Employment Equality Acts
1998-2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2013-057
PARTIES
A Complainant
(Represented by Anne Hickey, Solicitor)
- v -
A Named Development Association
(Represented by Hegarty & Armstrong Solicitors)
&
FÁS
(Represented by Michael Bowden)
File references: EE/2010/261
Date of issue: 12 June 2013 EE/2010/416
Keywords
Employment Equality Acts - discriminatory treatment - disability ground - prima facie case - harassment - victimisation
1. Dispute
1.1. This dispute concerns a claim by the complainant that he was discriminated against by the respondent on the grounds of his disability, in that, that he was harassed in the course of his employment and was subjected to victimisation as a result of making a complaint about the discriminatory treatment. The complainant suffers from a mild cerebal palsy condition.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 7 April 2010 under the Employment Equality Acts. The claim was made on the disability ground. In accordance with his powers under section 75 of the Acts, the Director then delegated this case to Valerie Murtagh- an Equality Officer - on 1 October 2012 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 31 October 2012 and the hearing resumed for a further day on 14 February, 2013. Final supplementary documentation was received by the Tribunal on 8 April, 2013.
2. Case for the Complainant
2.1. The complainant suffers from a mild cerebal palsy condition. He was employed as a general operative by the respondent on a Community Employment Scheme funded by FÁS from November 2008 until October 2009. The complainant stated that his father approached the supervisor and enquired if the complainant could be permitted to go on the scheme. The complainant's father stated that he advised the supervisor that the complainant had mild cerebal palsy and he had no problem with the supervisor knowing about it. He explained that the complainant had a weakness on his right side and that he gets spasms in his right arm and leg but that it should not interfere with the work. The complainant's father stated to the supervisor that some of his extended family members did not know about his condition nor were people in the local community aware of it. About a month into the course, the complainant's father states that he got a call from his son stating that he hurt himself breaking rocks and pulled a muscle in his back and he had to call out to him where he was working and put deep heat on his back and massage it to ease the muscle. The complainant's father states that as the course progressed, his son became depressed and agitated and was put on medication by the doctor. The complainant states that he was mocked by some of his co-workers when mixing cement on one occasion, he could not keep up and they shouted 'more muck' and they called him 'useless' and 'thick'.
2.2 The complainant alleges that a few months into the scheme, his supervisor told all the other employees about the complainant's disability and mocked him. The complainant also alleges that the supervisor also commented publicly that the complainant was receiving disability payment in addition to his FÁS payment which he said he was not entitled to receive. The complainant submits that following a complaint by him and three other participants made to the supervisor in April 2009 about being bullied, the supervisor subjected the complainant to victimisation by picking on the complainant and started calling him the 'plastic plumber'. The complainant alleges that when he did not turn up for work on Mondays on two occasions, the supervisor referred to him as an alcoholic. The complainant stated that he was afraid to make an official complaint at the time as the supervisor's brother was on the committee of the CE scheme. The complainant was also doing a literacy course in FÁS as part of the scheme. The complainant contends that the supervisor made it his business even though it was not his affair to go into the FÁS office and find out the nature of the course and disclosed to all the other employees that it was a literacy course and not a computer course. In September 2009, the complainant alleges that the supervisor disclosed to a friend of the complainant, Mr. C that the complainant suffered from cerebal palsy and would not be in a position to do a security course that he was hoping to undertake. The complainant states that when he finished the course in October 2009, he was very depressed and went to his doctor and was put on medication and referred to a counsellor and submits that he was much worse off for having done the course.
2.3 Three persons who worked with the complainant gave testimony at the hearing that the supervisor stated that the complainant should not be entitled to get double payments, i.e. disability allowance and FÁS payment for the scheme and they submit that the supervisor had stated in the presence of other members of the scheme that the complainant was not at his reading classes. They also contend that the supervisor referred to him as an alcoholic when he missed two Mondays and that on occasion he would refer to the complainant as the 'plastic plumber'. One of the witnesses Mr. C submits that the complainant, when enquiring from the supervisor about getting on a security course, was told by the supervisor that he would not be able to do the course as he would not be 'fit for it' on account of his disability. The complainant also contends that a few months after completion of the CE scheme, he was approached by Mr. G, a friend of the supervisor and told to 'drop the case' or he would 'get him'. In summary, the complainant is alleging that he was harassed in the course of his employment on grounds of his disability and subjected to victimisation for making a complaint about the alleged bullying and harassment.
3. Case for the Respondent
3.1 The respondent states that the complainant was a participant on the community development scheme which commenced on 20 October, 2008. The respondent states that the complainant was not originally on the scheme but shortly after commencement of the scheme, the supervisor states that he was approached by the complainant on two occasions and his father on one occasion requesting that he be placed on the scheme. The supervisor states that he was advised by the complainant's father and it was apparent from his records that the complainant was in receipt of disability benefit. The supervisor states that he did not know the nature of the disability and the first time he became aware that the complainant was suffering from cerebal palsy was in correspondence received from the complainant's solicitor after the scheme ended. The supervisor allowed the complainant start the scheme on 13 November 2008. The complainant was involved in lighter duties i.e. sweeping up, grass cutting and strimming in the summer, standing guard on traffic systems etc. The supervisor states that at no stage did he ever tell the other members of the scheme that the complainant was on disability benefit but that they would have been aware that he was in receipt of disability payment because the complainant and another member of the scheme regularly spoke about their disability payment and referred to getting 'the double bubble' and the fact that they were in receipt of a greater income than the other participants. The supervisor recalls on a wet day around Christmas time when they were all in the hut, the complainant and another employee were boasting about how they had received two bonus weeks for Christmas. The supervisor states that at no stage did he ever state that the complainant was not entitled to receive any payment nor did he ever discuss the complainant's medical condition with anyone.
3.2 The supervisor refutes the allegation that after complaints were made to him about alleged bullying and harassment, he picked on the complainant. The supervisor states that he always got on very well with the complainant and at no stage did he ever make any complaint regarding his treatment on the scheme. The supervisor denies the allegation that he referred to the complainant as the 'plastic plumber' although he states that he is aware that locally the complainant's father had this nickname. The supervisor emphatically denies ever referring to the complainant as an alcoholic when he was absent on Mondays on two occasions. In November, 2008 the supervisor submits that he was contacted by the FÁS community services development officer to the effect that it would be of benefit to the complainant to return to a literacy course which he had previously being on which was run by the VEC as a Back to Education Initiative (BTEI). The supervisor states that he spoke to the complainant about this and the complainant indicated that he would go back on the course but he did not want it 'on his record' i.e. recorded on the FÁS system as a literacy course. The supervisor agreed with this and allowed him to attend the course and he told him that the community development scheme would give him paid time off work to attend this course. As a result, the complainant was allowed to sign in for the half day of the CE scheme and to attend the course in lieu. Shortly after the course commenced, complaints were received from other employees on the scheme expressing their concern that the complainant was signing in but not attending for work. The supervisor stated that he did advise these persons that he was aware of this and the complainant was allowed to do so as he was attending a course but at no stage did he ever indicate that it was a literacy course.
3.3 The supervisor states that part of his function as a supervisor was to ensure that persons who were attending courses were reporting for same and actively taking part. The supervisor attended the office where the Back to Education Initiative (BTEI) programme was being run in May 2009 to see how the complainant was getting on and was advised by the course tutor that the complainant was not in that day. On checking the records, the complaint had signed in as normal with the CE scheme but did not attend at the course. The supervisor contends that he did bring the issue up with the complainant but took no further action as there were only 3/4 weeks left on the literacy course. In relation to the complainant's allegation that the supervisor disclosed to a friend of the complainant that he suffered from cerebal palsy and would not be able to do a security course; the supervisor strongly denies this allegation. The supervisor states that in September 2009, he was approached at home by the complainant who expressed interest in attending a training course for security guards being run by FÁS. The supervisor states that he was not aware of the course or the criteria required in order to attend. The supervisor states that he made enquiries with FÁS who advised that the course had already commenced and that the complainant was ineligible for the course. He contends that FÁS informed him that the course was for people on the live register and not already on a FÁS scheme and therefore the complainant was not eligible. The supervisor states that at no stage did he disclose that the complainant suffered from cerebal palsy because the first time he became aware of this was in the various correspondence from his solicitor after the scheme had ended. In summary, the supervisor contends that he always considered the complainant a model employee and that he attended punctually and regularly and that they had a good working relationship. The supervisor reiterates that he always treated the complainant in a fair manner. The supervisor refutes the allegation of harassment and bullying and maintains that he looked out for the complainant at all times and kept a promise to his father that he would keep an eye on him. The supervisor rejects the allegation of victimisation in its entirety and claims that there is no basis for such a claim.
3.4 A number of witnesses on behalf of the respondent who were participants on the scheme gave testimony to the effect that the complainant and another member of the scheme at times boasted about the payments they were receiving. In addition, they stated that they could not recall the supervisor being threatening and abusive to the complainant. They also stated that the supervisor treated all employees in the same manner. Most of these witnesses also stated that they understood that the complainant was on a computer course and one of the witnesses stated that he was not aware that the complainant was doing any course. Mr. G, a witness for the respondent strongly denies that he threatened the complainant to 'drop the case' or he would 'get him'. He did state that he met the complainant socially in a pub after the scheme finished and the complainant introduced him to his girlfriend and that there was some discussion about second hand tools and as to what payment he might get for them. The witnesses also stated that generally the complainant would not be requested to break rocks and that they could not recall him doing this work or the incident where the complainant's father had to call on site when the complainant hurt himself trying to break rocks. The respondent states that there was no complaint received by the complainant while he was on the course but that some months later, it received a complaint from a solicitor outlining a bullying complaint on behalf of the complainant and three other participants on the scheme and an equality claim on behalf of the complainant. The respondent states that it was dumbfounded at the allegations and submits that the supervisor had gone out of his way to assist these same participants and indeed the complainant had approached the supervisor at the end of scheme in September 2009 about going on the next similar CE scheme but was not eligible for same.
4. Conclusions of Equality Officer
Jurisdictional Issues - Time Limits
4.1 It is submitted by the respondent that the complainant's claims are outside the time limit prescribed by section 77 (5) (a) of the Act and are therefore statute barred. The respondent argues that the complainant was employed on a FÁS Community Employment scheme from 20 October 2008 on a twelve month programme but that the scheme concluded early and according to the attendance records, the last day on which the complainant attended work was 30 September 2009. The EE 1 complaint form was not lodged with the Tribunal until 7 April 2010. It is submitted on behalf of the complainant that he was in such a depressed state following the completion of the scheme that he was not in a position to lodge a complaint at that time. He subsequently attended a solicitor requesting advice on how to deal with the issue but states that the effects of the alleged discriminatory treatment were ongoing at that time. His solicitor wrote to the respondent by letter dated 29 October 2009 on his behalf seeking a response to the allegation of discrimination. Having examined all the documentation and testimony on this issue, I find that given (i) the respondent was on notice of an equality claim on behalf of the complainant by the solicitor's letter dated 29 October 2009 and (ii) the EE1 complaint form was submitted albeit 10 days outside the 6 month time limit, the complainant has established reasonable cause in accordance with section 77 (5) of the Acts for the short delay in lodging the complaint with the Tribunal. In that regard, I am satisfied that I have jurisdiction to hear this complaint.
Correct Respondent
4.2 The complainant has brought the complaint against the named Development Association running the CE scheme and FÁS. It is submitted by the complainant's legal representative that although the contract of employment signed by the complainant is with the named Development Association, it is clear that in the event of there being any problem on the scheme, the employee could make a complaint to FÁS. The legal representative for the complainant also submits that it is clear that FÁS had a significant impact into the running and the supervision of the scheme in that regard evidence was given that the FÁS representative visited the scheme on a number of occasions and checked that the scheme was operating to a good standard. FÁS maintains that it has a complaints procedure in place to deal with complaints by its clients who have concerns about FÁS or a FÁS staff member regarding the provision of its services. FÁS submits that the complainant was employed by the named Development Association as outlined in his contract of employment and not by FÁS and that it does not deal with complaints in relation to employment related issues received from staff members of CE scheme sponsors. FÁS only records the making of the complaint by the staff member but any specific complaint is forwarded to the relevant CE scheme sponsor for a response. Having examined the documentation on this matter and taking into account the testimony of witnesses at the hearing, I am satisfied that the correct employer (taking into consideration the definition outlined at section 2 of the Acts) is the named Development Association and not FÁS as the complainant has no employment relationship with FÁS albeit that FÁS fund community employment schemes.
4.3 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court1 , whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
4.4 The complainant has alleged that he was discriminated against on the grounds of his disability in relation to harassment and victimisation by the respondent. Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
I am satisfied that the complainant's disability which he refers to as mild cerebal palsy comes within the above definition of disability as set out in the Acts.
4.5 The supervisor of the CE scheme stated in evidence that he has been a supervisor on FÁS schemes since 1995. He stated that he has received extensive training in relation to all aspects of the running of a scheme (e.g. administration, recruitment, staffing issues) in order to become a CE supervisor. The supervisor stated over the years he has worked with many employees with disabilities and there was never any difficulties encountered. In relation to the complainant's claim that he told all the staff that the complainant was on disability as well as earning a wage from the CE scheme, the supervisor stated that it was common knowledge among the workers as the complainant and another employee boasted about the extra payments they were receiving. He recalls a wet day in the hut around Christmas time, the complainant and another colleague boasting about getting an extra week's bonus on account of the holiday period. In relation to the complainant's claim that he had to break rocks, the supervisor stated that the complainant was not fit for heavy work and was not requested to perform those duties as they would have a stone mason on hand to do this type of work and the complainant would have tended to the stone mason. The supervisor strongly refutes the allegation that he referred to the complainant as an alcoholic when he missed an occasional Monday or that he ever referred to the complainant as a 'plastic plumber' although he did state that the complainant's father had that nickname in the local community.
4.6 The supervisor stated that the complainant was a model employee and had only to reprimand him on two occasions of a minor nature. The first incident where there was a complaint from a member of the local community about the complainant and a colleague sunning themselves and he requested them to be a little bit more circumspect and the second incident in relation to when the complainant was signed in and not attending a literacy course. However, the supervisor contends that these were minor issues. The supervisor states some of the other employees were aggrieved that the complainant was signed in but not in attendance. The supervisor states that it was his duty to look into the matter and when he called to where the course was taking place, the complainant was not in attendance at the course but as there were only a few weeks of the course remaining, the supervisor let the matter go and did not make a big issue out of it. There is a substantial dispute in relation to the evidence presented by both sides in this case. Overall, having questioned both parties and their witnesses at length during the hearing, I cannot find any evidence to substantiate the allegation of harassment on the grounds of disability. I found that the witnesses on behalf of the complainant (three of which are taking various claims against the respondent including a bullying claim against the supervisor of the scheme) were very vehement in their testimony and their statements appeared to be a little rehearsed. On the other hand, the witnesses for the respondent who had participated on the CE scheme came across as more cogent and more credible in their testimony. I note that some of these witnesses while they participated on the CE scheme which finished in September 2009 had now retired from the scheme and were no longer involved in CE schemes and as such had no conflict of interest in relation to the matter. There is a dispute over the evidence in relation to the incident where the complainant was breaking rocks and injuring himself and his father had to call on site to administer deep heat to the area. I am of the view that even if this incident did occur it does not infer that the complainant was harassed as a result of his disability. In certain cases such as this one where there is a huge conflict of evidence from both parties, the decision in a case comes down to the credibility of the testimony of the witnesses. Overall, given the sequence of events in this case, I prefer the evidence of the supervisor and the testimony of the witnesses presented on behalf of the respondent. While it is alleged that the complainant was bullied and harassed in the course of his employment, for an inference of disability discrimination to arise, the complainant would have to show a nexus between the protected ground and the treatment. No such inference can be drawn from the facts of this case. I consider the complainant has not established a prima facie case of discrimination on grounds of disability in relation to harassment by the supervisor of the CE Scheme.
4.7 The complainant is also alleging that the supervisor victimised him when he raised complaints about bullying and harassment. In relation to the issue of victimisation, Section 74 (2) states:
.....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, ......."
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. It is clear from the wording of victimisation in the Employment Equality Acts that a complaint of victimisation must relate to a claim of discrimination and not a general complaint of victimisation.
4.8 The complainant states that a group of four participants including himself approached the supervisor in April 2009 regarding a general complaint of bullying. Following this complaint, the complainant stated that he was picked on and subjected to name calling such as 'an alcoholic' when he missed two Mondays and referred to as the 'plastic plumber's son' and that the supervisor told participants on the scheme that he was at his 'reading classes' and not computers. It was stated on his behalf during the hearing that these participants were fearful of making a complaint about the supervisor to the committee for the CE scheme as the supervisor's brother was on the committee at that time and they felt that their complaint would not be given any consideration. The supervisor denies that any complaints were raised with him during the course of the CE scheme. However, a few months following completion of the scheme, the respondent received a letter from a solicitor in relation to four participants making claims of bullying by the supervisor including an equality claim by the complainant against the respondent. Subsequently, the complainant contends that he was threatened by Mr. G, a friend of the supervisor to 'drop the case' or he would 'get him'. Mr. G, in his testimony to the Tribunal, states that he had a casual conversation in a pub with the complainant following completion of the scheme. He strongly refutes the allegation that he threatened him. He states that they had an amicable conversation and the complainant introduced him to his girlfriend and there was some discussion about a price for tools. Having heard the testimony of Mr. G at the hearing, I do not accept that he threatened the complainant in the manner as outlined by the complainant and indeed the encounter seemed to be of an amicable nature. Even if Mr. G did threaten the complainant in the manner as outlined by the complainant, which I can find no evidence of same, this encounter happened a number of months after the scheme had ended. In addition, Mr. G had no involvement in the scheme nor was he in a management position with the respondent organisation. Therefore, the incident could not be regarded as victimisation pursuant to the Acts. In that regard, in relation to the definition of victimisation in section 74 (2) of the Acts, it clearly states ..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-(a)-(g).
4.9 Having examined all the information and documentation submitted in relation to the complainant's allegation of victimisation, I cannot accept that the complainant was victimised contrary to section 74 (2) of the Acts. The complainant states that he, together with three other participants, made a complaint of alleged bullying to the supervisor in April 2009. A collective action on behalf of four participants including the complainant about a general claim of bullying is entirely different than a complaint of alleged discrimination on grounds of disability. In order for a complaint of victimisation to arise, any adverse treatment must be in reaction to the protected act having been taken by the complainant. The respondent states that it was dumbfounded at the allegations and submits that the supervisor had gone out of his way to assist these same participants. The respondent submits that the complainant, at the end of the CE scheme, requested the supervisor to place him on the next available scheme and argues that it is highly unlikely that he would have done so if he had been treated in the manner as alleged. Given the totality of the evidence in relation to the claim of victimisation, on balance, I prefer the evidence given by the witnesses on behalf of respondent. I feel that they were more cogent and credible in their responses and indeed many of them have now retired from CE schemes and therefore, I am satisfied that they have no conflict of interest in the matter. Therefore, given the above, I find that the complainant has failed to establish a prima facie case of victimisation by the respondent under the Employment Equality Acts.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79 (6) of the Employment Equality Acts, 1998 to 2011. I find that (i) the complainant has not established a prima facie case of direct discrimination on the disability ground and (ii) the complainant has not established a prima facie case of victimisation in terms of section 74 (2) of the Employment Equality Acts.
____________
Valerie Murtagh
Equality Officer
12 June, 2013
Footnotes:
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.
2 EDA1017