ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00009702

Parties:

ComplainantRespondentAnonymised Parties A Chinese Restaurant Employee A Chinese Restaurant   Representatives  Solicitors

Complaint:

ActComplaint/Dispute Reference No.Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00012725-001

Date Of Receipt    22/07/2017  

Date of Adjudication Hearing: 20/12/2017

Workplace Relations Commission Adjudication Officer: Andrew Heavey

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint 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.  

Background:

The complainant is employed as a cashier/ bar staff by the Respondent. The complainant commenced her employment with the Respondent on 1st July 2012 and is paid a gross weekly wage of €594.87.

Summary of Complainant’s Case:

The complainant’s position is that she has been discriminated against, harassed and victimised on the grounds of her family status in contravention of the Employment Equality Acts, 1998-2015.  

Summary of Respondent’s Case:

The Respondent contends that the subject of the complaints submitted by the complainant relating to discrimination and harassment are of a generalised nature and do not relate to any of the nine grounds specified in the Employment Equality Acts, 1998 -2015. The Respondent also stated that the complainant does not satisfy the family status definition as set out in Section 2 of the legislation. The respondent further contends that as the complainant did not make a protected act in line with the legislation relating to the alleged discrimination, the claim that she was victimised is therefore unsustainable and cannot succeed.  

Findings and Conclusions:

In relation to this complaint I find as follows: The complainant submitted complaints that she had been discriminated on the grounds of her family status in contravention of Section 6(2)(c) of the Employment Equality Act, 1998. The complainant is also claiming that she was harassed and victimised by the Respondent in contravention of Section 14A (7)(a)(i) and Section 74(2) of the Act respectively. Family Status is defined under Section 2 of the Employment Equality Act, 1998 as follows: “family status” means responsibility— (a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability. It was clarified at the adjudication hearing that the complainant is not a parent, is not in loco parentis and is not responsible for or the primary carer of a person of or over the age of 18 with a disability that requires care and support on an ongoing basis. Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows: 6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — (a) 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) (in this Act referred to as the ‘ discriminatory grounds ’ ) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, ( b ) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. Burden of Proof Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:   85A (1) 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. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary. (4) In this section ‘discrimination’ includes — (a) indirect discrimination, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void. I find that the complainant was unable to establish a prima facie case of discrimination on the family status ground as she did not satisfy the family status criteria under the Act. I also find that the complaint alleging harassment is not well founded and as the complainant had not made a protected act in line with the legislation, the claim of alleged victimisation also fails. In conclusion, I find that the complainant did not have locus standi to bring this complaint to the Workplace Relations Commission under the Employment Equality Acts, 1998 -2015.

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. Having considered the written and verbal submissions of the parties, I declare that the complaint is misconceived.  

Dated:   19.02.2018

Workplace Relations Commission Adjudication Officer: Andrew Heavey

Key Words: Family status, discrimination, harassment, victimisation, locus standi