ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002519

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00003499-001	24/03/2016

Date of Adjudication Hearing: 04/10/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

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

Complainant’s Submission and Presentation:

The complainant lodged an equality case against her Employer, case reference: ADJ-00000148/CA/00000141. This claim was referred under the Gender Ground. Since then the complainant has raised concerns and an application for paid leave was requested until the building was rectified in September 2015. There was a commitment made by Management that this would be completed by October 2015. Since then the builders returned, however the works remain incomplete. The complainant still remains out of work, which has adverse effects and consequences for her. The complainant communicated this, as did her representative to no avail. The complainant has also raised concerns regarding negative feedback from colleagues and rumours that have circulated. While she does not expect her employer to control rumours, the complainant has asked that they communicate with her colleagues or address this in some way, by training or otherwise and inform them of the current situation, but they failed to do so. The complainant’s employer employed an equality expert to 'equality proof' the building in November 2015. The employer stated that they were awaiting the result of this before permitting the complainant to return to work. This report was issued in early January, which recommended they place a screen in the bedroom for privacy. This was three months ago and no building works have been commenced. The complainant wishes to return to work as soon as possible and has stated this to her employer, but she feels now that they are preventing her from returning due to the pending equality case. This has adverse effects on the complainant’s wellbeing. She suffers from anxiety, stress and her GP has prescribed medication for this. The complainant also needed to attend counselling. She now feels, as a direct result from the discriminatory treatment and the equality claim, that her chief officer’s lack of empathy or any action is detrimental to her and her future career within the workplace.

Respondent’s Submission and Presentation:

The respondent denies any allegations of harassment with respect to the complainant. Some evidence cited by the complainant is outside the time limit of the referral. The complainant did not identify perpetrators nor provide specifics in relation to this allegation. The complainant did not make a complaint under the respondent’s “Dignity at Work” policy.

The complaint of discrimination was submitted on 12 October 2015. The complaint of victimisation must relate to events occurring as a result of that submission. Events in June 2015 cannot be relied upon in that regard. The recommendations of the independent person who compiled the equality report have been implemented. The complainant has failed to establish primary facts upon which to ground her complaint of victimisation.

Decision:

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

Was the complainant subjected to harassment / unwelcome behaviour?

Was the complainant the subject of adverse treatment as a reaction to her complaint of discrimination?

Legislation involved and requirements of legislation:

Section 14A(1) of the Employment Equality Act, 1998, deals with harassment and states that where an employee is harassed or sexually harassed either at a place where the employee is employed…or otherwise in the course of his or her employment by a person who is employed at that place or by the same employer…the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

Subsection (7) defines harassment as 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.

Section 14A(2) of the 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.

Section 74(2) of the 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 complaint of discrimination made by the employee to the employer,
any proceedings by a complainant
an employee having represented or otherwise supported a complainant
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,
an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which is unlawful under such repealed enactment, or
an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Decision:

This complaint was heard in conjunction with a complaint of discrimination on the grounds of gender contained in ADJ00000148 as they refer to related events. The background relates to the facilities provided in a new fire station which came into operation in June 2015.

Harassment :

The complainant in evidence stated that she became aware of negative remarks being made about her by colleagues and that when she visited the station whilst on paid leave she perceived people’s attitude to her to be cold and distant. A notice was placed on the staff notice board in relation to the segregation of sleeping areas without any prior consultation with the complainant and she felt that this caused more problems as regards her male colleagues who, she believed, began to see her as the problem rather than the building. The complainant requested that management make a statement to staff regarding the issues but did not receive a satisfactory response. The respondent stated that when they had asked for details in regard to staff making comments they were advised by the complainant that she did not wish to get anyone into trouble nor was there any complaint lodged under the Dignity at Work policy.

Section 14A(2) of the Employment Equality Act, 1998, provides an employer with a defence against a complaint of harassment if it can be proven that it took such reasonable steps as are practicable to prevent harassment. The respondent in this case has a Dignity at Work policy which is communicated to employees and which is the subject of regular training. There is also a grievance procedure through which staff can process issues in relation to any aspect of their employment. I can understand that the complainant was reluctant to name colleagues in relation to her complaint. However, in the absence of detailed information and, in particular, in the absence of a specific complaint under the Dignity at Work policy the respondent could not initiate an investigation. In addition the respondent did respond to the issues raised by the complainant although the complainant may not have been always satisfied with that response. I am therefore satisfied that the respondent can rely on the defence in Section 14A(2) of the Act and find that the complainant has failed to establish a prima facie case of harassment and that the complaint fails.

Victimisation:

The complainant contends that progress on the necessary remedial works in the station was not pressed forward by the respondent as a result of the complainant lodging a claim of discrimination. As a result of this delay the complainant had to remain absent from the workforce pending the completion of the work. This resulted in a loss of overtime and acting-up opportunities. The complainant also stated that the implementation of recommendations contained in the report of the independent Equality Consultant had been delayed pending the hearing of her discrimination complaint. The respondent stated that significant aspects of the report’s recommendations had in fact been implemented. The respondent also said that the discrimination complaint had been lodged on 12 October 2015 and some of the events mentioned by the complainant occurred prior to that date and therefore could not be said to result from the filing of that complaint.

Section 74(2) of the Act, as set out above, lays out the criteria in relation to a complaint of victimisation. Victimisation occurs where a detriment is imposed on a worker as a reaction to a complaint.

In relation to the issue of the complainant going on paid leave I note that this commenced on 18 September 2015 and followed a number of requests from the complainant’s union that this should happen. I accept that the term of the leave lasted a number of months but I cannot accept that requested leave initiated some weeks prior to the lodging of the discrimination complaint was a reaction to a complaint. The commissioning of a report by an Equality Consultant on “gender-proofing” the facilities in the station was initiated by the respondent in November 2015 as a means of progressing the issues at the heart of the original complaint. The report was circulated to the interested parties on 31 January 2016. Given that this complaint of victimisation was lodged less than two months later it is difficult to accept the contention that the implementation of its recommendations was delayed as a result of the filing of the discrimination complaint in October 2015. I therefore find that the claim of victimisation fails.

Dated: 25^th January 2017