EDA1611

This matter came before the Court by way of an appeal brought by Mr Nyando (“the Complainant”) against a decision of the Equality Tribunal (DEC-E2010-044) dated 8 April 2010. The notice of appeal was received by the Court on 14 May 2010. The hearing of the appeal was originally scheduled for 2 December 2010 but was postponed on the application of the Complainant. It eventually came on for hearing on 18 May 2016.

The Equality Tribunal

The Equality Officer investigated a complaint brought by the Complainant that he had been treated in a discriminatory manner on grounds of his age and race contrary to section 13 of the Employment Equality Act 1998 (“the Act”) by his trade union, the MSLA (“the Respondent”). The Equality Officer found that the complaint failed as the Complainant had not established aprima faciecase of discriminatory treatment on either ground.

The Factual Background

There is very little disagreement between the parties in relation to the material facts and events which give rise to the within proceedings. They can be succinctly stated as follows. The Complainant commenced employment as a medical laboratory scientist in the National Maternity Hospital on 1 October 2010. Certain complaints were made against the Complainant by his then supervisor in 2004. The Complainant received assistance and representation from Mr Kane of the MSLA in responding to those complaints. At the time, Mr Kane was seconded from his full-time substantive position in St Michael’s Hospital, Dun Laoghaire to the Respondent, on a full-time basis. However, his period of secondment was about to come to an end in or about November 2004 when the Respondent was finalising the process of appointing a new General Secretary. That happened to be Mr Terence Casey. Mr Kane informed the Complainant that Mr Casey would take over his file and would represent him going forward.

Mr Casey took up his new role on 29 November 2004. The Complainant made contact with him by telephone, arranged an appointment and went for a consultation with Mr Casey on 3 December 2004. During the consultation, the Complainant briefed Mr Casey in detail about his work situation and the proposed investigation into the complaints raised against him by his supervisor, Ms R. Mr Casey assured the Complainant that he would take up where Mr Kane had left off and would represent him through the proposed investigation.

On the following Monday, 6 December 2014, Ms R came to meet Mr Casey by appointment. Some five minutes or less into the meeting, Mr Casey (per his evidence to the Court) realised that Ms R was consulting him in relation to the same matter about which he had discussions with the Complainant on 3 December 2014. Mr Casey discontinued the consultation with Ms R as soon as he realised that he was conflicted and advised her that he wouldn’t be in a position to represent her in respect of the matter to which the Complainant was the other party. Mr Casey suggested that Mr Kane could do so. However, Ms R was unhappy with this proposal as Mr Kane had already been active on the Complainant’s behalf. Mr Casey assured her that the Respondent would find a way of providing her with representation as this was her entitlement as a long-standing member of the Union.

Mr Casey’s evidence to the Court was that – in the interest of fairness to both parties – he removed himself entirely from any involvement thereafter in the dispute between Ms R and the Complainant. To this end he arranged for Mr Kane to resume his representative role on the Complainant’s behalf. Mr Casey wrote to the Complainant on 7 December 2004 (letter exhibited to the Court) informing him that Mr Kane would act for him in the forthcoming investigation. The Complainant replied to Mr Casey by letter also dated 7 December 2004 expressing his dissatisfaction with the turn of events and stating that, in his view, that what had occurred was ‘unethical’ and would ‘prejudice due process’ in his case. It would appear from the Complainant’s letter to Mr Casey, that the Complainant assumed that Mr Casey intended to represent Ms R in the ongoing dispute. Mr Casey’s initial letter to the Complainant does not indicate this to be the case and does not, therefore, provide any basis for the Complainant’s assumption in this regard. Ultimately, the proposed investigation into the complaints raised by Ms R against the Complainant did not take place until a much later date in 2005 than was originally envisaged. By that time, Ms R had engaged a firm of solicitors to represent her. Mr Casey informed the Court that the Respondent agreed to fund Ms R’s legal fees in consequence of the Union not having sufficient internal resources at the time to provide her with representation.

The Law

Section 85A(1) of the Act provides as follows in relation to the burden of proof which a Complainant under the Act must establish:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Discussion

The Complainant in the within case undoubtedly felt very aggrieved in relation to the events that unfolded following his consultation with Mr Casey on 3 December 2004. This is evidenced by the extent of the correspondence between the Complainant and the Respondent, and between the Complainant and other bodies that followed the events of 3 and 6 December 2004, copies of which were submitted to the Court.

Having discovered that that a potential conflict had arisen for him, Mr Casey correctly, in the Court’s view, withdrew entirely from the dispute between the Complainant and Ms R, and did not provide advice or representation thereafter to either party. In his own evidence to the Court, the Complainant stated on a number of occasions that he was extremely happy with the support and quality of representation he received from Mr Kane.

Having considered the submissions and evidence of both parties, the Court finds that the Complainant has not established any facts from which an inference of discrimination on either the age or race ground can be drawn by the Court

Decision

The appeal fails for the reasons outlined above and the decision of the Equality Officer stands.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
30th May, 2016.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.