ADJUDICATION OFFICER DECISION

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003495

Parties:

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

Date of Adjudication Hearing: 11/11/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

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

Background:

The respondent employed the complainant from 11th of June 2001 until the 5th of February 2016 and worked 37.5 hours per week. The herein complaint follows two other complaints under this enactment and a further complaint under section 8 of the Unfair Dismissals Act, 1977. Decisions have issued in respect of those complaints.

There was some confusion on the part of the respondent in respect of the complaints to be addressed on the day of the hearing and in the event, it relied upon the submission it had previously provided in complaints referenced et-152735-ee-15 and et-155400-ee-15 to the Equality Tribunal and its oral submission presented on the day.

Those earlier complaints made to the Equality Tribunal under the Employment Equality Act, 1998 (as amended) (File Reference et-152735-ee-15 and et-155400-ee-15) were received on the 22nd of January and 5th of March 2015 respectively. The respondent’s submission was received by the WRC on the 22nd of February 2016. Both complaints were heard on the 11th of January 2017.

The complaint under the Unfair Dismissals Act, 1977 (CA00002448-001) was received by the WRC on the 6th of February 2016. The respondent’s submission was received by the WRC on the 8th of March 2016. The complainant’s submission was received on the 11th of May 2016. The hearing was held on the 21st of June 2016.

The first of the herein complaints numbered CA00004461-0001 (received 16th of May 2016) concerns alleged discrimination (less favourable treatment) in breach of section 6 of the Act and alleged harassment in breach of section 14Aof the Act on the sexual orientation ground

Complaint number CA00004457-001 (nominated as the 1st complaint in the complainant’s original submission dated 29th of May 2016) is a duplication of this complaint and as such was not heard.

The second complaint numbered CA00004461-0002 (received 16th of May 2016) concerns alleged discrimination (less favourable treatment) in breach of section 6 of the Act and alleged harassment in breach of section 14A of the Act on the disability ground.  

The most recent date of alleged breach in both complaints was the 8th of March 2016 (date of respondent’s submission).

The parties made written and oral submission to the hearing. A supplementary written submission was received from the complainant (copied to the respondent) post hearing. I have reviewed the complaint forms, submissions and decisions made in the earlier cases and it is my intention to rely on these documents where relevant.

There are three specific individuals named in relation to what in the submission of the respondent are termed Incident1, Incident 2 and Incident 3 and I will refer to these individuals as Ms X, Mr Y and Ms Z respectively. Incident 1 concerns alleged sexual advances by Ms X. Incident 2 concerns an offensive postcard/sexual harassment by Mr Y and Incident 3 concerns missing post and Ms Z.

Preliminary Issue(s):

The respondentmade preliminary points and evidence was provided by the Chief Medical Officer (C.M.O) as it relates to the complainant’s medical condition/disability. The complainant for her part refers to the preliminary points in her supplementary submission of the 15th of November 2016 and had the opportunity to cross examine the C.M.O at hearing.

1. The respondentsubmits that the complainant cannot in all of this show a causal nexus which is required to show a prima facie case of victimisation under the Act. The complainant has failed to link the alleged harassment to her alleged disability.
2.  
3. The respondentsubmits that whereas there is no doubt that the complainant has medical problems it is difficult to discern the precise nature of any disability if any. Regarding the condition of agoraphobia, she has failed to furnish full confirmation thereof. Her own doctors report of May 2013 fails to mention the condition. The claimant is therefore put on full proof of her disabilityIn his evidence to the hearing the C.M.O gave a history of the complainant’s interaction with the respondent’s occupational health service and a consultant psychiatrist who felt that there was a voluntary element to her behaviour. He referred to the fact that he had personally spoken to the complainant’s GP on 4 occasions whose concerns were general but there was no mention of disability. In cross examination, he conceded that the complainant may have possible agoraphobic features in that she suffered symptoms on occasion but not a disability.The complainantsubmits in her supplementary submission that her disability is multi-faceted and includes depression, anxiety, gaze aversion and agoraphobia which she asserts qualify as disabilities under the Act. She provided a list of her medication for these conditions stating that it had been increased following receipt of the respondent’s submission in March 2016. She provided an article on the diagnostic criteria for social anxiety which included diagnostic guidelines and definition as provided by DSM-IV (USA Definition as accepted by The American Psychiatric Association). She described how her condition affected her 
5. The respondentsubmits that the complainant is not an employee and that therefore I do not have jurisdiction to hear the complaint.                                                                                    The complainant submits that she was an employee under notice of dismissal at the time the complaints were made

There were other preliminary points made as part of the submission in the earlier complaints under this Act but they were case specific.

Summary of the Complainant’s Case:

CA00004461-001

In her complaint to the WRC the complainant states – “The respondent has falsely claimed I named a woman (Ms X) who had made a sexual advance on me in 2005, in a suicide note I gave out to the workplace in 2/5/2014. This is untrue. I informed my employer it was untrue but they included it again in their submission in relation to my Unfair Dismissal claim. They have linked her in my Personal Injury Claim, my Equality Claim and my Unfair Dismissal claim. I had made it crystal clear she was not involved in proceedings. I also made it clear that I did not want my name linked with this woman sexually. My employer ignored me. They have done this to embarrass me as it involves a lesbian sexual advance. They have done this to exert undue pressure on me to drop my legal claims. They are hoping that as a married woman with a family I would be too embarrassed to proceed. As far as I am aware Ms X is unaware of all of this. I feel very harassed and upset.”

In her submission, post-hearing (15th November 2016) the complainant asserts that the respondent in submission in the previous cases falsely claimed that she had named Ms X as being involved in an alleged sexual advance towards her in the note she wrote to colleagues on 2/5/2014. She states “The first complaint is quite simple really. The respondent falsely claimed I had in my letter or suicide note of 2-5-14 to my work colleagues”; - ‘outlining complaints she had’ against two work colleagues one of which was incorrectly named as (Ms X).The complainant had not named Ms X at all in the note. In fact, she had specifically stated that she did not wish to pursue the matter of alleged sexual advances against Ms X made in 2005, as part of a review undertaken by the respondent into the handling of complaints made by her concerning her treatment at work which was concluded on the 24th of July 2014. The fact that she did not wish to pursue a complaint against Ms X was also referenced in her letter of 8th of June 2014 to the respondent.

The complainant asserts that despite her request and her obvious distress in relation to the matter witnessed by two of the respondent’s senior managers at a meeting of the 6th of June 2014 and her subsequent formal withdrawal (letter of 8th of June 2014) of that part of her claim of the 26th of May 2014 involving Ms X, the respondent continued to use what it has termed Incident 1 referring to Ms X by name in submission as it relates to her employment equality and unfair dismissal complaints. It was neither necessary or legitimate to involve Ms X by name or indeed an eleven-year old incident to mount a defence or justification to her complaints. The net effect of the respondent’s actions would “lead to more rumours of me being ‘Gay’………I made it clear it was unwanted, as I didn’t want my name being linked to a lesbian…….”. The complainant asserts that the action of the respondent in this regard was calculated to cause maximum upset and dissuade her from pursuing her legal claims.

CA00004461-002

The complaint form submitted to the WRC states – “I gave out a suicide note to my work colleagues on the 02/05/2014. My employer included my suicide note in their submission to the Equality Tribunal and to the Workplace Relations knowing that all material sent in would be copied to me. This is deeply distressing for me to read. I was extremely unwell when I wrote the suicide note. My employer also included very sensitive medical data without my consent in their submissions. They included medical details and private letters on my disability without a legitimate reason for doing so. My dismissal was not a medical matter at all. This has caused me huge upset, distress, and is deeply offensive to me. My employer has no legitimate reasons for including such material. My employer has in their possession medical details which confirm I am considered a suicide risk with high levels of anxiety. I had to increase my medication to make sure I don’t become suicidal again. My employer has behaved in a most disgusting, offensive way. They have done it to cause me hurt, and to intimidate me to drop my claims.”

The complainant asserts that the inclusion of her suicide note by the respondent in respect of the complaints previously mentioned and heard amounts to a breach of this Act on the basis that its inclusion was superfluous and discriminatory and calculated to intimidate her to the extent that she would be induced to drop her various claims. The use of her medical record (not sanctioned for use by her in the unfair dismissal complaint, arising from a request for medical record by the respondent on the 11th of November 2015 relating to her complaints under the Employment Equality Act, 1998) and confidential client letter which she wrote on the 29th of October 2013 to occupational support services (to a named counsellor/psychotherapist) is similarly illegitimate. The behaviour of the respondent has left the complainant suffering from post-traumatic stress disorder.

In her supplementary submission dated the 15th of November 2016 the complainant states “I did not give my consent to my medical record being used in my unfair dismissal case. My unfair dismissal was for serious misconduct. I only gave permission for my medical file to be released in my equality claim.” Her consent for the release of her medical file was given on the 18th of November 2015 in a letter which stated “my suspension and dismissal (pending appeal) are not medical issues, they are for supposed misconduct.” Additionally, the respondent “used a very sensitive private letter I wrote to the counsellor in the Respondent’s Occupational Support Services, in my unfair dismissal case.” The respondent was not in possession of the letter at the time it dismissed her. The complainant submits that she never gave permission for the release of this letter which was the subject of client/counsellor confidentiality. She states “He (the counsellor) told me what I confided in him was strictly between the two of us. He only had to do a report to the C.M.O. of the respondent if there were issues.” The counsellor confirmed in a letter following her data access request that “nobody within the company has had access to these notes.” Her consent to the release of her medical file referred only to the file held by the C.M.O. in Dublin.

Summary of the Respondent’s Case:

The respondent submits that the herein complaints arise from and are directly linked to three specific incidents dating as far back as May 2005 (INCIDENT 1 – “the sexual advances / Ms X Incident”), August 2012 (INCIDENT 2 – “the postcard / Mr Y Incident”) and October 2014 (INCIDENT 3 – “the freepost / Ms Z Incident”) all of which it has dealt with in a sensitive and reasonable manner. A further major incident predating and connected to the herein complaints is that the complainant wrote and distributed 80 copies of a letter she wrote to all her colleagues outlining her complaints against Ms X and Ms Z and declaring that certain things were being said and thought about her by certain people principally that she is homosexual. The letter is a key component part of all the many letters and exchanges arising in this case. A painstaking review of the complainant’s various grievances (excepting Incident 3) was conducted in 2014, however the review outcome was unacceptable to the complainant. Despite the confidential nature of the review process the complainant used several of the statements made by various contributors in a manner causing controversy. She was subsequently dismissed on foot of Incident 3. “The truth is that the Complainant is very angry and she is unable to relent in her pursuit of some sort of vindication on the various incidents and the three individuals” involved. These three incidents were referenced by the complainant herself in a letter written on the 24th of July 2015 in which she stated that “Everything will come out at the EAT and Equality Tribunal. The postcard, the missing freepost, the sexual advances of a female employee, the suicide note – everything.” The complainant consented to the release of her medical files in writing.  

The respondent submits that it was entitled to use the medical evidence as there is an implicit consent given by a complainant when s/he goes to law.

CA00004461-001

The respondent submits that the suicide note was pivotal to its justification and defence of the previous complaints under the Unfair Dismissals Act and Employment Equality Act. The complainant mentioned two employees by name and referenced Incident 1. in the suicide note. The respondent was entitled to demonstrate that it’s response to the distribution of the suicide note had been reasonable and that it had made accommodation for the complainant arising from the same.

The respondent is entitled to justify and defend its actions and in any event the complainant herself placed the suicide note in the public domain by writing to 80 colleagues.

CA00004461-002

Consent was sought and given by the complainant to the use of the medical file. The suicide note was placed in the public arena by the complainant herself.

Findings and Conclusions:

The essence of these complaints is that the respondent has treated the complainant less favourably and has harassed her by submitting various documentation to the WRC in its defence of her previous complaints under the Unfair Dismissals Act and the Employment Equality Acts.The complainant having reviewed the documentation submitted outlines how it discriminates and harasses her on the sexual orientation ground as it relates to the submission in respect of the Unfair Dismissals Act complaint and the disability ground as it relates to the Employment Equality Act complaint. The complaints are specific in relation to the discriminatory effect of the documents submitted in the investigation of both previous complaints.

The substantive issues dealt with in the previous complaints can’t be revisited by me.

CA00004461-001

The law is well settled that witnesses are immune from suit and what is stated by them can’t be the subject of yet more litigation.

In the Supreme Court case of In re Haughey [1971] IR 217 O’Dalaigh CJ recognised that witnesses enjoyed immunity and explained the reasons (page 264) in the following terms: -

“The interest of the individual is subordinated by the law to the higher interest, viz, that of public justice, for the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences.”

In Looney v Bank of Ireland [1996} 1 IR 157 O’Flaherty J stated: -

“However, there is at issue a far more fundamental point which is the need to give witnesses (and also indeed, the Judge) in Court, a privilege in respect of oral testimony and also with regard to affidavits and documents produced in the course of a hearing. Such persons, either witnesses or those swearing affidavits, are given an immunity from suit.”

In Jeffrey v Minister for Justice and Equality and Others 2014 99 IECH - Barret J stated as follows: - “This is a feature of defamation law because of the public policy cogently identified by Pigot C.B. in the earlier case whereby:                                                                                                                                      ‘It is of far less importance that occasional mischief should be done by slander …. than that the whole course of justice should be enfeebled and impeded.’                                                                                        The Court sees no reason why the same principle should not also apply to an action, such as the present proceedings, in which negligence and breach of duty are alleged, or indeed in any other form of action that it is sought to construct on the basis of what was said or done at or in preparation of court proceedings.”

Consequently, any evidence that the respondent wished to refer to in its defence of the previous cases including medical reports cannot be the subject of further litigation.

In these circumstances, I do not have jurisdiction to hear the complaint.

CA00004461-002

Section 97(1)of the Employment Equality Act, 1998 (as amended) provides – “Where, in the course, or for the purposes, of any investigation, mediation or hearing under this Part, any person discloses information to the Labour Court, the Director General of the Workplace Relations Commission, a mediation officer or any other person entitled to obtain it, the making of the disclosure shall not give rise to any liability (in contract, tort or otherwise) on the part of the person making it.”

This provision is straightforward and unequivocal and it precludes a person from taking any action against any person in an investigation in contract, tort or otherwise. This includes taking an action against the respondent under the Employment Equality Act.

In these circumstances, I do not have jurisdiction to hear the complaint.

Decision:

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

CA00004461-001

Based on the evidence adduced and the above conclusions I find that I have no jurisdiction to hear this complaint.

CA00004461-002

Based on the evidence adduced and the above conclusions I find that I have no jurisdiction to hear this complaint.

Workplace Relations Commission Adjudication Officer: Michael Hayes

Dated: 09/05/2018