FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 AND 2004 PARTIES : AN EMPLOYER (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 and 2004.
BACKGROUND:
2. The Worker referred his case to the Labour Court on the 13th August, 2008 in accordance with Section 83 of the Employment Equality Acts 1998 and 2004. The case was heard by the Labour Court on 27th March, 2009.
The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal under Section 83 of the Employment Equality Acts, 1998 and 2004, against Equality Officer's Recommendation DEC-E2008-042. The Complainant claims that he was discriminated against on the grounds of his gender, age and nationality contrary to Sections 6(2)(a), 6(2)(f) and 6(2)(h) of the Employment Equality Acts 1998 and 2004 (the Acts). He claimed that he was subjected to sexual harassment and harassment on the grounds of his age and nationality by a number of named work colleagues. The Complainant also claims that the Respondent victimised him pursuant to S.74 (2) of the Acts for making a legitimate complaint in these matters.
An Equality Officer found against the Complainant and dismissed his claims of sexual harassment and harassment under the various grounds and dismissed his claim of victimisation. The Complainant appealed this Decision to this Court.
At the Equality Officer’s hearing the Complainant also submitted claims of harassment on the grounds of marital status, sexual orientation and religion contrary to Sections 6(2)(b), 6(2)(d) and 6(2)(e) of the Acts. The Complainant dropped these three claims at the appeal hearing before the Labour Court and confirmed that he was not pursuing these allegations.
Background
The Complainant is of English nationality was 33 years old at the relevant time.
The Complainant commenced employment with the Respondent (an Employer) on a fixed-term contract from 29th August 2005 until 25th November 2005. The contract was extended from 26th November 2005 until 24th February 2006 and further extended from 25th February 2006 until 24th March 2006. He was employed as a general operative.
Following the expiry of his employment the Complainant submitted claims to the Equality Tribunal alleging that he had been subjected to discriminatory conduct on the part of certain work colleagues on the grounds of his gender, age and nationality. Prior to the expiry of his employment the Complainant complained to his Manager that he believed that his food had been tampered with and he named fellow employees as likely suspects. At the hearing of the appeal before the Labour Court he submitted that this incident was a form of sexual harassment and therefore constituted discrimination on the gender ground. The Respondent appointed two managers to undertake an internal investigation into the complaint of food tampering. The investigation proved inconclusive.
The Complainant asserted that he was harassed on the ground of his nationality when racist remarks were directed at him by work colleagues.
Furthermore, the Complainant asserted that he was harassed on the age ground when work colleagues and his Manager behaved in a hostile manner towards him because of his young age.
The Complainant also submitted that his dismissal resulted wholly or mainly from having made these complaints and this treatment amounted to discrimination and /or victimisation in contravention of the Acts.
Summary of the Complainant’s Submission
The Complainant submitted extensive submissions to the Court in support of his case. He made many allegations against a number of different work colleagues and members of management.
The Complainant told the Court that the Respondent had discriminated against him by failing to act to prevent such discrimination and it was thereby vicariously liable for the alleged acts of sexual harassment and harassment on the grounds of his nationality and age. He reported a number of incidents to the local Garda� and sought to have prosecutions brought by the DPP.
Throughout his submission and testimony to the Court he repeatedly stated that he did not trust the Respondent to carry out a fair and unbiased investigation and consequently he did not make complaints about the various alleged discriminatory incidents until the 13th February 2006 when he alleged that his food had been tampered with.
He claimed that he did not receive a copy of the Respondent’s“Dignity and Respect at Work Policy and Grievance Procedures”.
Gender Ground
The Complainant alleged that he was sexually harassed by a work colleague whom he alleged was his Supervisor, Ms. Z. He submitted that she sexually harassed him on a number of occasions and he felt really affronted by her sexually suggestive behaviour.
He recounted a number of incidents during which he alleged that Ms. Z behaved in a sexually aggressive manner towards him. He submitted that these were witnessed by his Foreman (Mr. Y). He stated that Ms. Z often addressed him by a female version of his name which he found embarrassing and belittling in front of his male colleagues.
A couple of weeks before his contract was due for renewal on 26th November 2005 he said that he was blatantly sexually harassed by Ms. Z in front of witnesses. He said that the witnesses did nothing. He stated that he pretended not to notice her and carried on with his work. He said that subsequent hostile actions by his Foreman were in retaliation for not succumbing to her advances.
He submitted that her behaviour was very disturbing. He was afraid that she was a woman who could and would use the law to persecute him and paint him as a young, foreign and subversive male who was obsessed with her.
He submitted that by mid-November 2005 he was frightened and isolated by the behaviour of Ms. Z and afraid she would put him out of his job.
He stated that when he refused to have her collect him for the Christmas Party she became extremely angry with him. He stated that on New Year’s Eve Ms. Z send him a text message which he found disturbing. He stated that the Foreman told him he was not going to be kept on as he had “not proven himself sexually” to Ms. Z and he submits that he was viewed with contempt by most male staff.
The Complainant did not make any complaint about any of the above incidents. On 13th February 2006 a flask containing his lunch had been tampered with and a substance added. He notified his Manager and told him that he suspected that the offensive substance was formalin. He said that his Manager threatened him that if he were to name any of his work colleagues as suspects he could possibly be sued for defamation of character. He told his Manager that he was sending a sample to a specialist laboratory for analysis. He received an analysis report back on 21st February 2006 which stated that the foreign substance in his flask was acetic acid, the main component of vinegar.
On 22nd March 2006, as he was dissatisfied with lack of progress on the complaint, he wrote to Ms. W of the HR Department seeking further progress. He sent the report from the laboratory to the Human Resource Department and was reimbursed for the expense incurred. An internal investigation into the matter was then set up but this proved inconclusive as it could not establish who had tampered with his lunch.
He submitted that his Manager’s response and that of the Respondent amounted to victimisation.
On 28th, 29th and 30th April 2006 the Complainant made a formal complaint to the Garda� regarding the alleged tampering with his food. However, they would not register his complaint without a statement on the toxic effects of the substance in his lunch.
Race Ground
The Complainant maintained that on 9th December 2005 there was a discussion in the workplace about foreign nationals flooding the country and taking jobs and working for less and a co-worker who was particularly incensed by the subject said “[a supermarket]was full of foreign “****””and they were“stealing the women”. He said that as a result of this comment he decided not to go to the Respondent’s social event that evening.
During the week commencing 16th January 2006, the Complainant submits that another male colleague, Mr. X, was blatantly unfriendly towards him and at one point used abusive language about another individual in the workplace and then turned to the Complainant and added “They are English as well”.
He submits that on the next day Ms. Z said that “The English are a different breed”. He submits that it was said in a venomous tone.
Age Ground
During the week 5th - 9th September 2005 shortly after he joined the organisation the Complainant submitted that he was harassed on the grounds of his age by his Manager. He complained that the Manager got really angry with him as he had not signed his contract of employment and submitted that the Manager regarded him as young and not having an ounce of sense.
He also submitted that his male colleagues behaved in a hostile and dismissive manner towards him because he was the youngest man on the team.
Victimisation
The Complainant submitted that one of the real reasons his contract was terminated was because he reported allegations of serious abuse against his work colleagues. This he claimed constituted victimisation within the meaning of Section 77 of the Act.
Summary of the Respondent’s Submission
The Respondent contended that the Complainant had not established aprima faciecase of less favourable treatment on the listed grounds. In addition, it specifically rejected all allegations of harassment made by the Complainant and submitted that none of the alleged incidents, except for the tampered lunch, were brought to its attention prior to the filing of the case with the Tribunal.
The Respondent stated that on 14th February 2006 the Complainant brought to the attention of his Manager that his food had been tampered with and a substance added to his flask and he named fellow employees as likely suspects. Following his written complaint to Ms. W of the HR Department on 22nd March 2006, Ms. V, Director of Human Resources, wrote to him two days later and advised him that in accordance with the Respondent’sRespect and Dignity at Work Policy and Grievance Procedureshe could have the matter addressed through an informal process by raising his concerns with the individual concerned or avail of a second option and make a formal complaint in writing so that the matter could be formally investigated. The letter made it clear that the Respondent took these matters seriously.
The Respondent understood that the Complainant had opted to deal with the matter informally and no formal written complaint was submitted. He was offered time off when he indicated that he was stressed by the incident.
On 31st March 2006, following the expiry of his contract, the HR Director met with the Complainant to discuss his complaint. At that stage the Complainant indicated that he had requested a second analysis of the food sample and was awaiting the results. At the meeting he also made a complaint of sexual harassment by Ms. Z, whom he claimed had been his Supervisor. However, he insisted that he was divulging this information in confidence and he did not want the matter pursued.
Subsequently, on receipt of the second food sample analysis on 5th May 2006, the Director of HR, the Director of Field Services and the Chief Executive Officer took the decision to launch a formal investigation despite the lack of a formal complaint. The second analysis was requested by the Complainant for the purposes of investigating whether“acetone was present in the sample”.The second analysis reported that “A low level of acetone was identified in the sample as received”.
Due to the seriousness of his allegation, the Director of HR called to the Garda� on 5th May 2006 about the matter. However, the Garda� indicated that they could not pursue the matter without a statement from the Complainant.
The Respondent launched a formal investigation into his complaints in May 2006. The outcome of the investigation was that, while it was clear that something has been added to his soup at some stage, there was no evidence to support his allegations and the investigators were not in a position to make any determination of culpability. During the investigation the Complainant alleged that he was convinced that Ms. Z was the perpetrator based on her behaviour towards him over a number of months which he felt amounted to sexual harassment, harassment and stalking. The investigators advised him of the need to put his allegations in writing in order to have them fully investigated. He declined to do so.
The Respondent contended that while it took the allegations seriously, the Complainant at no stage submitted a formal complaint as was required by theRespect and Dignity at Work Policy and Grievance Proceduresand as advised by the HR Department on 24th March 2006. He made no complaint of harassment on race or age grounds. The Respondent denied that his Foreman had told him that his contract would not be renewed because he did “not prove himself sexually”, and denied the allegation that he would be under threat of dismissal if he made a complaint. It held that there was an onus on him to use the mechanism provided by the Respondent to address his concerns.
The Respondent contended that it carried out a thorough investigation into the Complainant’s complaint of food tampering. The investigators interviewed the named employees who were present in the canteen on 13th February 2006 and all denied tampering with his food that day and denied knowing who may have done so.
The Respondent denied the alleged claim of victimisation. It submitted that the Complainant was employed on a fixed-term contract for a period of three months from 29th August 2005 until 25th November 2005 and this was extended for a further three months until 24th February 2006 due to the seasonal requirements of the work. At that point his employment was extended for a period of one month until 24th March 2006 in order to facilitate an investigation into the complaint he had raised. In accordance with the expiry of that extension his employment came to an end.
Witness Testimony
The Court was presented with a serious conflict of evidence between the parties on most issues. The Court took witness testimony from a number of people cited in the Complainant’s submissions. All witnesses are referred to by letters of the alphabet, Z, Y, X, etc.
The Complainant’s Evidence
The Complainant stated that he was standing by all the allegations he had made. He claimed that there were many incidents when Ms. Z sexually harassed him. He stated that on 13th February 2006, when his food was tampered with by Ms. Z, Mr. U and Mr. Y, that that constituted harassment on the gender ground as the perpetrators were attempting to render him unconscious for sexual purposes.
He claimed he was harassed on the age ground by his Manager who regarded him as young and not having an ounce of sense.
He claimed he was harassed on the race ground by Mr. X who referred to “the English” in a hostile manner.
He claimed that he was victimised when he was sacked for reporting serious abuse.
He said that he never received a copy of the“Dignity and Respect at Work and Grievance Policy”.He said that the reasons he did not make complaints about what was going on were due to his fear that he would be dismissed and his fear that his life was in danger.
He told the Court that he tried his best to get Ms. Z to stop her sexual harassment of him by ignoring her and not responding to her behaviour.
He said that he did not make complaints because he did not want to cause trouble and he felt that to do so would destroy him locally. He said that he did not make a complaint of sexual harassment against Ms. Z as he felt he would not be believed and“would simply have been sacked by my Manager on the spot”and management would think he was whinging over nothing and in any event Ms. Z had substantially longer service.
However, following the food tampering incident when he said that as he felt he had overwhelming evidence, he then decided to make a complaint and to pursue a claim under the Acts.
Evidence of the Director of Field Services, “Mr. T”
Mr. T explained that, as Director of Services, his involvement in this matter was confined to extending the Complainant’s contract for a period of one month from 25th February to 24th March 2006 to facilitate an investigation into the complaint made in line with the Board’s policy onDignity and Respect at Work and Grievance Procedures. He explained that the policy was in place since 2000/2001. Mr. T told the Court that the Complainant never raised a complaint directly with him nor with the Board but only following his meeting with the HR Department on 24th March 2006. Mr. T and Ms. V were assigned by the Chief Executive Officer to conduct a formal investigation into the matter.
Mr. T told the Court that the Complainant participated fully in the investigation and did not raise any matters concerning the investigative procedures.
Evidence of the Complainant’s Manager, “Mr. S”
Mr. S told the Court that he worked closely with the Complainant on a daily basis. He said that there was an excellent working relationship in the workplace, there were no complaints of harassment and he was not aware at any time of any discriminatory actions or remarks being made by any member of staff against any other member of staff. He said that he never heard him being called by a female version of his name.
When the Complainant brought the matter of the food tampering incident to his attention, Mr. S stated that the Complainant named the person he held to be responsible for it and Mr. S cautioned him about making allegations without proof. He told him that if he were to make such allegations then he could potentially be sued for doing so. Mr. S said that he explained the options open to the Complainant telling him that he could either go the informal route and deal with the matter with the person concerned on a one-to-one basis or he could take the formal route and make a complaint to the appropriate officials of the Respondent.
Mr. S told the Court that the Complainant was a good worker and that there were no grounds for his belief that his job or indeed his life were in danger. He also told the Court that he was unaware of any inappropriate behaviour having taken place between Ms. Z and the Complainant. On the contrary, he believed that they got on well. He was of the view that the Complainant fitted in well.
Mr. S said that there was no further work available for the Complainant after March 2006 due to the seasonality of the work.
Evidence of “Ms. Z”
Ms. Z told the Court that contrary to the Complainant’s contention she was not his Supervisor but a colleague who worked with him. She said that he got on fine with the Complainant and was not aware that there were any problems until the food tampering incident and resulting investigation. He never made any form of complaint to her about her behaviour. She said that she never called him by a female version of his name.
Ms. Z said that she was surprised when he showed her the laboratory analysis which suggested that his food had been tampered with. She denied tampering with his food and stated that she did not know who might have done so.
Ms. Z told the Court that the HR Department did not inform her that the Complainant had made a verbal statement alleging sexual harassment and harassment against her. It was not until the investigation took place was there any reference to an allegation of sexual harassment. She denied giving him any reason to be in fear of his job or his life. She said that after the food tampering incident the Complainant’s behaviour changed and he became very quiet and because of the allegations she and other work colleagues became very quiet with him also.
In response to the Court’s questioning Ms. Z denied all the specific allegations which the Complainant had made concerning her behaviour and she denied all allegations of sexual harassment and of harassment on the age or race grounds. She explained that she had made efforts to be friendly with him but had not acted in an inappropriate manner towards him.
She described the working relations as good, people were helpful towards each other and the Complainant seemed to get on fine and that he was conscientious.
Evidence of the Complainant’s Foreman, “Mr. Y”
Mr. Y the Complainant’s Foreman, said that he had a good working relationship with him and that he was never made aware of any complaints. He said that he never witnessed any inappropriate sexual behaviour nor was he witness to any harassment on age or race grounds. He said that he was very surprised at the allegations regarding the food tampering incident and denied having anything to do with it and that he was not aware of any other person being responsible.
He said that the Complainant had no reason to feel that his job or his life was in danger. He said that he was never hostile to him, he was not singled out and he felt that the Complainant had got on well in the workplace and was very happy in his work. He said that he never heard him being called by a female version of his name.
Evidence of the Complainant’s Working Colleagues, “Mr. X” and “Mr. U”.
Both Mr. X and Mr. U told the Court that they had good working relationships with the Complainant and that he was an excellent worker. They denied making any derogatory remarks about him, denied making any comments about his age or gender and stated that they were not aware of any inappropriate behaviour/sexual harassment. They said that they had never heard him being called by a female version of his name. Both denied tampering with his food and both said that they did not know who may have done so. Both stated that they were totally shocked at the food tampering allegation.
Burden of Proof
It is for the Complainant in the first instance to establish as facts the assertions upon which the complaint is based, and having thus established aprima faciecase of discrimination, the burden of proof rests with the Respondent to demonstrate that discrimination did not take place. It is well established that the Court requires the Complainant to establish the primary facts upon which the assertion of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the Respondent must then prove the absence of unlawful discrimination (seeMitchell v Southern Health Board [2001] ELR 201): -
- "The complainant must prove on the balance of probabilities the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if those primary facts are regarded by the Court is 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."
- 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
The Complainant has submitted a number of complaints under the Acts relating to discrimination on the gender, age and race grounds and alleging that his dismissal constituted victimisation for making a legitimate complaint in these matters.
In accordance with Section 77(1) of the Acts, the question for consideration by the Court is :-
- Did the Complainant’s dismissal occur due to the expiry of his extended fixed term contract as contended by the Respondent or in circumstances amounting to victimisation in contravention of the Act as contended by the Complainant?
- “a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the Complainant’s power of procurement. Hence the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the Respondent’s capacity of proof”.
(2) A person who claims -
(a)to have been discriminated against or subjected to victimization
(b)to have been dismissed in circumstances amounting to discrimination or victimization
(c)[not relevant ]
(d)[not relevant ]
in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director.
Section 74(2) of the Act defines victimisation as follows:For the purposes of this Part, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs 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 complaint
(d)not relevant
(e)not relevant
(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 do take any of the actions
mentioned in the preceding paragraphs.
Harassment and sexual harassment constitute discrimination for the purpose of Section 2(a) of the Act and section 3 prohibits discrimination by an employer against an employee. In considering the appeal, the Court first considered if the acts complained of by the Complainant constituted harassment and sexual harassment. Section 14 A (7) of the Acts defines harassment and sexual harassment :
(a)In this section-
- (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,(b)being conduct which in either case has the purpose or effect of violation a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.(c)Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, pictures or other material.
The Complainant has submitted a number of complaints under the Acts relating to discrimination on the gender, age and race ground and alleging that his dismissal constituted victimisation under the Act for making a legitimate complaint in relation to the tampering with his food.
The Court must now examine what facts the Complainant has established which are, on the balance of probabilities, sufficient to raise an inference of discrimination against the Respondent, which would thus have the effect of switching the burden of proof. In this regard the Court has carefully considered the very extensive submissions prepared by the Complainant, the submission prepared by the Respondent and the lengthy evidence given by the Complainant and the witnesses for the Respondent.
In reaching its conclusion in this case the Court has taken the following points into consideration:
•The Complainant made no complaint of sexual harassment nor harassment on the age ground or race ground while he was employed with the Respondent. Furthermore he accepted that he never formalised his complaint. He never complained to Ms. Z nor to other witnesses of the alleged behaviour he subsequently complained of.
•He never complained nor did he ever invoke the Respondent’s policies and procedures. There were no grounds to support his fears of being dismissed. The reasons put forward by him were not grounded in reality and there was no reason to believe that management would not have taken his complaints seriously and would not have conducted an investigation. The fact is that when the complaint of tampering with his food was made, albeit not formally made as requested by HR Department, management took the necessary steps to investigate it.
•At no point prior to his claim to the Equality Tribunal did he ever make an allegation of discrimination on the grounds of age or race.
•It was not until after his employment had terminated that, he mentioned the matter of sexual harassment by a female colleague and even then he was insistent that the matter would not be taken any further.
•He said that he did not receive a copy of theDignity and Respect at Work Policy and Grievance Procedures, however, before the Equality Officer he accepted that he was aware of its existence from signing his contract of employment and he was familiar of his contractual obligation to familiarise himself with same. Included in his contract of employment are the details of the Respondent’s Grievance Procedure which he could have invoked.
•He did not invoke the Respondent’sDignity and Respect at Work Policy and Grievance Proceduresuntil 23rd March 2006 and even at that stage he did not pursue the matter through the proper procedures by submitting a written complaint.
•It was only at the hearing of the appeal before the Labour Court that he detailed the alleged discriminatory grounds associated with the alleged food tampering incident. At the hearing he told the Court that he believed two males and one female were responsible for this incident and that the incident was intended to render him unconscious for sexual purposes.
•Management took the necessary steps to deal with his complaint and acted in an expeditious manner in compliance with their policy for dealing with such matters. He did not raise any issue with the conduct and/or methodology of the investigation.
•While the Court notes that at no stage did he make a formal complaint of sexual harassment, however, in carrying out its investigation into the food tampering incident, when interviewing Ms. Z, the investigators decided to put the allegations of “harassment and stalking” to her. In her response, she denied these allegations, saying that she was shocked and surprised at them and told the investigators that she had made every effort to be nice to him, particularly since they had been working closely in the same area together, but that she found him difficult to talk to.
•The Court notes that there is no evidence to show that his work colleagues tampered with his food but, in any event, such an incident could not be interpreted as constituting sexual harassment or discrimination on the gender ground.
•The Court has seen the text message sent by Ms. Z on New Year’s Eve. It contains no sexual innuendo whatsoever. In the view of the Court it cannot be regarded as constituting sexual harassment within the meaning of section 14 A (7) the Act. In her evidence Ms. Z accepted that she sent him the text on New Year’s Eve but explained that she also sent the same one to a number of other people. In that context it is difficult to see how it could be considered as offensive, it read as follows:
- “B4 the year is out
B4 the memories fade
And B4 I get drunk and lose my phone
Have an awesome 2006
X X X”
The Complainant responded to the text two days later saying:
“In response to your text
Thanks
Have a happy new year
From (his name)”
- The Court further notes that the witnesses to these incidents cited by the Complainant all either denied that they took place or did not recall them in the terms related by the Complainant. The Court is satisfied that these five incidents both on the face of them and intrinsically are at least as capable of an innocent explanation as against that claimed by the Complainant to the extent that they took place or may have taken place as related by the Complainant. However, when the directly conflicting direct evidence concerning them is considered against the balance of the circumstances of the case and the evidence the Court prefers the evidence of Ms. Z and the other witnesses in respect of these matters.
- she was looking me up and down and smirking and was flushed looking and I can only describe the looks as “predatory”.
she was really flushed in the face and it was like as if she was drunk and wanted me to try snog her
“It was like she was saying “Touch me ! Go on I dare ya! See what happens?”
She was wearing“ a very naughty look on her face”
“she was laying on the charm thick and in contrast to her moody professional behaviour she could almost be described as being “Ladylike”.
“She wore a “girls night out” perfume which was different to her usual “pink” deodorant”
“the most lecherous look up and down like a bloke in a strip club…”
- “He got really angry with me and without prejudice to his age which was 67, I can only describe his behaviour as that of an Alzheimer’s sufferer in an angry mood…… [the Manager] is living proof that age and wisdom most certainly do not always go hand in hand….”
•On balance, the Court prefers and finds more convincing, the evidence given on behalf of the Respondent and is satisfied that it acted in accordance with its
“Respect and Dignity at Work Policy and Grievance Procedures”in handling the complaint made.
Determination
Given the fact that all the Complainant’s allegations have been resolutely denied by the Respondent and the evidence advanced in corroboration does not support these allegations, the Court finds that the Complainant has failed to establish primary facts from which inferences of discrimination can be drawn. The Complainant has therefore failed to shift the burden of proof to the Respondent and the appeal must fail.
The Court dismisses the appeal and upholds the Decision of the Equality Officer.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd May, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.