Complainant

Respondent

Parties

Andras Hull

Clonarn Clover Ltd

Representatives

Lisa Conroy Peninsula Group Limited

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-00017509-001

19/02/2018

The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 19th of February 2018.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. Written submissions were received from both parties.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 11th of December 2018.

The complainant submits that

He was penalised by the respondent for bringing up issues regarding illegal overloading of the van he was driving,

Following these complaints, he was bullied by fellow staff members and was called ‘a fucking whinger’ by a colleague, this was belittled at a subsequent grievance meeting,

He was accused of 'not being a team player and digging the knife in' by another colleague,

He was absent from work due to stress and having submitted a doctor’s cert for this day was then asked for a return to work cert when he attempted to return to work,

He had to leave as he felt as though everyone was ganging up on him for bringing up legal issues.

The respondent submits that

the Claimant was employed as a driver from 15 June 2015 to 12th January 2018,

the Claimant resigned from his position voluntarily,

the Claimant raised issues with respect to the over-loading of his van with his line manager following which the respondent sought to address this issue by ordering a new van with greater capacity,

the new van was ordered on 14 July 2017 but as the van was a specialist import and required refitting it took a number of months to arrive on site and to be available for work,

the complainant raised grievances with the respondent in respect of issues with a fellow employee and with management, these were discussed at a number of grievance meetings in November and December 2017 to address issues raised by the complainant,

the respondent offered an interim solution to the overloading of the van which was for the load to be divided into two. The Claimant was not happy with this solution as it necessitated doing two runs.

The respondent sought to hold a further meeting to discuss the complainant’s issues on 4th of January 2018, the Claimant failed to accept this invitation, and verbally resigned on 7 January 2018,

The Claimant tendered his resignation in writing on the 8th of January 2018 and he requested to be released from his notice period, ceasing employment on 12 January 2018 in order that he could take up employment elsewhere on 15 January 2018.

The complainant has lodged his claim of penalisation/victimisation under the Employment Equality Acts.   The complainant has submitted that he was penalised by the respondent following his raising of issues regarding the illegal overloading of the van he was driving.   He submits that he was subjected to adverse treatment following the raising of such issues which amounts to victimisation and that he resigned his employment as a result of such adverse treatment.

Given that the complainant has submitted his claim under the Employment Equality Acts his claim is confined to the definition of victimisation contained in that Act.

Section 74 of the Employment Equality Acts sets out the definition of Victimisation as follows

(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),  

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,  

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or  

(d) given notice of an intention to do anything within paragraphs (a) to (c).

The Labour Court in Minister of Defence V Tom Barrett in a 2015 case EDA 1516, referred to the test for Victimisation as follows:

The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

The employee was subjected to adverse treatment by the respondent, and,

The adverse treatment was in reaction to the protected action having been taken by the employee. (Dept. of Defence V Barrett) Bolger, Bruton and Kimber, 2012.

The complainant in the present case advised the hearing that he made a complaint in respect of the overloading of the van he was driving.     He stated that he also raised a grievance after being called “a fuckin whinger by his colleague” and after another colleague told him that he was ‘not a team player’. The complainant submitted that he was subjected to adverse treatment by the respondent after ’a protected act’.   The act referred to by the complainant is a complaint made by him to the respondent regarding the overloading of the van he was driving and his refusal to drive an overloaded van. The complainant submits that the adverse treatment he was subjected to following the alleged protected act was that he was called “a fucking whinger” by his colleague. He submits that another colleague bullied him by stating that he was not a team player.   The complainant also advised the hearing that he had submitted a sick cert after being absent from work due to stress. The complainant stated that he was then asked to produce a fitness to return to work cert before he was allowed to return to work.

I am satisfied from the totality of the evidence adduced that the above does not amount to adverse treatment following ‘a protected act’ for the purpose of grounding a claim of victimisation under the Employment Equality Acts.

The complainant has further submitted that he had no option but to resign after the respondent’s adverse treatment of him following his raising of an issue regarding the overloading of his van.   The claimant’s allegations in this regard amount to a claim of constructive dismissal following alleged victimisation by the respondent. As I have already found that the complainant has failed to establish that he was subjected to adverse treatment following ‘a protected act’ for the purpose of Section 74 then it follows that his claim of constructive dismissal on foot of victimisation under the Employment Equality acts cannot succeed. The complainant has elected to pursue his claim of constructive dismissal due to victimisation under the Employment Equality Acts and having failed to establish that he was subjected to victimisation he cannot now establish that he was forced to resign as a result of such victimisation. Accordingly, I am satisfied from the totality of the evidence adduced that the claimant was not victimised by the respondent and was not the subject of a constructive dismissal following his alleged victimisation by the respondent.

Accordingly, I find that the claimant was not victimised by the respondent and he was not the subject of a constructive dismissal following his alleged victimisation by the respondent.