An Applicant
-v-
A Union
1. CLAIM
1.1 The case concerns a claim by an applicant for membership of a Union that the Union discriminated against him on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 in contravention of section 13 of the Act in relation to membership of the Union.
2. BACKGROUND
2.1 The complainant claims that the respondent discriminated against him on the disability ground. He submits that the Union treated him differently to others, refused to represent him, allowed their agents to bully and victimise him, refused to allow him membership on one occasion and on another imposed restrictions on his membership. The respondent submits that it was never the complainant's employer and that the complainant was a member of the Union until he voluntarily resigned. He subsequently applied for membership of another Branch and he was accepted into membership. It rejects the complainant's allegation that it discriminated against him on the disability ground.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 24 August 2004. On 10 February 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from the complainant on 24 September 2004, 6 October 2004, 22 March 2006, 4 April 2006 and 16 May 2006. A written submission from the respondent was received on 8 May 2006. A joint hearing of the claim was held on 21 August 2006.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSIONS
3.1 The complainant submits that his complaint relates, inter alia, to membership of the Union. He submits that his Union Membership forcibly lapsed in July 2002. He submits that he subsequently sought to become a member and wrote to the President of the Health Services Branch in June 2003 and that he did not respond. He submits that not being afforded a response amounts to a refusal.
3.2 He submits that a letter from the Union dated 12 August 2004 was totally discriminatory, offensive, humiliating, unwelcome and insulting. The complainant submits that when he tried to establish his pay entitlements from his former employer, he found the behaviour of the Union to be disgraceful and inexcusable. He submits that he was bullied by agents of the Union, that he was discriminated against and victimised by the Union and that the Union tolerated the abuse in the full knowledge that he was disabled.
3.3 He submits that when he sought membership of the Cavan Branch of the Union, he was issued with restrictions that no other person would be subjected to. He considers that the restrictions amounted to discrimination and victimisation. He submits that the Union refused to represent him, they refused to allow him to rejoin and treated him in a way that was totally unfair, unwelcome and discriminatory.
4. SUMMARY OF THE RESPONDENT'S WRITTEN SUBMISSION
4.1 The Union submitted that it was never the complainant's employer. It submitted that the complainant voluntarily resigned membership of the Union and his resignation was accepted. He subsequently sought to withdraw his resignation and the respondent refused his request. It further submitted that after the complainant secured alternative employment, he applied for membership of the Cavan Branch and was accepted into membership. It submits that he never proceeded further with the application and he rejected the offer of membership.
4.2 The complainant had been employed in a hospital by the former Eastern Health Board, now the Health Service Executive. He applied for and was accepted into membership of the Health Services Branch of the Union. After the complainant resigned from the Union, the Union received no formal application from him until he applied to join the Cavan Branch. His application was in respect of employment he secured in the Cavan area and was unrelated to the health services. His application was considered by the Branch Committee and accepted. He was offered membership in respect of his then current employment, the Branch making it clear that his former employment with the hospital was a matter with which they would not become involved. The Branch also made it clear that his differences with individuals within the Union were a matter for him to deal with and that it would not be pursuing this issue on his behalf. He rejected the terms of membership.
4.3 The Union rejects the allegations made by the complainant about officials of the Union and submits that they are untrue. In relation to the incidents referred to by the complainant regarding himself and named employees in his former employment, the Union has no knowledge of the alleged incidents and none of the people referred to are either employees or agents of the Union. They are or were all employees of the hospital and any complaint about their behaviour should properly have been addressed to the management of the hospital.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant alleges that the respondent discriminated against him on the disability ground in relation to membership of the Union. In this case, I will consider whether the respondent directly discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 in contravention of section 13 of the Act in relation to membership of the Union. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Claim of discrimination on the disability ground:
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
..... discrimination shall be taken to occur where -
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds') .....
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
5.3 "Disability" is defined in section 2 as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
Section 13 of the Employment Equality Acts 1998 and 2004 provides, inter alia, that an organisation of workers shall not discriminate against a person in relation to membership of that body or any benefits provided by it or in relation to entry to, or the carrying on of that profession, vocation or occupation.
5.4 The complainant in his submission dated 10 May 2006 summarised his allegations against the Union as follows:
"a)Discrimination on grounds of disability
b) Treating me differently to any other member/person
c) Refusal to represent me
d) Refusal to interview my witness to abuse of me by Mr. [X]
f) Allowance of their agents to bully and victimize me
h) Refusal to interview me in relation to my written complaint to Mr. [Y], Pres. of the Union
i) Mr. [Z] in light of the non interview of me makes discriminatory decision and decides only to listen to what his colleagues tell him and never contacted me to seek my opinion.
j) The Union while I was a paid member refused to represent me. This constituted treatment towards me that was different to any other member.
k) The discrimination of me by their Bullying Response Unit under Mr. [Z] who was well aware of my physical and mental disability of the time and commented on it in front of an independent witness........
l) Supplying the H.S.E. with information about me while I was a member of [Union] in an attempt to help the H.S.E. in their case against a colleague that they also were totally deficient in representing. ......
m) .... They treated me differently and subjected me knowingly to discrimination on a scale that to my knowledge is unprecedented........"
5.5 I consider that the only aspect of the complainant's claim in respect of which I have jurisdiction under the Employment Equality Acts 1998 and 2004 is that the Union discriminated against him on the disability ground in relation to membership of the Union and the parties were so informed by letter dated 24 May 2006. At the hearing, the complainant submitted that he has arthritis which falls within the definition of disability in the Acts. The complainant stated that he outlined his disability to an official of the respondent at a meeting in May 2002. I note that a letter to an official of the Union dated 28 July 2004 from the complainant states that he believed that the Health Services Branch discriminated against him on the grounds that he was disabled, however, it does not state the nature of his disability. The complainant in a letter to the Tribunal dated 23 May 2006 submitted that his employment with the Dublin hospital ceased on 10 April 2002. At the hearing, he submitted that he had been on sick leave for approximately a year and that his employment actually ceased in April 2003. On 19 August 2002, the complainant by letter resigned from the Union.
5.6 The complainant submits that he made an application for membership of the Union in 2003 and 2004. He submits that he wrote to the President of the Health Services Branch in June 2003 seeking to become a member of that branch and that he did not receive a response which amounts to a refusal. The respondent submitted that it did not have any record of a formal application for membership in 2003. The complainant did however, seek to withdraw his resignation from the Union by letter dated 30 September 2002, and the respondent submitted at the hearing that the request was refused as there is no provisions in the rules to do so. In relation to the complainant's application for membership of the Cavan branch in 2004, the respondent provided a copy of a letter dated 15 October 2004 in relation to the complainant's application. It states:
"We are pleased to advise that our Branch Committee has approved your application. As discussed you membership of the Cavan Branch will be to represent you solely on issues relating to your employment in Cavan and we will not represent you regarding other issues that you have or had with the Health Services Branch or members of [the Union] or [the Union] in general."
The complainant chose not to proceed with his membership and he advised the Union by letter dated 22 November 2004 that he could not "as a democratic person accept membership of an organisation that imposes undemocratic restrictions on my request to join a Union."
5.7 The respondent submitted at the hearing that it does not or would not have any issue with someone with a disability joining the Union. In relation to the issue of whether the respondent knew about the complainant's disability, notwithstanding the complainant's statement that he advised an official of Union about his disability in 2002, the evidence adduced does not support the complainant's contention that the respondent was aware that he had a disability prior to the statement in his letter dated 28 July 2004 alleging that he believed that the Health Services Branch discriminated against him on the grounds that he is disabled although the letter did not state the nature of his disability. Following his resignation from the Union, the complainant sought to withdraw it by letter dated 30 September 2002, however, his request was refused as there was no provision in the rules for withdrawing a resignation from membership. The respondent submitted that it had one formal application for membership of the Union following his resignation from the Health Services Branch. It is not the case that the complainant was refused membership of the Cavan Branch of the Union when he formally applied. On the contrary, he was accepted into membership by letter dated 15 October 2004 which also set out the terms of the representation which would be granted to the complainant as a member. The complainant chose not to proceed with membership. In that letter, the respondent clarified that it would not represent the complainant regarding other issues that he had with the Health Services Branch or members of [the Union] or [the Union] in general as at that time, the complainant's employment in the Health Services had ceased and his application to join the Union was in respect of a new employment. I consider that the terms of the representation set out by the respondent do not support a claim of discrimination on the disability ground.
5.8 I have also considered the contents of the letter dated 12 August 2004 from the Vice President of the Union to the complainant. That letter, inter alia, states "For the record I wish to remind you that I met you in my office and advised you how to go about applying for membership of the Union. I advised you that you could appeal any branch decision to the NEC through the General Secretary. ..... If you wish to progress an application for membership you should proceed in the manner set out in the rule book as explained when I met you." I further consider that the contents of that letter do not support a claim of discrimination on the disability ground. I have considered all of the evidence and on the balance of probabilities, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in relation to membership of the Union.
6. DECISION
6.1 On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts 1998 and 2004 contrary to section 13 of the Acts in relation to membership of the Union.
__________________
Mary Rogerson
Equality Officer
12 September 2006