FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : AN POST (REPRESENTED BY MR CATHAL MCGREAL BL; AS INSTRUCTED BY MR PAUL CARROLL SOLICITOR, AN POST) - AND - CLAIRE STEPHENS DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00003495, CA-00004461-001, CA-00004461-002.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 26 October 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Claire Stephens against the Decisions of an Adjudication Officerunder the Employment Equality Act, 1998 - 2015 (the Act) in her claim of discrimination on the sexual orientation ground and on the disability ground by her employer, An Post. The Adjudication Officer in Decision no ADJ-00003495, CA-00004461-001 and CA-00004461-002 found that the he did not have jurisdiction to hear the Complainant’s complaints.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Claire Stephens will be referred to as “the Complainant” and An Post will be referred to as “the Respondent”.
Background
The Complainant was employed by the Respondent as a Postal Operative in the Galway Mail Centre from 11th June 2001. She worked 37 ½ hours per week on nights, over five nights per week. The Complainant’s employment terminated on 5thFebruary 2016.
On 16thMay 2016 the Complainant referred a claim under the Act to the Workplace Relations Commission. The Adjudication Officer issued his Decisions on 9thMay 2018, the Complainant appealed the Decisions to this Court on 15thMay 2018.
The Complainant’s complaints under the Act relate to the content of the Respondent’s defence to other complaints made by the Complainant.
This appeal was heard at the same time as a number of other appeals submitted to the Court by the Complainant. Extensive submissions and documentation were submitted in the course of the appeal which the Court has summarised in this Determination.
Summary of the Complainant’s Case
The Complainant appeared before the Court as an unrepresented party. With respect to the two claims of discrimination, the following is a summary of the Complainant’s cases on appeal: -
CA-00004461-001
The Complainant alleged that the reference to Ms A in the Respondent’s submission to the Complainant’s claim under to the Workplace Relations Commission on 22ndFebruary 2016 underthe Employment Equality Act was a discriminatory act by the Respondent on the sexual orientation ground.
Furthermore, the Complainant alleged that the Respondent’s submission to the Workplace Relations Commission on 8thMarch 2016 which also made reference to Ms A was similarly discriminatory on the sexual orientation ground.
The Complainant also alleged that the Respondent informed the Workplace Relations Commission in its submissions that the Complainant had named Ms A in a suicide note that the Complainant wrote and circulated to her work colleagues on 2ndMay 2014. The Complainant stated that this was factually untrue as she did not mention Ms A in her suicide note.
She told the Court that she was so incensed at the statement that she threatened to report the Respondent’s Legal Services to the Solicitors Disciplinary Tribunal, for making “numerous malicious false statements" to the WRC.
CA-00004461-002
The Complainant claimed that the Respondent’s use of her medical reports in its submission to the Workplace Relations Commission in her claim under the Unfair Dismissals Act and its use of a confidential letter she sent to the Respondent’s Occupational Support Services Officer were acts of discrimination on the disability ground.
The Complainant reported the Chief Medical Officer to the Medical Council for breach over the alleged data breach. She reported the Occupational Support Services Officer to his governing body, the IACP for the alleged breach of confidentiality.
Summary of the Respondent’s Position
Mr Cathal McGreal, B.L. instructed by An Post Legal Services, on behalf of the Respondent, submitted that the Respondent was entitled to demonstrate the commonalities in the Complainant’s various claims, the golden threads and root causes for her campaign of litigation and complaints.
CA-00004461-001
Mr McGreal stated that the Complainant makes much reference to Ms A in her submissions to this Court, she made reference to her in her Personal Injuries summons and seeks compensation for injury caused by an incident in which she alleges that Ms A was involved. He said that the public letter the Complainant describes as a ‘suicide note’ refers to the incident.
He stated that the reference to an incident involving Ms A in 2005, along with two other incidents involving Mr X in 2012 and Ms B in 2014 and the consequences and sequelae of these incidents form the basis on which all of the Complainant’s claims seem to be built. Almost everything in the Complainant’s many complaints can be traced back in one way or another to these three incidents and these three people.
He stated that the Complainant seeks to litigate the same issues and the same consequences (detriment) in many different fora. If it is embarrassing, this is an inherent consequence of going to law on issues of a personal nature.
CA-00004461-002
Mr McGreal submitted that notwithstanding the fact that the Ms A incident and the Mr X incident occurred in 2005 and 2012 respectively, the Complainant made no contemporaneous complaint about the incidents. Rather, he contended, they came to some sort of crisis in the Complainant’s view around April 2013 when she wrote to her manager indicating that she had been suicidal. This immediately lead to her being referred to the Respondent’s Occupational Support Service. However, on 8thApril 2013 the Complainant wrote to her manager admitting that she had lied about being suicidal, that she had never been suicidal, and had written to him in ‘huge anger’. This lead to permission being requested from her to contact her GP for details of the Complainant’s medical condition.
Mr McGreal said that the Complainant exhibited the letter to the Occupational Support Services Officer in her submissions to the Equality Tribunal, yet she now claims that she did not consent to the release of it notwithstanding her consent to the release of all of her medical notes. Then on 2ndMay 2014, the Complainant wrote what she referred to as a “suicide note” and distributed 80 copies to her work colleagues referring to the 2005 incident among other issues.
Mr McGreal submitted that the Adjudication Officer was correct to equate submissions with witness evidence and to the case law which considers witness immunity. He was also correct to point to Section 97(1) of the Act in this regard. He submitted that the Respondent is entitled to rely on the well-established principle that litigants cannot go to law and yet seek to supress information which they themselves have raised as part of the controversy. He referred toMcGrory v ESB[2003] 3 IR 407, where the Supreme Court held that the confidentiality a plaintiff may have in his medical data ceases when he puts his health in issue.
Court Findings
The issue before the Court concerns allegations of discrimination on the sexual orientation and on the disability grounds over the contents of the Respondent’s submission in proceedings before the Workplace Relations Commission in its defence of claims made by her under the Unfair Dismissal Act and the Employment Equality Acts. The question arises whether the contents of the Respondent’s submissions can be the subject of further litigation. The Court notes that the Complainant was no longer an employee when these alleged transgressions took place and may not be construed as having occurred in the course of employment.
The Court is of the view that as a matter of public policy submissions made in legal proceedings cannot give rise to legal liability. Section 97 (1) of the Act protects any person disclosing any information disclosed to the Court and the inclusion of such information shall not give rise to any legal liability on the part of the person making it.
In any event, the Complainant complained about the inclusion of a reference to an alleged 2005 incident that she complained of to the Respondent, being referred to in its submission to the WRC in her unfair dismissal claim, and secondly the inclusion of a letter she wrote to the Respondent’s Occupational Support person in 2013. The question arises whether the contents of the Respondent’s submissions come within the statutory prohibition contained at Section 8(1) of the Act, which provides: -
Discrimination by employers etc.(1) In relation to—
- (a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
- (a) access to employment,
Determination
For the reasons set out above the Court determines that the Decision of the Adjudication Officer is varied and substituted with this Determination. The Complainant’s appeal is disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
17 December 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.