DEC-E2015-100

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-100

PARTIES

William McCamley

(Represented by SIPTU)

AND

Dublin Bus

(Represented by Cathy Maguire B.L. instructed by CIE)

File reference: EE/2012/319

Date of issue: 30 September 2015

HEADNOTES: Employment Equality Acts - Sections 6, 8, 16 and 74 – Religion & Race – Harassment - Victimisation

1. DISPUTE

1.1 This dispute concerns a claim by Mr William McCamley that he was harassed in accordance with section 14A and victimised in accordance with section 74 (2) of the Employment Equality Acts by Dublin Bus on the grounds of religion and race in accordance with section 6 (2) of the Employment Equality Acts.

1.2 The complainant referred his claim to the Director of the Equality Tribunal on 12 June 2012 under the Employment Equality Acts. On 25 July 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 30 July 2014.

2. COMPLAINANT’S WRITTEN SUBMISSION

2.1 The complainant submits that from 29 February to 2 March 2012 there were a series of communications via mobile phone, email and Facebook sent by a number of people. They included threats of violence, abuse and humiliating commentary and related to the complainant and his son, who also works for the respondent. The communications were prompted by a submission his union had recently made to the LRC and were carried out by a number of people connected to another union.

2.2 The communications included postings on the social media page of a former employee of the respondent and some of the postings were made by a current employee of the respondent, who is a shop steward of the other union. The complainant submits that the postings contained sectarian and xenophobic comments regarding the complainant’s nationality and religion. The complainant submits that, contrary to the postings, he is not Protestant, English or a member of the Orange Order. He was raised in the Protestant ethos and he has raised his children in the same ethos. Furthermore he has been politically active in opposition to paramilitary violence. He does wear a poppy on Remembrance Day as a mark of respect, particularly as his father and uncle fought in World War II.

2.3 On 16 March 2012 the complainant submitted a Dignity & Respect Grievance complaint. He received a reply on 5 April 2012 which stated that the grievance was outside of the workplace and therefore the respondent was “… not in a position to pursue the matter”.

2.4 The complainant submits that on 13/15 April 2012 there were other social media postings which made unacceptable comments about two Dublin Bus managers. He contends that, contrary to his case, this was immediately dealt with by the respondent and three members of staff were disciplined. In his view this different treatment demonstrates a discriminatory attitude towards him by the respondent.

2.5 The complainant appealed the outcome of his grievance on 24 April 2012. On 1 May 2012 the respondent issued an email to all staff stating that “inappropriate postings to publicly accessible social media may result in disciplinary action” and they put up posters in all the work locations.

2.6 On 8 May 2012 the complainant made a complaint to the Employee Development & Equality Manager. On 1 June 2012 he had meeting regarding his appeal of the decision regarding his Dignity & Respect Grievance complaint. Following which one individual admitted making some of the postings and disciplinary proceedings followed.

2.7 The complainant submits that in June 2012 someone wrote graffiti about him and the respondent was slow to remove it.

2.8 The complainant submits that for a number of years he and his son have endured vilification, slander, bullying and actual physical violence which the respondent was aware of.

3. RESPONDENT’S WRITTEN SUBMISSION

3.1 The respondent submits that the complainant raised a complainant under their Dignity & Respect Grievance procedure on 6 March 2012. They replied on 5 April 2012 that the complaint related to activities outside of the workplace. The complainant appealed and the appeal was not heard until after the new policy regarding the use of social media had been implemented. As a consequence of the appeal investigation one of their drivers was sanctioned.

3.2 The respondent submits that the complaint was treated the same as a similar incident involving a manager in another garage. There is no link to different treatment on any of the discriminatory grounds.

3.3 The respondent submits that previous events involving the complainant and his son are out of time.

3.4 The respondent submits that the postings were carried out by members of a rival trade union and were not their fault or responsibility. Also, that no details of harassment have been given by the complainant against the respondent.

4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4.1 I have to decide if the complainant was harassed and on the grounds of religion and race and if he was victimised. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

Harassment

4.2 The complainant alleges he was harassed and harassment is defined bysection 14A (7) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ….

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

4.3 The complainant’s contention is that he was harassed by a number of communications through social media sent by a number of individuals who had connections to another trade union in February/March 2012. His complaint against the respondent is that they did not deal properly with his complaint about these communications. Also, that his complaint was dealt with differently from a similar complaint made by a manager shortly after he had made his complaint.

4.4 The evidence shows that some of the comments made on social media by an employee of the respondent were very disparaging toward the complainant and had references to his religion and his race, imputed or otherwise. These postings would fall within the definition of harassment given in the Employment Equality Acts.

4.5 Section 14A(2) of the Employment Equality acts gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment or where the harassment took place to reverse its effects.

4.6 The respondent’s initial response to the complaint made by the complainant under their Dignity and Respect policy was that the communications were made outside the workplace and they had no jurisdiction to investigate the complaint. The complainant appealed this decision and the appeal investigation found that an individual named by the complainant had broken rule 18 of the CIE Rule Book which states “Employees shall not conduct themselves in any manner prejudicial to the reputation and welfare of fellow employees.” and he was duly sanctioned.

4.7 The complainant contends that his complaint was dealt with differently than the other social media postings made against a manager. The respondent contends that the other incident referred to by the complainant was dealt with informally. They were made aware of the incident and had a meeting with the individuals who had made the postings. They admitted making the postings and that they regretted their actions. They made a written apology which was accepted by those against whom the postings were made. In these circumstances they did not need to enter into a formal procedure, which they considered was required when the complainant in this claim made his formal complaint to them.

4.8 The respondent confirms that after the complainant had made his complaint to them they introduced a new policy on Social Media usage but this could not be applied retrospectively.

4.9 As stated earlier, Section 14A (2) gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment or to reverse its effects where it has taken place. From the direct evidence given at the hearing I am satisfied that the complaint made by the complainant under the Dignity and Respect policy was dealt with in accordance with the respondent’s policy. The complainant did not agree with the investigation and appealed the outcome and at that stage the appeal investigation found the behaviour of their employee who was involved in the postings to have contravened one of the rules and he was sanctioned accordingly. I am therefore satisfied that the respondent can rely on the defence in section 14A (2) of the Acts and find that the complainant was not harassed in accordance with the Employment Equality Acts.

Victimisation

4.10 Section 74 (2) of the Employment Equality Acts states: “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 or the Equal Status Act 2000 or 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 such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

4.11 The complainant made his complainant to the respondent under the Dignity and Respect policy, which referred to discrimination, on 16 March 2012. At the beginning of April he appealed the outcome of the investigation into his complaint. On 8 May 2012, before his appeal was heard he made a complaint to the Employee Development and Equality Manager about the way the respondent was dealing with his complaint. Subsequently, as stated earlier, the appeal took place and an employee was sanctioned.

4.12 The adverse treatment complained of by the complaint is the way the respondent dealt with his claim. The complainant was critical of the outcome of the initial investigation because he considered it was related to work and what he described as the respondent’s ‘acquiescence’ in not dealing with the claim amounts to victimisation. However, in accordance with the provisions of the policy he lodged an appeal. I have already concluded that the respondent dealt with the claim in accordance with their Dignity and Respect policy and therefore can be considered a defence in relation to his claim of harassment. I further conclude that these same actions could not be considered to amount to adverse treatment and the complaint of victimisation fails.

4.13 The complainant referred to some other incidents most of which took place a number of years previously. They occurred too long before the events of February/March 2012 for me to conclude that they can be considered as a sequence of related events. I therefore cannot consider them as they fall outside the time limits of section 77 (5) of the Employment Equality Acts.

4.14 The one more recent incident referred to by the complainant related to graffiti in a toilet which referred to him. The complainant wrote to the Operations Manager about this on 20 June 2012 stating it had been there for two weeks. It remained on the wall until 26 June 2012. The complainant considered this too long and wrote to the respondent to make a complaint about the slowness of their actions. The respondent submits that they dealt with the graffiti in the same way as any other such defacement. I accept the respondent’s evidence and find no link to their cleaning of the graffiti with the complainant’s claim of harassment or victimisation.

5. DECISION

I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:

· the complainant has failed to establish a prima facie case of harassment on the basis of the religion and race ground, and

· the respondent did not victimize the complainant.

____________________

Hugh Lonsdale

Equality Officer

30 September 2015