EQUALITY OFFICER'S DECISION NO: DEC-E/2016/086
PARTIES
Mr. James Cregan
Vs
Coillte Teoranta
(Represented by IBEC )
FILE NO: et-153110-ee-15
Date of issue: 3rd of June 2015
1. Dispute
1.1 This dispute involves a claim by Mr. James Cregan
that he was discriminated against by Coillte Teoranta, on grounds of race, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to his dismissal. There is also a claim of discriminatory treatment and of victimisation.
2. Background
2.1 The complainant referred complaints under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 25th of January, 2015 alleging that the respondent had discriminated against him on grounds of race when he was dismissed from his job on 5th of May 2009. There is also a claim of discriminatory treatment and of victimisation.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on 24th of March, 2016 to me, Orla Jones Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 31st of March, 2016.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainant submits that
· he was employed by the respondent from 2008 to May 2009,
· on return from a site survey in March 2009 his manager, Mr. H, made the following comment to the complainant “your boys had a load of Kalashnikovs and Semtex there that the guards found”,
· this comment implied that the complainant was a member of a terrorist organisation, which he is not,
· this comment was made due to the complainant’s ethnicity as a Catholic Irish Republican,
· the complainant’s employment was terminated shortly after this,
· the complainant during his employment with the respondent made a formal complaint of bullying and harassment against his manager Mr. H,
· following the termination of his employment, the complainant applied for a number of posts with the respondent and was unsuccessful in his applications. It is submitted that this amounts to discriminatory treatment and victimisation,
· the complainant was called to interview for the post of Forest Roads Engineer, with the respondent in August 2014, during which one of the panel referred to his previous employment with the respondent and his relationship with Mr. H, against whom he had made a bullying complaint. It is submitted that this amounts to victimisation,
· the complainant was unsuccessful at interview and submits that this amounts to victimisation on foot of his complaint of bullying and harassment.
4. Summary of Respondent’s case
It is submitted that
· the complaint of discriminatory dismissal is out of time as the complainant’s employment ceased on 5th of May 2009,
· the complainant is relying on the ground of race -ethnicity and has not shown himself to be covered by that ground,
· the complainant was dismissed due to budgetary cuts
· the complainant was called to interview for another post in August 2014 but was unsuccessful.
5. Preliminary issues
5.2 Preliminary issue – Time Limits
5.2.1 The respondent has submitted that the claim in relation to discriminatory dismissal is out of time as the complainant’s employment was terminated on the 5th of May 2009.
5.2.2 Section 77(5) (a) of the Acts provides provides that a complaint has to be referred within six months of the most recent occurrence of the alleged act of discrimination. Section 77(5)(b) provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.
Section 77(5) of the Acts provides as follows:
“(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
5.2.3 It is submitted that the last date of discrimination in respect of the allegation of discriminatory dismissal is the date on which the complainant’s employment was terminated. It is agreed that the complainant’s employment was terminated on the 5th of May 2009, this would mean that the last date by which the complainant could submit his complaint was the 4th of November, 2010 in order for the complaint to be considered to fall within the 6 months. The complainant submitted his complaint to the Tribunal on the 25th of January, 2015. Thus any claim arising out of events prior to 26th of July, 2014 are outside of the prescribed time limits. The claim in relation to the dismissal which took place on the 5th of May 2009 was submitted more than 5 years outside of the six month’s time limit. I am thus satisfied that the claim in relation to discriminatory dismissal was submitted well outside of the prescribed time limits. I find that this aspect of the claim is out of time in accordance with section 77 (5) of the Employment Equality Acts.
5.3 Preliminary issue – Race Ground
5.3.1 The complainant has also submitted claims of discriminatory treatment on grounds of race. In relying on the ground of race the complainant submits that he was discriminated against due to his ethnicity which he submits is that of being a Catholic Irish Republican.
5.3.2 Section 6(1) of the Employment Equality Acts, 1998-2015 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”
Section 6(2) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins."
5.3.3 The respondent submits that an individual’s political beliefs ‘Republican’ or otherwise are not characteristics of ethnicity and therefore the claims on grounds of race are erroneous. The complainant has advanced his complaints on the basis that he was subjected to less favourable treatment due to his ethnicity which he submits is that of being a Catholic Irish Republican.
5.3.4 Section 85A of the Employment Equality Acts 1998 to 2015 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment on the grounds specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3.5 The complainant is advancing his claim on the race ground on the basis of "ethnicity” or “ethnic origins”. There is no definition of the term "ethnic origins” in the Acts, thus I must decide what the term means in the context of the legislation. In deciding on this point I refer to the judgment of UK House of Lords in Mandla v Lee [1]and in particular the comments of Lord Frazer, who gave the leading judgment in the case. In his judgement Lord Frazer quoted with approval the comments of Richardson J of the New Zealand Court of Appeal in King-Ansell v Police [2] as follows -
" The real test is whether the individuals or the group regard themselves and are regarded by others as having a particular historical identity in terms of their ..... ethnic origins. That must be a belief shared by the group.....A group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished by others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past... it is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity not simply based on group cohesion and solidarity but also on their belief as to their historical antecedents" .
5.3.6 Applying these principles Lord Frazer identified two essential characteristics of an ethnic group -
· "a long shared history, of which the group is conscious as distinguishing it from other groups and the memory of which keeps it alive.
· a cultural tradition of its own, including family and social customs and manners"
5.3.7 In addition to these essential characteristics he set out a number of other elements which, although not essential, could be expected to be displayed by the group -
· "either a common geographical origin or descent from a small number of common ancestors.
· a common language, not necessarily peculiar to the group.
· a common literature peculiar to the group.
· a common religion different from that of neighbouring groups or from the general community surrounding it.
· being a minority or being oppressed or a dominant group within a larger community."
5.3.8 Applying the above principles to the instant case I am satisfied that the complainant has not established that he is covered by the race ground or that he has a different ‘ethnicity’ or ‘ethnic origin’ due to being a Catholic Irish Republican. Accordingly I am satisfied that I do not have jurisdiction to examine the complaint on the basis of the complainant allegedly being treated less favourably due to his ethnicity which he submits is that of being a Catholic Irish Republican. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination on the ground of race on the basis of his ‘ethnicity’.
6. Victimisation
6.1 The complainant has submitted that he was victimised by the respondent. The complainant at the hearing stated that he was victimised by being treated less favourably following a complaint of bullying and harassment to the respondent.
Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“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 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.
6.2 In Tom Barrett v Department of Defence[3] 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.
6.3 The complainant advised the hearing that he had submitted a complaint of bullying and harassment to the respondent’s HR Department in 2009 and that his failure to be successful at interview, in August 2014 was as a result of his having lodged this bullying complaint in 2009. The complainant advised the hearing that this complaint was a complaint of bullying and harassment against his manager. The complainant when questioned stated that the bullying complaint was not a complaint in relation to discrimination and did not refer to or contain any allegation of discrimination. I am thus satisfied that that the complaint of bullying and harassment made by the complainant to the respondent in 2009 does not amount to a protected Act for the purpose of this Section.
6.4 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to these matters.
7. DECISION OF THE EQUALITY OFFICER.
7.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination on grounds of race pursuant to section 6(2) and contrary to section 8 of the Acts.
(ii) that the complainant has failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts.
____________________
Orla Jones
Equality Officer/Adjudicator
3rd of June, 2016
Footnotes
[1] [1983] IRLR 209
[2] [1979] 2 NZLR 531
[3] EDA1017