EQUALITY OFFICER'S DECISION NO: DEC-E/2012/042
PARTIES
KEALY
(REPRESENTED BY ROSEMARY MALLON BL
INSTRUCTED BY ARTHUR COX - SOLICITORS)
AND
BROTHERS OF CHARITY SERVICES (CLARE) LTD.
(REPRESENTED BY ANTHONY KERR BL
INSTRUCTED BY IBEC)
File No: EE/2010/894
Date of issue 12 April, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 15 & 74, victimisation - vicarious liability- law of agency- principal and agent.
1. DISPUTE
This dispute involves a claim by Ms. Mary Kealy that she was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008 after she had referred a complaint to the Equality Tribunal claiming equal pay with two named comparators in accordance with section 19 of the Acts. The respondent rejects the complainant's assertion in its entirety.
2. BACKGROUND
2.1 The complainant is employed by the respondent as Regional Director of Services for Clare. In March, 2006 the complainant and another female colleague referred complaints to the Equality Tribunal in which they contended that they performed "like work" in terms of sections 7 of the Employment Equality Acts, 1998 and 2004 with two named male comparators and they were therefore entitled to the same rate of remuneration as paid by the respondent to those named comparators in accordance with section 19 of the Acts. The complaints were assigned to the undersigned - Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. At the outset of my investigation the respondent submitted that there were grounds other than gender which rendered the rates of remuneration paid to the complainants and the comparators lawful in accordance with section 19(5) of the Acts. I decided to investigate this matter as a preliminary issue in accordance with section 79(3) of the Acts and issued my Decisions on 10 June, 2009 in which I found against the respondent.
2.2 The respondent appealed these Decisions to the Labour Court and in that Court's Determination of 17 September, 2010 (EDA 1015) it remitted the complaints back to this Tribunal for investigation and decision on the question of whether or not "like work" existed between the complainants and the comparators. Subsequently, the complainant's colleague withdrew her complaint from this Tribunal and I proceeded to investigate the existence, or otherwise, of "like work" between the complainant and the two named comparators. My Decision on this matter issued on 5 December, 2011. The complainant asserts that the actions of the respondent, in particular by appointing Mr. A, who was a comparator in her equal pay claim, to the position of Chairperson of the respondent's Board of Directors in April, 2010 and the subsequent behaviour of Mr. A towards the complainant, constitutes victimisation of her in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The complainant raised this matter in the course of a Hearing on her equal pay complaint on 25 November, 2010 and followed this up by referring a complaint form (EE1) to the Equality Tribunal on 8 December, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 9 December, 2010- the date the complaint was delegated to me. Submissions were received from both parties and Hearings on the matter took place on 31 March, 2011 and 18 April, 2011. A small number of points arose which required further clarification and this gave rise to correspondence between the parties and the Equality Officer.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is employed by the respondent as Regional Director of Services for Clare and as such is Chief Executive Officer (CEO) of the respondent. In March, 2006 she referred a complaint to the Equality Tribunal contending she performed "like work" in terms of sections 7 of the Employment Equality Acts, 1998 and 2004 with two named male comparators and she was therefore entitled to the same rate of remuneration as paid by the respondent to those named comparators in accordance with the Acts. The complaint was assigned to the undersigned and I decided to investigate, as a preliminary issue in accordance with section 79(3) of the Acts, whether or not the rates of remuneration paid to the parties were lawful in terms of section 19(5) of the Acts. My Decision on this matter issued on 10 June, 2009, in which I found against the respondent. This Decision was appealed to the Labour Court and a Hearing on the Appeal took place on 16 December, 2010 as a consequence of which the matter was referred back to the Equality Tribunal for a decision on the existence, or otherwise, of "like work" between the complainant and the named comparators.
3.2 The complainant states that in April, 2010 Mr. A, who had previously been named as a comparator in her equal pay case, was appointed as Chairperson of the respondent's Board of Directors shortly after his retirement from his role as Director of Services in another region. The complainant contends that this appointment was designed to cause her embarrassment and distress and arises as a direct response to her referring her equal pay complaint to this Tribunal and consequently it amounts to victimisation of her in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The complainant further states that the treatment of her by Mr. A after his appointment as Chairperson of the respondent also amounts to victimsation of her contrary to the Acts. She also contends that certain actions conducted by members of the National Body, in particular Ms. B (the CEO of the National Body) and Br. Z (the Chairman of the National Board) amount to victimisation of her contrary to the Acts. Finally, she asserts that the delay on the respondent's part in waiting until the appeal of the Tribunal's Decision on the preliminary point on her equal pay complaint came before the Labour Court to consent to the matter being remitted back to this Tribunal constitutes a further act of victimisation of her contrary to the Acts.
3.3 The complainant accepts that the Board of the Brothers of Charity Services (Ireland) Ltd. ("the National Body") appointed Mr. A as Chairperson of the respondent's Board of Directors in April, 2010. She states that this is contrary to the process provided for in the Governance Agreement (dated June, 2007) between the respondent and the National Body, which regulates the relationship between them and the respondent's own Articles of Association. It is submitted on her behalf that the actions of the respondent's Board of Directors, by effectively approving or at the very least acquiescing to the appointment of Mr. A as Chairperson, fixes it with liability for the actions of the National Body and/or (ii) the National Body was acting as an agent for the respondent when it appointed Mr. A to the position and in that regard the respondent is fixed with liability for the National Body's actions in accordance with section 15(2) of the Acts.
3.4 The complainant states that in late August, 2010 she received a telephone call from the Private Secretary to the Minister of State at the Department of Health and Children advising that he was visiting the Clare region in mid-September and invited her to meet with him. She adds that she asked the Minister if he would consider meeting with a family member, a client of the services, front line staff or members of the respondent's Senior Management Team (SMT) during his visit and he was amenable to this. The complainant states she was aware there had been relationship problems between the Minister and the National Body and she contacted Ms. B to inform her of developments. The complainant states that Ms. B suggested she (the complainant) should make the respondent Board aware of developments and she telephoned Mr. A in this regard on 2 September, 2010. The complainant adds that Mr. A told her the idea was wonderful, thanked her for informing him and wished her well. She states that she was out of the country on annual leave from 5-14 September, 2010 and when she accessed her e-mails, texts etc. she found she had received a text and e-mail from Mr. A instructing her to invite Mr. D, the respondent's Finance Manager, to attend at the meeting with the Minister.
3.5 The complainant states that she spoke with Mr. A by telephone on 14 September, 2010 whilst she was in an airport awaiting a flight home to Ireland from vacation. She adds that in the course of this conversation she was instructed to have Mr. D in attendance at all times during the meeting with the Minister and when she stated this would create privacy issues for the users and that she would have to cancel the meeting, Mr. A relented and stated that Mr. D could absent himself from those discussions but must be present at all other times. The complainant further states that Mr. A informed her that Br. Z was insistent she should not speak with the Minister alone. She adds that when she asked if the Minster sought to speak with her privately should she reply that she was not permitted to do so by the Board, Mr. A told her he would have to reflect on that. She further states that when she sought final clarification on what she should do if those circumstances arose, Mr. A informed her that she was forbidden from speaking alone with the Minister. The complainant rejects the respondent's assertion that it was the standard practice in all the regional companies that personnel did not meet with politicians alone and states that she had met with politicians alone many times in the past, both in her present role and the role previous to it when she worked under Mr. A in another region. The complainant further submits that the position adopted by Mr. A is in conflict with the outcome of the meeting in June, 2010 between the National Advocacy Council and the Chief Executive Forum where advocates and people with intellectual disabilities were encouraged to lobby and meet with politicians.
3.6 The complainant states that Mr. A e-mailed her on 28 September, 2010 acknowledging her concerns and suggested they should meet on his return from annual leave to discuss the matter. She adds that the Minister had to cancel his planned visit and she was concerned what might happen when it was rescheduled so she wrote to Mr. A on 30 September, 2010 setting out the history of what had occurred and stating that in her view the restrictions placed on her were wholly unacceptable and that she could only conclude they were designed to undermine her in her capacity as Director of Services of the respondent and had been taken directly as a result of her exerting her statutory rights under the employment equality legislation. The complainant states that Mr. A responded by e-mail dated 7 October, 2010 stating, inter alia, that the National Board was apprehensive about Officials meeting with politicians, that such meetings must be handled with a high degree of sensitivity and in full consultation with the National Board and that the practice of Officials not meeting alone with politicians applied to all regions and that she was not being singled out in this regard. She adds that Br. Z wrote to all Board Chairpersons and Director of Services on 8 October, 2010 advising that best practice was to ensure that Officials were accompanied in future when attending all meetings. The complainant submits that adopting best practice and forbidding her to do something she had previously done are different things. She further submits that the manner in which Mr. A behaved towards her in this matter amounts to victimisation of her within the meaning of section 74(2) of the Employment Equality Acts, 1998-2008.
3.7 The complainant states that prior to the establishment of the respondent in 2007 she would let Ms. B know of her holiday arrangements but never had her annual leave approved by Ms. B. She adds that the arrangement with the previous Chairperson of the respondent's Board of Directors was informal and she would advise the Chairperson of her annual leave arrangements out of courtesy and bring her up to speed on any issues. The complainant further states that during her absence no one individual took over her duties in an acting capacity and that each member of the SMT would deal with any matters in their respective area(s) should the need arise, adding that this was the protocol favoured by the SMT and it had not be challenged by the previous Chairperson. The complainant states that she wrote to Mr. A on 8 October, 2010 advising him, as a matter of courtesy, that she was taking annual leave from 18-31 October, 2010. She adds that Mr. A e-mailed her on 14 October, 2010 asking her to advise who would be acting in her place when she was away. The complainant states that she replied by e-mail the following day providing the names of four officials whom he could contact in the event of emergencies, which she contends was the standard custom and practice.
3.8 The complainant states that she received an e-mail from Mr. A on 3 November, 2010 which she contends instructs her to submit a request to him for all future annual leave and if the period of annual leave exceeds one week that her request should be submitted a month in advance. She adds that this e-mail also requires her to consult with Mr. A to appoint a liaison person who would act as Director of Services during any prolonged period of absence by the complaint due to annual leave. The complainant states that she checked with colleagues at Director of Services level in the other regional companies and in all cases they are not required to seek prior approval for annual leave and merely adopt the approach she had done in the past. She adds that as far as she was aware there were no written procedures in existence from the National Body covering annual leave arrangements for staff at Director of Services level. The complainant adds that Mr. A subsequently raised the issue of annual leave and the appointment of a specific liaison person during any such absence at the Board Meeting of 2 December, 2010. The complainant submits that the behaviour of Mr. A in this regard was done to undermine her position and belittle her in front of the Board members and amounts to victimisation of her contrary to the Acts.
3.9 The complainant states that Service Level Agreement (SLA) - which is the legal arrangement between the respondent and the HSE setting out the annual funding details and work programmes - was sent to Mr. A in June, 2010 for signature. She adds that Mr. A responded on 3 July, 2010 seeking clarification on a number of points and she subsequently contacted him advising that for a number of reasons the matter was not urgent. The complainant states that she sent the document to Mr. A again on 1 October, 2010 recommending that it be signed and that this request gave rise to a series of e-mails between Mr. A and (i) the complainant and (ii) the respondent' s Finance Manager. She adds that Mr. A also spoke directly with the Finance Manager on the matter without recourse to her. The complainant states that the actions of Mr. A were excessive - that there was no need for all of the correspondence - and that the previous Chairperson would sign off on the SLA without full knowledge of its contents or sight of supporting documentation as she trusted the complainant. She adds that when the issue was raised at the respondent's Board Meeting of 14 January, 2011 she felt Mr. A misled the Board of Directors with his account of his efforts to obtain certain advices from her before signing the Agreement and she felt obliged to correct him by advising they had spoken about the matter by telephone and that he had also spoken with the Finance Officer. The complainant submits that the behaviour of Mr. A in this matter was a further attempt to undermine her professional ability and amounts to victimisation of her contrary to the Acts.
3.10 The complainant states that in mid-January, 2010 she was advised by the then Chairperson of the respondent Board of Directors that Br. Z had written to her advising that a review of the Clare Services was to be carried out. The complainant adds that by letter dated 22 January, 2010 the Chairperson formally advised her that the review was to proceed, who had been appointed to conduct it, the proposed timeframe and that other reviews had been conducted in some of the other local regions. She adds that on 5 February, 2010 she received a copy of Br. Z's letter of 17 December, 2009 to the respondent's Chairperson (the letter which had prompted the Chairperson to speak with the complainant in the first instance) which the complainant contends singles out the Clare Services for particular scrutiny and was not, as suggested by the Chairperson's letter of 22 January, 2010, similar to reviews conducted in other regions. The complainant states, moreover, that the reviews in the other regions involved prior consultation with the various Directors of Services through a number of internal mechanisms. The complainant states that she was never consulted before the decision was taken to conduct the review in her region and in reviewing the Finance, Human Resources and Corporate Governance areas of the respondent this review went far beyond the reviews conducted in the other regions.
3.11 The complainant states that Ms. B informed her on 12 February, 2010 that the Consultants engaged to conduct the review would be attending the Clare Office the following week to commence the process. She adds that when she asked Ms. B for the terms of reference she replied that there were none. The complainant adds she reminded Ms. B that Br. Z had indicated in his letter of 17 December, 2009 to the respondent's Chairperson that the National Body would meet with the respondent's Board to provide information on the terms of reference, timescales etc. and this had not happened. The complainant states Ms. B informed her that she (Ms. B) would have the Consultants provide some details on what they proposed to do and furnish them to her. The complainant adds, however, that Ms. B refused to tell her why the review was being conducted and replied that it was the respondent's decision to commission the review, that they were her employer and were entitled to do so. The complainant adds that a review of this nature would always involve consultation with the SMT and that as Director of Services she would have expected to have been consulted, in particular about the terms of reference for the review and the selection of staff who might be interviewed as part of the process and the order in which those staff would be interviewed. She states that all of these decisions were taken by the National Body and/or Ms. B and indeed she (the complainant) was listed as the fifth member of the SMT for interview, whereas she would have expected to be first. She contends that these acts were clearly designed to undermine her role as Director of Services and submits that they constitute victimisation of her contrary to the Employment Equality Acts, 1998-2008.
3.12 The complainant states that Ms. B e-mailed her the terms of reference in respect of the review on 2 March, 2010. She adds that the review commenced on 8 March, 2010 and she was interviewed that day by the consultant (Mr. X). She states that this meeting lasted about 45 minutes and was general in nature - her employment history etc- and Mr. X told her it was an introductory meeting and that he was sure he would be meeting with her again. The complainant states that in the course of the interview Mr. X confirmed to her that he was aware of her equal pay case with the Equality Tribunal, although she did not probe how he was aware of it. The complainant further states that Mr. X advised her she would receive a copy of the draft report in due course. She adds that Mr. X gave her his card at the end of the meeting and told her he was in no doubt he would be in contact with her if issues arose in the process. The complainant states that she never heard from Mr. X again and did not receive a copy of the draft report.
3.13 The complainant states that she received a copy of the final report from Mr. A by letter dated 8 October, 2010 along with other members of the respondent's SMT. She adds this letter requested that the report be treated as confidential to the respondent's Board of Directors and SMT and advised that a meeting of both was scheduled for 18 October, 2010 to consider the report and its recommendations. The complainant states that she considers the report to be flawed, inaccurate, biased and unprofessional - and it is critical of her in several respects which she finds particularly shocking. She adds that the terms of reference contained in the report are different to those communicated to her by Ms. B on 2 March, 2010 in particular the term of reference covering the review of the management structures. She states that the report contained the phrase "participative management" which was not contained in Ms. B's e-mail and submits that this was included to portray her management style in a poor light and asserts that this alteration to the terms was made by Ms. B to achieve that aim.
3.14 The complainant states that the issues advanced by the respondent to the Tribunal as its reasons for commissioning the report - (a) the proposal to make the entire Psychology Team in the Service redundant, (b) the failure of the respondent to produce a Strategic Plan and (c) the failure of the respondent to introduce and implement a recognised Quality System or the nationally agreed Quality Audit - were never brought to her attention as such, although she was aware of their existence. She responds that (a) cost cutting measures were required at the time and the SMT put a number of options to the Board in this regard and it decided to select redundancy of certain staff, (b) the National Body never raised concerns with her as regards the Strategy Statement. A number of drafts of the Statement had been submitted to the respondent Board but it was unable to approve any of those drafts and (c) the Clare Services had been involved with Quality Assurance Systems and whilst it did not agree with the system detailed by the National Body there was no indication from that Body there were issues with the evaluation process in operation.
3.15 The complainant states that the meeting between the Board of Directors and the SMT subsequently took place on 2 November, 2010 at which several members of the SMT expressed concerns in relation to the report and how it was compiled. She adds that subsequent to this meeting Mr. A confirmed that a draft report issued to the Board of the National Body in July, 2010 and it, in turn, circulated it to the respondent's Board of Directors on a confidential basis in September of that year, advising that it was not to be released to her. The complainant states that this is contrary to the commitment given to her by Mr. X in March, 2010. She adds that despite requests for a copy of this draft to Br. Z she never received it. The complainant adds that despite the reservations expressed by members of the SMT at the meeting on 2 November, 2010 Mr. A wrote to her on 9 November, 2010 asking that she and the SMT prepare a Timeline Action Plan for implementation of the report's recommendations. She adds that this matter was raised by Mr. A at a Board Meeting on 14 January, 2011 in the course of which he issued what amounted to a contractual instruction to implement the recommendations. The complainant submits that the actions of Mr. A, Br. Z and Ms. B in respect of the entire review process amounts to victimisation of her in terms of section 74(2) of the Acts.
3.16 The complainant refers to Mr. A's letter of 8 October, 2010 enclosing the review report and in particular his request that the report be treated as confidential to the respondent's Board of Directors and SMT. She states that during the period when the report was to be treated as confidential Mr. A gave permission for it to be given to an employee of the respondent who was not a member of the SMT. She adds that this employee used extracts from the report in a written complaint about her to the respondent's Board of Directors. The complainant submits that this amounts to victimisation of her contrary to the Acts.
3.17 The complainant states that over a period of four consecutive working days in November, 2010 she received thirteen separate pieces of correspondence from Mr. A which required attention. She adds that she felt this was an attempt by him to maximise pressure on her at a time when the discussions on the Review Report was on-going. She adds that he subsequently brought this matter up at the respondent's Board Meeting on 2 December, 2010 wherein he intimated to the Directors he was awaiting responses from the complainant to recent correspondence he had issued. The complainant submits that these actions were a further attempt to undermine her as Director of Services and amounts to victimisation of her contrary to the Employment Equality Acts, 1998-2008.
3.18 Finally, the complainant contends that the manner in which the respondent behaved in its appeal of the Equality Tribunal's Decision of 10 June, 2009 to the Labour Court amounts to victimisation of her contrary to the Acts. She acknowledges the respondent's statutory entitlement to appeal the Decision and notes that the usual submissions were lodged and a Hearing date (16 September, 2011) was set, at which both parties attended. The complainant states that shortly before the Hearing the Labour Court wrote to both parties indicating certain legal issues which it wished to explore prior to any investigation of the substantive issues. She adds that at no stage prior to the Hearing did the respondent indicate that it had any intention other than to proceed with the appeal on the preliminary points identified by the Court. She states that on the day of the Hearing the respondent's representative informed the Court that it had no objection to remitting the matter back to the Equality Tribunal for an investigation at first instance on the substantive issue of "like work". The complainant states that the respondent could have indicated this much earlier and thus reduce the costs and delay which the complainant experienced. She submits that the actions of the respondent were a cynical attempt on its part to delay the matter and constitutes victimisation of her contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion in its entirety. It states that the appointment of Mr. A to the position of Chairperson of the respondent's Board of Directors in April, 2010 was made by the Brother of Charity Services (Ireland) Ltd ("the National Body"). It adds that the actions of this company cannot be attributed to the respondent and consequently the appointment cannot amount to victimisation of the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The respondent states that in January, 2010, for a variety of reasons, it only had three Directors in place. It adds that consequently it was not quorate and could not function. It states that a number of people, including Mr. A, were under consideration by the Board of the National Body for appointment as Ordinary Directors to the respondent's Board. It adds that in January, 2010 the then Chairperson (Ms. P) wrote to the Chief Executive of the National Body advising that she would be resigning her position the following March. The respondent states that the National Body approached two people whom it considered to be suitable for the position of Chairperson of the respondent's Board of Directors but neither was in a position to accept the post. It adds that the Board of the National Body considered Mr. A to be a suitable and experienced candidate for the position and it passed a resolution, effective from 7 April, 2010, appointing him to the position of Chairperson of the Board of Directors of the respondent.
4.2 The respondent accepts that the Governance Agreement between it and the National Body, which regulates the relationship between them, provides that the respondent (and the other regional companies comprising the National Company) have authority to appoint their own Chairperson from amongst the Directors on the Board. It adds however, that the circumstances which prevailed at end 2009, insofar as the membership of the respondent's Board is concerned, were atypical and were not envisaged by the National Body in 2007 when each of the regional companies were incorporated. The respondent states that in the absence of any specific provision(s) in either the Governance Agreement or the Articles of Association of the respondent, the National Body sought legal advice before proceeding. It adds this advice was that in the absence of any provision in those documents which prevented the course of action proposed (and subsequently taken) there was no legal impediment to it acting in that manner. It adds that this was not the only occasion on which the National Body directly appointed Directors to the respondent's Board - following the appointment of Mr. A it appointed two Directors on 30 April, 2010 and states that it was only at that point that a quorate meeting of the Board could take place. Finally, it rejects the complainant's argument that (i) the respondent, by effectively approving or at the very least acquiescing to the appointment of Mr. A as Chairperson, it is ultimately liable for the actions of the National Body and/or (ii) the National Body was acting as an agent for the respondent when it appointed Mr. A to the position.
4.3 The respondent rejects the assertion it victimised the complainant in September, 2010 when Mr. A requested that she be accompanied by a colleague (Mr. X) when meeting with the Minister of State for Health and Children later that month. It states that it was standard practice with the respondent and all the other regions that Officials should not meet alone with politicians - although in the course of the Hearing the respondent confirmed this practice was not set down in written format and could adduce no evidence that the practice had previously been communicated to Chairpersons and/or Directors Of Services prior to Br. Z's letter of 8 October, 2010. The respondent adds that the need to comply with this practice was all the more crucial given events which occurred in July, 2010 when a particular sensitivity arose around the Minister for State for Health and Children when he held a press conference in which he commented negatively on the structures of the Brothers of Charity organisation and certain matters discussed at a meeting between the parties on the same day were misreported in the media. The respondent states, as regards the specific issues in the instant case, that Mr. A received a telephone call from the complainant in early September, 2010 advising of the meeting with the Minister later that month. The respondent adds that although Mr. A was aware there had been issues in July he did not immediately associate them with the Minister as he was unaware of his role in same. The respondent states that a few days later, on or about 6/7 September, 2010 and in advance of the meeting of the Chair and Chief Executive Forum which was scheduled for 14 September, 2010, Mr. A became aware of the Minister's involvement in the events of July and the particular sensitivity surrounding same and promptly sent the complainant a text requesting her to ensure she was accompanied to the meeting.
4.4 The respondent (Mr. A) states that when the complainant did not reply to the text message as she was on annual leave at the time and he was aware the meeting with the Minister was scheduled for her first day back at work, he made enquiries as to who might attend with her and he asked Mr. D (who is the respondent's Finance Manager and a member of the SMT) and another colleague Ms. K if they would do so. The respondent (Mr. A) states that Ms. K was not eager to attend the meeting but Mr. D said he was available. Mr. A adds that when he still had not heard from the complainant he e-mailed her on 13 September, 2010 requesting that she should be accompanied by Mr. D at the meeting. The respondent (Mr. A) agrees that the complainant rang him on the morning of 14 September, 2010. He adds that during this conversation he repeatedly emphasised the complainant should be accompanied by Mr. D, except for that part of the meeting where confidential client details were to be discussed and this was because of the particular sensitivity around meetings with the Minister. Mr. A rejects the complainant's assertion that (a) he forbade her from speaking in private with the Minister - indeed he states that he repeatedly declined to agree with the proposition despite continuous prompt by the complainant and (b) he told her Br. Z was insistent that she not speak privately with the Minister as he (Mr. A) had not spoken with Br. Z about the matter - he had learned of the sensitivity around the Minister from Ms. B. The respondent further rejects the complainant's assertion that the actions adopted by Mr. A are inconsistent with the outcome of the meeting in June, 2010 between the National Advocacy Council and the Chief Executive Forum. It adds that this is a mechanism in which the respondent merely participates and any guidelines or initiatives which emerge from it cannot be regarded as policy of the respondent.
4.5 The respondent (Mr. A) states that he was on annual leave from late September-mid October, 2010. He adds that he e-mailed the complainant on 28 September, 2010 acknowledging her concerns in the matter adding that he would contact her on his return from annual leave to arrange a meeting to discuss things. He adds that the complainant did not await his return and e-mailed him a letter on 30 September, 2010 which was lengthy and legalistic and which he considered to contain certain inaccuracies. He adds that he found himself in the position of having to respond to the complainant's correspondence whilst on annual leave and sought to address the matter as best he could. Finally, the respondent (Br. Z) states that at the Chair and Chief Executive Forum meeting on 14 September, 2010 the issue of media and communication as regards the National Body and each of the regional companies, against the events of the previous July, was discussed. He adds the outcome of this meeting was his letter of 8 October, 2010 which set out the initiatives agreed at that meeting to address those issues and a statement of best practice in relation to meeting in general. It is submitted on behalf of the respondent that neither the manner in which Mr. A interacted with complainant on this matter nor Br. Z's letter of 8 October, 2010 indicate any element of adverse treatment of the complainant contrary to the Acts
4.6 The respondent submits that Mr. A made a perfectly reasonable request of the complainant in his e-mail of 14 October, 2010 in respect of the arrangements for the complainant's annual leave. It states that he (Mr. A) asked politely if she would let him know who would be acting her in place when she was on annual leave. Mr. A states that the complainant did not reply to this e-mail instead she sent an e-mail of her own to a number of staff, naming four of them as contacts in the event of emergency during her absence and "cc'd" this e-mail to him. The respondent (Mr. A) states that during the complainant's absence a serious issue arose concerning a member of staff which was brought to his attention and none of those persons identified by the complainant in her e-mail were able to answer his questions. Mr. A adds that this prompted him to issue his e-mail of 3 November, 2010 requesting the complainant to put a structure around the taking of her annual leave in future so that there would be clarity about who was covering her role and he would have advance notice of it. He adds that all he was requesting was that the complainant follow the same procedure he had followed when he was a Director of Services - there was no question of him, or indeed the Board of Directors, stipulating the times at which the complainant might take annual leave - which is what is provided at section 20 of the Organisation of Working Time Act, 1997. In the course of the Hearing the respondent (Ms. B) stated that there were no procedures or guidelines issued by the National Body as regards the taking of annual leave by Director of Services. However, she believed the scenario averted to by Mr. A was common practice but the respondent submits, in any event, that whatever occurs in the other local companies is irrelevant.
4.7 The respondent (Mr. A) states the he received the Service Level Agreement from a member of the respondent's Administrative Staff on 28 June, 2010 requesting him to sign the document and return it. Mr. A states that certain supporting documentation was not attached to the Agreement and there was no indication that the Agreement had been run by the respondent's SMT. He adds that he therefore returned the documentation to the complainant with a letter dated 3 July, 2010 in which he sought clarification on a number of issues. Mr. A states that shortly afterward the complainant contacted him advising that the matter was not urgent and that the next he heard was when he received the complainant's letter of 1 October, 2010 recommending that he sign the Agreement. He states that the complainant had not addressed many of the issues he had sought clarification on previously. Mr. A states that he made contact with the respondent's Finance Manager (Mr. D) and the necessary supporting documentation was furnished to him. He states that he e-mailed the complainant again on 3 November, 2010 seeking clarification of the same matters and the complainant responded on 15 November, 2010 in a manner which gave him the confidence to sign off on the Agreement. Mr. A adds that given the urgency of the matter he signed off on the Agreement the next day. It is submitted by the respondent that Mr. A was merely attempting to operate proper corporate governance to the process that gives legal effect to the funding/service arrangement between the respondent and the HSE - in a similar fashion to that operated by Mr. A when he was Director of Services in another region - and rejects the assertion that this amounts to adverse treatment of the complainant contrary to section 74(2) of the Employment Equality Acts, 1998-2008.
4.8 The respondent states that the review was conducted by external consultants into certain matters which had arisen in the Clare Services - matters which gave rise to legitimate concerns on the part of the National Body about the manner in which the Clare Services had conducted its affairs - and consequently the National Body decided to commission the review and communicated its decision in this regard to the respondent Chairperson by letter dated 17 December, 2009. The respondent states that three main issues had arisen which gave rise to the review - (a) the proposal by the respondent to make the entire Psychology Team in the Clare Service redundant without recourse to the National Body and the subsequent failure of the respondent to heed that Body's advise and opinion in the matter, (b) the failure of the respondent to produce a Strategic Plan in accordance with the Governance Agreement between the respondent and the National Body despite repeated requests from that Body and (c) the failure of the respondent to introduce and implement a recognised Quality System or the nationally Quality Audit in accordance with the Governance Agreement between the respondent and the National Body.
4.9 The respondent states that it, as an organisation, was the subject of the review and not the complainant and submits therefore that the commissioning of the review, the manner in which it was conducted and the contents of the report cannot amount to victimisation of the complainant contrary to the Acts. It further states that the basic terms of reference were to review the corporate governance, management structure and financial management function within the respondent. In the course of the Hearing Ms. B stated that these basic terms of reference were expanded upon, that the wording of this expansion was drafted by the external consultant (Mr. X) and that the final version of the terms was approved by the National Body. She rejected the complainant's assertion that she (Ms. B) amended the terms of reference to include the phrase "participative management" but accepts that this phrase was not included in the terms of reference she forwarded to the complainant by e-mail on 1 March, 2010 - suggesting that Mr. X may have done so. In the course of the Hearing Br. Z stated that he had no involvement in amending the terms. In the course of the Hearing Ms. B accepted that the complainant was not interviewed first as part of the process and stated that the sequence in which staff had been interviewed had been suggested by Mr. X. Ms. B stated that she had informed Mr. X of the existence of an equal pay claim before this Tribunal but did not disclose the identity of the person involved. She accepted that on the face of it the existence or other wise of the claim had no relevance to the review but she thought it might come up in the examination of the HR structures in the respondent and also that it might offer some explanation as to why there was such a poor relationship between the respondent and the National Body.
4.10 The respondent states that a draft copy of the report was furnished to the National Body in July, 2010 and that this was subsequently shared with the respondent's Board of Directors on a confidential basis. In the course of the Hearing Br. Z accepted it was standard practice that a Director of Services would receive a copy of a draft report and that the complainant had not received a draft copy in this instance. The respondent adds that neither it nor the National Body gave the complainant any assurance she would receive a copy of the report. In the course of the Hearing Ms. B stated that the National Body had made the decision not to provide the complainant with a copy of the draft report, stating it received legal advice that it was not obliged to do so. She was unable to explain why the complainant was not informed of this reason.
4.11 The respondent (Mr. A) states that he was on annual leave when the final report was received and did not consider it inappropriate that it was circulated to the complainant at the same time it was furnished to other members of the SMT. He adds that his letter of 8 October, 2010 attaching the report requested the members of the SMT to treat the document as confidential until the matter had been discussed between it and the Board of Directors. The respondent (Mr. A) states that he was anxious to have this engagement at an early date and that it took place on 2 November, 2010. He adds that the views of the SMT were noted and were reported back to the National Body. Mr. A states that as Chairperson of the Board he was charged with ensuring implementation of the recommendations contained in the report in accordance with the wishes of the National Body and he sought to deliver on this through his letter of 9 November, 2010 and in the course of the meeting of 14 January, 2011. The respondent accepts that people were upset by the contents of the report but states that no individual was criticised by the report - it was a review of the Clare Services as a whole - including the Board and senior management and that shortcomings were identified which needed to be addressed. The respondent strongly rejects the complainant's assertion that the actions of Mr. A. Ms. B and Br. Z constitute victimisation of her contrary to the Acts.
4.12 The respondent (Mr. A) states that whilst he received the draft report from the National Body in confidence and with certain restrictions attached, no such restriction applied to the final report. He adds that he therefore circulated it to the members of the respondent's SMT by letter dated 8 October, 2010 and requested that the document be treated as confidential to the SMT and the Board until the matter had been discussed between them. Mr. A states that subsequently he was asked by the Head of Psychology, who was a member of the SMT, if he could give a copy of the report to the Principal Psychologist and he (Mr. A) agreed to this. He adds that he did so because (i) he held the Principal Psychologist in high regard, (ii) he was a senior member of staff, (iii) the purported redundancy of some psychologists was a key factor in the National Body commissioning the report and (iv) the SMT had already been given the opportunity to put its comments on record. Mr. A states that at the relevant time he was unaware the complainant had a problem with the volume of correspondence he was sending her. He adds that some of the correspondence related to a complaint made by another member of staff against the complainant and he was anxious she receive it - he hand delivered it because as far as he could recall he was in Ennis that day. He further states that other correspondence related to issues which he believed were appropriate for him to be involved in as Chairperson and rejected the assertion he was acting as an Executive Chairperson. The respondent rejects the complainant's assertion that Mr. A's actions in either of the circumstances above amount to victimisation of her contrary to the Acts.
4.13 The respondent states that in accordance with its statutory entitlements it appealed the Decision of the Equality Tribunal (issued on 10 June, 2009) to the Labour Court on 21 July, 2009. It states that it complied with the timeframe set by the Court for filing of submissions and the next it heard was a letter dated 23 June, 2010 advising that the appeal was set for Hearing on 16 September, 2010. It adds that it received a copy of the complainant's submission on 10 August, 2010 wherein the complainant stated that if the Court was of the view the issue of "like work" must be considered by it to determine the appeal then that matter should be remitted to the Equality Tribunal for a decision at first instance. The respondent states that the Labour Court wrote to the parties by e-mail on 9 September, 2010 raising issues of jurisdiction in terms of the appeal. It adds that these issues were averted to at the Hearing and one of the options examined was to remit the question of "like work" back to the Equality Tribunal. The respondent states that Counsel for the complainant did not oppose this proposition and did not suggest that such an approach would result in any difficulty or any cause for complaint on the part of the complainant. The respondent states that the Labour Court remitted that matter back to the Equality Tribunal with the consent of both parties and it rejects the complainant's assertion that the manner in which it conducted itself throughout the appeal process amounts to victimisation of her contrary to the Employment Equality Acts, 1998-2008.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for consideration by me is whether or not the complainant was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by witnesses during the Hearing.
5.2 The complainant asserts that the first incident of victimisation she was subjected to was the appointment of Mr. A to the position of Chairperson of the respondent's Board of Directors in April, 2010. It is common case that this appointment was not made by the respondent but was instead made by the Board of the National Body. It is also common case that the complainant is an employee of the Brothers of Charity (Clare) Ltd. - the respondent to these proceedings and not the Brothers of Charity Services (Ireland) Ltd - the National Body. In George Dunbar v ASTI the Labour Court conducted an extensive examination of the conditions under which victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008 might exist and found that such victimisation relates only to dismissal or other adverse treatment of an employee by his or her employer. Therefore at first glance the actions complained of by Ms. Kealy in the instant case could not constitute victimisation of her contrary to the Acts. However, it is argued on her behalf that the respondent is fixed with liability for the actions of the National Body because (a) it effectively approved or at the very least acquiesced to the appointment of Mr. A as Chairperson and/or (ii) the National Body was acting as an agent for the respondent when it appointed Mr. A to the position.
5.3 It is accepted by the respondent that neither the Governance Agreement between it and the National Body nor its own Articles of Association provide any basis permitting the National Body to act in the manner in which it did. Indeed I am satisfied that the Articles of Association provide that the Directors of the respondent have authority to appoint a Chairperson from amongst their number. However, these documents also provide that the appointment or removal of Directors to the respondent's Board shall only be made with the prior approval of the National Body. I accept the respondent's evidence that the circumstances which existed at end 2009/early 2010 were atypical and were not circumstances which had been envisaged when the respondent and the other regional companies were incorporated in 2007. The National Body was in effect faced with a crisis situation and I am satisfied that it acted in good faith following receipt of legal advice that there was no legal barrier to the actions it took. Whether or not the National Body acted legally in terms of company law is not a matter for this Tribunal. Having regard to my comments in this and the preceding paragraph I do not accept the complainant's argument that actions of the National Body are unlawful in terms of the Employment Equality Acts, 19982008 and that the respondent, as her employer, should be fixed with any liability for these actions.
5.4 It is further argued on behalf of the complainant that the respondent is fixed with liability for the actions of the National Body because this Body was acting as an agent in terms of section 15(2) of the Acts. Under the ordinary law of agency an agent binds a principal if the agent is authorised by the principal to act on his or her behalf. The extent of the principal's liability for the actions of the agent is limited by the scope of the authority conferred on that agent. No evidence was adduced by the complainant from which it could be held that the respondent conferred express authority to the National Body to act in the manner it did - indeed it appears that at all relevant times the respondent was unaware of what the National Body was doing. However, section 15(2) of the Acts also provides that authority to act for another can be implied. This is consistent with the general law of agency which recognises that authority to act for another can be implied or ostensible. In Kett v Shannon and Ors the Supreme Court explained the law on ostensible agency as follows:
"The law on ostensible or apparent authority is fully and illuminatingly dealt with by Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd. [1964] 2QB 480. Having referred to that judgement, Robert Goff LJ in Armagas Ltd. v Mundogas SA [1985] 3 All ER 1975 says:-
It appears from that judgement that ostensible authority is created by a representation by the principal to the third party that the agent has the relevant authority and that the representation, when acted upon by the third party, operates as an estoppel, precluding the principal from asserting he is not bound. The representation which creates ostensible authority may take a variety of forms but the most common is a representation by conduct by permitting the agent to acts in some way in the conduct of the principal's business with other persons and thereby representing that the agent has that authority which an agent so acting in the conduct of his principal's business usually has"
5.5 In the instant case no evidence has been adduced which might suggest that the respondent ever made representations to the complainant from which she could have believed that the National Body was acting as its agent. It is submitted that the respondent's actions to Mr. A's appointment amount to acquiescence on its part and thus fixes it with liability. I cannot accept this argument. The Governance Agreement between the respondent and the National Body restricts the authority which the respondent has as regards the appointment of Directors to its Board. Article 2.5.8 of same provides that the appointment and removal of all Directors to the Board shall only be made with the prior approval of the National Body. Moreover, and perhaps most significant, the respondent is obliged to approve the appointment of any person nominated as Director by the National Body. In either scenario it appears the respondent has no appreciable discretion. In the circumstances I am not satisfied that the conduct of the respondent amounts to conduct permitting the National Body to act in the manner it did or that it agrees with same. I have carefully considered the evidence and submissions made by the parties on this issue and I find that the appointment of Mr. A to the position of Chairperson of the respondent's Board of Directors by the National Body does not constitute victimisation of the complainant contrary to the Acts. However, I feel it necessary to say that notwithstanding the efforts which were made by the National Body to secure the services of others as Chairperson of the respondent's Board of Directors at the time, the appointment of Mr. A to that position, in circumstances where he was a named comparator in the complainant's equal pay claim and the investigation of that matter by this Tribunal was still on-going, was ill advised and resulted in the Chairperson of the respondent being unable to involve himself in any discussions on the matter at Board level.
5.6 Section 85A of the Employment Equality Acts 1998- 2008 sets out the probative burden which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.7 Section 74(2) of the Employment Equality Acts, 1998-2007 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 an employee to the employer.............
(f) an employee having opposed by lawful means and act which is unlawful under this Act......."
In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.8 I must address a preliminary issue which arises before I proceed to examine whether or not the alleged incidents detailed by the complainant amount to victimisation. It is clear that the complainant asserts that actions of Mr. A, Ms. B and Br. Z on different occasions constitute victimisation of her contrary to the Acts. These individuals are the Chairperson of the respondent's Board of Directors, the Chief Executive of the National Body and the Chairperson of the National Body respectively. I note that the Governance Agreement between National Body and the respondent provides that the former is "the sole legal and beneficial owner" of the latter. Such a scenario was examined in Whooley v Millipore Ireland BV and Millipore Corporation where Clarke J stated, in dealing with the obligations of an employer under the Employment Equality Acts, 1998, as follows. "If her employer, as a subsidiary within a group, allows personnel from other companies within the group to have a direct role with her in the context of her employment, then her employer is responsible for those persons.... Any acts carried out by personnel from other companies within the group as a result of such a structure are actions for which the subsidiary employer must bear responsibility.". The judge went on to say that "The fact that the individual acts ....will be done by individuals (whether the Board of a Corporate Employer or managers within the management structure...... is neither her nor there.". It is clear from the evidence adduced in the course of my investigation that there was frequent interaction by all three of the persons mentioned above in the daily employment activities of the complainant. Applying the rationale of Clarke J's judgement to the instant case, I am satisfied that the respondent is liable for their actions.
5.9 The complainant contends that the manner with which Mr. A and Br. Z treated her in respect of a proposed meeting with the Minster of State for Health and Children amounts to victimisation of her contrary to the Acts. She states that (a) she was instructed by Mr. A to bring a colleague with her to this meeting, (ii) in the course of a telephone conversation with Mr. A on 13 September, 2010 she was forbidden from meeting alone with the Minister and (iii) Mr. A informed her that Br. Z was insistent she was not to meet alone with the Minister. She further states that this was not the practice in the respondent previously and she had met alone with politicians on many previous occasions and that the actions were an attempt to undermine her in her capacity as Director of Services of the respondent and had been taken directly as a result of her exerting her statutory rights under the employment equality legislation. The respondent denies that its actions amount to victimisation and submits that the complainant was merely requested to adopt a particular approach when meeting with the Minister and that this was reasonable in the circumstances.
5.10 Applying the test set out by the Labour Court in Tom Barrett v Department of Defence to this element of the complaint it is clear that at the relevant time the complainant had taken a protected act in terms of section 74(2) of the Acts. The next issue is whether or not the treatment of the complainant constitutes "adverse treatment" in terms of section 74(2). Having considered the evidence adduced by the parties I am satisfied, on balance, that it had been the practice of the complainant to meet politicians on her own. I am further satisfied that she was unaware this was inappropriate on the basis that the respondent never formally communicated to her, or indeed to other senior personnel, that this practice was discouraged. This is further supported by Mr. A's initial reaction to the complainant's news in early September, 2010 that she had arranged a meeting with the Minister of State at the Department of Health and Children. However, it is also clear that the Brothers of Charity, as an organisation, had been the subject of negative comment in the media by that same Minister in July, 2010 and that issue had damaged the previous long and cordial relationship which had existed between the Brothers of Charity and that Government Department. In the circumstances, I consider it perfectly reasonable that the National Body would act in a manner which would minimise lone contact by staff with politicians until the matter was resolved. However, at the relevant time no such requirement or instruction had formally issued from the National Body. This ultimately issued on 8 October, 2010 on foot of a meeting which took place on 14 September of that year. When Mr. A communicated with the complainant by text and e-mail in the first weeks of September, 2010 he did so having only spoken with Ms. B - in the course of the Hearing he confirmed he received a phone call from her enquiring if the complainant had informed him of the proposed meeting with the Minister. Their actions clearly pre-empted the outcome of the meeting on 14 September, 2010 and the instruction that issued from Br. Z on 8 October, 2010 as regards the protocol for meeting with politicians etc. I shall examine whether or not these actions amount to adverse treatment of the complainant below but I think it is appropriate at this stage to observe that Ms. B clearly exercised significant influence, if not control over the complainant's daily routine (albeit through Mr. A) - a factor viewed as relevant to the issue of liability by Clarke J in Whooley v Millipore Ireland BV and Millipore Corporation .
5.11 The nature of the communication between Mr. A and the complainant was hindered by the fact that the latter was not personally contactable as she was on annual leave. I am satisfied that this communication and the content of the telephone conversation between Mr. A and the complainant on the morning of 14 September, 2010 amounted to an instruction by Mr. A to the complainant not to meet alone with the Minister. However, given the damaged relationship between the Brothers of Charity and the Minister at that time I believe the instruction was reasonable in order to protect the Brothers of Charity organisation as a whole and the complainant personally. Whilst the instruction did not have the approval or authority of the National Board at that time, I am satisfied that this was the first occasion a meeting between an Official from the Brothers of Charity would meet privately with a Minister since the incident in July. Moreover, the Minister at issue was the same one involved in that incident. Whilst the manner in which events between Mr. A and the complainant evolved are far from ideal I cannot accept the complainant's assertion that they were designed to undermine her in her capacity as Director of Services of the respondent and had been taken directly as a result of her exerting her statutory rights under the employment equality legislation. Consequently, I find that she has failed to establish a prima facie case of victimisation as regards this element of her complaint.
5.12 The complainant further contends that the subsequent actions of Mr. A constitute victimisation of her. These events were triggered by the complainant's letter of 30 September, 2010, which not surprisingly is legalistic in tone given it was composed by the complainant's solicitor. In the course of the Hearing the complainant accepted she had received Mr. A's e-mail of 28 September, 2010 acknowledging her concerns about events and advising that he would arrange a meeting with her on his return from annual leave and that she had issued the letter in the knowledge Mr. A was on vacation because she was angry. Mr. A's response of 7 October, 2010 can best be described as "to the point" and addresses what he believes are inaccuracies contained in the complainant's letter. The tone and content of Mr. A's response are understandable given (a) the tone and content of the complainant's own letter, (b) the fact that as he understood it the matter was on hold pending his return from annual leave and (c) the fact that the complainant was aware he was on vacation when she issued her letter. In the circumstances I cannot the find that the actions of Mr. A amount to adverse treatment of the complainant in terms of section 74(2) of the Acts. Finally, I make a similar finding on Br. Z's involvement in this matter. Clearly, his letter of 8 October, 2010 is addressed to all Chairpersons and Chief Executives in the local companies and addresses, inter alia, the general need for caution and discretion when meeting with people alone and is not in any way personally directed at the complainant.
5.13 The complainant contends that the manner in which Mr. A acted when she informed him of her intention to take annual leave in early October, 2010 constitutes victimisation of her contrary to the Acts. I have given careful consideration to the evidence adduced by the parties and I am satisfied that the practice adopted by the complainant as regards annual leave prior to the appointment of Mr. A is as she recounted it. Contrary to the respondent's submission I consider the practice operated in the other local companies to be of considerable relevance as it is consistent with the complainant's version of events, particularly when the respondent accepts that there no general procedures or guidelines on the topic issued from the National Body. I accept Mr. A's evidence that the procedure he sought to introduce in the respondent was the process which had operated in his region when he was Director of Services. I use the word "introduce" here because I believe that is what occurred. The respondent contends that all Mr. A was doing was requesting a new procedure. I cannot accept this contention. Whilst the interpretation of Mr. A's e-mail of 3 November, 2010 might, at first glance, amount to a request for a new procedure as suggested by the respondent, the minutes of the Board Meeting of 2 December, 2010 contradict that impression and reflect what I believe was the real situation which prevailed at that time. Those minutes attribute the following comments to Mr. A "Mr. A said that the current way [about the complainant's annual leave] does not work for him and he is informing [the complainant] that he is not happy and he wants her to seek permission a month in advance and to be advised of who is going to be acting up in her absence.". Ms. Y, the person who prepared those minutes, attended at the Hearing and gave evidence that this was an accurate account of what Mr. A said at the meeting and I fully accept her evidence on the matter.
5.14 Having considered the matter I find that the unilateral decision by Mr. A to introduce a new procedure on annual leave in respect of the complainant and to subsequently involve the respondent's Board of Directors in the matter amounts to adverse treatment of her in terms of section 74(2) of the Acts. As I stated previously in this Decision it is clear that at the relevant time the complainant had taken a protected act in terms of section 74(2) of the Acts. Consequently, the complainant satisfies the first two strands of the test set out by the Labour Court in the Barrett case and I must now examine whether or not she satisfies the third strand - that the adverse treatment must be in reaction to the protected act having been taken by the complainant. I am satisfied that by this time Mr. A was aware of the existence of the complainant's equal pay claim with this Tribunal and that he had been named as a comparator in same. However, I cannot accept, as suggested by the complainant, that this knowledge motivated him to behave the way he did with the complainant over the issue of annual leave, rather I am of the view that it is far more likely they arose because of the seriously strained relationship and perhaps even personal animus which existed between them at this time. In this regard I note the complainant's comment that there was "a fraught working relationship" between them and also Mr. A's description of that relationship as "exceptionally difficult". In addition it is common case that a matter arose during the complainant's absence which created problems for the respondent, including Mr. A, and it is understandable why he might be angry, particularly given the fact that he was unable to obtain the necessary assistance in the matter by those nominated by the complainant as contacts in the event of emergencies. Moreover, these events arose within weeks of the issues involving the conflict between the complainant and Mr. A over the meeting with the Minister. In the circumstances I am not satisfied that the complaint has established facts from which it could be inferred that she was victimised contrary to the Acts and this aspect of her complaint cannot therefore succeed.
5.15 The complainant asserts that the manner in which Mr. A handled the issues surrounding the signing off of the Service Level Agreement constitutes victimisation of her contrary to the Acts. The respondent rejects this assertion and submits that Mr. A's actions were reasonable and were an attempt to operate appropriate corporate governance to the matter. It is noteworthy that the complainant was afforded considerable discretion in this matter by Mr. A's predecessor and in those circumstances it is understandable that any departure from what happened previously might be perceived by her as interference by Mr. A as demonstrated by the comment in the complainant's submission that "he treated his role as that of Executive Chairperson". However, given the legal effect of the SLA and the potential serious consequences should its terms be breached, I accept that it was appropriate for Mr. A to fully satisfy himself that everything was in order before signing off on the document. It is in this regard that he issued his letter of 3 July, 2010 to the complainant. I have examined this letter and find nothing untoward in it and it seeks clarification of a number of pertinent issues. The complainant asserts that the extent of the correspondence was excessive. However, only two pieces of the correspondence opened to me in the course of the Hearing are from Mr. A to the complainant and both seek clarification of the same issues. It is clear that Mr. A made direct contact with the respondent's Finance Manager. However, he did so when the complainant was on annual leave - an approach I consider to be reasonable in the circumstances. Once the complainant addressed the issues raised by Mr. A in his correspondence of 3 July, 2010 and 3 November, 2010 he signed off on the Agreement the next day.
5.16 The minutes of the Board Meeting of 14 January, 2011 confirm that the issue of the SLA was discussed at same. However, the matter was raised by another Director in terms of why the SLA had not been formally approved by the Board before Mr. A signed off on it. From perusal of the minutes I am satisfied that Mr. A put a spin on his reply to this query that could be interpreted as laying blame with the complainant. The minutes also reflect however, that the complainant took the opportunity to correct Mr. A's version of events. I am satisfied that Mr. A's comments were, at the least, disingenuous but I cannot conclude that they amount to adverse treatment of the complainant in terms of the Acts. Rather, I believe that they represent a further illustration of what by now could only be described as the practically non-existent working relationship between the complainant and Mr. A. Indeed as previously stated I note Mr. A's comments at the Hearing when he described the working relationship between him and the complainant at this time as "exceptionally difficult". Section 85A of the Acts places the initial burden of proof on the complainant to establish facts of sufficient significance which lead to an inference that she was treated unlawfully. Having carefully considered the evidence adduced by the parties on this matter, I find that the complainant has failed to discharge that burden as regards this aspect of her complaint and it therefore fails.
5.17 The complainant submits that the commissioning, conduct and outcomes of the review of the Clare Services constitutes victimisation of her contrary to the Acts. She further submits that the actions of Mr. A in the manner in which the final report was circulated/disclosed and his subsequent behaviour in seeking to implement the recommendations of the report also amount to unlawful victimisation of her in terms of the Acts. The respondent rejects these assertions in their totality. From an evaluation of the evidence provided to me in the course of my investigation it is clear to me that the relationship between the National Body and the respondent's Board of Directors was strained. I note in particular the comments of Mr. F (a member of the respondent's Board of Directors during the period mid-2009 to April, 2010 when he resigned) that the Board members were frustrated with the interference of the National Body as well as the non-disclosure of certain relevant issues and in his view there was no positive interaction between them. Similarly, from perusal of the minutes of Board Meetings during the same period it is clear that there were issues between the complainant and one particular member of the Board - in fact these issues became the subject of a formal complaint by the complainant to the respondent - and this undoubtedly created difficulties for the smooth operation of business at Board Meetings. It appears to me that the complainant had enjoyed a significant degree of latitude in her dealings with the Board of Directors from the time the respondent was incorporated in 2007 and in many respects it deferred to her - one such example of this is the circumstances surrounding the manner in which Mr. A's predecessor as Chairperson dealt with the Service Level Agreement - given her undoubted experience and knowledge. However, it is clear to me that from late 2009 the issue of corporate governance of the respondent had reached a critical point - indeed a number of Board members had resigned and as a result the Board was not quorate for a number of months. It is also clear that given the heavy involvement of the complainant with issues that were the subject of contention at Board level, she found herself embroiled in matters which she might have preferred to remain outside of. In general, it appears that individuals were taking particular positions on issues depending on whether or not they were for or against the views of the National Body as regards the delivery of and the manner in which, services were provided in the Clare region.
5.18 The respondent states that the National Body therefore decided to commission the review of the Clare Services and it cites three particular reasons for this decision - (a) the proposal by the respondent to make the entire Psychology Team in the Clare Service redundant without recourse to the National Body and the subsequent failure to the respondent to heed that Body's advise and opinion in the matter, (b) the failure of the respondent to produce a Strategic Plan in accordance with the Governance Agreement between the respondent and the National Body despite repeated requests from that Body and (c) the failure of the respondent to introduce and implement a recognised Quality System or the nationally Quality Audit in accordance with the Governance Agreement between the respondent and the National Body. It is clear from the minutes of Board Meetings during the relevant period and other correspondence opened to the Tribunal in the course of my investigation that these three issues were the subject of heated interaction between the National Body, the respondent Board and the complainant on several occasions. In the circumstances, I am satisfied that the National Body had genuine concerns about the manner in which the respondent was conducting its affairs and it follows therefore that its decision to commission the review of the Clare Services by Mr. X was reasonable in those circumstances and does not amount to victimisation of the complainant contrary to the Acts.
5.19 I note Br. Z's letter of 17 December, 2009 to the then Chairperson of the respondent's Board acknowledges that the proposed review of the Clare Services was the first of its kind in that it was to review the corporate governance, management structure and financial management function within the respondent. It is common case that the complainant was not involved at any stage of the preparatory process and had no input into the methodology or terms of reference for the review and I am satisfied that this was at odds with what had happened in relation to previous reviews conducted in some of the other regional companies. In the circumstances I find that this amounts to adverse treatment of the complainant in terms of section 74(2) of the Acts. However, I am not satisfied, on balance, that this adverse treatment was in reaction to her taking a protected act in terms of the test set out by the Labour Court in Tom Barrett v Department of Defence . In reaching this particular conclusion I note in particular that the issues which prompted the National Body to act included those which involved the Directors of the respondent Board themselves and their reluctance, in particular, to heed the views of the National Body in relation to the redundancy of certain Psychologists in the Clare Services - a decision which the complainant stated in her own evidence was made by the Board.
5.20 The complainant further asserts that (i) the terms of reference for the review were amended by Ms. B after she had given them to her (the complainant), (ii) the methodology adopted by the respondent in conducting the review, (iii) the disclosure of the existence of her equal pay claim to this Tribunal to Mr. X and (iv) the failure of the respondent to furnish her with a copy of the draft report are further incidents of victimisation of her contrary to the Acts. It is clear that the terms of reference contained in the final report differ from those furnished to the complainant by Ms. B in her e-mail of 2 March, 2010. Both Ms. B and Br. Z state that they did not amend the terms of reference and the former suggested that Mr. X may have done so. I am satisfied that the National Body viewed Mr. X and his colleagues as significant experts in the fields covered by the review and deferred to what it perceived to be his extensive and greater experience and knowledge in those areas. I am also satisfied that this deference extended to the methodology adopted in conducting the interviews of staff and the sequencing of same and I therefore accept, on balance, the respondent's explanation as regards these matters. Having carefully considered the evidence adduced by the parties on these matters I find that the complainant has failed to establish facts from which it could be inferred that the behaviour of the respondent in respect of these two incidents amounts to victimisation of her contrary to the Acts.
5.21 The complainant states that it was previously unheard of that staff at the level of Director of Services would have no involvement in such a review and also that s/he would not receive a copy of the draft report - a comment which was confirmed by Br. Z in the course of the Hearing. The respondent states that the National Body received a copy of the draft report in July, 2010 and subsequently shared this with the respondent's Board of Directors on a confidential basis. It adds that the National Body decided not to furnish the complainant with a copy of this draft report because (i) it had never given any such commitment and (ii) it had received legal advice it was under no obligation to do so. The respondent states that the National Body commissioned the review because it had legitimate concerns about the manner in which the respondent was conducting its affairs, adding that the entirety of the Clare Services, including the Board, were subject to this process. In those circumstances I find it difficult to understand why the National Body would share the draft report with the Directors whom it clearly had issues with. This is all the more confusing when not sharing it with the complainant represents a departure from previous practice.
5.22 As stated at paragraph 5.6 above the initial probative burden rests with the complainant to establish facts from which it can be inferred that she was treated in the manner alleged, thereafter the burden shifts to the respondent to rebut the inference raised. It is well established that for the purpose of establishing unlawful discrimination the ground relied upon need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision. Hence, in every case involving a claim of discrimination the factors which influenced the respondent in treating the complainant as it did is a crucial consideration. These principles apply equally to claims of unlawful victimisation under the Employment Equality Acts, 1998-2008. The type or range of facts which may be relied upon by a complainant to shift the probative burden can vary significantly from case to case and entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Therefore, it is not necessary to establish that the conclusion of victimisation is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts .
5.23 Applying these principles to the instant case the following facts emerge (i) the National Body was dissatisfied with the conduct of the respondent - which covered the Board of Directors and the complainant, (ii) the review covered both the respondent's Board of Directors and the complainant, (iii) the former was given a draft copy of the report, the latter was not and (iv) the only difference between them was that the complainant had performed a protected act in terms of section 74(2) of the Employment Equality Acts, 1998-2008. I therefore find, on balance, that the complainant has established a prima facie case of victimisation as regards this element of her complaint and the burden of proof shifts to the respondent. The respondent states that the National Body decided not to furnish the complainant with a copy of this draft report because (i) it had never given any such commitment and (ii) it had received legal advice it was under no obligation to do so. As regards the first explanation advanced no evidence has been adduced by the respondent that any such commitment was made to the respondent's Board of Directors and as regards the second reason submitted there was equally no obligation on the National Body to release the draft report to the respondent. Accordingly, I am not satisfied that the respondent has discharged the probative burden required of it and consequently, I find that the complainant is entitled to succeed in this element of her complaint.
5.24 I shall now look at the remaining issue highlighted by the complainant in paragraph 5.20 above- the disclosure by Ms. B of the existence of her equal pay claim to this Tribunal to Mr. X. The complainant states that in the course of her interview with Mr. X in March, 2010 he confirmed that he was aware of her equal pay case. In the course of the Hearing Ms. B confirmed she had informed Mr. X of the existence of an equal pay claim in the respondent organisation but not of the identity of the individual involved. She also stated that the existence of the claim was of no relevance to the review but she had mentioned it because she thought it might it might offer some explanation as to why there was such a poor relationship between the respondent and the National Body in an examination of the HR structures in the respondent. In the circumstances I am satisfied that Ms. B clearly viewed the complainant's equal pay claim as contributing to the poor relationship between the respondent and the National Body and therefore as a problem. However, there were other issues identified by the National Body which on its own evidence were matters that had given rise to legitimate concerns on its part about the manner in which the respondent had conducted its affairs and yet Ms. B made no reference of these issues to Mr. X. Having carefully considered this matter and applying the test set out by the Labour Court in the Barrett case , I am satisfied that Ms. B's actions of singling out the complainant's equal pay claim for particular mention to Mr. X amounts to victimisation of the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008. Whether or not Ms. B's actions in this regard were intentional is of no particular relevance as it is a well established principle of anti-discrimination law that intent, or the lack thereof, is no defence. I find therefore that the complainant is entitled to succeed in this element of her complaint.
5.25 It is common case that Mr. A circulated the final report to all the members of the respondent's SMT at the same time - enclosing it with his letter of 8 October, 2010. The complainant is strongly of the opinion that the report was flawed, inaccurate, biased and unprofessional - and it is critical of her in several respects which she finds particularly shocking. The report was furnished to me as part of my investigation and it is clear that the report reflects negatively not only on the complainant but on the Board and other members of the SMT. It is also critical of management and financial processes operated by the respondent at Board and Executive levels, identifying gaps and shortcomings which exist in them and makes recommendations for addressing these matters. It is therefore understandable why the complainant and other members of the SMT were critical of the report at a meeting between the SMT and the Board on 2 November, 2010. Whilst they are perfectly entitled to hold the views they did, those views do not automatically translate into incidents of victimisation contrary to the Acts however flawed the complainant or those other members of the SMT believe the report to be. As previously stated the complainant must satisfy each of the three elements of the test set out by the Labour Court in the Barrett case for victimisation to be made out. It is clear that the complainant satisfies the first test that at the relevant time she had performed a protected act. However, in light of my comments above I cannot accept that the outcome of the report amounts to adverse treatment of the complainant by the respondent and consequently she has failed to establish a prima facie case of victimisation in respect of this element of her complaint.
5.26 The complainant also submits that the actions of Mr. A in terms of his attempts to have the recommendations of the report implemented amount to victimisation contrary to the Acts. It is clear from the minutes of the meeting of 2 November, 2010 between the Board of Directors and the SMT that members of the latter had significant concerns about the report. The complainant states that notwithstanding these concerns Mr. A wrote to her on 9 November, 2010 asking that she and the SMT prepare a Timeline Action Plan for implementation of the recommendations contained in the report. Given the circumstances which prevailed at the time it appears somewhat hasty of Mr. A to adopt the position he did and it may have been better to adopt a more conciliatory approach with disgruntled staff. However, I accept his evidence that as Chairperson of the Board he was requested by the National Body to commence the process of implementing the recommendations - in this regard I note the comments of Br. Z's letter of 15 December, 2010 to the complainant which confirms that the National Body had issued such a request. In those circumstances I consider it entirely reasonable that Mr. A might write to the complainant in the terms he did on 9 November, 2010. It is evident from the minutes of the Board Meeting of 14 January, 2011 that little progress had been made on the process of implementing the recommendations and as such there was significant unrest and tension between the respondent's Board and the SMT. It is also clear from the minutes of this meeting that Mr. A took a rather assertive approach to the issue and made some comments which could be described as confrontational in the circumstances. However, I cannot accept that they amount to adverse treatment of the complainant in terms of section 74(2) of the Acts. Consequently, I find that she has failed to establish a prima facie case of victimisation in respect of this element of her complaint and it cannot therefore succeed.
5.27 It is common case that Mr. A authorised the Head of Psychology in the respondent (who was a member of the SMT and had received a copy of the final report in that capacity) to provide a copy of the report to the Principal Psychologist. Mr. A states that he authorised this because (i) he held the Principal Psychologist in high regard, (ii) he was a senior member of staff, (iii) the purported redundancy of some psychologists was a key factor in the National Body commissioning the report and (iv) the SMT had already been given the opportunity to put its comments on record. The complainant contends that Mr. A's decision amounts to victimisation of her contrary to the Acts as (i) Mr. A's letter of 8 October, 2010 requested that the report be treated as confidential to the Board of Directors and the SMT, (ii) Mr. A breached his own request and (iii) the Principal Psychologist subsequently used extracts from the report in the context of making a formal complaint against the complainant to the respondent. I am satisfied that Mr. A, in his capacity as Chairperson, had the authority to circulate the final report to whomever he wished and to place whatever restrictions he considered appropriate on the recipients. This is what he did when he circulated the final report to the SMT on 8 October, 2010 and in my view the contents of his letter of that date was an instruction to those recipients that the report was confidential to the respondent's Directors and the SMT until both groups had an opportunity to discuss it. In this letter he also advised that he proposed to hold a meeting for the purposes of discussing the report on 18 October, 2010. This meeting did not take place until 2 November, 2010 and I am therefore of the view that his instruction applied until that date. It is unclear when Mr. A authorised the Head of Psychology to copy the report to the Head of Psychology but I am satisfied, on balance, that it was after this date and in the circumstances I find that he did not breach his own instruction as asserted by the complainant. However, I am also satisfied that Mr. A's behaviour amounted to adverse treatment of the complainant in terms of section 74(2) of the Acts but the question remains as to whether or not this adverse treatment was in reaction to the complainant having referred her equal pay claim to this Tribunal. Having carefully considered the evidence adduced by the parties I am not satisfied that the complainant had discharged that particular probative burden and this aspect of her complainant fails.
5.28 The complainant states that during a number of consecutive working days in November, 2010 she received thirteen separate pieces of correspondence from Mr. A which required attention and contends that this was an attempt by him to maximise pressure on her at a time when the discussions on the Review Report were on-going. She adds that this matter subsequently brought this matter up at the respondent's Board Meeting on 2 December, 2010 wherein he intimated to the Directors he was awaiting responses from the complainant to recent correspondence he issued. She submits that these actions amount to victimisation of her contrary to the Acts. Mr. A states that at the relevant time he was unaware the complainant had a problem with the volume of correspondence he was sending her adding that some of the correspondence related to a complaint made by another member of staff against the complainant and he was anxious she receive it. He further stated that other correspondence related to issues which he believed were appropriate for him to be involved in as Chairperson and rejected the assertion he was acting as an Executive Chairperson. There is some confusion over the number of pieces of correspondence which Mr. A sent the complainant as it appears some may be duplicates of material already issued by e-mail but I am satisfied that the volume was higher than what one might expect to be the norm. However, this does not of itself ground a claim of victimisation. I am of the view that by this stage the working relationship between the complainant and Mr. A was so fractured as to border on non-existent. I am further of the view that Mr. A was acting in a manner which ensured that he had a record of any request he had made of the complainant should a dispute arise subsequently. This is illustrated by the actions of Mr. A at the Board Meetings of 2 December, 2010 and 14 January, 2011 - on the first date he seeks to portray the complainant as unhelpful and on the second he attempts to assure the Board of his reasonableness by trawling through each individual piece of correspondence. To my mind this behaviour borders on pettiness and resulted in significant portions of the Board Meetings being devoted to personal squabbles between them and I feel it necessary to say that I believe there is considerable merit to the complainant's assertion that Mr. A behaved as an Executive Chairperson in many respects. However, I am not satisfied that the complainant has established facts from which it could be inferred that Mr. A's behaviour in this regard amounts to victimisation of her contrary to the Acts and this element of her complaint cannot therefore succeed.
5.29 The complainant contends that the manner in which the respondent behaved in its appeal of the Equality Tribunal's Decision of 10 June, 2009 to the Labour Court amounts to victimisation of her contrary to the Acts, stating that the respondent could have indicated it had no objection to remitting the complaint to the Equality Tribunal much earlier than the day of the Appeal Hearing in the Labour Court and thus reduce the costs and delay which the complainant experienced. The respondent rejects this assertion stating that it acted appropriately at all times in the course of it exercising its statutory entitlement to appeal the Equality Tribunal's Decision. From an examination of the documentation opened to the Tribunal by the parties it is clear that from the time the complainant's submission was first lodged with the Labour Court she was at the very least amenable to the proposition that the might claim be remitted back to the Equality Tribunal for a decision at first instance on the question of whether or not "like work" existed between the complainant and her named comparators, should the Court consider that the appropriate way forward. This documentation also shows that after complying with the Court's requests to file the relevant submissions the parties were notified by letter dated 23 June, 2010 that the Appeal Hearing was set for 16 September, 2010. The Labour Court, in an e-mail to the parties dated 9 September, 2010 raised issues around the jurisdiction of the Court to hear the appeal having regard to the contents of the submissions which had been filed by the parties and the relevant provisions of the statute. The Court indicated that it intended to use the Hearing on 16 September, 2010 to address this jurisdictional question and that is what occurred.
5.30 The Labour Court's Determination on this matter states as follows - "In this case the respondents believe that they cannot adequately advance their appeal without adducing evidence relating to claimed differences in work performed by the Complainant relative to that performed by the comparators. The Complainant strenuously objects to any such evidence being considered by the Court. In these circumstances, and while reserving its position on the jurisdictional question referred to above, the Court has decided, with the concurrence of both parties, that the case should be remitted to the Equality Tribunal for an investigation of the substantive issue in this case.". It is clear from the Court's Determination that the matter was remitted by consent. Moreover, as stated in the previous paragraph the complainant was amenable to such an approach from the outset and the first occasion on which the Court raised the jurisdiction issue was a week before the Hearing was to take place. The complaint has not adduced any evidence to support her assertion that the respondent deliberately sought to delay the appeal process in the Labour Court. Consequently, she has failed to establish a prima facie case of victimisation and this element of her complaint must fail.
5.31 Finally, in the interests of completeness I feel it is necessary to look at the complainant's allegations in the round and see if collectively they support her assertion of victimisation. In doing so I am satisfied that the test set out by the Labour Court in the Barrett case should be applied. The complainant allegations focus on three individuals - Mr. A, Ms. B and Br. Z. The vast majority of the alleged incidents involve Mr. A. It is clear from the evidence adduced in the course of my investigation that there was a personal animus between Mr. A and the complainant which deteriorated over time - although I am satisfied that this animus was not connected in any way with the complainant's equal pay claim. It is also clear that Mr. A treated the complainant inappropriately on a number of occasions and in my view he behaved in a manner unbecoming the Office of Chairperson of the respondent organisation - behaviour which amounted, some of the time, to adverse treatment of the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008. However, the complainant reacted in like fashion on occasion - when she merely copied him with the names of those who would deal with matters when she was on annual leave. This "tit for tat" behaviour undoubtedly eroded the working relationship to such an extent that Mr. A decided it was necessary for him to record virtually all requests to the complainant in writing. Having evaluated the totality of the evidence adduced by the parties on these issues I cannot conclude that the treatment of the complainant by Mr. A was as a reaction to the existence of her equal pay claim before this Tribunal - the protected act in terms of the Labour Court's Determination in Tom Barrett v Department of Defence rather it was prompted by the factors averted to above. Consequently, I find that the complainant has failed to establish a prima facie case that the treatment of her by Mr. A constitutes victimisation of her in terms of section 74(2) of the Employment Equality Acts, 1998-2008.
5.32 I shall now examine the behaviour of Br. Z in terms of section 74(2) of the Acts. As I have found that his decision not to disclose the draft report on the review of the Clare Services to the complainant amounts to victimsation of her contrary to the Acts my comments in this paragraph focus on the other issues involving Br. Z. It is indisputable that Br. Z as Chairperson of the Board of the National Body exercises significant authority and influence in the direction and approach the National Body adopts on issues as well as the manner in which each of the regional companies, including the respondent, conducts their business. The mechanism which underpins this authority, insofar as the respondent is concerned, is the Governance Agreement between it and the National Body dated June, 2007. As I stated previously, prior to the appointment of Mr. A as the Chairperson of the respondent Board the complainant had enjoyed significant latitude in many aspects concerning the delivery of services in the region - in this regard I note that the review of the respondent which it reached a similar conclusion.
5.33 From the oral and documentary evidence adduced by the parties in the course of my investigation it is clear to me that whilst the complainant passionately subscribed to the ethos of the Brothers of Charity she held different ideals and visions to that organisation as to how the services might best be delivered to users. This idealism gave rise to conflict between the complainant and (i) the respondent's Board of Directors and (ii) members of the National Body (including Ms. B). It appears to me that she was viewed by Br. Z and the other members of the National Body, not altogether incorrectly, as a maverick who would not toe the party line. Having carefully considered the totality of the evidence adduced by the parties in the course of my investigation I am satisfied, on balance, that the actions of Br. Z as regards the complainant insofar as the appointment of Mr. A to the position of Chairperson of the respondent's Board of Directors, which at best could be described as misguided, was premised on the fact that he wanted the complainant to conform to the norms which had existed in the past and which the Brothers of Charity were comfortable with and were not a reaction on his part to the existence of her equal pay claim before this Tribunal. In this regard I am satisfied that Br. Z considered Mr. A as someone who subscribed to these norms and viewed him as a "safe pair of hands" who in time might be able to bring the complainant back in line. However, I find that these actions do not amount to victimisation of her by Br. Z in terms of section 74(2) of the Employment Equality Acts, 1998-2008.
5.34 At the outset I wish to state I am satisfied that Ms. B shared the same view of the complainant as that held by Br. Z. Despite her comments to the contrary I am further satisfied that Ms. B held significant influence and control over events in the respondent organisation, as well as in the other local companies and exercised this on occasion. An example of this was her contact with Mr. A pre-empting the subsequent instruction of Br. Z of 8 October, 2010 which resulted in Mr. A instructing the complainant not to meet with a politician alone. However, apart from the incident involving her disclosure of the complainant's equal pay claim to Mr. X I am satisfied that the actions of Ms. B in respect of the complainant were not as a reaction to the complainant having referred that complaint to the Equality Tribunal and accordingly do not amount to victimsation of the complainant in terms of section 74(2) of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(a) the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008 when (i) it decided not to provide her with a copy of the draft report in July, 2010 following a review of the respondent services in circumstances where that draft report was furnished to others and (ii) the existence of the complainant's equal pay claim to this Tribunal was disclosed to the Consultant performing the review, and
(b) the complainant has failed to establish a prima facie case of victimisation in terms of section 74 (2) of the Employment Equality Acts, 1998-2008 in respect of all of the other alleged incidents of victimsation covered in this Decision.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I order that the respondent pay the complainant the sum of €45,000 by way of compensation for the distress suffered by her as a result of this unlawful treatment. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
______________________________________
Vivian Jackson
Equality Officer
12 April, 2012