FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : BOXMORE PLASTICS LTD. (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARY MURRAY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Decision No. DEC-E2007-053.
BACKGROUND:
2. A Labour Court hearing took place on the 4th July, 2008. The following is the Determination of the Court:-
DETERMINATION:
Subject:
Appeal against Equality Officer’s Decision No. DEC-E2007-053.
The parties, for ease of reference, are referred to in this Determination as they were at the time of the Equality Officer’s hearing i.e. the Worker as the Complainant and the Company as the Respondent.
Background:
The Complainant has been employed by the Respondent since 1997 and works in Group 4 on a 5-day, 3-cycle shift working week. In late 2003, she applied for a Group Leader position, in Group 4, which was advertised internally. She was unsuccessful. The successful candidate was a man whose experience she considered as being much less than her own. She elected to process her grievance through the Company’s internal grievance procedures but despite exhausting the procedure, did not obtain satisfaction and alleged that, in the course of the procedure, the Respondent threatened her with disciplinary action which she and her union regarded as an unwarranted threat designed to intimidate her out of pursuing her grievance and which she viewed as being a further act of discrimination.
On her behalf, SIPTU referred a case of discrimination to the Director of the Equality Tribunal on 30th November 2004. The case was delegated to an Equality Officer on 5th May 2006. An Equality hearing was held on 20th April 2007. The Equality Officer in her decision dated 18th September 2007 found that the claim of discrimination on the ground of gender was out of time. She found also that the threat of disciplinary action against the Complainant in the course of the grievance procedure constituted victimisation in terms of Section 74 of the Acts and awarded her €3,000 in compensation for this victimisation.
The Company appealed this aspect of the Decision to the Court on 25th October 2007. A Labour Court hearing took place in Cavan on 4th July 2008.
Complainant's Arguments:
1. A statement attributed to the Complainant, viz that she “would still have submitted a grievance if one of the two other female candidates had been successful but would not have, if the other had succeeded”, which allegedly led the Respondent to threaten her with disciplinary action should her claim prove to be frivolous or vexatious was never made by her and is totally denied.
2. She only ever made a case on the gender ground, as she believed that she was better qualified and more experienced, both in general and in the area of work, than the successful candidate.
3. She agreed to use the respondent’s internal grievance procedure to try and resolve the matter. This did not work and it was only when it became clear that the procedure would not work and when she found that she was being threatened under it that she then activated her Equality claim. She had used the procedure in good faith and felt that she was victimised by being unjustly threatened over an allegedly frivolous claim.
Respondent’s Arguments:
1. No action of any kind was taken against the Complainant and the investigation progressed through the internal grievance procedure and to a gender equality case.
2. It was not always obvious to the Company that the Complainant’s case was solely a gender equality one, given that the Complainant made a statement in the course of the investigation which indicated that she would have made a complaint if one of the other female candidates had been successful but not if another female candidate had been successful. This could not relate to gender but to the Complainant’s own personal views on other candidates, whether male or female.
3. The advisory statement in November 2004 regarding possible disciplinary proceedings was at the final stage of the grievance procedure at which time neither the Complainant nor her Trade Union refuted the statement attributed to her in the preceding paragraph. The Complainant therefore did not have “the threat of disciplinary action before her at all stages of the investigation”.
The Evidence:
Mr M.O’Reilly:(Factory Manager), gave evidence that the case came to him at Stage 2 of the Company procedure, when his job was to ask questions and to try and resolve the matter. The Complainant felt that the Company showed bias in favour of the successful candidate, that he was a friend of the weekend manager and that he did not have her experience or seniority.
It was at that Stage 2 meeting where the Complainant made the remark that she would have objected if one of the female candidates had been successful but not the other. The witness had particularly asked his colleague on the day to make a note of that observation.
There was no mention of disciplinary proceedings and it was made clear that the only acceptable solution to the Complainant was that she would get the job. He advised her of her right to progress the grievance to Stage 3. It was his recollection that the alleged statement by the Complainant was mentioned at that Stage 3 meeting but was not challenged by anybody.
The Stage 3 meeting did not uphold the Complainant’s grievance.
Mr D.Gates:Managing Director, gave evidence that, following the Stage 3 hearing and its results, the issue was raised in October 2004 under Stage 4. This was held in November 2004 and was the final internal appeal. It involved a review of the entire process. It was his view, having reviewed the case, that there was a vendetta against the successful candidate. It was at this stage that the question of possible disciplinary action if claims were proven to be frivolous or vexatious came into force. The Complainant, in his view, was quite happy that the matter had been fully investigated. She had come in 4th in the interview process. All parties were aware that the available option of possible sanctions if claims should be found to be vexatious was one which was mentioned in the Company Grievance Procedure.
The Complainant’s Evidence:She denied ever having made the statement already attributed to her. She felt that there was a threat hanging over her head all throughout the investigation.
She did not activate the grievance procedure for 4 months because she was taking advice from SIPTU and from the Equality Authority. She felt that she was the best candidate for the job. The successful candidate was unfit to do the job - he had no experience. She had no personal issues with him and could not have had - he was quite new to the Company.
Another cause of confusion was that the Union was not operating properly in the Company at the time and there was a lack of advice available to her. She agreed that she had formerly been on a shop steward course, but she was not at that time a shop steward.
She felt that the threat was there against her continually, as the procedure went on for a long time.
When asked why she did not contest Mr O’Reilly’s letter attributing the statement to her regarding the other two female candidates, she reiterated that she never made this remark and pointed out that it was contested by the Union in November 2004. She had understood that it would be brought up earlier but that did not happen.
She had been told the scoring from the competition, but it was her belief that she was actually 2nd not 4th - her shop steward had told her this. He had met Mr Gates and had seen the ratings on a table. They were presumably changed later on.
In her view, the threat of disciplinary action constituted victimisation of her for taking a gender-based claim.
She agreed that the letter from Mr Gates (4th November 2004) was when she was made formally aware of the disciplinary threat, but this clearly followed on the letter from
Mr O' Reilly in July, which made a false statement about her.
She genuinely felt victimised for making a legitimate gender claim.
The Law Applicable:
Under Section 74(2)(a) & (b) of the Acts victimisation occurs, inter alia, where adverse treatment of an employee occurs as a reaction to (a) a complaint of discrimination made by the employee to the employer or (b) any proceedings by a complainant.
It is the submission of the Complainant that she was so penalised by being threatened with disciplinary action, having brought proceedings under the Acts.
Court’s Findings:
The Court, having considered the submissions of the parties and having heard evidence is of the view that the disputed statement attributed to the Complainant that she “would have taken a case if one female candidate had got the job but would not have taken a case if another female candidate had been successful” was recorded in correspondence from the Respondent to the Complainant’s Trade Union and was not initially queried or denied by her or her representatives. Therefore, the Court, on balance, accepts the Company's evidence in this regard.
The Question the Court must decide is whether the statement by the Company that disciplinary procedures could be undertaken by the Company if a person was found to have made frivolous or vexatious claims under the Act could in itself constitute adverse treatment.
That, in the view of the Court is a matter which only can be decided by looking at the facts of each case. In this particular case, the Court has accepted that the Employee made a comment which cast doubt on her motivation in bringing the complaints and the Court further accepts that the comment in relation to disciplinary proceedings was made at the end of the investigation process. In the view of the Court, a comment such as this, made at the end of an investigatory process in which the complaint was found not to be valid, could not of itself constitute adverse treatment within the meaning of Section 74. The situation could be quite different if the comment were made at the time the complaint process was initiated with a view to discouraging the Complainant from pursuing her claim.
Given the above findings the Court does not regard the actions of the Respondent as constituting victimisation as defined in the Act.
The Court allows the appeal and overturns the decision of the Equality Officer.
Signed on behalf of the Labour Court
Raymond McGee
17th September, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.