A Manager of an English Language Centre
(Unrepresented)
-v-
An Institute of Technology
(represented by Peggy O' Rourke B.L. instructed by Arthur Cox Solicitors)
1. CLAIM
1.1 The case concerns a claim by a Manager of an English Language Centre that an Institute of Technology directly discriminated against him on the sexual orientation and race grounds in terms of section 6(2)(d) and (h) of the Employment Equality Act 1998 in contravention of section 8 of the Act in relation to his conditions of employment. The complainant also alleges that he was victimised within the meaning of section 74(2) of the Act.
2. BACKGROUND
The complainant alleges that the actions of the respondent included undermining his authority as a Manager at every possible opportunity, undermining his ability to support and protect staff and students within the English Language Centre (ELC) and his ability to perform his functions to the utmost of his abilities. He submits that he was subjected to a full inquiry after bringing a matter to the attention of the Institute in which a staff member complained of being sexually propositioned by Mr. R. The result of the inquiry by the respondent did not include any investigation into the matter and a transfer of Mr. R to Dr. M's (the complainant's line manager) office was made. An ongoing "steering committee" which reviewed the complainant's performance monthly was created and the complainant was forced to suffer the loss of key courses from his domain. The respondent submitted that there were difficulties with regard to the financial position of the ELC and the performance of the complainant as Centre Manager. It denies that the complainant was less favourably treated because he was of either Cuban American origin or because he was a homosexual and it also denies the claim of victimisation.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Equality Tribunal on 7 December 2004. On 1 March 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. A submission was received from the complainant on 3 May 2006. A submission was received from the respondent on 20 July 2006. A joint hearing of the claim was held on 1 February 2007. Final correspondence in relation to the matter was received from the respondent on 22 February 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant is an openly homosexual lecturer of Cuban-American origin at an Institute of Technology. In May 2000, he was seconded from his lecturing post to the position of Manager of the English Language Centre. The English Language Centre was to be run jointly by the Development Office and the School of Humanities. The Development Office was headed by Dr. M who was also the Equality Officer at the Institute and the School of Humanities was headed by Dr. E. Until October 2002, the complainant's relations with Dr. M were in the main cordial and respectful. During that period, Dr. M made various references to the complainant about his nationality, writing that his English was "pretty good" and stating that he liked to fight because he was a "fiery Latin" and stressing that it was strange to have an English Language Manager who was not a native speaker. Whilst the complainant accepted these slurs without comment other than to correct Dr. M that he was born and bred in the United States and English was his native language. The comments nonetheless made him feel uncomfortable though he didn't attribute them at the time to malevolence or prejudice, merely noting that it was odd to have such comments coming from the Equality Officer.
3.2 The complainant refers to a response e-mail from Dr. M to him in relation to a visit by an Iranian to the Institute which he submits indicates that Dr. M displayed racial prejudices that the complainant felt uncomfortable with. He also submits that in early October 2002, during a visit by the complainant and Dr. M to New Delhi, the complainant was again referred to as a "fiery Latin". During the trip, the complainant informed Dr. M that he had been raised in the United States and that having his Cuban heritage used in this way to explain his behaviour was not helpful, nor was her inability to accept that a person with his name could be a native English speaker. After returning from India, Dr. M continued to speak of having ELT courses transferred to the Department of Adult and Continuing Education and said/wrote that his resistance to this was "territorial" and not helpful.
3.3 In January 2003, the ELT Centre Assistant Coordinator position was taken up by Mr. R and events following his appointment included undermining the complainant's authority as a Manager at every possible opportunity, undermining his ability to support and protect staff and students within the English Language Centre and his ability to perform his functions to the utmost of his abilities. The complainant was subjected to a full inquiry after bringing a matter to the attention of the Institute in which a staff member (Ms. H) complained of being sexually propositioned by Mr. R. The result of the inquiry did not include any investigation into the matter and a transfer of Mr. R to Dr. M's office was made. An ongoing "steering committee" which reviewed the complainant's performance monthly was created and the complainant was forced to suffer the loss of key courses from his domain.
3.4 During all these events, the complainant kept the Institute abreast of the situation through meetings with and e-mails to Mr Mc F, the Secretary/Financial Comptroller and Mr. O' S, the HR Manager. In January 2004, a formal complaint concerning the escalation of bullying, exclusion and discrimination was submitted to Mr. O' S which to date has not been dealt with. No protection was granted to the complainant and repeated attempts to meet with Dr. B, the Director were ignored. As it become clear that the respondent would not only close the Centre which the complainant would have no difficulty with had it been clear that the motivation was merely financial, other staff members were called upon to undertake work for which the complainant was more qualified in the area of English Language Teaching while he was told that there was no further English to be taught.
3.5 The result was that the complainant's health, personal relations and work suffered as it became clear that he would be removed from the discipline he had created and that it seemed likely that the ill treatment would continue even after the complainant was removed from the Centre. In June 2004, the complainant asked the respondent for a career break in order to escape the ongoing victimisation. It is the complainant's belief that had he been Irish born and heterosexual, he would not have been subjected to the treatment.
3.6 Mr. R took up his responsibilities as the assistant Coordinator of the ELT Centre in early January 2003. He made numerous sexual comments about students and staff and was often absent from his duties. The complainant raised these issues with Dr. M and she told him that he should say nothing about the inappropriate comments. On 29 January 2003, when he informed her again that he had spoken with Mr. R about his number of absences, Dr. M wrote in an e-mail that she had "concerns about (his) management style" and suggested that the complainant's interest in the matter was merely evidence of "a personality clash" with Mr. R. On 5 February 2003, Dr. M wrote to the complainant stating that she would like to change Mr. R's title and contract after a meeting with him on the subject. The complainant objected as there was a policy in the respondent on anyone using the title 'Director' apart from the Director himself. Notwithstanding this, Mr. R's title was changed without the approval of Human Resources. The complainant stated again that he had spoken with Mr.R as his line manager about his continued absences and he was told that bringing up such matters was not helpful and that Mr. R had "another version" of events.
3.7 On 20 February 2003, the complainant who was away on a recruitment drive e-mailed Dr. M stating that the Finance Office was refusing to authorise the purchase of requisition orders sent by the Centre's Administrator and asking her to intervene. Additionally classrooms he had reserved were reallocated and he asked for Dr. M's assistance in resolving these issues. Dr. M responded on 21 February 2003 stating that informing the buildings office at the beginning of the year is "not good enough" and complained that she is being asked to resolve these issues stating "I cannot understand why you are having these difficulties .... Are people not cooperating with you and, if not, why not?"
3.8 In March 2003, the complainant whilst on recruitment work in Korea wrote to the Director stating his vision for the ELT Centre as requested and he did not receive a response in any form until June 2004. Mr R continued to make sexual comments about young Chinese girls in the Centre and it came to his attention that on 12 March 2003, Mr. R had called unannounced on Centre students at 10pm one Saturday night to "drop off supplies". Mr. R confirmed this was true when questioned by the complainant. The complainant wrote to Dr. M asking about the Institute's policy on staff and student relations and was told none existed but one was being drafted. He was ordered to do nothing further thus undermining his ability to protect the Centre or indeed the students. When he subsequently wrote to Dr. M in relation to the matter, he was told for the fifth time how "badly (he is) doing his job" but she refused to enter into specifics and refused to engage in discussions about protecting students. During this encounter, Dr. M's demeanour was physically threatening and she slammed her fist and books on the table whilst shouting that she was sick of him.
3.9 In April 2003, Dr. M wrote to the complainant stating that Mr. R had unresolved issues that mirrored the complainant's and asked for a meeting to discuss these. At that meeting, the complainant and Dr. M discussed training and Dr. M stated that Mr. R required more autonomy from the complainant and that she hoped that that would happen. Dr. M was advised of Mr. R's continuing sexual comments and that he himself felt uncomfortable at the sheer levels of sexual content about students. In May 2003, the complainant advised Dr. M that he had found a face to face six month online course in language teaching management run by a college in the US state of Vermont and stated that he wished to pursue the course even at his own expense. Dr. M told him in front of other staff that she thought he had the skills in question when she hired him.
3.10 On 1 September 2003, Dr. M wrote to the complainant in response to his request that she put specifics in writing in relation to what she was saying regarding everyone being unhappy with the complainant's performance. In the e-mail, she bemoans that fact that it had come to that, that neither of them lived up to the expectation of the other and wonders if there is any advantage in raking over things again. On 2 September 2003, the complainant and Dr. M had a meeting where she admitted that she had been excluding the complainant where she could. The complainant admitted that he also had been avoiding her. On 18 September 2003, he received a phone call from Mr. O' S, the Human Resources Manager informing him that an inquiry into the ELT centre had been called by the Executive Board and he was informed that he was to give his deposition in 30 minutes. When the complainant asked Dr. M about the matter, she said that a formal complaint had been submitted to her so she had asked the Executive Board to investigate. At the meeting, when he asked for a copy of the formal complaint, he was informed by Mr. O' S that he had "something there", that Mr. R had written about wanting to teach classes, and he did not think of it as a formal complaint that had any bearing on the proceedings. The complainant was informed that there were three people on the inquiry panel. The line of questioning by the panel did not appear to be about general matters relating to the Centre but about the complainant's experience with Mr. R. The complainant was never allowed to review any of the information that lead to the decisions of the inquiry panel which would lead to a loss of staff, loss of courses and a loss of any belief that the respondent would protect the complainant from Dr. M or any other member of the Executive Board.
3.11 On 6 October 2003, the complainant wrote to Mr. Mc F and asked for the parameters of the inquiry and stressed the importance of having Dr. M's stewardship of the Centre form part of the inquiry. Mr. Mc F responded that he had received the e-mail and reviewed with some disquiet its contents. When the complainant was informed by another member of staff that teaching hours had been assigned to Mr. R, he wrote to Dr. M asking for any minutes of meetings in relation to the matter. He was informed that she was severing links between the Centre and the International Office with regard to student support English and he was told that if there was any evidence of teachers who serve the International Office being victimised by him that it would be dealt with. Dr. M copied the e-mail to the members of the inquiry panel, Dr. E and the Director of the respondent. The complainant met with the HR Manager subsequently to ask for a meeting between the two of them and the Director. No meeting was held until June of the following year. The complainant submits that the behaviour of the Director was discriminatory and dissimilar to how such matters were conducted by him when the complainant in that instance was a heterosexual, Irish born male alleging bullying conduct by a senior member of staff. In October 2003, the complainant was informed by Mr. O' S that a Task Force for the ELT Centre had been formed. The complainant submits that such a Task Force constituted a level of unreasonable scrutiny of work that had no parallel with any other staff member or unit in the Institute.
3.12 On 20 January 2004, the complainant made a formal complaint about Dr. M which included the allegation that racial slurs had been made against him. On 29 January, the complainant wrote again to Mr. O' S as he had not received an acknowledgement and he clarified that his complaint was formal. In a letter received on 29 January 2004 acknowledging receipt of the complainant's complaint, Mr. O' S stated that he never received a formal complaint from Mr. R against the complainant. In a subsequent meeting with Mr. O'S, the complainant reiterated his desire that the complaint be viewed as formal. Nothing was done at the time and on 21 April 2004, Mr. O' S asked the complainant whether the complainant's e-mail of 20 January constituted a complaint. The complainant believes that there was wilful delay and unwillingness to accept any complaint against Dr. M.
3.13 In February 2004, a colleague informed the complainant that she had been ordered by Dr. M not to communicate in future with the complainant thus depriving him of crucial information he needed to conduct his work duties. On 19 February 2004, the complainant wrote again to Dr. M requesting marketing information and data regarding overseas student intake. She responded on the same date complaining that the Centre was taking up too much of her time and states that it is clear that the changed rates of pay for teachers make the Centre unfeasible as an income generating unit and she threatens to make alternative arrangements regarding the provision of English programmes. She also said that she had done no detailed work of the type the complainant had requested which was several months after the work was requested. The complainant submits that this amounted to further discrimination and victimisation on the part of Mr. Mc F who as Chair of the Task Force allowed it to stand. He submits that the Task Force insisted on a standard of planning and reporting from him in relation to the ELT Centre which was far beyond that demanded of Dr. M or any of her staff at the International Office who were essentially engaged in the same operation recruiting overseas students.
3.14 The complainant submits that the Task Force was not established with a view to supporting the overall wellbeing of the ELT Centre as if it was it would have insisted on the International Office input into planning and projections. He submits that the purpose of the Task Force was to subject the complainant to a paralysing level of scrutiny which would breed institutional frustration at the continued existence of the ELT Centre and predispose the Executive to see the Centre and the complainant in a most negative light. The complainant had planned a recruitment trip to Russia and had notified the task force in November 2003 if not earlier. Dr. M then proposed a trip to Russia to be undertaken by her office and Mr. Mr. F in response to Dr. M's proposed trip states that the complainant's travel had been overtaken by events and that he would not be travelling. When the complainant raised the issue of the trip being decided that way, he was informed that extensive e-mail communication was unproductive and he was asked to desist from sending unhelpful e-mails. The complainant also learned from two sources that Dr. M stated that she refused to work with the complainant. On 20 April 2004, the complainant wrote to Mr. O' S inquiring into his bullying complaint. Mr. O' S responded querying whether the complainant's complaint was formal. The complainant subsequently queried whether it was necessary to go through with the complaint as Dr. M had declared to the Executive Board that she refused to deal with the complainant and in the complainant's mind this should suffice as evidence of discrimination.
3.15 In May 2004, the complainant was not kept informed of any developments related to his duties and was forced to rely on the information from other stakeholders who were being informed in relation to recruitment on upcoming courses. On 17 May 2004, the complainant wrote to Mr. O' S asking why he had been asked to suspend recruitment on his courses while Dr. M continued recruiting for hers. On the same date, the complainant received notification sent by Dr. M regarding anti-racism training to be provided to those who deal with international students. The complainant was not invited to participate and was told by Mr. O' S that he could not attend. He was informed that the training was for those at the first line of equality and that he had determined the list of participants in tandem with Dr. M. That list included Mr. R. The complainant submits that this was the third time that he was denied training and he wrote to Mr. O' S stating that he viewed it as automatic exclusion and discrimination.
3.16 The complainant submits that on 20 May 2004, Mr. O' S wrote to the complainant stating that he was "finding it increasingly difficult to keep responding to the ever increasing number of emails which you send to my office" and stated in relation to the exclusion on racism training that he "cannot and will not respond to queries regarding operational decisions made in this institute". He also made snide comments about not picking staff for training according to the nine grounds of discrimination. On 20 May 2004, the complainant responded to an e-mail sent by Dr. M to Dr. E and many others not including the complainant himself. She casts aspersions on the complainant's professionalism by stating that he is uncontactable when in reality he was working on an Adult Education course for the respondent. Dr. M also complained that the complainant was being excessive by allowing teachers two weeks to submits final marks and for not breaking regulations about writing letters for visa extensions and also complains that the complainant was not willing to overturn the end of year examinations process to accommodate students who want to return home before exams are finished. She questions the time when the complainant takes holidays and demands application forms for students on the ELT Centre's programmes.
3.17 At that stage, the formal complaint had been lodged for four months. The complainant submits that either Dr. M knew about the complaint and Dr. M's actions therefore amount to victimisation or the respondent had done nothing with the complaint. The Head of the Department of Languages, Tourism and Sport called for a meeting with the complainant stating that Dr. M had written a confidential e-mail to him in which she asked that an assistant lecturer in German be allowed to write an English syllabus for Dr. M's Adult Education new foundation programme. The complainant submits that as he was originally seconded as a German lecturer but had a number of other qualifications in the English language teaching field and was now enrolled on a doctoral programme in the teaching of English, he was far more qualified than the person proposed for the work. He submits that it was given to the other person, a heterosexual due to Dr. M's unwillingness to work with him. The complainant again met with Mr. O' S to express his discomfort in relation to the matter and Mr. O' S said he would get back to him but Mr. O'S subsequently neglected to provide the complainant with the information he had promised.
3.18 In relation to visa letters for students, the Gardai sent students back with letters signed by him stating that they had been informed by the International Office that they could only accept letters signed by Dr. M, Ms. SC or Mr. R. The complainant at no time acted in a manner which would necessitate such a course of action as to remove from him the power of signatory to visa documentation. It was particularly humiliating to the complainant that he had been stripped of these powers unilaterally without having been informed in advance. He was therefore left in the embarrassing position of having students at the Institute tell him that he signature was "no good". On 31 May 2004, the complainant sought clarification of key points from a meeting on 28 May including that after the closing of the centre, the complainant would have to go back teaching German. The complainant submits that this was significant because the Erasmus hours that Mr. R had been given by the Director had formed part of the complainant's original timetable before his secondment to the position of ELT Manager. The loss of the hours was confirmed as ongoing and the complainant had to accept that hours that had originally been his would now be Mr. R's despite the fact that the complainant had been doing doctoral work in the area while Mr. R, a heterosexual, only had a lower level of qualification in the discipline. The exclusion on the new foundation course was also significant as it also meant that less qualified heterosexual staff would take work that had been in the discipline that the complainant had created within the Institute.
3.19 When a meeting eventually took place with the Director in mid June 2004, it involved a long rehashing of events and little indication of willingness to protect the complainant or solve any ongoing grievances in any substantive way. The complainant refers to his failure to obtain a meeting with the Director for a period of eight months and another complaint where the Director made himself available to the complainant on three separate occasions. The case referred to is that of a heterosexual, Irish born lecturer, Mr. F who had brought a bullying complaining against a member of senior management.
3.20 The complainant was informed on 13 June 2004 after his meeting with the Director that he had secured a job in the US and he felt that he had been left with no choice but to accept it despite the considerable drop in salary and the very significant reduction of benefits that this would entail. When the complainant met with Mr. Mc F on 14 June in relation to the handling of the applications for the ELT Centre courses which were still coming in, Mr. Mc F was aggressive in his tone and demeanour. The complainant sent an e-mail to Mr. O'S requesting that the matter be formally noted.
3.21 The complainant submits that:
- he was bullied by senior managers;
- he was victimised by the respondent when he attempted to bring equality matters relating to himself and Ms. H to the attention of the Institute and asked for those to be investigated;
- he was denied due process when the Institute failed to respond to his formal complaint and suffered further victimisation as a result;
- his post was systematically given away to heterosexual European born individuals with lesser qualifications and experience than the complainant's;
- he was compelled to seek employment elsewhere through the respondent's unwillingness and inability to deal with equality issues.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The English Language Centre was set up in May 2000 for the purpose of providing full-time tuition in English to enable international students to achieve the necessary language skills to be able to study on full-time academic courses. The claimant who was a German language lecturer was seconded in September 2001 for a three year period to the position of Centre Manager of the ELC reporting to Dr. M, then Head of the International Office. In late 2002, it was decided to appoint an Assistant Co-ordinator of the ELC. After an interview and selection process in which the complainant was involved (but not Dr. M), Mr. R was appointed to the position in January 2003 and reported to the complainant.
4.2 The request to provide English language training to a group from Oman came to the Adult Education Office in the Institute. This query was referred to Development because, in addition to HR type training, which the Adult Education Office provided, the group also required English language training. Dr. M co-ordinated a submission from the respondent and in so doing requested the complainant to provide some information for the English language segment of the submission. The complainant demonstrated his reluctance to provide the costing information required and stated to Dr. M that the project should be an ELC project and should not be owned by another Institute Department. Dr. M reiterated in correspondence with the complainant that English language teaching was only one small part of the project and that it was being coordinated by Development in a cross-disciplinary way. The comments alleged to have been made in relation to this matter are rejected.
The financial position of the ELC
4.3 In June 2003, the TUI brought an equal treatment claim under the Programme for Competitiveness and Work in respect of part-time teachers at the ELC. Arising from the claim, a decision was made at national level to pay the English teachers third level rates which was approximately a difference of €35 per hour. In accordance with PCW, the respondent agreed to provide retrospective pay to all the teachers in respect of their hours at the ELC. This development had a major impact on the financial position of the ELC. At a meeting of the Executive Board on 17 September 2003, the precarious financial position of the ELC was noted and it was decided that given the unprecedented circumstances, a Steering group should be formed to look into the operation and viability of the ELC and to make recommendations to the Executive Board. The respondent rejects any suggestions that the Steering Group was set up to investigate the complainant personally.
The Steering Group and the Task Force
4.4 The Steering Group conducted an initial review of the operation of the ELC and then reported back to the Executive Board. It was decided by the Executive Board that a Task Force would be established to oversee the work of the ELC. It was agreed that a number of meetings of the Task Force would be held and that the complainant would attend the meetings. The fact that Dr. M participated on the Task Force was raised as a concern by the complainant with Mr. McF, however this concern was rejected by Mr. Mc F as the Executive Board had agreed on the membership of the Task Force. Having regard to the seriousness of the ELC's poor financial position and the need to ensure that the complainant was fully supported in the role, the Task Force was comprised of a number of key senior managers, all of whom were anxious to secure the long-term viability of the ELC.
4.5 Terms of reference were approved by the Task Force at a meeting on 6 November 2003 at which the complainant was present. It is clear from those terms that the objectives were both operational and strategic to try to ensure the long term viability of the ELC. It is clear from the terms of reference that it was not an inquiry into the complainant personally; however, it is acknowledged that the complainant's performance in his role as ELC Manager and that of every other ELC employee was evaluated as part of the operational review. The complainant was consulted on numerous occasions by the Steering Group and the Task Force as his input, as Centre Manager with regard to future operations was regarded as vital. The Task Force met on four separate occasions between November 2003 and February 2004 and the complainant attended all of the meetings. On 22 March 2004, the complainant wrote to Dr. E and was critical of Dr. M. He stated that he would no longer attend Task Force meetings including the proposed meeting on 25 March 2004. Dr. M also did not attend the meeting and it was declared not to be a formal meeting as two key stakeholders, the complainant and Dr. M were not present. At the meeting the members of the Task Force present reviewed the correspondence received from the complainant and decided to disband the Task Force. It was decided to reconstitute the original Steering Committee to report back to the Executive Board. On 21 April 2004, the Executive board met and the Steering Committee reported back to it in relation to the ELC. It was decided at that meeting that the activities of the ELC should be suspended pending a complete review of its operations. It was proposed that a separate meeting take place to devise a framework for the future functioning of the ELC.
Witholding information from the complainant
4.6 The complainant has suggested that various members of the Task Force, including Mr. Mc F and Dr. M were responsible for withholding marketing and financial information and data in relation to foreign students. The respondent rejects such suggestion and submits that the documentation and information sought by the complainant were not necessary to fulfil the duties required by the Task Force of him. Efforts were made to focus the complainant on addressing the key operational and strategic issues faced by the ELC. The complainant appeared intent instead on making unsubstantiated allegations about Dr. M and Mr. R and key deadlines were not met by him. The complainant has submitted that the standard of planning and reporting required of him by members of the Task Force went "far beyond that demanded of Dr. M or any of her staff at the international office." Both operations cannot be compared as like, in circumstances where the ELC of which the complainant was Manager was running at a substantial loss. The respondent submits that the complainant was not treated less favourably nor was he victimised however, it is acknowledged that as the Centre Manager, he was answerable to the Task Force and like any business unit that was not performing, the Task Force members demanded results from him and his staff. However, securing the viability of the ELC was a core aim of the Task Force's activities and not the penalisation of the complainant. The complainant was given every opportunity and support to ensure that the ELC would recover from the difficult financial position in which it found itself and in no way was he ever held responsible and/or victimised.
Trip to Russia
4.7 The complainant was made fully aware from the feedback that was being received from agents and also the students that the type of courses being offered were not meeting student demands. He was given ample opportunity and was encouraged to re-develop the ELC courses to appeal more to market demand. The complainant has alleged that a proposed trip by Dr. M to Russia was approved over a prior proposal from the complainant that he travel to Russia. The complainant has made reference to the fact that details of the proposed trip had been presented to the Task Force in November 2003 prior to Dr. M's trip having been planned. At that point in time, Dr. M held the budget for the ELC and had not received any travel authorisation forms from the complainant regarding his proposed trip. Dr. M was unaware of the complainant's plans in this regard. It is the respondent's policy that all overseas travel must be authorised in advance by way of a travel authorisation which must be submitted to the line manager. The failure of the complainant as Manager of the ELC to observe the respondent's procedures with regard to overseas travel was a recurrent issue during the period 2003/2004 and one which was discussed at meetings of the Task Force at which the complainant attended. The complainant was informed of the procedures on numerous occasions yet he continually disregarded same.
Development of International Foundation course
4.8 In early 2003, Dr. M received over ten requests for a course similar to the International Foundation course. Dr. M informed the complainant of this, however, nothing was actioned by him and he did not respond to Dr. M's requests to develop the course. Dr. M took up the issue with several lecturers nominated by heads of schools and with the assistance of Mr. R who looked after the running of the ELC whilst the complainant was on his holidays, she formed a Course Board of 12 people and developed the full course document. The Registrar set up a review panel and the course was duly approved by the Academic Council. The complainant alleges that the development of the course undermined him and suggests that Mr. R was asked to work on the project instead of the complainant. The reality is that this was an initiative which commenced whilst the complainant was on extended holiday and it was also one which the complainant had demonstrated no previous interest in.
4.9 During that summer, Mr. R engaged in a process of re-evaluating the way in which Erasmus students were taught. He along with Dr. M developed a scheme whereby the Erasmus students are now tested, streamed and taught in small groups which has proven to be extremely effective and resulted in positive feedback. Indeed, the program which was previously costing the respondent over €10,000 per year and which was widely criticised by students and teachers because of large class sizes is now being delivered at no cost to the respondent. This was done by Mr. R in his capacity as stand-in ELC Manager while the complainant was absent on annual leave.
4.10 During 2003, it became evident to Dr. M that there were difficulties in the working relationship between Mr. R and the complainant. Both had approached her separately with regard to the issues with the other. Dr. M held meetings with each of them and she encouraged them to work together for the good of the ELC. Eventually matters came to a head in October 2003 when it was indicated by Mr. R that he could no longer continue working with the complainant. Dr. M was anxious not to lose Mr. R whom she considered to be a valuable member of staff and so after liaising with the Director, Dr. M decided to move Mr. R out of the ELC and to give him a student support post in the International Office. Dr. M was not acting in her capacity as a member of the Task Force but was responding to crisis in her Department. Dr. M verbally assured the complainant that Mr. R's entire role related to the International Office and student support and that the transfer would not be any threat to his own activities.
Lecturing duties on the Erasmus course
4.11 It is accepted that Ms. O' C and Mr. R were given hours on the Erasmus course, however, at that time, the complainant held the role of Centre Manager of the ELC and had been seconded from his previous lecturing duties. Dr. M was never given any indication that the complainant was available and/or willing to teach on either the bridging course or the Erasmus courses. The fact that another lecturer was allocated hours on a course previously taught by the complainant in his former role as German language lecturer was not an exclusion of the complainant nor was it any form of less favourable treatment because the complainant happens to be homosexual and Cuban American. Had the complainant elected to end his secondment and revert to a teaching role, then hours would have been made available to him in the school of Humanities.
Seminar during the complainant's holidays
4.12 The respondent submits that the seminar on teaching Chinese students had been discussed openly by Dr. M., Mr. R and the complainant and the complainant had agreed that it would be useful for the ELC. The complainant then objected to the seminar on the agreed date in July as it was scheduled to take place when he would be on annual leave. It was decided by Dr. M to proceed on the agreed date as the external speakers and the participants had already been informed and it was not possible for them to change dates. The summer months were the busiest and most important time for the ELC in terms of recruitment and it was not possible to defer all activities until such time as the complainant returned from his academic holidays. Whilst it is acknowledged that Mr. R raised grievances with regard to his position within the ELC and the complainant's interactions with him, these were informal in nature and at no time was a formal complaint ever received from Mr. R. This was re-iterated to the complainant on a number of occasions.
Signatories of visa letters and space
4.12 The decision to limit the signatories of visa letters was made in consultation with the Gardai because there had been a number of forgeries. An e-mail was sent by Dr. M to all staff informing them of this new policy and the rationale behind it. There was no intention to undermine or isolate anyone. The decision affected not just the complainant but many of the respondent's staff including several Course Leaders. The respondent submits that the Buildings Office was very aware of the ELC's shortage of space at the time referred to in the complainant's submission. A number of proposals were put to the complainant at the time, all of which were refused by him. An office commissioned by the ELC was ready for use by the complainant and Mr. R. The office was adjacent to the classroom used by the English students, however, the complainant refused to move in and the office was reallocated to the next four members of staff on the respondent's waiting list.
Training
4.13 In relation to training, the complainant has made at least two references to instances whereby he was allegedly excluded from internal staff modules on equality and also a seminar on anti-racism. The respondent submits that the complainant has never been excluded from any form of staff training in which he was eligible to participate. In so far as the complainant received a notification about the internal training, it was then a matter for him to apply for approval to attend. Had the complainant applied and had there been availability, then the complainant would have been free to attend. The anti-racism training was an external seminar and there were only 15 places available out of 60 staff. It was decided by the respondent to send the equality support persons and other staff at the front-line of equality. The complainant was not specifically excluded by Dr. M and Mr. R attended the course as it was related to his position in the International Office.
Formal complaint
4.14 As part of the functions of the Steering Group, the HR Manager, Mr. O'S met with the complainant to discuss the ELC and any issues that the complainant was having. The meeting took place on 18 September 2003. From that point onwards, the complainant corresponded in considerable volumes directly with Mr. O' S. The complainant alleges that an e-mail he wrote to Mr. O' S on 20 January 2004 constituted a formal complaint about Dr. M. The respondent submits that nowhere in the e-mail does it make reference to the fact that it is to be considered a formal complaint against Dr. M. Mr. O' S spent considerable time corresponding with the complainant to try and get clarity as to what document and/or e-mail was intended to be the complainant's formal complaint. A number of protracted e-mails were received by Mr. O' S which detailed a number of grievances but which failed to clarify his position. Eventually, the complainant clarified that his e-mail of 20 January 2004 was his formal complaint of bullying against Dr. M. Mr. O' S advised the complainant that the next step in having his complaint investigated was for him to meet with Dr. E, his line Manager or meet with Mr. O' S himself. As Mr. O' S did not have jurisdiction over senior managers, he referred the complaint to the Executive Board and the Director. Subsequent meetings between the complainant and Mr. O'S explored various solutions including mediation and a meeting was held between the Director and the complainant , however no solution was reached.
Meeting with the Director and interactions with Mr. Mc F
4.15 The respondent submits than the factual circumstances which related to Mr. F's bullying complaint were wholly different than those alleged by the complainant. No formal complaint was ever made by Mr. F. It is accepted that the Director met Mr. F as indeed he met the complainant. The assertions by the complainant that the respondent came to some form of settlement with Mr. F is wholly inaccurate. In relation to the meeting between Mr. Mc F and the complainant on 14 June 2004, the complainant was agitated and his conduct was intimidating. The complainant asked Mr. Mc F what he intended to do about matters and Mr. McF responded that it would be more appropriate for the complainant to speak with the Director as he had no involvement with the Task Force as it has disbanded.
Victimisation
4.16 In relation to the complainant's claim of victimisation, it is acknowledged that the complainant raised an issue with Dr. M with regard to alleged inappropriate behaviour on the part of Mr. R against Ms. H. It was explained to the complainant at that time that unless and until a formal complaint was received from the alleged victim, Ms. H, no further action could be taken by Dr. M. Mr. O' S met with Ms. H separately and she confirmed that she did not wish to make a formal complaint. The suggestion that the complainant was penalised for having raised this issue or any other issue is absolutely rejected. The complainant also made complaints regarding inappropriate behaviour by Mr. R against unnamed foreign students, once again, it was reiterated to the complainant that unless a formal complaint was received from one of the students themselves, nothing further could be done.
4.17 The respondent rejects that the complainant was subjected to any form of threatening behaviour. At no stage was the complainant personally subjected to an inquiry, the purpose of the Steering Group/Task Force was to review the performance of the ELC as a commercial venture. The complainant at all times retained all aspects of his role as Centre Manager and did not lose any part of his job. The fact that other lecturers may have been assigned classes previously taught by the complainant prior to his secondment is not relevant where no lecturer owns teaching hours and also where the complainant was not in a teaching role at the time but was managing the ELC instead.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the sexual orientation and race grounds in relation to his conditions of work. I must consider whether the respondent directly discriminated against the complainant on the sexual orientation and/or race grounds in terms of section 6(2)(d) and (h) of the Employment Equality Act 1998 in contravention of section 8 of the Act. I must also consider whether the complainant was victimised within the meaning of section 74(2) of the Act. 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.
Discrimination on the various grounds
5.2 Section 6(1) of the Employment Equality Acts 1998 provides that:
..... discrimination shall be taken to occur where on any of the grounds in subsection (2)......, one person is treated less favourably than another person is, has been or would be treated.
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(d) that they are of different sexual orientation (in this Act referred to as "the sexual orientation ground"),
(h) that they are of different race, colour, nationality, or ethnic or national origins (in this Act referred to as the ground of race),
Burden of proof
5.3 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 Subsequently, the Labour Court stated in relation to the burden of proof in an age discrimination case that:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.2"
More recently, the Court stated in a case which concerned discrimination on the race and religion grounds:
". ....... the Court is satisfied a rule requiring the shifting of the probative burden to the respondent where the complainant makes out a prima facie case is applicable in the instant case.3"
Issue of whether the complainant has established a prima facie case of discrimination
5.5 I will proceed to consider the issue of whether the complainant has established a prima facie case of direct discrimination on the race ground. In accordance with the principles established in the Mitchell4 case and reiterated in the Flexo5 and Icon6 cases, I must consider whether the complainant has established the primary facts on which he relies and secondly, if he has established the primary facts, I must consider whether those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied, the onus shifts to the respondent to prove that the principle of equal treatment was not infringed. In relation to the victimisation claim, I must consider whether the complainant was penalised for having in good faith sought redress under the Employment Equality Act, 1998 or for opposing by lawful means an act which was unlawful under that Act.
Comments by Dr. M to the complainant
5.6 The complainant alleges that until October 2002 when Ms. SC was appointed, relations with Dr. M were cordial. He alleged that during the same period, Dr. M made various references to the complainant about his nationality writing that his English was pretty good and stating that he like to fight because he was a "fiery Latin." He submits in his written submission that in early October 2002 whilst on a recruitment trip to India, Dr. M again referred to him as a "fiery Latin" and that the comments made him feel uncomfortable. Dr. M submitted at the hearing that there was banter between them, however, she had no hostility towards his background and fiery to her meant assertive. She submitted that she may have made a reference to "fiery" but that she could not say for definite whether she did or not. She submitted that the complainant was open about his sexuality and when they were on a trip to India together, she accompanied him to buy a present for his partner.
5.7 Part IV of the Employment Equality Act, 1998 deals, inter alia, with harassment on eight different grounds. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Section 32(1) provides, inter alia, that where an individual (E) harasses another employee (C) by reference to the relevant characteristic of C, i.e. on one of the grounds, at the place of employment or otherwise in the course of the employment of the person harassed, the harassment constitutes discrimination by the victim's employer in relation to the employee's conditions of employment. Section 32(5) provides that
"For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C."
It is clearly the effect and intention of the Employment Equality Act, 1998 that employees are entitled to expect freedom from being harassed at work on the race ground by gestures, words and written material. On the balance of probabilities, I find that the comment was made by Dr. M. The complainant submitted that Dr. M's remarks made him feel uncomfortable. The comment was unwelcome to him, however, I must also consider whether the comment could reasonably be regarded as offensive, humiliating or intimidating to a person of Cuban American origin. I consider that the comment could reasonably be considered to be offensive, humiliating or intimidating to a person of Cuban American and I find that the comments in question amounted to harassment on the race ground within the meaning of section 32(5) of the Employment Equality Act, 1998.
5.8 In accordance with section 32(6) of the Act, it is a defence for the employer to prove that it took such steps as were reasonably practicable to prevent the harassment. The respondent submitted a copy of its Equal Opportunities Policy dated 21 January 2002. The policy refers to harassment on the nine grounds in accordance with the Employment Equality Act, 1998. The respondent submitted that the Policy was the version in force at the relevant time notwithstanding that it is headed "Equal Opportunities Draft Policy". It submitted that the policy has evolved considerably since its first inception in 1996 and that rather than issuing a new hardcopy of the policy each time it was amended, the policy was updated on the system and all staff were notified of its existence. It further submits that insofar as the complainant or any other employee would have requested a copy of the policy during 2003/2004, the 2002 version would have been provided by the HR Manager in hard-copy at that time. The complainant has not disputed the respondent's statements in this matter. In the circumstances, I consider that the respondent took such steps as were reasonably practicable to prevent the complainant being harassed in the workplace and the harassment does not therefore constitute discrimination by the respondent.
Interactions with Dr. M
5.9 The complainant claims that after Mr. R was appointed, he brought to the attention of Dr. M that Mr. R was absent from his duties and that he made sexual comments about students and staff. He submitted that on 29 January 2003, he again informed Dr. M that he as line manager had spoken with Mr. R in relation to his absences. He submitted that Dr. M responded in an e-mail dated 29 January 2003 that she had concerns about his management style. The e-mail was not submitted in evidence. The complainant also refers to the contents of an e-mail from Dr. M dated 21 February 2003 which was not presented in evidence. He submits that in March 2003 in response to raising with Dr. M the issue of Mr. R calling to students' accommodation and intervening in a dispute between students, she told him again how badly he was doing his job but refused to enter into specifics. He also submits that at that meeting, she acted in a physically threatening manner by slamming her fist and books on the table and shouting at him. The complainant submits that when he raised the behaviour of Mr. R again, he was told that unless there was a complaint from a staff member, there was nothing she could do. He also submits that when he informed Dr. M again in May 2003 in relation to Mr. R's continued absences, she refused to acknowledge his statement. He also submits that in September 2003 when he tried to raise with both Dr. M and Mr. O'S the issue of alleged inappropriate behaviour by Mr. R, he was told that unless there was a formal complaint nothing could be done. He submitted that Dr. M was on that occasion outwardly hostile. The complainant believes that he was undermined by not being in a position to protect staff or students.
5.10 In November 2003, the complainant submits that as part of his remit to construct a three year plan for the Centre, he requested information from Dr. M which was not provided. He submits that despite not receiving the information, the minutes of the Task Force express concern that the complainant has not made adequate progress. He also submits that Dr. M said at an Executive Board meeting in March 2004 that she could no longer work with the complainant. He submits that in May 2004, Dr. M sent an e-mail to Dr. E and others which publicly cast aspersions on him. He alleges that in May 2004, Dr. M asked a heterosexual to write an English syllabus for Dr. M's Adult Education new foundation programme. I note that at paragraph 1.7 of the complainant's written submission, he states that until October 2002, his relationship with Dr. M has been, in the main, cordial and respectful. He submits that she and Dr. E supported his request that he be upgraded to Lecturer Grade 1 and that she approved that he be granted a full time academic Assistant Coordinator to assist with the volume of work.
I have considered the complainant's allegations and the totality of the evidence and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to his interactions with Dr. M.
Office Space
5.11 The complainant submitted that "No office space was provided for the complainant, nor ever for any teachers who worked in the Centre." He submits that on March 2003, he again wrote to Dr. M about the lack of dedicated space for himself and his staff including Mr. R. He submits that on 19 February 2004, Mr. Mc F informed him that the office space promised to him by the Task Force had been temporarily given away and no office ever materialised. I note that in the minutes of the "English Language Centre (ELC) Task Force meeting" dated 22 January 2004, it is stated that serious concern was expressed at the lack of adequate facilities for students and staff of the centre. It further states that "JMCC confirmed that IT Manager has vacated his old office and this was now available for [the complainant] to move into." and "[The complainant] to progress move, with immediate effect."
I have considered the complainant's allegations and note that he also refers to insufficient space for other staff in the ELC including Mr. R who he alleges is heterosexual. I have considered the totality of the evidence and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to the provision of office space.
Training
5.12 The complainant states that when he told Dr. M in April 2003 that he would like some more training in finance and possibly some marketing, Dr. M indicated that she would seek out the training but that did not happen. He also submits that he was excluded from equality training around bullying that all other members of Dr. M's staff were invited to attend. He also submits that when he advised Dr. M in May 2003 that he had found a language teaching management course in the US, she responded in front of her staff that she thought he had those skills when she hired him. He submits that the incident undermined him publicly and illustrated that Dr. M had no desire to provide any of the training she originally promised. He submits that in May 2004, he was not invited to participate in anti-racism training. I have noted the respondent's statement in relation to training as set out at paragraph 4.13 above.
I have considered the complainant's allegations and totality of the evidence presented I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to the provision of training to him.
Communications with the Director
5.13 The complainant also alleges that he did not receive a response from the Director until he met him in June 2004 in response to a document he sent him in March 2003 and also that he made numerous requests for meetings with him. The complainant alleges that the behaviour of the Director was discriminatory and dissimilar to how such matters were conducted by him when the complainant in a particular case was a heterosexual, Irish born male alleging bullying by a senior member of staff.
I have considered the complainant's allegations and the totality of the evidence presented and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to his communications with the Director.
Workshop in July 2003
5.14 The complainant submits that when he learned that Mr. R planned an international workshop for July without consulting him, he wrote to Dr. M in protest and she responded that the workshop was to go on and that the seminar date would not be changed when he requested a change in date so that he could be present. I note that the minutes of a meeting with Dr. M and Mr. R and others on 10 July 2003 state "It was agreed that [Mr. R] would in [the complainant's] absence during the summer liaise with [SC] on induction matters."
I have considered the complainant's allegations and the totality of the evidence presented and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to the scheduling of the course.
Inquiry by the Executive Board
5.15 The complainant alleges that when he went to see Dr. M on 18 September 2003 regarding the inquiry proposed by the Executive Board, her demeanour was threatening and intimidating. He submits that at the meeting with Mr. O' S in relation to the matter on the same date, the parameters of the inquiry were not set out apart from stating relevant stakeholders would be asked to give testimony. The complainant submitted that the line of questioning at the meeting did not appear to be about general matters relating to the Centre but about the complainant's experience with Mr. R. He submits that he was informed that the inquiry panel consisted of the HR Manager, the Financial Controller/Secretary and an Assistant Principal. He submits that he was never allowed to review any of the information that led to the decisions of the inquiry panel and the decisions led to the loss of staff, loss of courses and a loss of any belief that the respondent would protect him from Dr. M or any other member of the Executive Board. He was later informed that a Task Force for the Centre had been formed and was told the remit was to review and plan for, among other things, the next three years of the Centre's operations to see if the Centre could remain financially viable. Meetings were to take place monthly with reports to be handed in by the complainant. The complainant submits that the Task Force constituted an unreasonable scrutiny of work that had no parallel with any other staff member or unit in the respondent. He submits that the Task Force was not established with a view to supporting the overall wellbeing of the ELT Centre and that the purpose of the Task Force was to subject him to a paralysing level of scrutiny. He submits that in a meeting with Mr. Mc F on 14 June 2004 in relation to the handling of operations for ELT Centre courses which were still coming in, Mr. Mc F was particularly aggressive in his tone and demeanour and although the complainant was merely tying up loose ends before he departed on his career break, Mr. Mc F used the opportunity to make the complainant feel that he was somehow guilty of some misconduct.
5.16 The minutes of the Executive Board meeting of 17 September 2003 were made available to me. The minutes state that concerns were expressed about the management of the English Language Centre and its viability in the light of back-payments to teachers and new rates of pay and that a Task force was to be established to investigate matters and make recommendations to the Executive Board. The Terms of Reference for the Task Force were also presented in evidence. The terms set out seven objectives of the Task Force and two of them specifically refer to the Centre Manager. One of the objectives was to assign specific actions to the Centre Manger and the other was to obtain monthly reports from the Centre Manager. I have examined the minutes of the Task Force Meetings of 6 November 2003, 12 December 2003, 22 January 2004 and 19 February 2004. I have also reviewed the minutes of the Executive Board meeting of 21 April 2004 wherein it was agreed to suspend the activities of the English Language Centre pending a review of operations. The minutes state that the Board accepted that the difficulties in the English Language Centre are complex but that they are not primarily due to, nor do they reflect, any personal difficulties between the Manager and the Head of Development.
I have considered the complainant's allegations and the totality of the evidence presented and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to the establishment of the Steering Group or Task Force.
Formal complaint against Dr. M
5.17 The complainant submits that in October 2003 after the Steering Group was established, he stated to Mr. O' S that he did not wish to bring a formal complaint against Dr. M as he assumed her stewardship would form part of the investigation. The complainant submits that in January 2004, he made a complaint against Dr. M alleging, inter alia, that his experiences with her included racial slurs, needless cruelty and disingenuousness. He explicitly stated in a subsequent e-mail to the HR Manager, Mr. O' S that he wished the complaint of 20 January to be read as formal. He submits that Mr. O' S found excuse after excuse not to formally investigate the complainant's claims. On 29 January 2004, Mr. O' S responded that he had clarified to the best of his ability the issues raised by the complainant and recommended that if the complainant wished to pursue them he should talk with Dr. E or make an appointment with himself. He submits that nothing was done and in April, Mr. O' S asked whether the complainant's e-mail of 20 January constituted a formal complaint. He submits that on 20 April 2004, he again wrote to Mr. O' S in relation to his complaint. In that e-mail he referred to being bullied and stated that as the respondent could not provide him with an environment in which bullying and intolerance are dealt with, he has no place there. In a response e-mail, Mr. O' S asks if his e-mail constitutes a formal complaint
5.18 In the complainant's e-mail of 20 January 2004, I note that he refers to being "treated in an unacceptable manner" by Dr. M and "the racial slurs, the needless cruelty and the disingenuousness (if not dishonesty)" which characterised her relationship with him. In that e-mail, he also refers to needing " a sense of safety, a sense that I can work in an environment where I am able to fulfil my duties without prejudice, malicious gossip and at times, outright cruelty from a senior manager" and that he feels bullied out of his current position. On 29 January 2004, he submits in another e-mail to Mr. O' S that he "would like to dispel any doubt that I wish the complaint to be read as formal, I will be quite happy to supply dates and quotes in the near future. At present those details are not in my possession."
5.19 The issues raised by the complainant were acknowledged by letter dated 26 January 2004 from Mr. O' S and he specifically responds to some of the issues raised by the complainant in relation to whether Mr. R had filed a complaint against the complainant and the reason for the establishment of the Task Force. The complainant was further advised that if he wished to pursue further the issues raised, Mr. O' S recommended that he have a meeting with Dr. E or contact his staff to arrange an appointment (with Mr. O' S). The nature of the complaint being made in the e-mail of 20 January 2004 is not entirely clear in terms of whether it is a bullying complaint, harassment or discrimination under the equality legislation or general grievances. I note that Mr. O' S did not refer the complainant to any particular policies of the respondent should he wish to pursue matters further.
In any case, whilst the manner in which the complaint was handled by the respondent
may not have been entirely satisfactory in terms of attempting to clarify the nature of the complaint or in assisting the complainant to do so and in terms of referring the complainant to the relevant policies, I have considered the totality of the evidence presented and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to how his complaint was handled.
Changes to teaching hours assigned to teachers by the complainant and his own teaching hours
5.20 The complainant submits that when he was informed by a teacher in the Centre that her teaching hours were to be taken on by Mr. R, he wrote to Dr. M asking for minutes of meetings about assigning teaching hours to Mr. R. He submits that she responded by e-mail dated 7 October 2003 that she was severing links between the ELC and the International office with regard to student support English and that Mr. R was being transferred to her office. She further stated that if there was any evidence of teachers who served the International Office being victimised by him, it would be dealt with. She also stated that she would continue to monitor the performance of the ELC which he saw as a threat and he felt intimidated and further impeded from carrying out his work. He also submits that in April 2004, he raised the issue of his job being given away to Mr. R. He submits that by May 2004, he was not kept informed of developments in relation to his duties and was forced to rely on information from other stakeholders. He submits that hours originally taught by him before his secondment were subsequently given to Mr. R despite the fact that the complainant was doing doctoral work in the area while Mr. R, a heterosexual only had a lower level of qualification in the discipline.
I have considered the complainant's allegations and the totality of the evidence and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to changes to teaching hours.
Trip to Russia
5.21 The complainant submitted that he had planned a recruitment trip to Russia and detailed it to the Task Force in November 2003 if not earlier. He submits that in February 2004, Dr. M proposed a trip to Russia to be undertaken by her office. When he queried the matter, he submits that Mr. Mc F wrote that extensive e-mail communication was unproductive and asked that he desist from writing unhelpful e-mails. I note that the minutes of the ELC Task Force meeting dated 6 November 2003 state "The members agreed that [the complainant] would seek [Dr. M's} approval for all external trips and budgetary matters."
I have considered the complainant's allegations and the totality of the evidence presented including that Dr. M was not in receipt of a travel authorisation form at that time and I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation or race ground in relation to his proposed trip to Russia.
Victimisation
5.22 The complainant submits that the true remit of the Task Force was to not to develop the Centre's activities or financial prospects but to victimise him for raising equality issues and to forestall any future bullying complaints against Dr. M by using a committee to close down the Centre and spread blame. The complainant submits that the bullying and victimisation he endured had homophobia and race at its core. He submits that from the time his complaint was filed with the respondent (January 2004), there was a direct intensification of actions from Dr. M and other senior managers towards him. He submits that in May 2004, the power of signatory to visa documentation was removed from him. The complainant was granted a career break with effect from June 2004. As the complainant's claim relates to a period before 18 July 2004, any claim of victimisation falls to be considered under the Employment Equality Act, 1998.
5.23 Section 74(2) of the Act provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith, inter alia -
(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 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,"
The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that he was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith sought redress under the Act or opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998.
5.24 The complainant sought redress under the Act by referring a complaint to the Tribunal on 8 December 2004, however, at that stage he was on a career break. The complainant submits that in September 2003, he brought to the attention of Mr. O' S and Dr. M that Ms. H had been propositioned by Mr. R notwithstanding that Ms. H did not wish to pursue the matter. The complainant submitted that his complaint of 20 January 2004 to the respondent was a formal complaint in respect of his treatment by Dr. M. As referred to at paragraph 5.18 above, the complainant in that e-mail refers to racial slurs, needless cruelty and disingenuousness on the part of Dr. M. He also refers to needing a sense of safety where he can fulfil his duties without prejudice, malicious gossip and outright cruelty and that he feels bullied out of his current position. In a subsequent e-mail dated 29 January 2004 to the Human Resources Manager, Mr. O' S, the complainant refers to his complaint of 20 January 2004 and says that the problems he related in that e-mail concerned issues of equality, legal issues, health and safety and the Institute's policies concerning bullying and harassment.
5.25 In the event that the complainant's informal complaint to Mr. O' S and Dr. M in September 2003 in relation to Ms. H being propositioned and his complaint in relation to Dr. M in January 2004 amount to actions by the complainant opposing by lawful means an act which is unlawful, I must proceed to consider whether he was penalised by the respondent as a result of taking these actions. The complainant alleges that he was victimised by the Institute in that it established a Task Force to investigate him when he attempted to bring equality matters relating to himself and Ms. H to the attention of the Institute. The complainant first sought to raise with the respondent the issue in relation to Ms. H and another person propositioning her and subjecting her to constant sexual innuendo in September 2003. It is correct to say that the Task Force was established in September 2003, however, in the light of the minutes of the Executive Board meeting dated 17 September 2003 referred to at paragraph 5.16 above, it appears that the catalyst for the establishment of the Task Force was the outcome of the TUI pay claim and the financial viability of the Centre in the light of arrears of salary to teachers and new rates of pay. In relation to the issue of the power of signatory being taken away from the complainant on visa letters, I note the respondent's statement that the power was also removed from several Course Leaders and that the decision to take the action was made due to forgeries having taken place. The respondent's statement on this matter was not contested by the complainant. In relation to the complainant's allegation regarding teaching hours being taken from him in circumstances where he was more qualified and that Dr. M "was engaging in something underhanded in some way", I accept the respondent's statement that the fact that another lecturer was allocated hours on a course previously taught by the complainant in his role as German language lecturer was not an exclusion of the complainant. Taking into account the totality of the evidence presented, I am not satisfied that the complainant has established a prima facie case of victimisation within the meaning of the Employment Equality Act, 1998.
5.26 The complainant in a number of communications with the respondent refers to being bullied. For example, in a letter attached to an e-mail to Mr. O' S dated 20 April 2004, he refers to bullying on three occasions. In the second last paragraph of that letter he states that if the respondent cannot provide a tolerant and bullying free environment in which its staff can work, he has no place there and in the last paragraph of that letter, he asks that there be no further delay in processing "the bullying complaint in the normal manner." The respondent has quite rightly pointed out that the concept of workplace bullying falls outside the provisions of the Equality Acts. It is, therefore, the case that I do not have jurisdiction under the Equality Acts to make any findings in respect of workplace bullying.
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 sexual orientation and race grounds in terms of section 6(2)(d) and (h) of the Employment Equality Act 1998 contrary to section 8 of the Act in relation to his conditions of employment.
6.2 I find that the complainant was harassed on the race ground and that the respondent may avail of the defence afforded in section 32(6) of the Employment Equality Act, 1998 and that the harassment does not therefore constitute discrimination by the complainant's employer.
6.3 I find that the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Act, 1998.
__________________
Mary Rogerson
Equality Officer
20 April 2007
1.DEE011 15 February 2001
2. Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
3. Icon Clinical Research Limited v. Djemma Tsourova Determination No. EED05
4. 11 March 2005 DEE011 15 February 2001
5. EED0313 9 October 2003
6. EED054 11 March 2005