THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-053
PARTIES
Mr. Tom Barrett
and
Department of Defence
(represented by Ms Rosemary Mallon B.L., instructed by the Chief State Solicitor)
File Reference: EE/2005/289
Date of Issue: 29th June 2009
Claim
The case concerns a claim by Mr Tom Barrett that the Department of Defence victimised him contrary to Section 74(2) of the Employment Equality Acts 1998 to 2008.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 18 August 2005. On 21 June 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. Excepted from the Director’s delegation were the Director’s powers and function under S. 77A, which relates to dismissal of claims considered to be in bad faith, frivolous, vexatious, or misconceived. On 19 October 2007, in exercise of her powers under S. 77A, the Director dismissed the complainant’s claim of discrimination as misconceived in law, with the exception of his claim of victimisation. The complainant appealed this decision to the Labour Court. The Labour Court, on 20 May 2008, upheld the Director’s decision and referred the complainant’s claim of victimisation back to the Tribunal for investigation and decision. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 5 February 2009. A submission was received from the complainant on 8 January 2007. A submission was received from the respondent on 16 July 2008. An additional legal submission was requested from the respondent on the date of the hearing and received on 20 March 2009. The complainant’s response to that submission was received on 9 April 2009.
Summary of the Complainant’s Written Submission
The complainant submits that after he complained of bullying and harassment by his supervisor, he was left in an office by himself at the respondent’s decentralised premises in Galway, with no meaningful work to do, and in increasing social and interpersonal isolation from his colleagues.
Summary of the Respondent’s Written Submission
The respondent contends that victimisation of the complainant only arises if it can be shown that his lack of meaningful work arose after he first brought it to the attention of the respondent that he intended to make a discrimination complaint with the Tribunal. The respondent denies that this is the case and submits that the complainant’s situation is one of his own making. It submits that the complainant was lacking meaningful work in the section to which he remains assigned, but that he rejected offers of deployment elsewhere as late as 2006.
Conclusions of the Equality Officer
The issue for decision in this case is whether the complainant was victimised by the respondent within the meaning of S. 74(2) of the Acts.
At the hearing of the complaint, counsel for the respondent submitted that only the Director could clarify the scope of the case, since she had made the decision to dismiss the complainant’s case of discrimination as misconceived.
I do not accept counsel’s argument in this matter. The Director only dismissed the complainant’s complaint of discrimination, and it was confirmed on appeal by the Labour Court that the matter of the complainant’s victimisation remained to be investigated by the Tribunal. S. 77A of the Acts does not provide any power to either the Director or the Labour Court to limit the scope of any other investigation under the Acts. Furthermore, when the director delegated the case to me, all of her investigative powers under S. 79 were so delegated. From this, I conclude that I have full jurisdiction to investigate any possible victimisation of the complainant as defined in the Acts.
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
Victimisation is defined in S. 74(2) of the Acts as adverse treatment of an employee by his or her employer occurring as a reaction to:
(a) a complaint of discrimination made by the employee to the employer;
(b) any proceedings by a complainant;
(c) an employee having represented or otherwise supported a complainant;
(d) […];
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment;
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
In the course of the investigation, the respondent argued repeatedly that the its treatment of the complainant should be investigated only from 22 March 2005, when the complainant sent form EE2 to the respondent’s Personnel Officer, and that in this regard, his situation could not be regarded as victimisation, since it had arisen prior to this date.
However, the complainant’s underemployment, and the fact that it commenced after his complaint about his supervisor, made to the respondent’s then Personnel Officer, made on or about 30 January 2003, is also confirmed in the respondent’s written submission, and was not in dispute at the hearing. I am satisfied that the complainant’s complaint contains a reference to discrimination on the ground of religion that would subsequently form the substance of the complainant’s discrimination complaint before the Tribunal. I therefore find that this brings the complainant’s action under the provisions of paragraph 74(2)(f) as quoted above, in that he lawfully opposed what he perceived to be unlawful acts by invoking the respondent’s complaint procedure in this matter, and subsequently by bringing his complaint to the Tribunal. As noted, the complaint was not upheld following an internal investigation by the respondent, and eventually dismissed by the Tribunal. However, a complaint does not need to be successful to engage the victimisation protections of S. 74(2).
It is the complainant’s case that his work and involvement in the team dropped off after he made a complaint of bullying and harassment against his supervisor in 2003, and that from 2005 onwards to the date of the hearing of the complaint, he was given no work whatsoever. He submits that his annual role profile forms under the Civil Service Performance Management and Development System (PMDS), which he submitted in evidence, read like a “nil returns”, with no job description and no targets set for each year. He submits that he reads the paper and uses the internet, but has no files on his desk. He stated that under the Public Service Management Act 2003, the respondent’s Secretary General would be obliged to make the best use of his resources, including staff, and that he is a senior civil servant at Assistant Principal grade who had previously served in a number of finance-related roles. The complainant also submitted that his situation had led to social exclusion among his colleagues and that he felt he was “treated like a pariah”.
I am satisfied that the complainant’s situation following his complaint is of sufficient significance to constitute a prima facie case of victimisation. As long ago as 1979, in the case of Byrne v. RHM Foods [UD 69/1979] the Employment Appeals Tribunal has held that management withdrawing work in this manner can lead to significant nervous strain for the employee. More recently, the term “rust out” was used by an expert witness for the plaintiff in Maher v. Jabil Global Services [HC, unreported, 2005]. While in that case, which engaged the defendant’s potential liability in tort, Clarke J found that the plaintiff was not significantly underemployed, I am still satisfied that “rust out” aptly describes the situation in which the complainant in the instant case found himself, and that a prima facie case of victimisation arises.
The respondent submitted that in 2006, it had offered two alternative roles to the complainant, one regarding a the development of a scheme under the Official Languages Act, 2003, and one being a legislative reform project connected to the updating of the Defence Force Regulations and Administrative Instructions. It is the respondent’s case that the complainant rejected both of these offers, which were made to him at a meeting with Ms. A, who was the respondent’s Personnel Officer at the material time.
At the hearing, the complainant strongly disputed that he rejected these work offers, and re-stated that he was looking for work from the respondent, since his idleness was “soul-destroying” for him, a point he re-iterated throughout his evidence. He further stated that he had concerns that the standard of his Irish would not suffice for the first role, and that he had no legislative experience and would be in need of additional training before he could consider the second role. He stated in particular that the colleagues who were eventually appointed to work on the legislation project had significant prior experience in this area. The respondent stated in response that the specific project envisioned for the complainant required no particular legal expertise, as it was a statutory instrument focussed on practical regulations.
On balance, I prefer the complainant’s evidence in this matter. The original email correspondence between the complainant and the Personnel Officer only speaks of “legislative work”, which could give rise to an assumption on the complainant’s side that this was specialised legal work for which additional training would be necessary at the complainant’s level of seniority. I also find that there is no further evidence from the respondent that any attempt was made to engage with the complainant’s concerns, or that the explanations of the project offered at the hearing were communicated to him at an earlier date. Furthermore, I find the complainant credible in his description of the significant negative personal impact of his idleness and lack of meaningful work, and accept that it would not have been in his interest to reject work if he had felt reasonably qualified to undertake it. As already noted, no efforts were made by the respondent at the material time to assure him of his qualifications or to allay his concerns in any way. Last, I note that the respondent’s efforts were not only ineffective, but occurred some three years after the complainant’s victimisation situation had first arisen. I therefore find that they do not constitute a rebuttal of the complainant’s complaint of victimisation.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent victimised the complainant contrary to. S. 74(2) of the Acts by not providing him with meaningful work following the making of a lawful complaint within the meaning of S. 74(2)(f) of the Acts, a situation which was ongoing for more than five years at the time of the hearing of the complaint.
I therefore order pursuant to S. 82(1) of the Acts that the respondent
(i) pay the complainant €40,000 in compensation for the effect of the victimisation. In determining the amount of compensation payable to the complainant, I especially have regard to the length of time during which the victimisatory treatment continued, its cumulative detrimental impact on the complainant, the seniority and income level of the complainant, which at present is at €82,520.-- per annum, and the size of the respondent organisation. I am also guided by the finding of the European Court of Justice in the case of Von Colson v. Land Nordrhein-Westfalen [14/83] that remedies in discrimination cases should be “proportionate, effective and dissuasive”. The award is for the stress endured by the complainant during the time of his victimisation and is not in the nature of pay and therefore not subject to tax.
(ii) I further order that the respondent provide the complainant with meaningful work consistent with the grade of Assistant Principal officer with immediate effect, and provide the complainant with training and other supports, as appropriate, to facilitate his re-integration into the respondent’s workforce.
______________________
Stephen Bonnlander
Equality Officer
29 June 2009