, incomplete and unsatisfactory.

The investigation was established to enquire into the conduct of others on foot of complaints from the complainant. At no stage was the complainant told that the investigation would enquire into her own conduct or that she was on hazard of being found guilty of a dismissible offence. Yet Ms Kenny decided not to inform the complainant of the contents of the report adverse to her or to provide her with any opportunity to address the charges against her contained in the findings.

In that respect the instant case can be readily distinguished on its facts from that ofA Worker against A Company(UD258/202) to which the Court was referred. In that case the investigation was conducted by an external investigator and the claimant cooperated with the enquiry. Moreover, the claimant was given an opportunity to make representations before any final decision in relation to her future employment was taken.

Ms Kenny told the Court that having read the reports she accepted their content in full and concluded that the complainant was guilty of gross misconduct. She did not inform the complainant of her conclusions before deciding on dismissal because, she said, the company’s disciplinary procedure did not oblige her to do so in cases of gross misconduct.

Ms Kenny also told the Court that the disciplinary procedures are only applicable to employees who have served one year with the company. She contended that since the complainant has less than the requisite service there was no obligation to observe any procedures before dismissing her.

In the courts view these provisions of the disciplinary procedure, in so far as they purport to authorise the employer to act unfairly, are inconsistent with the basic requirements of natural and constitutional justice. The Courts have consistently pointed out that in every case the irreducible minimum requirement which must be observed before an employee can be dismissed for misconduct is that he or she be informed of the charges against them and that they are given a opportunity to answer the charges and make submissions.

InGlover v BLN Ltd[1973] IR 388 Walsh J stated at page 424 of the Report:

• “the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may effect rights or impose liabilities should be construed as providing for fair procedures.”
  

• 
  "The Plaintiff was neither told of the charges against him nor was he given any opportunity of dealing with them before the Board of Directors arrived at its decision to dismiss him. In my view this procedure was a breach of the implied term of the contract that the procedure should be fair, as it cannot be disputed, in the light of so much authority on the point, that failure to allow a person to meet the charges against him and to afford him an adequate opportunity of answering them is a violation of an obligation to proceed fairly."
  

• If the contract or the statute governing a person's employment contains procedure whereby the employment may be terminated it usually will be sufficient for the employer to show that he has complied with this procedure. If the contract or the statute contains a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before he can be dismissed then clearly that independent board or arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice. If however the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed the position may be more difficult. Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.

Determination

The Court is satisfied that in the circumstances of this case the respondent could not have formed a reasonable belief that the complainant had acted in bad faith in making complaints of harassment. Accordingly the Court finds that the complainant was dismissed in circumstances amounting to victimisation.

Redress

The appropriate redress in this case is an award of compensation. The Court has measured the amount of compensation which is fair and reasonable at €15,000, which is made of €10,000 in respect of economic loss and €5,000 in compensation for the affects of the discrimination.

The Court awards the complainant compensation in that amount.



Signed on behalf of the Labour Court



Kevin Duffy
11th March 2005______________________
JO'CChairman



NOTE

Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.