EDA1432

This dispute involves an appeal by Ms. Kerry Shine (the Complainant) against a Decision of the Equality Officer E-2013-100 that she was not discriminated against by Westmeath Community Development Limited on the grounds of victimisation within the meaning of section 74 of the Employment Equality Act, 1998 as amended by Section 29 of the Employment Equality Act, 2004. The Respondent rejects the complaint.

The complainant originally worked for another employer against whom she made complaints to the Equality Tribunal on 17th February 2011. That employment was merged with the Respondent in this case on 3rd May 2011. The Complainant subsequently made a further complaint to the Tribunal against both her former and current employer in December 2011 and in June 2012. The Equality Officer rejected all of the complaints made by the Complainant. The Complainant appealed against those decision to this Court..

When the matter came before this Court the Complainant and her former employer agreed settlement terms and she withdrew all proceedings against that employer. The case against the Respondent proceeded.

A question arose as to whether the Complainant could maintain the instant proceedings having withdrawn the case against her former employer. Having considered the submissions of both parties on this point the Court finds that the instant case is not compromised by that development. Accordingly, the Court proceeded to hear the substantive complaints before it.

Summary of Complainant's case

The Complainant was employed by, Harmony Community Development (HCD) from June 2009 as a Childcare Manager on a 3 month temporary basis after which she interviewed for and was successful at obtaining the post in a permanent capacity on a part time basis. It is submitted that this was extended to full time employment from 8th of March 2010 onwards. The Complainant subsequently took maternity leave in respect of the birth of a child and returned to work in April 2011.

• 
  A week after she returned to work HCD was taken over by Westmeath Community Developments Limited (WCD) the Respondent in this case. The instant complaint relates to the Complainant’s treatment by the Respondent following the merger of the two organisations.

  The Complainant submits that the Respondent was aware from the discussions leading up to the merger of the two organisations that she had made a complaint to the Equality Tribunal regarding her former employer. She argues that this matter was raised by the Respondent in conversation with her and was not contested in evidence given to the Court by witnesses for the Respondent. She states that in the course of discussions with a Mr P and Mr M, both of whom held management positions with the Respondent, they made reference to the Complaint she had submitted to the Equality Tribunal and stated that they did not wish to take over her former employer because of those outstanding complaints.

  She states that after the merger she was treated differently to all other employees by the Respondent. She states that the different treatment was adverse in nature and arose because she had made a complaint against her former employer.

  The Different Treatment

  Isolation

  The Complainant states that after the merger, the office in which she was working was effectively closed and all staff transferred to other locations in and around May 2011. She states that she was left alone working out of that office until August 2011. She states that there was no justification for this decision and that it amounted to a deliberate decision to isolate her and to undermine her work and her confidence. Management rejects that characterisation of events.

  Interpersonal Difficulties

  She states that she encountered interpersonal difficulties with another staff member Ms. R . Despite her attempt to invoke the grievance procedure this matter went uninvestigated and the Respondent failed to resolve the issue.

  She states that she met with her new manager, Mr. M. on 19th of May 2011 to discuss the issues. She states that Mr. P the CEO of the company was also present at the meeting. She states that she was unaware that the meeting had been escalated to that level and that she could reasonably have expected to be advised that he would be in attendance. She states that this had the effect of undermining her confidence and position in the company. She states that at that meeting Mr. P told her that, because of her outstanding HR issues, WCD had not wanted to take over Harmony CDP. However, he stated it was a directive from the relevant public authority and they had no choice in the matter.

  In relation to the interpersonal difficulties, he then told her that he and Mr. M, her manager, had decided that she was not to manage this member of staff for the time being. She states that they undertook to investigate the situation she complained of and to revert to her. She states that she welcomed this decision at the time as it appeared to offer the prospect of bringing the matter to a conclusion. However, she states that they did not undertake such an investigation and did not revert to her on the matters.

  She submits that Management had no intention of undertaking such an investigation and that the manner in which she was treated, when viewed in context, amounts to victimisation on foot of her earlier complaint.

  Undermining of her authority

  She states that her authority was constantly being undermined. She states by way of example that her responsibilities for the so called 'Brawny Centre', were reduced without notice or explanation. She states that Mr. K, a member of management, engaged directly with the staff in the Centre and thereby made her position impossible. She states that this was done without explanation, discussion or agreement with her. She said it had the effect of undermining her confidence and her authority.

  She states that this constant undermining of her authority and position when viewed in context amounts to victimisation for having taking a complaint under the Act. She states that no other explanation for her treatment has been presented or stands up to scrutiny.

  Training Support

  She states that in August 2011 she applied for training assistance to complete a work related University course. She had previously received 65% of the fees for year 3 from her employer, now merged into the Respondent organisation. However as she was on maternity leave when year 4 commenced Mr. K, her then manager, told her she could not apply while on maternity leave and would have to wait until her return to work. When she applied to the Respondent after her return to work, in August 2011 she was turned down and the reason given by Mr. P was that the course had commenced prior to the merger.

  She argues that she had delayed in making the application in good faith on the instructions of Mr K and was subsequently penalised for having done so. She submits that this decision when viewed in context amounts to a further act of penalisation and a process of undermining her confidence, authority and employment.

  By way of a further example of her adverse treatment she states thaton 23rd August 2011 she met with Mr. M and was advised that the existing WCD Childcare Manager Ms. C would takeover the management of Brawny Centre which had previously been the complainant's area of responsibility. She states that she was not involved in the detail of that decision or otherwise consulted. She argues that this was a further example of the manner in which her position, confidence and status was being undermined.

  Contract Standardisation

  She states that she was also informed that all contracts for the childcare staff in her area of responsibility were to be standardised in line with those in place in the Respondent organisation. This had the effect of pay staff for 52 weeks per annum rather for 38 weeks a year as was the practice before the merger. She states that she was also advised at this point that there would be no foreseeable redundancies. She states that she was not consulted regarding that decision nor was her advice or opinion sought before the decision taken.

  Redundancy

  She states thaton 16th of November 2011 the complainant and the other Childcare Manager, Ms C,were called to a meeting and informed that due to financial circumstances one of the Managers posts was being made redundant. She states that she was advised that if one of them did not opt for voluntary redundancy before 2 December 2011 she would be so selected.

  She states that neither she, nor Ms. C opted to take the voluntary redundancy, and as a consequence she was informed on 6th of December, 2011 that her post was being made redundant. She states that an analysis of the budgets does not support that contention.

  She further submits that shortly after she was made redundant the staff of the Organisation were advised of the budget reductions and invited to make suggestions as to how they might adjust expenditure to minimise the impact on employment. She states that she was excluded from such discussions regarding her own position and was simply made compulsorily redundant.

  She argues that when view in context, the manner in which she was isolated from other workers and was systematically undermined by management amounts to victimisation for making a complaint of discrimination under the Act.

  4. Summary of Respondent's case

  Location

  The Respondent states that following the takeover of the first named respondent, a decision was taken to place both childcare Managers in the same location in Ball Alley Lane. The complainant moved to this office in August 2011. The Organisation was carrying out an overall review of staffing needs for the new organisation and this caused a delay of a few months in transferring the Complainant to that location. The Complainant spent very little time in the office and consequently its location was not a major factor as she was in constant contact with staff in the various locations for which she had responsibility. When the review was completed and accommodation prepared the Complainant was transferred to Ball Alley Lane in August 2011.

  Brawny Centre

  The Respondent states that the difficulties that arose in the 'Brawny Centre' relate to the allegations of bullying made against the complainant as this was the centre where Ms R worked and Ms. R was one of the staff members who had lodged a bullying complaint against the complainant. The Respondent states that it decided to temporarily relieve the Complainant of the requirement to manage that staff member. It states that this decision was welcomed by the Complainant. It did concede however that it did not undertake an investigation into the complaints and had no intention of doing so when it gave the Complainant that commitment.

  Funding

  It states that the Complainant sought funding for a course which had commenced four years earlier when the complainant was employed by her former, now merged, organisation. It stated that the course was due to conclude a month after the application for funding was made. It stated that it merely followed its policy regarding applications for training support. Such applications must be approved in advance of undertaking the studies and could not be paid in the circumstances in which it was being claimed.

  Redundancy

  The Respondent states that in November 2011 it faced a reduction in funding income of €100,000 due to a previous overestimation of the number of children availing of its services. Having examined all options it was decided that, in order to balance its accounts, one of the Childcare Manager posts would have to be made redundant. Voluntary redundancy was offered to both Childcare managers and when neither accepted LIFO was used to decide which position would have to be made redundant. It argues that its position was forced upon it by the financial constraints facing the company.

  Discussion

  The issue before the Court was initially much larger than the instant case but following the withdrawn of the complaints against her former employer the matter before this court was reduced substantially. The issue now before the Court is whether the evidence supports the Complainant’s contention that she was victimised by the Respondent for making a complaint of discrimination to the Equality Tribunal.

  In reaching its Determination the Court has taken into account, all of the evidence and the extensive submissions, both oral and written, made in the course of these proceedings.

  Burden of Proof

  Section 85A of the Employment Equality Acts 1998 - 2012 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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.

  The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".

  Section 74 of the Employment Equality Act 1998 as amended by Section 29 of the Employment Equality Act, 2004 statees
  “(2)For the purposes of thisPartvictimisation 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 thisActor any enactment repealed by thisAct,

• • • (e)an employee having been a witness in any proceedings under thisActor theEqual Status Act 2000or any such repealed enactment,

• • • (f)an employee having opposed by lawful means an act which is unlawful under thisActor the saidAct of 2000or 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.

• 
  InEDA1213 Monaghan County Council v Roy Mackarelthe Court considered how Section 74 should be applied.
  This Section of the Act is based on Article 11 of Directive 2000/78/EC on Equal

  Treatment in Employment and Education (The Framework Directive). Both the Act

  and the Directive provide that victimisation occurs where a detriment is imposed on a

  worker‘as a reaction to’a complaint or other protected act. The use of the expression

  ‘as a reaction to’ connotes that the making of a complaint, or other protected act,

  must be an influencing factor in the decision to impose the impugned detriment

  although it need not be the only or indeed the principal reason for the decision. It is,

  in the Court’s view, sufficient if the making of the complaint was an operative factor,

  in the sense of being anything other than a trivial influence, operating on the mind of

  the decision maker (see by analogy the dictum of Peter Gibson LJ inWong v Igen

  Limited and Ors.[2005] IRLR 258 in relation to the degree of connection required

  between race and an impugned act or omission necessary to make out a claim of

  discrimination)

  Moreover, in a case such as the instant case, the Court must be alert to the possibility of subconscious or unrecognised influence by surrounding events operating on the mind of the decision maker (seeNevens, Murphy Flood v Portroe Stevedores[2005] 16 ELR 282). Hence seemingly honest evidence denying any connection between a protected act and the decision to impose a detriment must, in the absence of corroboration, be approached with caution.

  Complainants Grievance

  Brawny

  It is clear that there was a difficulty between the Complainant and a number of staff members employed in the Brawny Centre. This had first arisen before the two bodies merged. It had been raised with management at that time and had been dealt with but not to the Complainant’s satisfaction. On her return from Maternity Leave the difficulty arose again. The Complainant raised the matter with management and at a meeting that was attended by the Chief Executive Officer, and was temporarily relieved of responsibility for that centre while the issues were investigated. In evidence however it was conceded that the Respondent had no intention of investigating the matters in dispute.

  The Respondent did not offer an explanation for its behaviour in this regard.

  Isolation
  At the time of the merger between HCD and WCD there were three members of staff including the Complainant sharing an office. Two of those staff members were moved to the Westmeath Community Development Offices reasonably quickly after the merger was effected. The complainant remained alone in the Harmony Offices for three months before being moved to the new office at the end of August 2011.

  The Complainant states that this amounted to exclusion and isolation and was part of a pattern of behaviour designed to undermine her position and her confidence.

  The Respondent at the hearing stated that the complainant had not been left alone in the Harmony building but that another staff member, Ms. D, had also remained there for some time after the merger. However, it acknowledged that Ms. D worked mornings only. It also stated that Ms D was changing her career and was waiting to be reassigned as a care worker.

  The Respondent further stated there were other offices based in and occupying this building and as a consequence the complainant was not by any means alone in the building.

  The Respondent stated that staff were moved to their new accommodation as it became available. For example it stated that Mr. K had moved to the WCD offices in June 2011 several weeks after the merger had taken place.

  It added that the Complainant was required to spend very little time in her office during the period in question as her role required that she spent most of her time, during the summer period, off site at various summer camps. The Complainant at the hearing acknowledged that this was the case.

  The Respondent argued that following the merger it was assessing the structure and challenges facing the new organisation. It was conducting a review of its finances, structure, needs and staffing levels. It was seeking to integrate the staff into a new organisation and this caused some delays while that process was completed. The Complainant was not “isolated” as she claims. She was accommodated in her existing office location until the review was completed and the accommodation readied for her.

  It stated that there were two Childcare Manager roles within the new organisation. The other Childcare Manager was located in the WCD offices. As part of the review a decision was taken to place the two Childcare Managers in the same location. While a decision was made on where they would be located was made they were both left in situ.

  The result of this review included a recommendation that the Childcare Managers be based in the Westmeath Offices and this was communicated to the complainant on 12 August 2011 following which she relocated to the Westmeath Offices.

  Application for funding for Training

  The Complainant submits that she made an application for funding to her former employer and that she was told by a member of management that she could not apply while on maternity leave. She reapplied for this funding after her return from maternity leave. Her application was turned down on the basis that she had not been employed by the Respondent when she had commenced the course.

  The Respondent agrees that it refused the Complainant's application for funding and stated that it was not their policy to provide funding for a course which was all but completed during the Applicant's previous employment. It advised the hearing that it has policies and procedures in place regarding the treatment of applications for such funding. They provide that an application must be made and approved prior to the commencement of the course in question. On this occasion the Complainant had all but completed the course as it was due to finish in the following month. The first three years of the course had been completed before the Complainant became an employee of WCD.

  Victimisatory Dismissal

  The Complainant was informed on 6th of December, 2011 that her post was being made redundant. She submits that the decision to make her redundant arose out of her decision to take a complaint to the Equality Tribunal and amounts to victimisation under the Act.

  The Complainant said that she and the other Childcare Manager, Ms. C were called to a meeting on 16th of November, 2011 and informed that, due to financial circumstances one of the Childcare Managers posts was being made redundant. They were advised that the company was in the first instance seeking a voluntary redundancy by 2nd of December, 2011 but that in the absence of a volunteer there would be a compulsory redundancy. The Complainant advised the hearing that Ms. C did not take the voluntary redundancy and the Complainant was made redundant on a last in first out basis.

  She disputes the fact that this was a genuine redundancy. She states that a meeting had taken place in August where she had been informed that all contracts were being standardised in line with the WCD model which paid staff for 52 weeks of the year and six weeks off in the summer. Prior to this a number of HCD staff had worked during the school year and signed on for jobseekers allowance during the summer as some services were only funded for 38 or 48 weeks a year. She stated that she had been advised at that time that there would be no foreseeable redundancies.

  She argues that it is not credible that there could be a complete about face in such a short period of time.

  She states that the reason given for her redundancy was a lack of funding. She states that funding was based on the number of children availing of the services and stated that the numbers hadn't changed substantially since the previous year.

  The Respondent stated that it had not foreseen any redundancies in August 2011 and that it was its genuinely held view at the time the new contracts were given that there would be adequate funding to cover these wages. It added that they were operating on the basis of the number of children who were to avail of their services in the coming year. Based on those figures and associated levels of funding there would have been no need for redundancies.

  It states that these figures were based on projections inputted by the childcare staff but that the number of children expected did not materialise. This resulted in a shortfall of 40 children registering for services and a shortfall in funding to the amount of €100,000 below what had been projected. Mr. M stated that this resulted in a need to cut the salaries bill and stated that the Deputy CEO had also been made redundant.

  He added that the Childcare Managers were on a quite large salaries relatively speaking. Having examined many other options it appeared that this was the best solution as substantial cost-cutting was necessary. He denied that the redundancy was in any was connected to or influenced by the Complainants earlier complaint to the Tribunal and added that this redundancy was presented to both Childcare Managers thus had Ms. C accepted the redundancy then the Complainant would have continued on in her position and Ms. C would have been made redundant.

  Choices Given to Other Staff

  The Complainant at the hearing stated that she had been advised by other staff following her redundancy that an appeal was made to all staff on 15th of December, 2011 requesting suggestions for cost savings including voluntary redundancies temporary lay-offs and shorter working weeks and requesting volunteers for same. She added that she was not given the chance to avail of any of these options. The Respondent at the hearing stated that the salary of the Childcare Managers was so high that the only option for a saving such aswas necessary was to make one of those posts redundant, he added that the appeal to staff for cost saving measures came after that decision, and was a bid to secure further cost savings having already reduced the Childcare Managers from two to one. He added that further savings were required and so further measures were looked at.

  Findings

  It is unquestionably the case that the Respondent was aware that the Complainant had submitted a complaint to the Equality Tribunal. That is not in issue between the parties. It is also unquestionably the case that that the Complainant was left working substantially alone in an office for three months and that she was temporarily relieved of responsibility for the Brawny centre pending the completion of an investigation into the issues in dispute. It is also established that the Respondent did not ever intend to undertake such an investigation. It is also unquestionably the case that the Complainant was made redundant from her position. Finally, it is unquestionably the case that the Complainant was not given funding for the cost of completing her university studies.

  The Question for the Court to decide is whether these actions can each be explained on their own terms or whether taken together they are accounted for to some extent by the Complainant’s complaint to the Equality Tribunal.

  Section 85(a) of the Act places the burden on the Complainant to establish facts that may give rise to an inference of discrimination. In this case that has been done. Accordingly, the burden of proving compliance with the Act rests with the Respondent.

  The Court is not satisfied that the Respondent has satisfactorily explained the reasons for the decision to leave the Complainant in her office effectively alone for three months. Nor is it satisfied that it has explained why it undertook to investigate the complaints in Brawny when it had no intention of doing so. Nor is it satisfied that it adequately investigated the circumstances in which the Complainant was led to believe that she could not seek educational support while on maternity leave. Nor is it satisfied that the decision to make the Complainant redundant and the urgency with which that decision was taken was not in some measure influenced by a desire to end her employment because of the grievances she had raised and the Complaints she had made to the Equality Tribunal.

  Accordingly, the Court finds that the Complaint of victimisation is well-founded.

  The Court awards the Complainant compensation in the sum of €10,000.00

  The Court so determines.