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-00016210-001

07/12/2017

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

CA-00016210-002

07/12/2017

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

CA-00016210-003

07/12/2017

The complainant lodged his complaints on 7 December 2017. On 18 May 2018 the complaint and the disputes were delegated to me for investigation and decision, resp. recommendation, by the Director General.   A first hearing was scheduled for 27 June 2018, but due to late submissions, needed to be adjourned to 30 July 2018.

CA-00016120-001 – Industrial Relations Acts:

The complainant submitted extensive written materials on the morning of the first hearing. He also gave extensive oral evidence, which speaks of a difficult relationship with his employer, and in particular his direct supervisor, for many years. Others postdate the within dispute and were not raised as a grievance.   They have principally to do with the fact that he did not receive his increment, and received performance ratings which he considers inappropriately low. He also alleged in oral evidence that his supervisor set up his performance targets in a way which made it hard for him to succeed.  

Be that as it may, only one of his complaints falls to be considered under the Industrial Relations Acts, and this is that his increment review meeting was scheduled by his manager to occur at the same time as his annual performance review under the Performance Management and Development System (PMDS). This is the only matter which the complainant raised a formal grievance about, and which went through two appeal stages until the respondent’s internal process was exhausted. Remarkably, from the documentation submitted by the complainant, both appeals were in his favour.

CA-00016120-002 – Industrial Relations Acts:

The appeals process in respect of the complainant’s grievance, whilst ultimately in his favour, brought to light details which the respondent deemed worthy of independent investigation. The complainant felt victimised by this. Accordingly, he brought a penalisation complaint pursuant to S. 20 of the Industrial Relations (Amendment) Act of 2015, as amended.

CA-00016120-003 – Employment Equality Acts:

The complainant raised an internal discrimination complaint on the ground of race on 16 April 2016. He subsequently withdrew this. In oral evidence, the complainant stated that he considers the grievance raised against him by his supervisor, to be victimisation within the meaning of the S. 74(2) of the Employment Equality Acts.

CA-00016120-001 – Industrial Relations Acts:

In its written submission, the respondent states that the Commission has no jurisdiction under the Industrial Relations Acts, to make a recommendation for matters other than the one which went through the appeals process. It submits that none of the other complaints raised by the complainant in his submission were raised through its grievance procedure.   In oral evidence, witnesses for the respondent clarified that the complainant had not engaged with the PMDS process following his complaint.  The gist of their evidence was that they experienced the complainant as a difficult person and a difficult-to-manage employee.   The complainant’s supervisor gave a detailed explanation for how performance was measured and denied the complainant’s allegations.

CA-00016120-002 – Industrial Relations Acts:

The respondent stated that a number of other employees made complaints against the complainant, which were then investigated in accordance with the respondent’s grievance procedure. The respondent states that the complainant appealed these, but that the appeal is pending whilst the complainant is on certified sick leave.

The respondent further states that it has received complaints from other employees against the complainant under its Dignity at Work policy. It states that these complaints have yet to be investigated pending the complainant’s return from his sick leave.

CA-00016120-003 – Employment Equality Acts:

The respondent denies that the complaint raised against the complainant by his immediate supervisor constitutes victimisation within the meaning of the Employment Equality Acts.   In particular, the respondent’s representative pointed out that the supervisor’s complaint was raised on the same day as the within disputes and complaint were lodged with the WRC, and that the respondent at large was not even notified of the existence of the complaint applications until 18 December 2017. The respondent also clarified that the complainant withdrew his original race discrimination complaint on 23 June 2016.   That complaint was not part of the within complaint applications.

CA-00016120-001 – Industrial Relations Acts:

I find that the only dispute I could investigate under the Industrial Relations Acts has been internally decided in the complainant’s favour.   I am also satisfied that the appeals investigations were conducted thoroughly and fairly.

CA-00016120-002 – Industrial Relations Acts:

The penalisation provision in S. 20 of the Industrial Relations (Amendment) Act of 2015, as amended, which the complainant seeks to invoke, relates to sectoral employment orders.   There is no penalisation or victimisation provision in the Industrial Relations Acts pertaining to individual disputes likes the ones in hand. Accordingly, this dispute is misconceived, and I have no jurisdiction to make a recommendation in respect of same.

CA-00016120-003 – Employment Equality Acts:

S. 74(2) of the Employment Equality Acts defines victimisation as follows:

“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 or the Equal Status Act 2000 or 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.” [emphasis added].

The first thing to consider in assessing whether the complaint which the complainant’s supervisor raised against him constitutes victimisation is effluxion of time. As noted, the complainant complained that his supervisor was discriminating against him on the ground of race on 28 April 2016, and withdrew this complaint on 23 June 2016. The complainant’s supervisor raised his grievance against the complainant nearly 18 months later, in December 2017. This time gap by itself militates against the notion that the supervisor’s complaint was raised in retaliation against a specific allegation of racial discrimination, which at any rate had been withdrawn.

The other matter is that a manager is within his or her rights to raise a grievance about a worker who they find difficult to work with and manage on an ongoing basis.   If they do so through the official procedure which is available for this purpose, thus affording the worker the right to fair procedures, how can this be adverse treatment?   The list of behaviours which are capable of constituting victimisation is long and by its nature cannot be exhaustive, but it normally is a “nasty” (in everyday parlance), targeted action up to and including dismissal, which from its context, including proximity in time, is clearly retaliatory in nature.   It tends to be characterised by being perpetrated very much outside of any formal structures and by having the superior taking advantage of power imbalances between themselves and the worker. In other words, victimisatory actions tend to be the opposite of the right to a formal grievance which the complainant’s supervisor availed himself of.

I put this question to both parties at the hearing of the complaint. The complainant maintained his opinion that his supervisor’s grievance about him was victimisatory, but did not provide any additional evidence as to why. The respondent denied this.

Based on all of the evidence at my disposal on this question, and the rather intense probing I did with the parties during the hearing on this particular point, I am not satisfied that the complainant has discharged the probative burden to show a sufficient connection between his race discrimination complaint from April 2016, and the formal grievance by his supervisor against him in December 2017.   Accordingly, the complainant’s complaint must fail.

CA-00016120-001 – Industrial Relations Acts:

I recommend that the final appeal outcome of the complainant’s grievance be allowed to stand.

CA-00016120-002 – Industrial Relations Acts:

As noted in my conclusions, I have no jurisdiction to make a recommendation in this matter because the penalisation provision which the complainant seeks to invoke does not cover individual disputes.

CA-00016120-003 – Employment Equality Acts:

I find that the respondent did not victimise the complainant within the meaning of the Acts.

Industrial Relations Acts – grievance resolved in favour of complainant on appeal – no jurisdiction to make recommendation on other parts of dispute – no jurisdiction to make recommendation on penalisation – Employment Equality Acts – victimisation – use of formal grievance procedure at considerable remove in time not targeted adverse action.