EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-006
PARTIES
An Employee
AND
An Post (Represented by Cathal McGreal, BL)
File reference: et-155400-ee-15
Date of issue: 26th January, 2018
1. DISPUTE
1.1 This dispute concerns a claim by an individual that she was discriminated against by her employer, on the grounds of disability, by victimising her .
1.2 The claimant referred her claim to the Director of the Equality Tribunal on 5 March 2015. This claim was delegated to me, Ray Flaherty, an Adjudication Officer/Equality Officer, for investigation, hearing and decision. Submissions were received from both sides and, as part of my investigation, I conducted to a hearing on 11 January 2017.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. BACKGROUND
2.1 The Complainant commenced employment in June 2001 in the Respondent's Mail Centre in Galway, as a postal sorter, working the night shift.
2.2 The Complainant returned to work on 22 September 2014 following a 4.5 month absence, which related to previous work related incidents involving the Complainant.
2.3 On 9 October 2014 an alleged altercation, involving the Complainant and a colleague, took place during work. As a result of this altercation, the Complainant was suspended from work with pay on 13 October 2014, following a meeting. A disciplinary process involving the Complainant commenced at that stage.
3. CLAIMANT'S SUBMISSION
3.1 In her complaint submitted on 5 March 2015, the Complainant alleged that her employer had discriminated against her and had victimised her on the grounds of disability.
3.2 In her original complaint form the Complainant submitted that an altercation which took place at work on 9 October 2014 involving her and a female colleague. The Complainant submitted that, while the altercation had been caused by her colleague, she was not suspended from work, however the Complainant was. Based on this, the Complainant submitted that she was being treated differently to her colleague, whom, she claimed, had no disability.
3.3 The Complainant also submitted in her original complaint form that she was being treated differently by her employer because she was suing them over sexual harassment which had caused her severe depression, anxiety, agoraphobia and made her suicidal.
3.4 Following the lodging of her original complaint form, the Complainant provided a number of additional submission, which expanded significantly on the matters pertaining to her complaint. Having conducted a thorough review of all materials submitted by the Complainant, I am satisfied that her complaint can reasonably be summarised as set out in the following points.
3.5 The Complainant submitted that the delays in investigating the incident of 9 October 2014 rendered the whole process seriously flawed. The Complainant submitted that she was clearly discriminated against in relation to this matter, as she was the only one investigated for wrongdoing. The Complainant supported this allegation with significant detail in relation to what she considered to be the flaws in the Respondent's investigation process.
3.6 The Complainant submitted that she experienced discrimination by way of the clear bias and malice shown towards her by a named official of the Respondent. The Complainant submitted that this bias and malice arose from her taking legal action against the Respondent in May 2014.
3.7 The Complainant submitted that a named Supervisor treated her less fairly than the other individual involved in the altercation which took place on 9 October 2014.
3.8 The Complainant submitted that the Respondent's HR Manager discriminated against her and victimised her within the meanings of the Acts, following her return to work on 22 September 2014. The Complainant further submitted, in this regard, that the discrimination against her was because she had a disability, which she claimed the other individual involved in the incident on 9 October 2014 does not have.
3.9 The Complainant submitted that the Respondent had prevented her from exercising her constitutional right to defend herself when allegations of a very serious nature, which she considered to be untrue, were made against her. The Complainant further submitted that the Respondent placed more importance on keeping confidential the untrue statement of the person making the allegations than allowing the Complainant to defend herself.
3.10 The Complainant stated that the Respondent tried to prevent her from getting statements, which she required to support her legal action against the Respondent, from some of her colleagues at work. The Complainant further submitted that the Respondent's efforts to prevent her from getting these statements, which related to an incident that happened three years previously, amounted to victimisation.
4. RESPONDENT'S SUBMISSION
4.1 In response to the claims made by the Complainant, the Respondent raised a number of preliminary issues as follows:
Preliminary Points:
1) No causal nexus of victimisation – failure to shift burden:
4.2 The Respondent claims that there is not the slightest indication or trace of evidence in this complaint on which to base a case for victimisation. The Respondent referred to the Complainant's contention that she was suspended because she had made a complaint or stood on her rights under the Acts. The Respondent submitted that there was nothing in any of the correspondence/paperwork in relation to the case which would connect any such issues to her suspension.
4.3 The Respondent submitted that the Complainant was suspended because she did not go to a manager about a conduct issue with a colleague but rather confronted this colleague herself, having been told to approach that colleague on work related matters only. The Respondent also submitted that the Complainant breached confidence concerning a report she had been told (and agreed) to keep confidential and that she mistreated her managers.
The Complainant submitted that, in all of the above, there cannot be and nothing is identified to make the necessary causal link required to show a prima facie a case of victimisation. The Respondent further submitted that, therefore, the burden set out in Section 85A of the acts has not been shifted to the Respondent.
2) Time Limits:
4.4 The Respondent submitted that the current complaint was received by the WRC on 5 March 2015. The Respondent pointed out that this was some two months after the Complainant had submitted another complaint in respect of reasonable accommodation relating to the venue for a Disciplinary Hearing.
4.5 The Respondent submitted that the relevant time period during which victimisation can be inferred is from 6 October 2014. The Respondent pointed out that it was unclear precisely what specific victimisation was being claimed, but it submitted that it could only have arisen between 6 October 2014 and 5 March 2015.
4.6 The Respondent submitted that the Complainant did not specify when the victimisation commenced or when it ended
3) Abuse of Process:
4.7 The Respondent referred to the fact that the Complainant had lodged a number of complaints in different fora relating to workplace issues. The Respondent submitted that it was contrary to public policy and to the law to pursue to conclusion a remedy in more than one forum where the course of action is the same factual scenario and the same essential alleged wrongdoing.
4.8 The Respondent submitted that the Complainant was aware of the issue of double claiming as early as 9 February 2015, when she wrote to the Respondent in this regard.
4.9 In a lengthy submission on this point, the Respondent referenced a number of other claims/complaints raised by the Complainant. In relation to one of these claims, that of unfair dismissal, which was lodged in February 2016, the Respondent submitted that the Complainant is now seeking to rely on the same issues/grievances, on which the unfair dismissal claim is based, as part of her submission with regard to this claim.
4.10 In light of all of the above, the Respondent submitted that the Complainant's various claims should be noted and curtailed insofar as they seek to ventilate and seek a remedy in respect of the same facts and issues in overlapping and parallel legal claims.
4.11 Having concluded submissions on the preliminary points and without prejudice to the content of those submissions, the Respondent moved to address the substantive elements of the complaint as follows:
Substantive Points:
4.12 The Respondent submitted that the basis for the Complainant's complaint is stated to commence with an altercation which took place on 9 October 2014. The Respondent submitted that the Complainant stated that this was caused by the other person involved in the altercation. The Respondent further submitted that the Complainant alleges that the other party to the incident lied to an investigation and that the Respondent accepted that she had lied. The Respondent pointed to the fact that the Complainant refers to her suspension due to the incident. She contests the basis of the suspension and claims that she did nothing wrong. According to the Respondent the Complainant also refers to the fact that she is "suing the company over sexual harassment".
4.13 The Respondent submitted that all the above was an attempt to engage this process on issues on which the Complainant seeks to ventilate and litigate and ultimately "have her day in court". The Respondent further submitted that this had nothing to do with the concept of victimisation under the Acts.
4.14 The Respondent submitted that it was not possible to be sure whether the Complainant was claiming victimisation with respect to the disciplinary matter or the claim that she had made of sexual harassment.
4.15 The Respondent submitted that the Complainant's suspension, which they understood to be the victimisation claimed, was in respect of her conduct in or about an incident which took place on 9 October 2014. The Respondent pointed out that this was not because of any complaint that the Complainant had made. The Respondent submitted that there is no causal nexus as required by the Acts and there can be no valid suggestion that any treatment, adverse or otherwise, is a reaction to any of the matters set out in Section 74 (2) of the Acts.
4.16 The Respondent submitted that the Complainant appears to base her complaint of victimisation on a complaint of bullying. The Respondent submitted that this is not available to her.
4.17 The Respondent submitted that the Complainant wishes to reopen the merits of the incident itself. The Respondent submitted that this is not now available to her.
4.18 The Respondent submitted that the Complainant wishes to litigate this issue in various fora seeking various different remedies. The Respondent submitted that this is not available to her.
4.19 The Respondent submitted that suspension is a neutral act and is not a finding of guilt.
4.20 The Respondent pointed to the comment, in the Complainant's letter accompanying her complaint to this forum, where she states: "I would like for you to investigate why An Post is not following our Dignity at Work Policy." The Respondent submitted that this is the same complaint that the Complainant brought before a Rights Commissioner pursuant to Section 13 of the Industrial Relations Act 1969 and, having failed and that claim, has appealed to the Labour Court under Section 13 (9) of that Act.
5. FINDINGS & CONCLUSIONS:
(A) Preliminary Issues:
1)No causal nexus of victimisation – failure to shift burden:
5.1 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.”
This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.
The Labour Court elaborated on the interpretation of Section 85(A) in Melbury v Valpeters (EDA/0917) where it is stated that the section: “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.”
5.2 Having carefully considered all the evidence presented by the Complainant in her extensive submissions and in the oral evidence provided at the hearing, I am not satisfied that the Complainant has met the requirements placed on her by Section 85 of the Acts to demonstrate a prima facie case of discrimination.
5.3 It is clear from the evidence adduced that the Complainant's complaint originated with, and has at its core, the altercation that took place between her and her colleague on the night of 9 October 2014. Further, it is very clear that the Complainant had significant issues with the Respondent's handling of the situation on the night in question and also their management of the processes which followed from that incident.
5.4 The Complainant has provided significant submission detailing her specific grievances with the manner in which the Respondent, at various levels of its organisation, dealt with the incident of 9 October 2014 and in particular their actions, behaviours and attitude towards the Complainant. However, in all this submission, the Complainant has not presented any evidence to support her contention that any or all of the various aspects of her complaint constituted an act of discrimination by the Respondent against the Complainant which related to her disability.
5.5 From the evidence presented in relation to this specific complaint, it is clear that the incident of 9 October 2014 triggered a disciplinary process. The evidence also suggests that this process progressed through all the various stages, including appeals both internally and externally. I am satisfied that, had the significant and numerous flaws in that process, which the Complainant is presenting as the basis for current complaint, been valid, they would have been found to be so as part of those processes. Consequently, I do not consider that it falls to this forum to reopen the Complainant's grievances in relation to flaws in the process initiated post the 9 October 2014 incident, as these have already been addressed in other fora and when the Complainant has failed to identify a link between these grievances and her disability.
5.6 Based on the above, I find that not only has the Complainant failed to establish a prima facie case that the various issues, presented in support of her complaint, constituted an act of discrimination, but the validity of the arguments presented by the Complainant which are based on those issues is undermined by what the evidence suggests may be question marks over the validity of the issues themselves.
5.7 Consequently, having concluded that the Complainant has failed to satisfy the burden placed on her by Section 85A (1) of the Acts, I also considered her contention that she had been victimised by the Respondent.
5.8 Section 74 (2) of the Acts defines "victimisation" as follows;
"for the purposes of this Part, victimisation occurs were the dismissal or other penalisation of the complainant was solely or mainly occasioned by the Complainant having, in good faith –
sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
given notice of an intention to do anything within paragraphs (a) to (c).
5.9 Having carefully considered all the evidence presented by the Complainant, I find nothing to suggest that any of the terms set out under Section 74 (2) of the Acts apply in this instance. Therefore, I find that the Complainant has not been victimised in accordance with the Acts.
5.10 In the context of the conclusions set out under the previous point, I find that the other preliminary issue raised, those of time limits and abuse of process, no longer apply.
5. DECISION
I have investigated the above complaint and make the following decision in accordance with Section 79 of the Employment Equality Acts.
I find that the Complainant failed to establish a prima facie case of discrimination by the Respondent on the ground disability and, as a result, has failed to shift the burden of proof to the Respondent.
Consequently, the Complainant's complaint in this regard is not upheld.
____________________
Ray Flaherty,
Adjudication Officer
26 January 2018