EDA1213

• This is an appeal by Roy Mackarel against the decision of the Equality Tribunal in his claim against Monaghan County Council made under the Employment Equality Acts 1998- 2011(the Acts). The claim was on the grounds of his religious belief including religious background.
  
  In line with its normal practice the parties are referred to as they were at first instance. Hence Mr Mackarel is referred to herein as the Complainant and Monaghan County Council is referred to as the Respondent.
  

  Background

  The Complainant was employed by the Respondent as a retained firefighter from October 2001 until his employment was terminated by dismissal on 10^thDecember 2007. On or about 16^thOctober 2006 the Complainant made complaints to the Respondent alleging that he had been subjected to harassment by work colleagues in the nature of derogatory and offensive verbal comments in relation to his religion. The Complainant is a member of the Presbyterian Church.
  
  On foot of these complaints the Respondent initiated an investigation, initially informally and later by commissioning an investigation by an external consultant. The consultant finalised her report on 30^thNovember 2007 and it was presented to the Director of HR of the Respondent on or about 7^thDecember 2007. In her report the consultant concluded that the complaints of harassment made by the Complainant were not upheld. The report also dealt with an incident involving the Complainant’s conduct during the course of attending at an incident on or about 22^ndSeptember 2006. The import of the finding made by the consultant in relation to this incident was that the Complainant had disobeyed an order from his Officer in Command and that he had left active duty without authorisation.
  
  The content of this report was reviewed by the Director of HR of the Respondent over a weekend. Based on the findings of the consultant in relation to the incident of 22^ndSeptember 2006 the Director of HR formed the opinion that the Complainant had been guilty of gross misconduct. He wrote to the Complainant by letter dated 10^thDecember in the following terms: -
  

  • 
    Dear Mr Mackeral.

    I enclose a copy of the Report of the Investigation into the complaints made by you against Mr A and Mr B carried out by Ms C.

    This matter has been treated as private and confidential and only three copies of this report have been issued to yourself Mr A and Mr B. I would ask that your respect the confidentiality with which this report has been prepared.
    The findings of the investigation conclude that in relation to the complaint pertaining to harassment, sexual harassment and bullying under the Council's Policy Statement on Workplace Bullying and Harassment you have no case answer.[sic]

    The investigation details acts carried out by you that constitute gross misconduct in your role as retained fire fighter. I refer specifically to the incidents at Ballybay Community School on 22 September 2006 when you:

    • 
      - Abandoned your assigned post attending to an injured person on the roof of the Community School
      
      - Refused to obey an instruction and displayed serious insubordination to the Station Officer in charge of the incident
      
      - Walked away from the scene of an incident
    
    These acts constitute serious negligence of duty which might have caused unacceptable loss or injury to the victim of an incident and brought Ballybay Fire Service and Monaghan County Council into disrepute.

    In a command structure operating in emergency situations such as the fire services, this insubordination of a fire fighter or failure to obey reasonable instructions as part of a team, puts lives at risk.

    Consequently, having considered all the relevant evidence, I confirm that I recommending to the County Manager that your employment as a retained fire fighter is terminated

    You have the right to appeal this recommendation in writing to the county managers within 10 working days of the date of this letter.

  
  You are being suspended on full pay from 1 December to 21 December
  • 
    _______________________
    Director of Human Resources

The Complaints

By notice received by the Director of the Equality Tribunal on 30^thMay 2008 the Complainant referred complaints against the Respondent under the Acts alleging discrimination by way of harassment on grounds of his religion and victimisation by way of dismissal. These complaints were investigated by the Equality Tribunal and in a decision issued on 23^rdDecember 2011 all of the complaints were dismissed. The Complainant appealed to this Court against the whole of the Equality Tribunal’s decision.

The Appeal

At the commencement of the hearing of the appeal the Respondent raised preliminary objections to the admissibility of the complaints of harassment having regard to the time-limit prescribed by s.77(5) of the Acts. It was pointed out that the within complaints had been presented to the Director of the Equality Tribunal on 30^thMay 2008 and that the incidents alleged to constitute harassment had occurred on various dates between 2003 and September 2006. On that basis it was contended on behalf of the Respondent that if harassment had occurred (which was denied) any cause of action which the Complainant may have had was extinguished by the statutory six-month time limit. It was further contended that these incidents were also outside any possible extension of time that the Complainant could obtain under s.77(5)(b) of the Acts.

The representative of Respondent fairly and, in the Court’s view, properly conceded that the circumstances in which the Complainant’s employment was terminated disclosed facts from which victimisation could be inferred. In these circumstances the Respondent conceded that in accordance with s.85A of the Acts it carried the burden of proving that the dismissal was not an act of victimisation.

The Issues Pursued in the Appeal

In light of the concession made on behalf of the Respondent Counsel for the Complainant sought an opportunity to take instructions. The Court rose and on resumption of the hearing Counsel informed the Court that the Complainant was only proceeding with his claim of victimisation in relation to his dismissal and that he was not proceeding with the complaints of harassment. The Court then proceeded to take evidence on behalf of the Respondent on the circumstances giving rise to the Complainant’s dismissal.

Evidence of Mr Paul Clifford

Mr Paul Clifford, who is Director of Human Resources with the Respondent, gave evidence. Mr Clifford told the Court of the circumstances in which it was decided to commission a report from an external consultant into the complaints of harassment and bullying made by the Complainant. According to Mr Clifford he received the report of the consultant on Friday 7^thDecember 2007. He brought the report home and studied its content over the weekend. A copy of the report was opened to the Court. The witness noted that the complaints made by the Complainant were not upheld. Mr Clifford referred to a section of the report dealing with an incident which the Complainant attended in the course of his duties at Ballybay Community School on 22^ndSeptember 2006. The witness told the Court that he became alarmed at what the report contained in relation to this incident. He formed the view that the Complainant had been guilty of gross misconduct in failing to obey orders and in leaving his post without authorisation. He formed the opinion that the Complainant had endangered the life of a victim of the incident and had brought the Respondent into disrepute. He decided to recommend to the County Manger that the Complainant be dismissed. The witness then wrote to the Complainant by letter of 10^thDecember 2007, in the terms recited above.

It was Mr Clifford’s sworn evidence that in recommending the Complainant’s dismissal he was influenced solely by events surrounding the incident of 22^ndSeptember 2006 and what he regarded as the gravity of the Complainant’s misconduct. The witness further testified that he was in no sense influenced by considerations of the Complainant’s religion or the fact that he had made complaints of harassment on grounds of his religious background.

Mr Clifford accepted that he had not interviewed the Complainant in relation to this incident, nor had he sought to elicit his version of the events described in the report, before deciding to recommend his dismissal.

The Law

Victimisation is defined by s.74(2) of the Act as follows: -

• “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
  
  • (a)a complaint of discrimination made by the employee to the employer,
    (b)any proceedings by a complainant,
    (c)an employee having represented or otherwise supported a complainant,
    (d)the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
    (e)an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,
    (f)an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
    (g)an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Conclusion

In this case the information relating to the incident of 22^ndSeptember 2006 that came into the Respondent’s possession in December 2007 was contained in a lengthy report concerning the allegations of harassment made by the Complainant. That report was commissioned so as to enquire into the alleged misconduct of others in relation to the Complainant. The terms of reference for the report were similarly circumscribed. The report nonetheless went on to deal with what by any standard was a complaint of serious misconduct against the Complainant.

The decision to dismiss the Complainant without affording him any opportunity to address the allegations contained in the report, or to allow him to make representations on his own behalf, is also striking. The Respondent is a responsible employer and the Court has no doubt that it would normally observe fair procedures before taking any action detrimental to an employee in relation to his or her employment. Yet, in this case a decision was taken to dismiss the Complainant summarily without affording him the most rudimentary form of fair procedure.

The procedural or substantial fairness of the dismissal,per se, is not the determinative question in issue in this case. If it was a case of unfair dismissal, the Respondent would plainly be in considerable difficulty, at least on procedural grounds. Rather, what is in issue is whether or not the fact of the Complainant having made complaints of harassment against his colleagues was in any sense an influential or causative factor leading to his dismissal. The Court accepts that Mr Clifford gave honest evidence to the best of his ability. It further accepts that he was primarily motivated in his decision to recommend the Complainant’s dismissal by what he regarded as the seriousness of the misconduct disclosed in the report. While there was undoubtedly procedural unfairness in the manner of arriving at that decision that does not in itself establish victimisation. Nevertheless, the juxtaposition in the report of the conclusions on the complaints made by Complainant, with those made against him, coupled with the peremptory manner in which the Respondent acted, makes it impossible for the Court to discount the possibility that but for the Complainant’s complaints of harassment he may not have been treated as he was.

It is also of considerable significance that the incident relied upon by Mr Clifford to justify the Complainant’s dismissal occurred in September 2006. Notwithstanding the seriousness of the incident the Complainant’s superior officer did not invoke any disciplinary process at that time. Nor did he report the incident to Mr Clifford. Against that background it seems at least probable that but for the disclosure of this incident in the report it would not have come to Mr Clifford’s notice. It follows that had there been no complaints of harassment by the Complainant there would have been no investigation. Had there been no investigation there would have been no report and had there been no report there would have been no dismissal.

In all of these circumstances the Court has reached the conclusion that the Respondent has failed to prove, as a matter of probability, that the Complainant’s dismissal was not as a reaction (in the sense described above) to his complaints of harassment on grounds of his religious belief or outlook.

Determination

The Court must hold that the Complainant is entitled to succeed in his complaint of victimisation.

The Court is satisfied that the appropriate form of redress in this case is an award of compensation. Having regard to all the circumstances of the case the Court measures the amount of compensation that is fair and equitable at €17,000. The Respondent is ordered to pay the Complainant compensation in that amount. No part of this award is in respect to remuneration.

The appeal is to that extent allowed and the decision of the Equality Tribunal is varied accordingly.

Signed on behalf of the Labour Court



Kevin Duffy
7th June 2012______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.