EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 - 170
PARTIES
Martin Bonner
and
John Conlon
(represented by Peninsula Business Services Ltd.)
File Reference: EE/2010/072
Date of Issue: 7th December, 2012
Headnotes: Employment Equality Acts, - Section 74(2), Victimisation - Section 74(2)(c) - support for ex-wife's claim to the Tribunal
1. Dispute
1.1. This case concerns a complaint by Mr. Martin Bonner (hereinafter referred to as "the complainant") that he was victimised by John Conlon (hereinafter referred to as "the respondent"), contrary to section 74(2) of the Employment Equality Acts, 1998 to 2008 ("the Acts").
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 5th February, 2010, alleging that the respondent had victimised him.
2.2. Written submissions were received from both parties. On 15th May, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 15th June, 2012. Further information was sought from the parties and final correspondence in this respect was received on 21st September, 2012.
3. Summary of the Complainant's case
3.1. The complainant stated that he worked for the respondent as a coach driver since 2006. He stated that had a full-time job in the Northern Ireland Civil Service but worked for the respondent on three weekends out of four. He stated that, in addition, he might take an Annual Leave day once a month to do a run for the respondent at its request. He stated that sometimes he would only receive a day's notice to work for the respondent.
3.2. The complainant stated that, in or around October 2009, a number of weeks went past when he did not receive any calls from the respondent. He stated that this seemed unusual. He stated that he rang the respondent about the matter on 12th November, 2009. He said that the respondent seemed surprised that he was ringing and told him that he was not receiving any work from him because his ex-wife had taken a sexual discrimination case against him and had named the complainant as a witness. He said that the respondent "made it clear" that he would not be getting any work from him as long as he was prepared to assist her. The complainant stated that he spoke with the respondent again on 26th November, 2009. He said that he repeated that he would not provide him with work as long as he was supporting his ex-wife's case.
3.3. The complainant denied that the reason the respondent did not provide him with work was due to financial constraints. He stated that he was the only part-time worker phased out due to the downturn in business and that the respondent had hired another part-time worker since the complainant last worked for him in September 2009. In response to the respondent's claim that his total working hours were over the legal limit, he stated that his full-time job is not a driving job and he would have been well within the legal driving hours limit requirement by working three out of four weekends. The complainant provided his own account of what took place with respect to the security cameras on board the bus (see par. 4.4 below). He denied that this had anything to do with him not being given any more work by the respondent.
3.4. In summary, the complainant stated that the only reason he can think of that he was not provided with any more work is because he had supported his ex-wife's case to the Tribunal. He accepted that there was a downturn in business but other casual workers were still being provided with work whereas he was not. He stated that he earned approximately €350 per week from the respondent for working at weekends. He outlined his current financial circumstances.
4. Summary of the Respondent's case
4.1. The respondent accepted that the complainant had not been provided with work by him since late 2009 but submitted that there were two reasons for this: He submitted that there has been a decrease in his business due to the downturn in the economy and that the Road Safety Authority (RSA) had examined his work practices and told him that the complainant was working in excess of the maximum weekly working hours.
4.2. In that context, the respondent gave an account at the hearing of this decrease in business and provided financial accounts to the Tribunal which, he submitted, reflected this. His son, who was present at the hearing, gave an account of his communication with the RSA. In particular in this respect, he said that they inspected a number of tacographs, including one for the complainant, and when his tacograph showed how little work he was doing, they asked what he did in between. The respondent's son said that, when he responded that he worked 40 hours a week, they told him that he should not be working for them as this was classed as other work, that the working hours he did was excessive in that context and the respondent was responsible for that.
4.3. The respondent denied ever saying that he would not give the complainant work because of his support for his ex-wife's complaint against him but that the complainant did ask if they could settle the matter. He said that the complainant's ex-wife had made a complaint against him when he had treated her more than fairly. When asked whether the case being taken against him influenced his decision not to give the complainant work, he replied "to a certain extent, yes".
4.4. Both the respondent and his son also described a dispute between them, on the one hand, and the complainant and his ex-wife on the other. This dispute related to whether, on 28th September, 2009, the complainant's ex-wife allowed customers to drink alcohol on board a bus and whether she and/or the complainant disconnected and/or damaged security equipment on board the bus. The respondent stated that, after this incident, he "came to reckon" that the complainant had enough work. The respondent's son said that he was swinging towards not employing the complainant again following this incident, but "once the RSA arrived, it knocked it on the head".
4.5. The respondent stated that, at the time in question, he had two employees working for him as well as four or five casual workers. He said that he provided work to the complainant as he was building a house and needed all the work he could get so he gave him a lot more work than the other casual drivers. He said that he probably has casual workers employed at the moment but they all lived a mile down the road and he was only providing them with a small amount of work. He said that he has not hired any new casual employees since March 2009 but had hired a full-time employee in September 2009, but that he hired this worker before he stopped providing work to the complainant.
4.6. Finally, the respondent said that the complainant would only have worked one weekend out of four, not three weekends out of four. He said that he rarely asked him to do a run during the week. He stated that he could not get €350 per week as generally a Saturday was a ten hour day and Sunday was an 8 hour day so 35 hours a week just could not happen. He stated that he was John Conlon Coaches at the time in question and his son had run a company called Conlon Travel. He said that they amalgamated in 2010.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'1
5.2. Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(c) an employee having represented or otherwise supported a complainant" The issue for me to decide in this case, then, is whether the complainant was victimised by the respondent because he supported the taking of a claim of discrimination by his ex-wife. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.3. In Tom Barrett v Department of Defence2 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 taken 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.
5.4. In the present case, it is clear that the complainant took a protected act in that he supported his ex-wife's claim to the Tribunal and the respondent became aware that he would be doing so. It is accepted that the complainant's workload was terminated around the time that the respondent became aware that he would be supporting his ex-wife's complaint. The question is whether the decision to terminate the work was adverse treatment resulting from the complainant taking the protected act in question.
5.5. While the RSA clearly met with the respondent's son, I am not satisfied that it raised any particular issue with the complainant's hours of work. I do not accept that this was a factor in refusing him any further work in that context. Nor do I accept that the respondent's financial circumstances had any bearing on the decision to refuse him any further work. However, I am satisfied that the dispute about whether the complainant and his ex-wife allowed drinking on board a bus and/or damaged security equipment on that bus was a factor in the respondent's decision not to provide work to the complainant thereafter.
5.6. It was also clear from the respondent's own evidence that the complainant's support for his ex-wife influenced his decision to terminate their employment relationship. In that context, and in any event, I prefer the evidence of the complainant in so far as he stated that the respondent told him that he would not give him any work as long as he supported his ex-wife's claim to the Tribunal. In all the circumstances of the present case, then, I am satisfied that the complainant's decision to support his ex-wife's complaint was a factor in the respondent's decision to terminate their employment relationship.
5.7. For a prima facie case of victimisation to be made out, the taking of the protected act in question need not be the only reason for the adverse treatment. If it was anything other than a trivial influence on the decision of the respondent to terminate the complainant's employment, then it was victimisation. While, in the present case, the complainant's support for his ex-wife's claim to the Tribunal was not the only factor that influenced the respondent's decision to refuse him any more work, it was a significant factor in that decision. It was certainly more than a trivial one. It is clear that the complainant was victimised by the respondent in that context.
5.8. Finally, I note the dispute as to the extent of the work that the complainant did for the respondent. The respondent's evidence was inconsistent in this respect. On the one hand, he suggested that the complainant was working over and above the legal limit of hours he should have been working in any given month. It would appear that this was in the context of the applicable regulations and/or legislation relating to driving hours, but it could also have been within the context of the Organisation of Working Time Act. On the other hand, the respondent also argued that the complainant worked no more than one weekend in four. The complainant himself stated that he worked as often as three weekends out of four.
5.9. It is not within my jurisdiction to consider breaches of the Organisation of Working Time Act but I would have felt obliged to comment on such a serious matter if I was satisfied that there had been such a breach. However, I am satisfied, on balance, that there was no such breach as I am satisfied that the complainant worked only about twenty times a year for the respondent, earning approximately €80 to €100 each time. My award in respect of the victimisation is based on this amount and is the approximate equivalent of eighteen months earnings in that respect. As it is made to compensate the complainant for the distress caused to him as a result of the victimisation by the respondent, it is not in the nature of pay.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the respondent victimised the complainant in terms of section 74(2) of the Acts.
6.3. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €2,500 in respect of the victimisation. This award is made to compensate the complainant for the distress caused to him as a result of the victimisation by the respondent. In that context, it is not in the nature of pay and is, therefore, not subject to tax.
_____________
Gary O'Doherty
Equality Officer
7th December, 2012
1 EE5/1986 Gibney v Dublin Corporation
2 EDA1017