ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00006686

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00009092-001 16/01/2017   Date of Adjudication Hearing: 23/10/2017 Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).  

1:        Summary of Complainant’s Case:

The Complainant claimed Discrimination under the following headings Section 6 Employment Equality Act (f) Age Section 8 Employment Equality Act (b) Conditions of Employment Bullying and Verbal Abuse Section 74 (2) Employment Equality Act Victimisation & Harassment. Section 98 (1) Employment Equality Act Dismissal because the Complainant opposed Discrimination The Complainant commenced employment on the 20th of April 2015 and the employment ended on the 25th August 2016. The Complainant maintained that throughout her period of employment she was subjected to verbal abuse, ridicule and harassment. She complained about her treatment but was subjected to bullying by other staff members who socially excluded her. She was not given any disciplinary warnings and eventually for the sake of her health had to resign. She was effectively alleging Discrimination which lead to a Constructive dismissal.    

2:        Summary of Respondent’s Case:

The Complainant commenced employment on the 20th April 2015 as a Health Care Assistant. She was promoted to the position of Senior Health Care Assistant (SHCA) in March 2016. The SHCA positon was on a probationary basis. Regrettably the Complainant did not work out as satisfactory and she was requested to revert to her former positon of Health Care Assistant. Several issues of contention arose with fellow workers and Mediation/Investigation/Review meetings took place on the 14th June 2016 and later the 22nd July 2016. An Appraisal meeting with Ms. AX the Director of Nursing took place on the 25th July 2016. This was followed by the resignation E mail from the Complainant On the 27th July 2016, the Complainant wrote to the Respondent outlining a list of Grievances. She did not mention Age or any form of Discrimination in the list of Grievances. The Respondent invited her to avail of the Respondent Grievance Procedures. This offer was not availed of. By e mail of the 25th July 2016 the Complainant indicated that she was resigning. Considerable correspondence followed with the Respondent seeking to discuss the issues involved. The Respondent made it clear at all times, as regards the employment situation, that a position of Health Care Assistant was available. This offer was not accepted and the Resignation was put in place, P45 issued etc. At all times the Respondent organisation offered the Grievance Procedure to the Complainant and before the Resignation had actively engaged with her regarding her difficulties.   The negative outcome of the Probation issue for the SHCA positon was well discussed and was clearly the right decision from the Respondent’s point of view.    

3:        Findings and Conclusions:

3:1     The Law - The Burden of Proof and Discrimination claims. The Complainant has referred this case under the Employment Equality Act ,1998. Section 85(a) of the Act is crucial here as it focuses on the issue of the Burden of Proof. Accordingly, it is now well accepted law that the first requirement for a successful claim under the Employment Equality Act ,1998 lies in clearly establishing a prima facie case i.e. fundamental facts, evidence of Discrimination, on which a claim can go forward. In this regard, I consider that it is appropriate for me to firstly consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context.   It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”. The Labour Court in Melbury Developments v Arthur Velpetters (Dec E2014-044) continued “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”  Put simply the Complainant has to establish facts on which to ground a claim of Discrimination – in this case facts clearly relating to age discrimination.   3:2     Review of the evidence presented.   (a)  The Prima Facie case.   Clearly the Complainant had issues with colleagues and in particular a Ms. AC. However, having reviewed the evidence available (detailed meeting minutes & correspondence and heard the oral evidence from the Complainant and two Managers) I could not see where Age was an issue of sufficient gravity to base a Discrimination on Age grounds claim. The Assessment/Probation Report of the 23rd of June 2016 completed by the Director of Nursing Ms.AX has no “Age” related overtones. The Minutes of other meetings and the document submitted by the Complainant on the 27th July, while quite detailed, are concerned with operational difficulties with other staff members. There was no “Age “element in it as far as I could see.   Disputes with colleagues over operational matters, the appropriate way to manager patients etc. are / can be part of the normal running of a Nursing Home but do not automatically qualify as the grounds for a Discrimination claim.   Accordingly, having reviewed all the evidence, both oral and written presented, I could not find sufficient facts to establish a prima facie case of Age related discrimination.   (b)  Victimisation, Bullying and Discriminatory Dismissal  The evidence presented both in writing and verbally by two Nursing Home Managers, the Director of Nursing and the Director Clinical Services indicated an employer that had good procedures and made considerable efforts to meet with and resolve issues with the Complainant.   Requests to the Complainant to use the well documented Grievance Procedures had mixed results. While the Complainant had lodged a Grievance, it appeared to be largely concerned with Operational issues and Interpersonal differences with colleagues. The issues with the Complainants’ colleague Ms. AC were well explored and was the subject of a formal Mediation meeting on the 22nd July 2016 with the Clinical Director.   As regards Victimisation Section 74 (2) of the Employment Equality Act refers and is quoted below.   victimisation” shall be construed in accordance with subsection (2). (2) 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.   There was no evidence of any of the above issues arising in this case. Likewise, the legal question of Harassment was not substantiated. The Respondent made very good efforts to examine and explore the local inter colleague issues and I did not see how it could be treated as “harassment” by the Respondent Employer.   (c)       Bullying and Verbal Abuse /Conditions of Employment   The issue of Verbal abuse and alleged Bullying was discussed at the hearing. It was clear that issues between colleagues had on occasion got heated. However, there was no evidence of a systematic policy of Bullying. The actions of the Clinical Director to have a Mediation Meeting to sort out issues between the two staff members (meeting of the 22nd July 2016) were very commendable and more that satisfy any formal requirement (appropriate employer responses etc.) that might have arisen under Section 16 of the Employment Equality Act.   (d)        Discriminatory Dismissal /Opposing Discrimination.   The Complainant resigned from her position and quickly secured another position. The offer of reemployment was always open to her, albeit at a lower grade positon.   Even if it was accepted that it was a Constructive Dismissal the two standard tests of Fundamental Breach of Contract and Unreasonable Behaviour by the Employer would not successfully apply. The behaviour of the Respondent Organisation and the Mangers, the Director of Nursing and the Director Clinical Service could not in any way be described as unreasonable to the degree required to sustain a claim of Constructive Dismissal.  3:4 Conclusion. Having reviewed all the evidence, both oral and written and considered the question of Victimisation I did not come to the view that a prima facie case of Age Discrimination was established. Accordingly, I dismiss the claim.          

4:        Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.   ActComplaint/Dispute Reference No.Summary Decision /Refer to Section 3 above for Detailed reasoning. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00009092-001 The claims under the Employment Equality Acts ,1998 for a)      Age Discrimination, b)     Bullying and Verbal Abuse c)  Victimisation & Harassment d)  Discriminatory Dismissal /Opposing Discrimination. are not well founded and are dismissed.  Dated: 18.12.2017 Workplace Relations Commission Adjudication Officer: Michael McEntee Key Words: