THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2014 – 084
PARTIES
Ms Sandra Jordan
and
Wexford Women’s Refuge
File References: EE/2012/377
EE/2012/378
Date of Issue: 5th December 2014
Keywords: time limits – S. 77(5) – victimisation – S. 74(2)
1. Claim
1.1. The case concerns two identical claims by Ms Sandra Jordan that Wexford Women’s Refuge discriminated against her on the ground of civil status contrary to Section 6(2)(c) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment. She also complains of victimisation within the meaning of the Acts.
1.2. The complainant referred the complaints under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 13 July 2012. Clarifying correspondence was received from the complainant on 4 and 22 August 2012 and on 19 September 2012. A submission was received from the complainant on 21 August 2013. No submission was received from the respondent, however, on 21 November 2014, the Tribunal Secretariat received an email from a staff member of the respondent’s which explained that fundamental changes had taken place in the respondent organisation and that papers had been lost. I immediately responded by email to this person to enquire which papers were needed, and forwarded scanned copies of the most important document, also by email, on 24 November 2014. On 21 October 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 28 November 2014. The complainant was present at the hearing, the respondent did not appear.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she started volunteering with the respondent organisation in February 2002, and became its employee in October 2002. The complainant describes a difficult relationship with her manager, during which she was repeatedly disciplined and investigated for gross misconduct. This includes two external investigations in 2008 and 2012. The complainant ascribes these to the fact that she is divorced. The events complained of in 2012 and 2013 post-date her complaint to the Tribunal.
2.2. In terms of victimisation, the complainant specifies that she feels victimised for standing up for her rights under the Safety, Health and Welfare at Work Act 2005, and in more general terms, her human rights of freedom of speech and opinion.
3. Summary of the Respondent’s Written Submission
3.1. As noted above, the respondent did not submit a written statement to the Tribunal.
4. Conclusions of the Equality Officer
Preliminary Issues
4.1. Two preliminary issues arise in this case: The first is whether the discrimination complaints were submitted in time, given that all of the complainant’s evidence relates to events which either happened four years before the complaints were filed, or else occurred after they were filed. The second preliminary issue is whether the complainant’s complaints of victimisation are rightfully before the Tribunal, as the complainant appears to have misunderstood the meaning of victimisation, as set out by S. 74(2) of the Acts in conjunction with S. 2 of the Acts, when she made her complaints.
4.2. In terms of the first preliminary issue, I am satisfied that all events to which the complainant’s evidence relates which in her view constitute discrimination on the ground of civil status, happened in 2008 and 2009 and are therefore time-barred pursuant to S. 77(5) of the Acts. In terms of more recent possible discrimination experienced by the complainant, I explained to her that she would have to provide evidence of discriminatory events which happened between 13 February 2012 and 13 July 2012, the date on which her complaint was filed. I also explained to the complainant the standard of proof she would have to meet. The complainant adduced no such evidence. For the sake of completeness, I should also mention that the time-barred incidents the complainant referred to in her complaints make no mention at all of her civil status. Accordingly, her complaint of discrimination status must fail.
4.3. In terms of the complainant’s possible victimisation, I am satisfied from evidence she gave at the hearing that events which may constitute victimisation within the meaning of the Acts occurred after she filed her complaints with the Tribunal, which ought to be investigated. This is regardless of her initial misunderstanding of the law. I am therefore dealing with this issue more fully below.
Substantive Issue – Victimisation
4.4. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.5. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.6. The complainant submitted her claims to the Tribunal on 13 July 2012. On 19 July 2012, a staff meeting took place at the respondent organisation, during which, according to the minutes, the complainant spoke at some length about problems she was experiencing at work. The complainant elaborated at the hearing that a security incident had taken place a few days earlier while she was at work which involved one of the residents. The complainant felt insufficiently supported by her manager, who was supposed to be on call during that time. According to the complainant, she then mentioned in the meeting that she had taken a complaint to the Tribunal. The minutes only note that “she was taking steps externally to clear her name”. However, I experienced the complainant as a truthful witness throughout the hearing and accept that an Equality Tribunal claim was actually mentioned by her at this stage. She also stated that she mentioned her complaints to the then-chairperson of the respondent’s board and to a board member shortly afterwards. She stated that the chairperson of the board told her that her grievances were in the past.
4.7. The complainant stated in evidence that after the staff meeting on 19 July 2012, she was suspended on full pay and investigated for gross misconduct, and only returned to work on 4 March 2013. The minutes of that staff meeting which the complainant herself submitted in evidence, indicate that she vented her frustrations by using some strong language in relation to other staff. It seems that she accused one staff member in particular of “murdering her mental health”. The complainant confirmed in evidence that she is suffering poor mental health, including insomnia, anxiety and stress reactions which she ascribes to her experience of working for the respondent.
4.8. The complainant also submitted the letters of complaint which her colleagues wrote about her after that staff meeting, as well as the letter she received from the chairperson dated 24 July 2014, which told her that she would be suspended on full pay while an investigation for gross misconduct would be carried out. Again from documents submitted by the complainant, it is clear that the respondent decided to appoint an external investigator for this investigation. This decision was communicated to the complainant by letter dated 9 August 2014.
4.9. The report of the external investigator is also on file. It shows that terms of reference were drawn up on 29 August 2012, that the complaining staff members (five persons in total) were interviewed on 24 September 2012, and that the complainant was interviewed, in the presence of her union representative, on 24 December 2012. The report was completed on 12 January 2012, and the complainant was exonerated of gross misconduct, although her behaviour was viewed with criticism by the investigator.
4.10. The complainant was informed of the outcome of the investigation by letter dated 24 January 2013, and re-instated on 4 March 2013. She subsequently took redundancy from the respondent when it was offered to her in January 2014.
4.11. When I asked the complainant why she thought the re-instatement process took relatively long, from 24 January until 4 March 2013, she stated that while the investigation had been ongoing, the respondent board had folded. She put the delay down to the challenge the new board faced in becoming functional. She also added that she suspected her former manager did not want to see her return. Their difficult interpersonal relationship is borne out in documents the complainant submitted in evidence; however, there is no evidence that the manager took specific steps to delay the complainant’s return, and the first explanation provided by the complainant, about the difficulties experienced at board level, do seem plausible.
4.12. Overall, I am satisfied that neither the investigation itself, nor the delay in the complainant’s reinstatement, constitute adverse treatment amounting to victimisation within the meaning of the Acts. From reviewing the investigation based on the extensive evidence supplied by the complainant, I am satisfied that the board acted correctly in appointing an external investigator, that the investigation was carried out professionally and without delay and in a fair manner to the complainant, who was indeed exonerated of the original complaint against her. The delay which occurred in her re-instatement has been explained by the complainant herself in a manner which does not link it to her complaint to the Tribunal. And indeed, nobody on the new respondent board was in any way implicated in the complaint which the complainant brought against the previous board. Accordingly, her complaint of victimisation must also fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Wexford Women’s Refuge did not discriminate against Ms Sandra Jordan on the basis of her civil status contrary to S. 8 of the Acts, and did not victimise the complainant contrary to S. 74(2) of the Employment Equality Acts 1998-2011.
______________________
Stephen Bonnlander
Equality Officer
5 December 2014