EDA182

The complaint was submitted to the Equality Tribunal on 21 January 2013. The Adjudication Officer issued her decision on 23 November 2015. The Adjudication Officer decided that the Complainant had “failed to establish prima facia case of Victimisation” and went on to decide “the complaint fails.”

The Complainant appealed against that decision to this Court on 18 December 2015.

The case came on for hearing on several occasions over the following two years. On each occasion the Complainant’s representative sought to rely on documents that he had not produced to the Court in advance of the hearing in the manner prescribed in the Court’s rules. On each occasion the Court adjourned the hearing to allow the Complainant’s representative bring himself into compliance with the rules.

He failed to do so on a number of occasions but finally complied with the Court’s instructions. Having done so the Court convened a hearing to hear both sides on the matters before it. That hearing took place on 18 October 2017. Both parties attended and were represented at the hearing.

The Law

The Employment Equality Act 1998 defines “victimisation” in the following terms:-

victimisation” shall be construed in accordance withsubsection (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of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

  (e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,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by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or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.

The complaint before the Court is that the Complainant, through her solicitor, issued proceedings under the Act against the Respondent on 21 February 2013 and was dismissed from her employment on 22 February 2013 by her employer after it received notification of those proceedings.

Background

The Respondent supplies high quality fresh deserts to the hotel trade. The Company started trading in 2004. The Complainant commenced work with the Respondent in October of that year. She was initially employed on the production line. She was subsequently promoted to the position of Supervisor within the plant.

The Company’s business was going quite well until the recession hit in 2008. After that time the business struggled to survive the recession and was forced to restructure on a number of occasions. These restructuring saw the reduction in the number of jobs in the Company and required the remaining staff to change roles duties and responsibilities in order to steer it through the recession.

The Complainant went on maternity leave in 2012. On her return to work from maternity leave in October of that year she was advised that her previous job had been made redundant in one of the restructuring steps referred to above.

She was placed in a new role that combined administration with sales and marketing roles. She carried out this role for roughly five months.

During this time the Complainant attended a number of trade fairs at which the Respondent’s products were promoted. The Complainant attended some of those fairs, although there is some dispute between the parties as to how many and how often she did so.

In February 2013 the RDS hosted the Catex fair. This is a key industry fair at which a lot of business is transacted. The Company decided to attend the fair. Key members of staff were assigned to work at the fair. The fair runs late into the evening. The Complainant was asked to provide cover on one evening of the fair.

The Complainant advised the Respondent Company that she could not work until late that Wednesday and demanded her old job back as she was not happy.

The Complainant sent an email to the Respondent on 11 February 2013 setting out her concerns.

A meeting was arranged for 13 February 2013 at which the available employment options were outlined to the Complainant. She was advised that the Company had a job that combined an administration role ( 25 hours per week) with a customer support role (15 hours per week). Alternatively the Company would be happy to accommodate the Complainant with a part time position at 25 hours per week in the administration role.

The Complainant was scheduled to respond to this proposal on 14 February 2013. However, at her request this meeting was deferred until 21 February 2013 but did not take place on that day either.

However on 21 February the Complainant filed a complaint with the Equality Tribunal under the Act. The Respondent was notified of that complaint on 22 February 2013.

The Respondent, through its Managing Director, wrote to the Complainant on the afternoon of 22 February 2013. In that letter she notes that the Complainant’s role as supervisor had been made redundant in 2012 and that she had been offered an alternative role which she was now rejecting. On that basis the Respondent advises that the Complainant is entitled to redundancy within the meaning of the Redundancy Payments Act and set out the relevant calculations.

Issue before the Court

The Complainant submits that the Respondent received the notification of a complaint under the Act on the morning of 22^ndFebruary 2013 and that she reacted to that notification by dismissing her that afternoon.

The Respondent submits that the decision to dismiss the Complainant was part of a continuum of engagements that had been ongoing since she returned to work after her maternity leave ended in October 2012.

Burden of Proof

Section 85A of the Act states

• 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.

Ms Margaret Lynch, the Managing Director of the Respondent Company, gave evidence to the Court in the course of which she said that she received the notice of the complaint when she opened the post on the morning of the 22^ndFebruary 2013. She told the Court that the notification of the complaint to some extent influenced her decision to give effect to the redundancy that afternoon.

On that basis of that admission the Court finds that the Complaint is well founded.

Remedy

The Complainant lost her employment as a result of the victimisation she suffered as a consequence of making a complaint under the Act. The Complainant at that time was paid €2,333 per month..

To victimise a Claimant for making a complaint under the Act is a very serious matter and one which the Court cannot in any way condone. Workers must be protected from retaliatory acts of penalisation for making a complaint under the Act. To do otherwise would deprive a worker of the rights conferred on them under the Act.

Determination

The complaint is well founded.

The Court orders the Respondent to pay the Complainant compensation in the sum of €25,000.00 for the act of victimisation it perpetrated against.

The Court sets aside the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
11th January 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.