Equality Officer's Decision
DEC-E2011-266
Parties
Roy Mackeral
(represented by Shan Shane Kennedy Solicitors)
versus
Monaghan County Council
(represented by Don Culliton, Local Government Management Services Board)
File reference: EE/2008/346
Date of issue: 23rd December 2011
Keywords: Employment Equality Acts, Religious Belief, Harassment, Section 14A (2) Defence, Victimisation
1. Dispute
1.1 This dispute concerns a complaint by Roy Mackeral against Monaghan County Council. The complainant alleges that he was discriminated against on the grounds of religion in relation to training and was harassed on the same ground within the meaning of Section 14A of the Employment Equality Acts 1998-2011 [hereinafter referred to as the 'Acts']. He also claims that he was victimisatorily dismissed.
1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 30th May 2008. In accordance with his powers under Section 75 of that Act, the Director delegated the case on 27th January 2011 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a hearing was held on 14th April 2011. The final response to information I sought as part of my investigation was received on 29th June 2011.
2. Summary of the complainant's case
2.1 Mr Mackeral was employed as a part-time fire fighter in Ballybay Fire Station by the respondent. He commenced employment there on 2nd October 2001. He submits that he was subjected to verbal harassment on the grounds of religion by Mr A, Station Officer and Mr B, Substation Officer. Mr Mackeral is from a Church of Ireland background.
2.2 He submits that on 11th January 2003 on return from a call to a house fire, the fire brigade passed a hall belonging to the Orange Order. He maintains Mr A said to him "Is that the Orange Hall you belong to Roy?"
2.3 Around the same period, the complainant alleges Mr B said "You are a black bastard; you are as black as my boot".
2.4 The complainant submits that he did not get the same access to training courses. On 20th September 2006, he and a friend volunteered for the schools programme course. However, two others who did not even volunteer for the course were selected to go on it.
2.5 On 22nd September 2006, at an incident in Ballybay Community School, Mr Mackeral made a suggestion to Mr A about how to deal with a situation. Mr A replied "Don't give me orders, I'm the boss". Mr Mackeral left the fire station later that day and returned his 'bleep'. Three days later, he informed his union official that he was not resigning but would not put up with the verbal abuse from his colleagues any longer.
2.6 He raised a grievance with the respondent on 16th October 2006. The respondent appointed an investigator to deal with his complaints. The complainant went on leave until the investigation was finished. He has issues with the way the investigation was conducted - regarding the incident at 2.2 Mr A drove the investigator along the route the fire brigade would have taken to see whether there was an Orange hall there or not.
2.7 On 9th November 2007, Mr Mackeral wrote to the respondent indicating his willingness to return to work. He responded to an emergency call on 2nd December 2007. He was confronted by the Assistant Chief Fire Officer asking why he had returned to work without express permission and insisted that Mr Mackeral not to return to work until his complaint was resolved.
2.8 On 10th December 2007, Mr Mackeral received the following letter:
Dear Mr Mackeral,
I enclose a copy of the Report of the Investigation into the complaints made by you against Mr A and Mr B carried out by Ms C.
This matter has been treated a private and confidential and only three copies of this report have been issued to yourself Mr A and Mr B. I would ask that your respect the confidentiality with which this report has been prepared.
The findings of the investigation conclude that in relation to the complaint pertaining to harassment, sexual harassment and bullying under the Council's Policy Statement on Workplace Bullying and Harassment you have no case answer.
The investigation details acts carried out by you that constitute gross misconduct in your role as retained fire fighter. I refer specifically to the incidents at Ballybay Community School on 22 September 2006 when you:
- Abandoned your assigned post attending to an injured person on the roof of the Community School
- Refused to obey an instruction and displayed serious insubordination to the Station Officer in charge of the incident
- Walked away from the scene of an incident
These acts constitute serious negligence of duty which might have caused unacceptable loss or injury to the victim of an incident and brought Ballybay Fire Service and Monaghan County Council into disrepute.
In a command structure operating in emergency situations such as the fire services, this insubordination of a fire fighter or failure to obey reasonable instructions as part of a team, puts lives at risk.
Consequently, having considered all the relevant evidence, I confirm that I recommending to the County Manager that your employment as a retained fire fighter is terminated
You have the right to apply this recommendation in writing to the county managers within 10 working days of the date of this letter.
Your are being suspended on full pay from 1 December to 21 December
_______________________
Director of Human Resources
2.9 Mr Mackeral said this made no sense to him as he was the one taking a case a and not that he had a case to answer. The complainant submits that his dismissal was as a result of making a complaint of harassment on the religion ground to the respondent. He cites Dublin City Council v McCarthy as an authority.
3. Summary of respondent's case
3.1 The respondent submits that it has anti-bullying and harassment policy that complies with the Acts. In line with this policy, they engaged an independent investigator to investigate Mr Mackarel's concerns. The complaints of religious harassment were not substantiated by the independent investigation. Regarding the allegation at 2.2, the investigation revealed that the fire brigade did not pass any Orange lodges on the date that the complainant stated. All interviewed as part of the investigation, except Mr C who was a witness for the complainant and in direct evidence said that he was a friend of Mr Mackeral's, said that they did not hear Mr A make such a comment nor could they imagine him saying it. Some of the fire fighters were somewhat critical of Mr A's management style but they said he was not a bigot. Similarly, only Mr C recollected Mr B making the comment mentioned in 2.3. Again all others said that such a comment would be out of character for Mr B.
3.2 The respondent admits that they chose two other fire fighters to go on the schools programme course. This is because the management wanted experienced fire fighters to do this course. Monaghan County Council point out that no other fire fighter in Ballybay station had done more courses than the complainant. They further submit that the other person refused was Roman Catholic.
3.3 Regarding the incident at the school where a man had taken ill on the roof, Mr A stated that the complainant stated 'Why don't you put the f*cker in the bucket ?' [meaning the teleporter]. The investigation by the respondent found that Mr A had followed protocol correctly by waiting for the medical staff to check the man who was ill. On the other hand, the investigation found that Mr Mackeral had been insubordinate in challenging his commanding officer and in abandoning his post. He left the side of a disoriented man. The respondent submits that a command and control structure is necessary in the Fire Brigade. The respondent maintains that this is the reason Mr Mackeral was dismissed. Monaghan County Council point out that Mr Mackeral did not appeal the Director of Human Resource's recommendation to terminate his employment.
4. Conclusions of the Equality Officer
4.1 There are two issues for me to decide:
(i) Was the complainant harassed on the ground of religion within the meaning of Section 14A of the Acts?
(ii) Was Mr Mackeral discriminated against by Monaghan County Council in relation to training as per Section 8 (1)(c) of the Acts on the ground of religion?
(iil) Was he victimised within the meaning of Section 74 of Acts?
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is religion.
4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Harassment
4.4 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.5 Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects.
4.9 I accept the respondent's contention, (following a thorough independent investigation) that the comments alleged at 2.2 and 2.3, on the balance of probabilities, were not made. While the complainant has issues with the investigation conducted, I am satisfied that, in the round, it complied with Section 14A (2). Therefore, the complainant has failed to establish a prima facie case of harassment within the meaning of the Acts.
Access to Training
4.10 The respondent submitted evidence of the complainant attending thirteen training courses during his six years of employment with them. The complainant did not dispute this. This was significantly more than any other fire fighter in Ballybay station was allowed to attend. While the respondent did not send Mr Mackeral on a training course that he had volunteered for, I accept the respondent's contention that it is management's prerogative to decide who should be sent on training courses. In fact, the other person refused was from a Roman Catholic background. Therefore, a prima facie case of discrimination has not been established by the complainant in relation to training.
4.11 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.12 The complainant has established a prima facie case of victimisation as the letter at 2.8 gives the appearance of linking his dismissal to his complaint of discrimination in that it encloses the investigation report, tells the complainant that he does not have a case to answer (even though it was him making the complaint) before recommending his dismissal. Therefore, it was not a prudent letter by the respondent. However, it emerged in direct evidence that there was a twin-track process of disciplinary proceedings against the complainant for the gross misconduct at Ballybay Community School. In the circumstances of this case, I am satisfied that Mr Mackeral was dismissed for insubordination rather than for victimisatory reasons. Therefore, the respondent has rebutted the inference of victimisation.
Decision
I have concluded my investigation of Mr Mackeral's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) the complainant was not harassed on the ground of religion within the meaning of Section 14A of the Acts
(ii) the respondent did not discriminate against the complainant on the ground of r in relation to promotion contrary to Section 8(1)(c) of the Acts
(iii) The complainant was not victimised within the meaning of Section 74 of the Acts.
Therefore, Mr Mackeral's case fails.
______________
Orlaith Mannion
Equality Officer