Complainant

Respondent

Parties

Mark Kenny

Nicholas Kelly

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-00021497-001

30/08/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under section 77 of the Employer Equality Act 1998 and has submitted he was discriminated against by his employer by reason of his civil status, by promoting him, by not providing any training, by victimising him, by harassing him and by other means (CA-00021497-001).

The Complainant was initially employed as a Program Co-Ordinator by the Academic Institution on the 23rd January 2012. The Complainant left his employment on the 15th August 2018 and at the time of his departure his position was that of Student Support Administrator. The Complainants gross pay was €2,083.00 per month (€1,915.00 net) and worked approximately 37.50 hours per week.

Prior to the hearing of this matter the Complainant provided a number of emails between himself and the Respondent (Academic Director). The topics included the Staff numbers in the morning, the Complainants lateness or absences from work, requests for growth in the company and other related matters. The dates of these emails cover the periods from the 5th September 2014 until the Complainants resignation email on the 16th August 2018.

The Complainant outlined a number of matters that had concerned him in the course of his employment. The Complainant explained he had been “ordered” into work by the Respondent following the birth of his son on the 11th March 2016. He explained he had worked late many nights to compensate for late arrivals in work or missed days due to issues with his children. The Complainant felt he had been compelled to work by the Respondent even after submitting a letter from his General Practitioner (a letter dated the 6th July 2016 was provided and a medical certificate of the 14th march 2018 was referred to).

The Complainant referred to an email of the 4th December 2017 wherein he wished to highlight several points in light of the disciplinary meeting summons he received on the 1st December 2017. He explained that he has been working for the Academic Institution for a number of years and this was the first time he had ever received a summons to attend a meeting which may result in a written warning. He explained how he had a particularly heavy work load and that he had downloaded a personal document following his break. The Complainant explained he was embarrassed that this matter was brought up publicly and he felt nervous and uncomfortable. He explained that if he was not on his lunch break he would never have considered opening a personal document in the office and he was anxious for this matter not to be hanging over his head. The Complaint explained how he had been issued with one verbal warning following an inspection on the 12th October 2017.

The Complainant further explained that he did not use the internal grievance procedure as the person he perceived discriminating against him was the Respondent. The Complainant indicated he had tried to voice his concerns to the CEO of the Academic Institution but there was no response.

Ultimately, the Complainant sent an email on the 16th August 2018 to the Respondent officially informing him of his resignation. In the course of this email he outlined the reason for his resignation. He believed he could not stay due to the certain   treatment he was subjected to and the final straw was in relation to the last minute confirmation of his annual leave which was being taken to allow one of his children to have a specific procedure abroad. He indicated he was very stressed and could not continue to work in such an environment.

In the course of his evidence, the Complainant explained he felt targeted, that attention was brought on him in a public forum, he felt he was getting a lot of pressure and that no other colleague was being treated in a similar way. The Complainant regarded his “promotion” as effectively a demotion. The Complainant indicated he was given no upskilling and only attended a one day first aid course. He believed there was a two day continuing professional development course in 2015 but he was not invited to attend.

The Complainant took up alternative employment in a warehouse on the 21st September 2018 and this Complaint was received by the Workplace Relations Commission on the 30th August 2018.

In the course of his evidence , the Respondent explained he was a stranger to the various elements of the nature of the Complaint and in particular to the different grounds of discrimination alleged.

In particular in relation to the allegation that the Complainant felt publicly embarrassed, he believed that any remarks or comments made were in the course of private conversations. He could only recall two situations, the time of the promotion and the week before the Complainant left. In that respect he believed he had a one to one conversation with the Complainant in relation to the work space area in the consultation office.

In relation to the Complainants promotion, he indicated that other co-ordinators had been made redundant and that the only people hired that year were in relation to teaching English. In relation to any upskilling, the CPD courses were only for those individuals involved with assessing and teaching, which were not in the Complainants domain of employment, and training had been provided in relation to a management information system.

In relation to the disciplinary record of the Complainant, the Respondent mentioned the disciplinary meeting in December 2017. There was a verbal warning on the 12th October 2107 and a letter issued on the 18th October 2017 indicating that no further action would be taken after six months.

In relation to issue of the approval of annual leave, the Respondent understood that the Complainant was taking this leave specifically for one of his children to have a procedure abroad and this had been verbally approved. At this time, the Respondent recalls the Complainant was looking anxious and ambiguous as to whether he would stay or leave his employment which the Respondent believed was not in the interests of either his family or himself.   

Ultimately, the Complainant indicated he was leaving his employment as per the aforementioned email of the 16th August 2018. The Complainant and Respondent   met on the 22nd August 2018 to clarify the issues of his P45 and salary and no other matters were raised.  

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that If the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

I accept the bona fides of the Complainant, however, having considered the evidence from the Complainant, I have to find that he has not discharged the initial probative burden in respect of the allegations of discrimination by reason of promotion, training, victimising, harassment or other.

In the circumstances of this claim, as outlined above, I have to find that the claim of discrimination on the grounds alleged lack any direct or indeed indirect factual basis.

No prima facie case exists and accordingly the claim is dismissed.

I find that the Complaint (CA-00021497-001) made pursuant to Section 77 of the Employment Equality Act, 1998, fails.

Discrimination