ADJ-00012244

Complainant

Respondent

Parties

Colm McNamee

Irish Municipal Public And Civil Trade Union Impact Trade Union / FORSA Trade Union

Representatives

Self represented

Matt Staunton Forsa Trade Union

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016508-001

22/12/2017

The Complainant submitted complaints under Sections 12, 13 and 16 of the Act.

The Complainant contends that he was discriminated against by the Respondent on grounds of disability.   He contends that the Respondent discriminated against him in respect of training and services provided or lack thereof. He contends that he was treated differently because of his autism, asbergers and difference in cognitive style. Specifically, it is contended that his application to attend a Summer School / Training event was first accepted and then rejected (S12) and that the Respondent discriminated against him in relation to the manner in which the organisation handled his difficulties with his former employer.(S13) The Complainant further contends that the Respondent discriminated against him by failing to give him ‘reasonable accommodation’ for his disability.

The Respondent stated that the Complainant complained that the union discriminated against him in a complaint going into matters surrounding his union’s advice concerning his cessation of employment and the decision of his branch not to fund his attendance at the union training event.    The event in question was the campaigning Summer School course held in 2017. The Complainant applied to go on this course and was provisionally accepted subject to his branch’s approval but he failed to secure this approval. His allegation that this refusal was made because of his disability is totally denied.   The Union has a process for selection for training courses. Branches are required to nominate members for a course. The course in question was targeted at serving senior activists and including others who had taken earlier courses. Mr McNamee was no longer a branch committee member at the time of his request. The funding arrangements were that the union centrally would pay 50% of the accommodation and potential attendees were required to seek branch funding for the remainder and travel costs. The Complainant contacted the course organiser with an expression of interest.   He never raised any issue of disability. He was referred to his branch to seek their support and funding. His branch responded regrettably refusing funding.   His branch has a very small membership and confined their limited funding to training branch committee members only. The Complainant appealed the decision and the union central executive committee rejected his appeal. While it is difficult to identify other aspects of the Complainant’s complaints, his allegations in relation to the union’s handling of his employment difficulties are denied.   The Complainant had a lot of difficulties with his employer. He proved very opposed to take advice from his union.   He ignored the advice of his union and appeared to research his own avenues picking his own preferred legislative remedies. In summary, discrimination of any nature is denied. The Complainant was supported during his time as branch committee member for at least 2 levels of trade union training. The campaigning/lobbying course was targeted at senior or potential future senior branch activists.   The complainant never mentioned his disability in connection with his application or CEC appeal.   The event was attended by at least one member with a disability. The Complainant was assisted with his problems with his employer, but he could not even agree with his union as to who was his employer to face his claims. The Respondent seeks that the complaint be rejected.

The Complainant submitted a complaint that he was discriminated against by the Respondent on grounds of disability in respect of Sections 12, 13 and 16 of the Employment Equality Act 1998.

Section 12 of the Act provides that any person who offers a course of vocational training shall not discriminate against a person

“(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility, or

(c) in the manner in which any such course or facility is provided.”

Burden of Proof

Section 85A (1) of the Act provides:

“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”.

The general rule in civil proceedings is that the burden of proof lies on the party asserting a particular claim; he or she who asserts must prove. The relevant European rules on the burden of proof (Directive 2006/54/EC, Directive 2000/34/EC and Directive 2000/78/EC) have been enshrined in Section 85A(1) of the Act, which essentially means it is for the complainant to establish the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only then when those primary facts are established that the burden of proof shifts to the Respondent to prove there was no unlawful act of discrimination.

The Labour Court in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. The Court found:

“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In HSE North Eastern Area v Sheridan EDA 0820 the Court described the test to be applied as involving a three step process:

First, the complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the complainant fails at stage 1 or 2, he or she cannot succeed.

The Complainant contends that the Respondent discriminated against him by not affording him the right to attend one of its training courses. The event in question was the IMPACT campaigning Summer School Course held in 2017. The Complainant was provisionally accepted subject to his branches approval but this approval was not forthcoming. I note the evidence concerning the union process for selection for training courses and I accept there was no deviation from such process.    I note the evidence regarding the branch which has a small membership and has an understandable policy of prioritization for training course attendees given the funding arrangements and I note the evidence regarding the inclusion of at least one member with a disability on the course.  

The complainant has not established a prima facie case and I do not uphold his claim.

Section 13 of the Act provides :

“A body which –

(a)    Is an organisation of workers or of employers,

(b)    Is a professional or trade organisation, or

(c)     Controls entry to, or the carrying on of, a profession, vocation or occupation,

Shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation”.

The Complainant contends that the Respondent discriminated against him on the grounds of disability in relation to the benefits of being a member of the union, and specifically in their dealings with him in relation to his difficulties with his employer. The Complainant articulated his dissatisfaction with the advice given by his union, but he has failed to establish any facts or link with his disability. I find he has not established a prima facie case and I do not uphold his claim.

Section 16 (3) of the Act provides:

“(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.

(b) the employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training…”

Section 16 of this Act relates to an employer taking appropriate measures to enable a person with a disability to have access to employment, to participate or advance in employment or to undergo training.   As the Respondent is not the employer of the complainant his complaint under this section is misconceived. I do not uphold his claim.