Summary(1)
Employment Equality Act, 1998 Sections 6, 7, 23, 32 and 86 - Employment - Discriminatory Treatment - Hours of Work - Equal Pay - Gender - Marital Status - Religion - Harassment - Collective Agreement
Employment Equality Acts, 1998-2004 Sections 6, 7, 14A, 74(2), 77A(1) and 86 - Employment - Discriminatory Treatment - Hours of Work - Equal Pay - Gender - Marital Status - Religion - Disability - Harassment - Victimisation - Collective Agreement - Dismissal of Claim as Frivolous, Vexatious or Misconceived
Background:
In this case the complainant alleges that he has been discriminated against by the respondent in relation to access to employment, promotion, training, conditions of employment, classification of posts and exams discrimination on the grounds of gender, marital status and religion within the meaning of Sections 6(1), 6(2)(a), 6(2)(b) and 6(2)(e) of the Employment Equality Acts, 1998 and 2004. He also alleges that he was subjected to harassment on the grounds of gender, marital status and religion within the meaning of Sections 23 and 32 of the 1998 Act and Section 14A of the Employment Equality Act, 1998-2004. The complainant contends that he was further discriminated against in relation to remuneration and he makes an equal pay claim on grounds of gender, marital status and religion in terms of Section 7 of the Acts. He also submits claims under an equality clause and claims in relation to a collective agreement on the grounds of gender, marital status and religion. The complainant finally alleges that he was subjected to victimisation in terms of Section 74(2) of the Acts. The respondent has denied all the allegations and contends that these claims are frivolous, vexatious and misconceived and asks that they be dismissed within the meaning of Section 77A(1) of the Employment Equality Acts, 1998-2004.
Conclusions and Decision:
The Equality Officer found that the respondent did not discriminate against the complainant in relation to his hours of work or promotion on the grounds of gender, marital status, religion or disability in terms of Section 6 and 8 of the Employment Equality Act, 1998 and the Employment Equality Acts, 1998-2004. It was also the Equality Officer's finding that the respondent did not discriminate against the complainant in relation to his remuneration in terms of Section 7 of the 1998 and 1998-2004 Acts. Finally the Equality Officer found that the complainant was not subjected to victimisation within the meaning of Section 74(2) of the Employment Equality Acts, 1998-2004. The Equality Officer held that the complainant had no cause of action in relation to access to employment, training, classification of posts and exams discrimination on the grounds of gender, martial status and religion as alleged on the referral forms but not subsequently pursued. It was the Equality Officer's finding that the complainant was not subjected to sexual harassment or harassment within the meaning of Sections 23 and 32 of the Employment Equality Act, 1998 and Section 14A of the Employment Equality Acts, 1998-2004. The Equality Officer further found that the complainant did not have claims of discrimination against the respondent in relation to an equality clause and in relation to a collective agreement under the 1998 and 1998-2004 Acts.
Cases Cited:
High Court:
D.K. v King [1994] IIR166
Long and Powers Supermarket & Others [1990]
Supreme Court:
Farrelly v Ireland [1st May, 1997]
Aer Rianta CPT v Ryanair Limited [2004] IIR506
1. DISPUTE
1.1 The dispute concerns a claim by Mr. Sean O'Dwyer in which he alleges that he has been discriminated against by An Post in relation to access to employment, promotion, training, conditions of employment, classification of posts and exams discrimination on the grounds of gender, marital status and religion within the meaning of Sections 6(1), 6(2)(a), 6(2)(b) and 6(2)(e) of the Employment Equality Acts, 1998 and the Employment Equality Acts, 1998-2004. He also alleges that he was subjected to harassment on the grounds of gender, marital status and religion within the meaning of Sections 23 and 32 of the Employment Equality Act, 1998 and Section 14A of the Employment Equality Acts, 1998-2004. The complainant contends that he was further discriminated against in relation to remuneration and he makes an equal pay claim on grounds of gender, marital status and religion in terms of Section 7 of the Acts. He also submits claims under an equality clause and claims in relation to a collective agreement on the grounds of gender, marital status and religion. The complainant finally alleges that he was subjected to victimisation in terms of Section 74(2) of the Acts. The respondent has denied all the allegations and contends that these claims are frivolous, vexatious and misconceived and asks that they be dismissed within the meaning of Section 77A(1) of the Employment Equality Acts, 1998-2004.
1.2 Consequently the complainant referred two complaints to the Director of Equality Investigations. The first complaint was under Sections 6, 7, 23, 32, 74(2) and 86 of the Employment Equality Act, 1998 and was referred on 13th January, 2004. The second complaint was under Sections 6, 7, 14A, 74(2) and 86 of the Employment Equality Acts, 1998 and 2004 and was referred on 27th August, 2004. In accordance with her powers under Section 75 the Director then delegated the claims to Gerardine Coyle, Equality Officer on 7th February, 2005 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A joint hearing took place on 16th November, 2005 to afford the complainant the opportunity to clarify the nature of his claims and to afford the respondent the opportunity to respond to any such clarifications. After the hearing both parties submitted further documentation with the final documentation received on 9th January, 2006.
2. SUMMARY OF THE COMPLAINANT'S OUTLINE OF HIS CLAIMS
2.1 The complainant makes the following allegations:
(a) He does not receive as many early shifts as other employees who are scheduled to work a 48 hour week (the complainant works a 37½ hour week);
(b) He is being punished with excessive late shifts over the last 3 years i.e. 47 weeks out of 48 in 2002/2003, 47 weeks out of 48 in 2003/2004 and 37 weeks out of 48 in 2004/2005. He states that the working of late shifts are a punishment duty signed by the Human Resources Manager;
(c) He claims that his wages are less because he does not work twilight and night shifts. It is for medical reasons that he does not work these shifts yet other employees working these shifts receive €190 while he received around €90;
(d) He alleges that casual upgrades on 37½ hour week earn more than him getting some €700 per week whereas he only receives €469 per week after 25 years of service. The complainant considers this to be victimisation in relation to wages and he demands equal pay for equal work;
(e) He states that the respondent is an equal opportunities employer but alleges that he has been subjected to discrimination in promotion, hours, money and conditions. He says that he has no social life and that his hours of work are worse than they were when he commenced work with the respondent 25 years previous;
(f) He alleges that he has been denied promotion to the Clerical Officer grade. He states that in 1980 he was placed 178 on the panel but only 139 persons were offered positions. Then in 1985 he was placed 79 on a panel of 82. According to the complainant 22 were due to be called but were denied access because other clerks were upgraded without doing an exam and as a result he (the complainant) was not promoted;
(g) The complainant states that he was suspended and he alleges that this was on the word of an acting work area manager who was telling lies about him. According to the complainant the respondent did not comply with disciplinary procedures and as a result his suspension was invalid;
(h) The complainant alleges that staff (including himself) in the respondent organisation are being intimidated and harassed by bully boys on the floor of the Dubliln Mails Centre. The intimidators and harassers are backed by management even if there is no merit in it;
(i) The complainant states that, for the past three years, the staff of the respondent organisation have not received their money to which they are entitled under partnership. He also says that they are entitled to shares and benchmarking;
(j) The complainant states that both he and his colleagues in the Dubliln Mails Centre are subjected to excessive standing in carrying out their work. He alleges that this standing is affecting his health;
(k) According to the complainant the respondent is ignoring medical certificates it receives from his doctor concerning his working excessive late shifts. He says that these hours are damaging to his health and causing him stress;
(l) The complainant alleges that victimisation has been used on him on several occasions. He says that when he was in airport mail unit he did 6 days on overtime and wanted Sunday off. As a result he was punished and sent back to Dubliln Mails Centre. The complainant alleges that he lost money while others who acted in the same manner as him were not punished. The complainant alleges that he has been insulted by management who on the word of an employee told him to take a shower.
(m) The complainant alleges that he has been assaulted by a person in the respondent organisation and no action was taken even though there was a witness to the assault.
2.2 It is the complainant's contention that his claim is one of victimisation and equal pay for equal work and discrimination in relation to other people.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent noted that the Equality Officer held a preliminary hearing in this case at which she went through each of the paragraphs of the complainant's submission (as recorded above at paragraph 2.1). From that oral evidence the respondent contends that the complainant has presented no prima facie evidence to support his allegations under the terms of the Employment Equality Act, 1998-2004. It is the respondent's submission that the complainant has a misconception as to the matters that are properly covered under the terms of the Act. According to the respondent it seems clear from the complainant's oral evidence that his complaints relate to:
- the changes in his working roster brought about by the implementation of the Revised Working Arrangements at the Dublin Mails Centre in September, 2002 and
- the issues, which arose from January, 2004 following warnings concerning his behaviour and insubordination in the workplace which ultimately led to his suspension in August, 2004 and the imposition of a Serious Offence under the respondent's Disciplinary Code in December, 2004.
The respondent notes that the first item has already been the subject of a Labour Court Recommendation of 7th July, 2003. In relation to the second item the respondent notes that the complainant pursued a complaint to a Rights Commissioner and the Recommendation of the Rights Commissioner was appealed and decided on by the Labour Court on 28th October, 2005.
3.2 In its submission the respondent deals with four issues arising from the preliminary hearing of this case as follows:
a) Time Limits under Section 77(5) of the 1998-2004 Act;
b) Allegation of possible discrimination on the grounds of disability;
c) Allegation of victimisation;
d) Applicability of Section 77A(1).
Time Limits
3.3 The respondent states that it is strongly of the view that the complaints by the complainant have not been referred within the time prescribed by Section 77(5) of the 1998-2004 Act. According to the respondent the Section is quite clear that the complainant should have referred the complaint within six months of the occurrence of the alleged discrimination. It is the respondent's submission that the complainant had difficulties with his rostering arrangements as far back as October, 2002 and in the period from October, 2002 to February, 2003 the respondent says that it communicated with the complainant's Union in relation to this matter. Based on this correspondence the respondent submits that the complainant should have referred his complaint to the Equality Tribunal at the earliest by 16th March, 2003 and at the latest by 14th June, 2003. It is the respondent's contention that, from an examination of Section 79(3A)(a), the Director has the power to dismiss any complaint at the preliminary stage where it is shown that the complainant has not complied with the statutory requirements relating to such referrals under the 1998-2004 Act. The respondent asks that this complaint be dismissed accordingly.
Allegation of possible discrimination on the grounds of disability
3.4 The respondent notes that the complainant has not made any reference to complaints of alleged discrimination on the grounds of disability on either of his referral forms submitted to the Equality Tribunal. It is the respondent's submission that, even if the Equality Tribunal consider that the complainant has a claim on the grounds of disability, it is out of time by virtue of Section 75(5)(a) of the 1998-2004 Act. In terms of the agreed changes in working practices at the Dublin Mails Centre from September, 2002 the respondent states that all employees were required to re-apply for their positions on foot of the Revised Working Arrangements agreement. The complainant sought and obtained a 37½ hour contract. The respondent reaffirms the fact that the complainant sought an exemption on medical grounds to the roster allocated to him under that contract. On the advice of the respondent's Chief Medical Officer (CMO) the complainant was exempted from the twilight (6.00p.m. - 2.30a.m.) and night (10.00p.m. - 6.30a.m.) shifts with effect from September, 2002. The respondent notes that the late (2.00p.m. - 10.30p.m.) shift along with the twilight and night shifts are the busiest shifts when letters are sorted for transportation to delivery offices so that the post can be delivered the following morning. According to the respondent the complainant's roster was adjusted to reflect the exemption given to him and to best meet the operational needs of the business. Hence in substitution for the twilight and night shifts the complainant is required to attend on the late shift only. The respondent notes that the complainant's case was re-examined by the CMO on foot of the Labour Court recommendation of 11th July, 2003.
3.5 According to the respondent the medical certificate from the complainant's GP dated 17th November, 2003 was considered at a regular meeting with the CMO and the HR Department of the Dubliln Mails Centre on 9th December, 2003 to discuss health, attendance and medical issues, etc concerning employees. The respondent says that the HR Manager was in attendance at that meeting at which the CMO concluded that there was no medical reason to further alter the complainant's work shifts on foot of the medical certificate and that he was fit to work his allocated roster and this view was confirmed in writing to the complainant by letter dated 19th December, 2003 from the HR Manager. It is the respondent's submission, therefore, that the CMO has considered the complainant's position in September, 2002, April, August and December, 2003.
3.6 The respondent states that an examination of the complainant's scheduled (required) roster/attendance and the actual (adjusted) roster/attendance for 2002/2003, 2003/2004 and 2004/2005 shows that the only change in the complainant's roster is in respect of the twilight and night shifts. It is the respondent's submission that his roster is exactly the same as his fellow workers without a disability. According to the respondent the complainant's adjusted roster is more favourable in that he has to work less unsociable hours when compared with his fellow workers and he also works less Saturdays. The respondent notes that in 2002/2003 the complainant's fellow workers worked 17 Saturdays whereas the complainant worked 10; in 2003/2004 the complainant's fellow workers worked 9 Saturdays whereas the complainant worked 5 and in 2004/2005 the complainant's fellow workers worked 5 Saturdays whereas the complainant worked 1. According to the respondent seven other employees sought exemptions from twilight and night shifts and these seven employees were treated in exactly the same way as the complainant.
3.7 It is the respondent's view that the complainant has established no prima facie evidence or any evidence that he has been discriminated against on the grounds of disability. The respondent states that there is no evidence to indicate that the complainant is being treated less favourably than his fellow workers and the respondent would argue that he is in fact being treated more favourably. It is the respondent's contention that it has done everything possible to facilitate the complainant and the respondent considers that it has complied with its obligations under Section 16(3) of the 1998-2004 Act. The respondent says that it appears that the complainant is seeking a return to his working roster prior to the implementation of the Revised Working Arrangements in September, 2002 but this is not possible or feasible at this juncture. Furthermore the respondent states that it is not possible to provide the complainant with more early shifts as he would then be attending work at times when the manpower needs are less.
Allegation of Victimisation
3.8 At the preliminary hearing of this claim the complainant made an allegation of victimisation under Section 74(2) of the 1998-2004 Act by the Acting Work Area Manager and the respondent understands this to be the substance of the complainant's second complaint. The respondent states that this person has been in its employment for some forty years holding various positions in that time and has been in the Acting Work Area Manager position since 2002. According to the respondent this person would have supervised the complainant's work from time to time probably from 1993 but he would have had very little dealings with the complainant until the early part of 2004. The respondent states that around that time the Acting Work Area Manager had reason to discuss the complainant's performance with him and to point out the need for him to improve. It is the respondent's submission that the complainant did not take kindly to this and was confrontational on each occasion that he was approached. The respondent says that it has no note of any alleged incident on 24th August, 2004. According to the respondent on 27th August, 2004 a staff member informed the Acting Work Area Manager of a problem on one of the Mail Processing machines. The Acting Work Area Manager identified the problem and asked staff to take a specific course of action. The respondent says that the Acting Work Area Manager was advised that all staff had complied with the request with the exception of the complainant. It is the respondent's submission that when the Acting Work Area Manager approached the complainant he became very aggressive and made allegations of bullying and harassment against him. The respondent contends that this is a standard defence put up by the complainant to deflect legitimate management supervision. The matter was reported to the Shift Manager and the respondent says that the complainant was suspended from duty and ultimately issued with a serious offence following an internal disciplinary process. The respondent notes that these issues have been the subject of a complaint to a Rights Commissioner and thereafter appealed to the Labour Court (Labour Court Determination of 28th October, 2005).
3.9 The respondent states that its approach to the Acting Work Area Manager following the preliminary hearing of this claim was his first knowledge of the complaint by the complainant to the Equality Tribunal and a complaint against him. According to the respondent the Acting Work Area Manager was 'flabbergasted' at the allegation of victimisation and he stated that he treats all staff members fairly and that he treats the complainant in exactly the same way as he does other staff members. The respondent says that the Acting Work Area Manager stated that he would never ask any member of staff to do any more work than anybody else and that applies equally to the complainant. The respondent, therefore, states that it does not accept that there is any evidence to substantiate the complainant's allegation of victimisation.
Applicability of Section 77A(1)
3.10 The respondent says that the Director under this Section has direction to dismiss a claim at any stage if the Director is of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. According to the respondent the Courts have an inherent jurisdiction to dismiss actions for abuse of process and this usually applies to proceedings lacking in bona fides and which are frivolous, vexatious or oppressive. It is the respondent's submission that the case law and texts would indicate that the Courts will strike out an action where on the admission of the facts or undisputed evidence it is clearly unsustainable or bound to fail (2).
3.11 The respondent refers the Equality Tribunal to Order 19 Rule 28 of the Rules of the Superior Courts which states:
"The Court may order any pleadings to be struck out on the ground that it discloses no reasonable cause of action or answer in any such case or in case of the action or the defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed or judgement to be entered accordingly as may be just".
The respondent cites the case of Aer Rianta CPT v Ryanair Limited (3) in which Justice Denham emphasised that the jurisdiction of Rule 28 is one which a Court would be slow to exercise and it should "exercise caution in utilising this jurisdiction". However she went on to say "that if a Court is convinced that a claim would fail" a pleading will be struck out.
3.12 The respondent says that, while it appreciates that Order 19 has no applicability to the Equality Tribunal, the texts and case law would clearly indicate a pleading such as a Statement of Claim, Defence, etc. can be struck out where it fails to disclose a reasonable cause of action i.e. where the facts and matters pleaded in the Statement of Claim do not constitute a cause of action that is known to law or likely to be established. Consequently the respondent is of the view that the Equality Tribunal's inherent jurisdiction would extend to dismissing a complaint where there is no cause of action disclosed on the fact of the referral form or on the basis of the evidence disclosed.
3.13 In respect of the issues of frivolous/vexatious the respondent notes that Justice Barron in the case of Farrelly v Ireland (4) made the following comments:
"If (a Plaintiff) has no reasonable chance of succeeding then the law says that it is frivolous to bring the case, similarly it is a hardship on the Defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious".
The respondent says that there does not appear to be a strict judicial definition of the terms frivolous/vexatious. Rather the Courts appear to use those terms in the broad sense and to examine them in the context of the relevant cases before them. The respondent refers to the definitions of frivolous, vexatious and misconceived in the Concise English Dictionary as follows:
Frivolous - Trifling, trumpery, of little or no merit, inclined to unbecoming levity, silly.
Vexatious - Harassing by process or under the cover of the law.
Misconceived - To have a wrong idea of or to misapprehend.
The respondent further cites the definition of vexatious from the Mosley & Whiteley's Law Dictionary as "an action brought merely for the sake of annoyance or oppression".
3.14 In the context of this case the respondent notes that the complainant has already brought complaints under the Industrial Relations Acts, in the first instance to the Labour Court in respect of his working roster and a second complaint to a Rights Commissioner and on appeal to the Labour Court in respect of his suspension in August, 2004 and the imposition of a serious offence in December, 2004. It is further noted that, in all of these claims the substantive complaints were dismissed. The respondent considers that the complainant by this case to the Equality Tribunal is attempting to reopen those issues. It is the respondent's view that this case has little merit having regard to the nature of the complaint as set down in the referral form and subsequent statement of claim (as set out at paragraph 2.1 above) and the oral evidence given by the complainant at the preliminary hearing of this claim. In addition the respondent is of the view that the complainant is misconceived in his understanding of the matters the Equality Tribunal is empowered to investigate under the terms of the 1998-2004 Act. Consequently the respondent believes that the Equality Tribunal has the power and should dismiss the complaint on the grounds that it is frivolous, vexatious and/or misconceived.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision in these claims are whether or not the complainant has been discriminated against on the grounds of gender, marital status and religion in relation to access to employment, promotion, training, conditions of employment, classification of posts and exams discrimination within the meaning of Sections 6(1), 6(2)(a), 6(2)(b) and 6(2)(e) of the Employment Equality Act, 1998 and the Employment Equality Acts, 1998-2004. I must decide if he has been subjected to harassment on the grounds of gender, marital status and religion within the meaning of Sections 23 and 32 of the 1998 Act and Section 14A of the 1998-2004 Act. It is for me to make a decision on the issue of alleged discrimination in relation to remuneration, a claim under an equality clause and claims in relation to a collective agreement also on the grounds of gender, marital status and religion. Finally I must decide if the complainant has been subjected to victimisation in terms of Section 74(2) of the Acts. In making my decision in this case I have taken into account all of the information, both written and oral, provided to me by the parties.
4.2 A preliminary hearing was held in this case to establish the basis of the claims being made by the complainant. At that hearing I went through each of the points made by the complainant in his written statement and set out in paragraph 2.1 above. It became clear at this hearing that the claims being made by the initial referral were also being made by the second referral. The only additional claims in the second referral related to medical certificates and the allegation of victimisation. While an allegation of victimisation was referred in the first referral the complainant only made reference to an allegation of victimisation which occurred after the first referral and before the second referral. It was also clear very early on in the hearing that the complainant did not understand what was meant by discrimination on the grounds of gender, marital status and religion and as he was unrepresented I undertook to explain the concepts behind the legislation to him.
4.3 The respondent has argued that this case is out of time in accordance with Section 77(5) of the Act. Section 77(5) provides:
"... a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The complainant argues that he is being discriminated against on the grounds of his gender, his marital status and his religion in relation to the roster he is required to work. It is accepted by both parties that the complainant works the late shift (from 2.00p.m. to 10.30p.m.) because, on the basis of medical advice, he is unable to work the twilight and night shifts. To accommodate this, the respondent had the option to roster him for either the morning shift (6.30a.m. - 2.00p.m.) or the late shift. Having regard to business needs the complainant was rostered for the late shift, as were all other employees who are unable to work the twilight and night shifts for medical reasons. I am satisfied that the complainant's work roster could be considered to be a continuing event and, therefore, within the time limit set by Section 77(5) of the Act. I am not, however, satisfied that the complainant has shown that he suffered any discrimination or was treated less favourably on the grounds of gender, marital status or religion in relation to being rostered for the late shift.
4.4 I note that it is the complainant's contention that the respondent has ignored medical certificates it received from his GP concerning his working excessive late shifts. At the preliminary hearing of this claim I noted that the complainant had not stated in his referral form that he was being discriminated against on the grounds of disability. I pointed out to the parties that I would address this alleged discrimination even though the complainant did not refer this complaint in his referral form. In Long and Powers Supermarket & Others (5) Mr. Justice Johnson held that there is an obligation on the Equality Officer to examine all aspects of the claim whether or not they have been referred in the original referral form. The fact is that he did raise the issue in his statement. I have examined the medical certificates from the complainant's GP and note that they all point out that the complainant is suffering from stress as a result of working excessive late shifts and asks if the working of these shifts could be reduced. The complainant was examined by the Chief Medical Officer initially (September, 2002) when it was decided that for medical reasons he should not work the twilight or night shifts. He was again examined by the respondent's Chief Medical Officer on 1st April, 2003 and it was his view that there was no medical justification for his request to be given a reduction in late shifts and have these replaced by more early shifts. While further medical certificates were received from the complainant's GP I note that the complainant was not re-examined by the respondent's Chief Medical Officer on each occasion and that the CMO made it known through the HR Manager that he had no reason to change his opinion that the complainant was fit to work the current roster.
4.5 It is clear that the respondent did facilitate the complainant in relation to his work roster for medical reasons by not requiring him to work the twilight or night shifts. Rather he was rostered to work the late shift. I note that all other employees who were exempted from working the twilight and night shifts for medical reasons were also rostered to work the late shift. On this basis I am satisfied that the complainant was treated no differently or indeed less favourably than any of his colleagues who for medical reasons were unable to work the twilight and night shifts. Furthermore there is no evidence that the respondent has ignored medical certificates received from the complainant's GP. In the circumstances I find that the respondent acted in accordance with its obligations in terms of Section 16(3) of the 1998-2004 Act by providing the complainant with reasonable accommodation in relation to his work roster.
4.6 The complainant has alleged that he was discriminated against on the grounds of gender, marital status and religion in relation to promotion. In making this allegation I note that the complainant is referring to promotion competitions in 1980 and 1985. I find that these allegations are outside the time limit set out in Section 77(5) of the 1998 and 1998 - 2004 Acts.
4.7 The complainant has also alleged that he was discriminated against in relation to his remuneration and he is seeking equal pay with his colleagues. I note that the complainant was paid in accordance with the shifts and at a similar rate of pay as all other employees working the late shift. There was no evidence that other employees not working the twilight and night shifts for medical reasons were being paid more than the complainant. I find that the complainant has failed to establish a prima facie claim of discrimination in relation to remuneration.
4.8 The complainant has alleged that he was subjected to harassment. I note that he claims that, not only himself, but others have been subjected to this harassment. The respondent has denied the allegations. There is no evidence that the complainant was subjected to harassment on the grounds of gender, marital status or religion as alleged. The complainant further alleges that he was subjected to an assault and again I note that there is no evidence of the fact or that it was on the grounds of gender, marital status or religion.
4.9 The complainant referred claims of alleged discrimination in relation to an equality clause and in relation to a collective agreement both in his initial referral and in his second referral. The complainant did not elaborate on these allegations in his statement or indeed at the preliminary hearing of these claims. I find that the complainant has no cause of action in regard to an equality clause or a collective agreement.
4.10 The complainant has alleged that he was subjected to victimisation as a result of lies told by the Acting Work Area Manager which ultimately resulted in his suspension and being issued with a serious offence following an internal disciplinary process. Section 74(2) of the 1998-2004 Act relates to victimisation and provides:
"... victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraph (a) to (c)."
The issue of the complainant's suspension was dealt with by a Rights Commissioner and on appeal by the Labour Court. Rather the issue for me to address is whether or not there is any evidence to suggest that the suspension was as a result of the complainant having previously referred a claim under the Employment Equality Act, 1998. I am satisfied that there is no evidence for such a suggestion and find that the complainant failed to establish a prima facie claim of victimisation in this case.
4.11 The final issue to be addressed is that of the argument by the respondent that this claim is frivolous, vexatious or misconceived in accordance with Section 77A of the Employment Equality Act, 1998 and 2004. Section 77A(1) of the 1998-2004 Act provides:
"(1) The Director may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter."
The respondent's argument in this matter is set out at paragraphs 3.10 to 3.14 above. It should be noted that only the complainant's second referral could be dismissed given that this referral was made under the Employment Equality Act, 1998-2004 (after the coming into force of the Employment Equality Act, 2004 including the new Section 77A provision). The first referral was made under the Employment Equality Act, 1998 and, therefore, the Director does not have the power to dismiss it as being frivolous, vexatious or misconceived. In assigning the second referral to me for investigation and decision the Director did not delegate to me the power to deal with this claim under Section 77A(1). Consequently I cannot dismiss this claim as being frivolous, vexatious or misconceived as sought by the respondent.
5. DECISION
5.1 In view of the foregoing I find that An Post did not discriminate against Mr. Sean O'Dwyer in relation to his hours of work or promotion on the grounds of gender, marital status, religion or disability in terms of Section 6 and 8 of the Employment Equality Act, 1998 and the Employment Equality Acts, 1998-2004. I find that the respondent did not discriminate against the complainant in relation to his remuneration in terms of Section 7 of the 1998 and 1998-2004 Acts. Finally I find that the complainant was not subjected to victimisation within the meaning of Section 74(2) of the Employment Equality Acts, 1998-2004.
5.2 In my investigation of these claims I find that the complainant had no cause of action in relation to access to employment, training, classification of posts and exams discrimination on the grounds of gender, martial status and religion as alleged on the referral forms but not subsequently pursued.
5.3 I find that the complainant was not subjected to sexual harassment or harassment within the meaning of Sections 23 and 32 of the Employment Equality Act, 1998 and Section 14A of the Employment Equality Acts, 1998-2004. I further find that the complainant did not have claims of discrimination against the respondent in relation to an equality clause and in relation to a collective agreement under the 1998 and 1998-2004 Acts.
______________________
Gerardine Coyle
Equality Officer
5th April, 2006
notes
(1) This Summary is provided for convenience only and is not part of the Decision for legal purposes.
(2) D.K. v King 1994 IIR166
(3) Supreme Court [2004] IIR506
(4) Supreme Court [1st May, 1997]
(5) High Court [1990]