ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000493

Complaint/Disputes for Resolution:

Date of Adjudication Hearing: 01/07/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with the Employment Equality Acts and the Industrial Relations Acts as amended, following the referral of the aforesaid complaint/disputes to me by the Director General of the Workplace Relations Commission (hereinafter ‘WRC’), I proceeded to hearing on 1^st July 2016. I inquired into the complaint/disputes and gave the Parties an opportunity to be heard and to present any relevant evidence. The Complainant attended and confirmed that he had discharged his Union and wished to represent himself and was happy to proceed without any representation. However, following completion of his direct evidence and during questioning on behalf of the Respondent, the Complainant sought an adjournment to avail of representation. I carefully considered the application and formed the view that this was a tactical bid to stop the questioning. Based on his earlier assurances, I did not believe that he had any intention of availing of representation. I also felt that it would be unfair to the Respondent to adjourn the hearing at that juncture and so refused the application. At the outset, I also outlined the relevant legal provisions in lay terms and indicated that I would be placing reliance on relevant statutory provisions and case-law. The Respondent was represented by Mr Cathal McGreal BL, instructed by Eugene Smartt, Solicitor and a number of witnesses were in attendance on its behalf. A very comprehensive submission along with accompanying supporting documentation and case-law was submitted on its be

Complainant’s Submission and Presentation:

The Complainant submitted three online claim forms to the WRC linked together as follows:

(1) On 9^th November 2015, the Complainant filed a complaint of discrimination on the grounds of gender under Section 77 of the Employment Equality Act 1998 and selected the boxes relating to discriminatory dismissal, harassment and victimisation. Under the heading ‘Complaint Specific Details or Statement’, he stated: “I have ticked the boxes above as I am treated so differently from my co-workers and it is so bad at my place that I am started to get seriously ill from the treatment I receive from CE Supervisor. I have brought this issue up months ago with my X Union and at meetings with the Management Board members I have met with this CE Supervisor in the room but nothing was done to address these issues and it just gets worse day by day the way I am treated cruelly by my CE Supervisor and is not in the spirit of CE Schemes and what they are meant to achieve for those on them.” It is noted that no date of dismissal is indicated and the ‘religion’ ground is not selected.

(2) On 13^th December 2015, the Complainant filed a complaint of unfair dismissal with less than 12 months service so this was referred as a dispute under the Industrial Relations Acts. Under the heading ‘Complaint Specific Details or Statement’, he stated: “On November 9th, 2015 I filed an on line with you concerning my Supervisor on my computer at work which was regularly checked by the company's tech person. Two days later I am written up and told I would be have to attend a meeting and I better start looking for a new job. Then two weeks ago we had a meeting with my X union representative present with the Management committee and my Supervisor from (the Respondent) but the meeting was called off as my union representative was logging so many concerns at the way the meeting was been conducted and I was of the same frame of mind. The union were in contact with the management committee of (the Respondent) last week to try and move forward when I received an email with a letter at the end of last week from the (Chairperson) of the Board of (the Respondent) my contract has been terminated by (the Respondent) and no reason whatsoever was given. I have lodged a complaint with you on November 9th, 2015 of the bullying, harassment and inequality due to my gender and religion (or lack of) from my Supervisor...” The form indicated the date of employment ended as 11^th December 2015 with notice given on 10^th December 2015.

(3) On 20^th December 2015, the Complainant filed a further complaint of unfair dismissal with less than 12 months service, again referred as a dispute under the Industrial Relations Acts. He included an identical narrative as the second form under ‘Complaint Specific Details or Statement’ save for the addition of: “Re-Submitting Complaint Application Ref No: CA-00001437 due to incorrect termination date and do not give you my X union representative's details:” This form indicated the date of employment ended as 18^th December 2015 with notice given on 10^th December 2015.

The Complainant confirmed that he had been employed with the Respondent, a Community Services Provider on a 12 month CE Scheme to assist him with getting back to work from 9^th February 2015. He was suspended from the CE Scheme on 13^th November 2015 and dismissed on 18^th December 2015. He outlined the nature of his complaint/dispute giving the following direct evidence:

The Complainant outlined various interpersonal difficulties he had with his Supervisor, leading to an application for a transfer to another Scheme. He claimed that he had been continually bullied by his Supervisor who had shouted at him, degraded him and treated him differently than other staff. He felt that he was being disciplined by not being afforded time off to prepare for a personal play.   Following a heated exchange, he had apologised for referring to his Supervisor as a ‘control freak’. When asked to provide specific details of his allegations and how they amounted to discrimination or harassment on the grounds of gender under the Employment Equality Acts, the Complainant contended that (1) he had been shouted at by his Supervisor to keep the door to the office open when other employees including females were allowed to keep it closed, (2) he had been denied leave to attend a film festival abroad at short notice whilst a female colleague had been allowed to take leave for her holidays and (3) he felt that his Supervisor had unfairly criticised him in relation to his writing for a newsletter saying “you would expect that from a male”. Counsel for the Respondent put it to the Complainant that each of his assertions were simply untrue, that all staff were subject to the same public office door policy, that he had not requested the leave as contended and in fact the female member of staff in question had pre-booked her leave and also that he was not criticised for his writing as described. He accepted albeit somewhat evasively, that he had signed for and received the Respondent’s internal grievance procedures but neither he nor his Union had ever submitted a written grievance or raised any complaint of specific discrimination as now alleged.

At the hearing, the Complainant also sought to introduce complaints of discrimination on the grounds of religion and sexual orientation. He contended that this arose from a conversation whereby he revealed he was an atheist to an unidentified member of staff who was aghast and said that they were all devout Catholics in the organisation. After he indicated that he would be voting a certain way in the forthcoming Referendum, he felt that all his issues with the Respondent arose.

In relation to his claim of victimisation, the Complainant contended that after submitting his complaint on 9^th November 2015, there had been a concerted effort to victimise him in the following days. He referred to emails as proof of his assertions and the fact that he had brought these issues to his Union’s attention but did not produce them at the hearing. When questioned, he was unable to provide any specifics or identify the persons involved. When it was put to him that the Respondent had not been aware of his initial complaint at the material time, he contended that his computer was being monitored and his complaint could have been discovered. It was put to him that it was his unacceptable and insubordinate behaviour in the following days that led to his suspension from 13^th November 2015. This included being late and giving conflicting excuses, not following signing-in/out procedures and throwing a late note in the bin, avoiding his Supervisor, informing his Supervisor/Trainer by email that he was pulling out of the required training and would not work his required days as they did not suit him. On 11^th November 2015, he also emailed a third party complaining that his Supervisor had subjected him to ‘terrible treatment’ affecting his health.

As the Complainant accepted that he had not received notice of dismissal at the time of submitting his first claim of discriminatory dismissal on 9^th November 2015 and also at the time of submitting his second claim of unfair dismissal on 13^th December 2015, I indicated that I would consider his complaint of unfair dismissal on 18^th December 2015 as a dispute under Section 13 of the Industrial Relations Act 1969 on foot of his third claim form submitted on 20^th December 2015. His grievance related to the manner in which the Respondent had conducted the disciplinary process leading to his dismissal on 18^th December 2015 and in particular, an aborted meeting with his Supervisor on 3^rd December 2015 which he had attended with his Union Representative. He also contended that this was in retaliation for his first complaint. However, he accepted that he had not availed of the appeal against his dismissal on 18^th December 2015 before submitting his complaint form on 20^th December 2015 having previously availed of the appeals process in relation to a verbal warning. It was also put to the Complainant that in fact he had thwarted all efforts by the Respondent to conduct a disciplinary process and he was in fact dismissed from the CE Scheme owing to his reluctance to participate, unilateral withdrawal from training and failure to engage with his Supervisor.

Respondent’s Submission and Presentation:

The Respondent is an equal opportunities employer providing a community service and operates anti-discrimination and anti-harassment policies. The Respondent strenuously denied all of the allegations in various written communications to the WRC and in a detailed written submission. Counsel for the Respondent submitted that taking the Complainant’s evidence at its height, he had not made out a prima facie case of discrimination, harassment or victimisation under the Employment Equality Acts on any of the grounds alleged. Furthermore, he had not availed of the internal grievance procedures or previously raised any complaint of specific discrimination under any of the grounds with the Respondent. In relation to his claim of unfair dismissal under the Industrial Relations Acts, he had not pointed to any breaches in fair procedures, having evaded the disciplinary process in relation to his conduct and participation. In any event, he was clearly aware of the appeals process and had not availed of an appeal before referring the matter to the WRC.

Findings and Reasoning:

Claim of Discrimination, Harassment & Victimisation under the Employment Equality Acts

In relation to the Complainant’s claim of discrimination, Section 6(a), (d) & (e) of the Employment Equality Acts essentially provides that discrimination shall be taken to occur if a person is treated less favourably than another person is, has been, or would be treated in a comparable situation and they are of a different gender, sexual orientation or religion to the comparator respectively. Section 8(1) of the Acts defines discrimination in specific areas including conditions of employment which appear to form the basis of this claim. Section 14(A) of the Acts broadly provides that harassment comprises of any “unwanted conduct related to any of the discriminatory grounds”, which must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.” Generalised allegations of bullying and harassment would therefore not fall within this definition.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies to all claims of discrimination and harassment and requires the Complainant to establish, in the first instance, facts from which discrimination and harassment may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference raised.

Whilst the Complainant may well have experienced interpersonal difficulties with his Supervisor, taking his evidence at its height, I am not satisfied that he has made out a prima facie case of discrimination or harassment on any of the grounds alleged particularly based upon the following:

- I find the Complainant’s evidence in relation to his Supervisor’s alleged discriminatory treatment to be inconsistent, vague and lacking in any specifics or detail. In particular, he was unable to identify any treatment including words or acts that might amount to less favourable treatment than a person of a different gender, sexual orientation, religion or harassment in a comparable situation on any of those grounds. Taken at their height, I do not consider that the occurrences of less favourable treatment outlined above could conceivably fall within the definition of discrimination. I also found the Complainant’s refusal to name witnesses or produce corroborating emails evasive.

- Whilst the Complainant had previously made allegations of generalised bullying and discrimination against his Supervisor, I am satisfied that the first time that he made any reference to gender discrimination and harassment was in his complaint form of 9^th November 2015, his first reference to religious discrimination was in his complaint form of 13^th December 2015 and his first reference to discrimination on the grounds of sexual orientation was made at this hearing on 1^st July 2016. As the Complainant or his Union had not pursued the internal grievance procedures or put any of these issues in writing before submitting this particular complaint, the Respondent could not reasonably have been aware of any allegations of specific discrimination or harassment so as to address same.

In relation to the Complainant’s claim of victimisation in his first claim form of 9^th November 2015, Section 74(2) of the Employment Equality Acts provides: “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,…” and other protected actions not relevant to the instant case. In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows: “(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts; (2) The Complainant was subjected to adverse treatment by the Respondent, and; (3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.” Having found that no complaint of discrimination was made to the Respondent within the meaning of the Acts, this claim falls at the first hurdle and it therefore follows that the Complainant could not have been victimised pursuant to Section 74(2).

Decision:

I have concluded my investigation of this complaint pursuant to the Employment Equality Acts and based on the aforementioned, I find that in relation to Complaint Reference Number CA-00000714-001 made pursuant to Section 79(6) of the Acts, that the Complainant has not established in the first instance, facts from which discrimination or harassment on the grounds of gender, sexual orientation or religion may be inferred or required to support a victimisation claim. Therefore no onus shifts to the Respondent to rebut any such inference and this complaint must fail.

Claim of Unfair Dismissal under the Industrial Relations Acts

Having taken the Complainant’s evidence at its height, I am not satisfied that he has identified any breaches of fair procedures in relation to the disciplinary process leading to his dismissal. Nor am I persuaded that his dismissal was in response to his first complaint of 9^th November 2015 in circumstances where the factors leading to his suspension and dismissal were already at a very advanced stage. I am further satisfied that at the time of his suspension, the Respondent was unaware of the first complaint. In any event, I am of the view that the correct route was to exhaust the appeals process which the Complainant had used previously instead of pre-emptively submitting a complaint/dispute to the WRC both before his actual dismissal and then just two days afterwards.

Recommendations:

In the circumstances, I do not propose making any recommendations in relation to Dispute Reference Numbers CA-00001437-001 and CA-00001587-001.

Dated: 10^th August 2016