ADJ-00013978

Complainant

Respondent

Anonymised Parties

A Maintenance Worker

A Hotel

Representatives

Neil Twomey & Co. Solicitors

Gaffney Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017101-001

23/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017101-002

23/01/2018

The complainant claims that he was bullied, harassed and ‘struck’ by a Human Resource Manager following a discussion about him taking annual leave on the morning of 1 November 2017. He claims that he went straight to the owner of the hotel to look for a solution but nothing was done.

The respondent said that there is no case of discrimination under the Employment Equality Act. The respondent said that it tried to engage with the complainant after the alleged issue was raised with it but the complainant refused to do engage with it.

The following is a brief summary of the complainant’s case.

The complainant claims that he had worked with the respondent for approximately 14 years as a maintenance worker, working 40 hours per week on gross pay of €554 per week.

He claims that on 1 November 2017 he had a discussion with the respondent’s General Manager in relation to taking annual leave the following week. After which he returned to his work where he was approached by Mr. A, the Human Resource Manager, who accused him of refusing to obey an order from the General Manager. He said that Mr. A became very aggressive toward him resulting in Mr. A striking out with the palm of his hand and hitting the complainant on the chest. He claims that he was shocked, he picked up his working tools and went to the office where he told other work colleagues what had happened and said he was taking some time off.

The complainant said that he received a text message on 7 November 2017 from the owner of the hotel, who was away at the time, which said that he had heard what had happened and he would “sort it out” when he came home. The complainant said that he met the owner and his wife at their house on 13 November 2017 and they listened to what he had to say. However, in the end the complainant said that the hotel owner said he could do nothing as Mr. A had denied that he had assaulted him.

The complainant maintains that he was harassed, intimidated and assaulted by Mr. A, and nothing was done about it.

On the day of the hearing the complainant’s solicitor suggested that in addition to the case under the Employment Equality Acts and the dispute under the Industrial Relations Act, that a case of constructive dismissal should also be considered. He said that he had only come on record for the complainant at a very late stage and the complainant had not availed of his legal advice heretofore and in particular when lodging his complaint with the Workplace Relations Commission.

On cross examination the complainant confirmed that he did not believe that he was discriminated against on any of the nine grounds of discrimination as set out in the Employment Equality Act. He confirmed that he did not raise a formal grievance with the respondent other than his interaction with the owner. He said that he went on sick leave shortly after the incident on 1 November 2017 and tendered his resignation on 6 March 2018 as the respondent did not engage with him. However, when presented with Official letters from the respondent, which were addressed to him, he stated that the letters were addressed to incorrect address and not his correct address. However, he did state that he did manage to get at least one of those letters.

At the hearing the complainant’s legal representative said that his case is for constructive dismissal, discrimination, bullying, harassment and victimisation.

The following is a summary of the respondent’s case.

The respondent stated that as a preliminary matter that there are two complaints before it which it has had to prepare for and defend against, one under the Employment Equality legislation and another under the Industrial Relations Acts. The respondent’s legal representative outlined that there was no reference whatsoever in the documentation sent to it from the Workplace Relations Commission regarding a case of Constructive Dismissal neither was there any reference made to this in the summary of the complaint provided as an addendum to the official manual complaint form. The extension of a complaint beyond what has been filed cannot therefore be accepted at this stage in the proceedings.

The respondent said that none of the grounds of discrimination have been indicated and in direct evidence from the complainant himself has agreed that there was no “discriminatory ground”.

The respondent said that the complainant went out on sick leave directly after the alleged incident on 1 November 2017. It claims that it tried to get in contact with the complainant at that time but the complainant did not engage with it. The complainant resigned some four months later of his own violation.

Preliminary Matters

Findings and Conclusions on Jurisdictional Issues

The respondent has raised a number of issues in relation to the jurisdiction of the Workplace Relations Commission to investigate the present complaints which are set out hereunder.

Referral of Complaint under the incorrect legislation

The first jurisdictional issue which I must address relates to the respondent’s contention that the present complaint is inadmissible under the Unfair Dismissal Acts, 1977 on the basis that it has been referred to the Director General of the Workplace Relations Commission under the wrong legislation by using the incorrect Complaint Referral Form.

In considering this matter, I have noted the judgement of the High Court in the case involving County Louth VEC –v- The Equality Tribunal [2009] IESC 370 where the question arose as to when proceedings before a statutory Tribunal can be amended. McGovern J. set out the following principle of law: “if it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same” (my emphasis added)

At the hearing I had asked for a legal submission from the complainant’s legal representative as to why it determines that I can consider the case of constructive dismissal under the Unfair Dismissal Act at this point.

The complainant’s legal representative said that the complainant filed his complaint with the Workplace Relations Commission without seeking legal advice from it and now that it has come on record would suggest that this is a fairly simple case which clearly includes a case of constructive dismissal as well as the complaints already indicated under the Employment Equality Acts and the Industrial Relations Acts.

The respondent has challenged the complainant’s legal representative request that the scope of the complaints be extended to include a case for constructive dismissal under the Unfair Dismissal Act 1977 on the basis that it was not included in the set of complaints sent to the Workplace Relations Commission nor was there any mention to this in the narrative attached to the complaint form. The complainant said that the case of constructive dismissal is not before me for adjudication and I do not have jurisdiction to consider same.

Having regard to the foregoing, it is clear that the Workplace Relations Commission’s Complaint Referral Form is not a statutory form and therefore, a complainant is not legally obliged to use this form when referring a complaint to the Workplace Relations Commission. However, in the present case, I am satisfied that on choosing to refer the complaint the complainant must take reasonable care to indicate the nature of the complaint so that it is perfectly clear from the information included in the Complaint Referral Form what is the case facing the respondent. I am not satisfied that this is the case here and as a result the respondent’s defence of the claim has been prejudiced as it not aware of the general nature of the claim and the legislative basis underpinning the proceedings, in advance of, or at the oral hearing. In the circumstances, I am satisfied that the present complaint of constructive dismissal that the complainant has asked me to consider under the Unfair Dismissal Act is inadmissible and not before me for consideration.

CA-00017101-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

It would appear from the statements made that the complainant had a grievance and raised this grievance with what he determined as his boss, the owner of the hotel. He subsequently went out on sick leave and resigned.

The respondent said that it tried to engage with the complainant after the alleged incident, it sent him a letter dated 3 November 2017, to set up a meeting with the complainant and to try to conduct an investigation into all matters. The respondent’s view is that the complainant never engaged. It notes that he eventually resigned and never returned to work after his sick leave.

The complainant said he never received that letter.

This case has not been satisfactorily concluded, partly due to an alleged undelivered letter seeking to investigate the matter that the complainant said he never received.

It behoves both parties to at least try attempt to resolve such matters through the appropriate grievance mechanisms available to them. I note the complainant had worked with the respondent for 14 years and appears to have had no difficulties accept this one morning, and this one incident. I note that he said that he only has a casual working arrangement at the moment and is unsure of his future employment. I note that the respondent wished to have the whole process investigated and dealt with back in November 2017 but felt that the complainant did not engage. The complainant has now explained that he did not get that letter.

In the circumstances I recommend that the parties meet formally with an independent external mediator, provided for by the respondent, in an attempt to allow all parties air their grievances in relation to the matters of 1 November 2017, and to explore a possible resolution to the current breakdown in the relationship with one another, including, if possible, the complainant’s return to employment should both parties deem it suitable.

CA-00017101-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

As mentioned above in Melbury Developments v Arturs Valpetters the complainant "must first establish facts from which discrimination may be inferred […] the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

In the present case, the complainant had not presented me with the indispensable part of his case necessary for the examination of the complaints, namely he has failed to identify the ground(s) of discrimination to which these complaints relate. Likewise, the complainant must prove less favourable treatment because of this/these ground(s) as compared with another person in a similar position to the complainant. Therefore, without the ground(s) of discrimination or a comparator, the claim cannot survive. I am satisfied that I have neither before me.

Having regard to this fundamental omission, which were not corrected in the submission made by the complainant prior to or during the hearing, I am satisfied that the respondent has not established a prima facie case of discrimination.

I also find that the respondent has not victimised the complainant in terms of section 74(2) of the Acts in terms of alleged adverse treatment.   

I also find that the complainant has failed to establish a prima facie case in relation to his claim of harassment.

CA-00017101-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

I recommend that the parties meet formally with an independent external mediator, provided for by the respondent, in an attempt to allow all parties air their grievance in relation to the matters of 1 November 2017, and to explore a possible resolution to the current breakdown in their relationship with one another, including, if possible, the complainant’s return to employment should both parties deem it suitable. To facilitate that process the following steps are necessary.

1.       The complainant shall write to the respondent within 4 weeks from the date of this Recommendation with his current contact details. Failing that, the steps outlined at 2 and 3 below are to be considered redundant.

2.       On receipt of the complainant’s contact details, the respondent shall engage an independent Mediator to facilitate discussions between the parties. The Mediator shall take control of the mediation process from there on.

3.       Both parties should meet with the independent Mediator within 6 weeks of this Recommendation to facilitate a possible resolution to this dispute. As this is an independent voluntary process it is for the parties to decide whether a resolution is possible or not.

CA-00017101-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the complainant has failed to establish a prima facie case of discrimination on any of the prescribed grounds in terms of Section 6(2).

(ii)                the complainant has failed to establish a prima facie case of victimisation in terms of Section 74(2) of the Acts.

(iii)               the complainant has failed to establish a prima facie case of harassment contrary to Section 14A of the Employment Equality Acts.　

　Accordingly, his complaint fails.　

Industrial Relations Act - Employment Equality Acts - complaint fails.