ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008396

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/07/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 77 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed in 2007 by the Respondent as a part time tutor and sign language class coordinator.

The last day the Complainant worked was the 8th of March 2017. The Complainant was paid sick pay until the 7th of April 2017. The Complainant has been on work related stress and has been unavailable for work since this time.

The Complainant has made two separate complaints to the Workplace Relations Commission under two pieces of legislation:

• section 77 of the Employment Equality Act, 1998
• section 13 of the Industrial Relations Act, 1969

The Complainant has been doing other work while out sick teaching and interpreting but on minimal hours.         

The Complainant has a contract of indefinite duration.

Summary of Complainant’s Case:

The Complainant is deaf and uses sign language to communicate.

The Complainant states that she left the workplace as she was stressed and threatened and has not returned since.

At the time the Complainant was doing home tutoring for a family who didn’t pay her for 6 months. The family were €1600 in arrears. The Respondent text her to meet so that they could discuss this case. The Complainant claims that this home tutoring work was outside of her work in the centre and it had nothing to do with the Respondent who was her employer for tutoring and sign language.

There was a policy in place regarding home tutoring was outside of her work in the centre.

The Complainant states that the fact that the Respondent got involved in this case was against the policy.

The Complainant states that another incident happened in 2014 also. She was teaching in a class and the Respondent said if you use your voice one more time you will be fired.

At the tea break the Complainant felt she was getting a second verbal warning. The Complainant alleged that the Respondent repeated this a second time in front of vulnerable clients. There were 9/10 people there.

The Complainant believed that this was bullying at the time. The Complainant was not offered the option to make a Complainant at this time.

The Respondent apologised on paper but the Complainant felt this was not good enough.

The Complainant received a new contract after that and her hours were reduced. The Complainant is deaf and felt she was discriminated against as she had used her voice.

As there were issues before the Complainant was afraid in 2017 that she could be fired.

The Complainant and the Respondent were texting following an incident on the 9th of March 2017 with the family she was home tutoring. The Complainant spoke with her mother and she suggested that she bring a complaint as they advised it was bullying. The Complainant raised the issues to members of the board then. The Complainants parents sent a letter to the board and the HSE also.

The HSE referred it they’d back to the board. The board said they had no budget for the mediator and they said they would use WRC mediator.

The Complainants complaint went to the WRC for mediation and these claims were made subsequently.

The Complainant wants to go back to work and feels that she is entitled to compensation also.

The Complainant states that she had a close relationship with the Respondent but she believes that the relationship is now damaged.

Regarding the incident in 2014 the Complainant states that she didn’t know she could make a formal complaint at that time.

The Complainant states that a colleague asked her for a phone number of the family in question on the 9th of March 2017. The Complainant told her colleague that she could not hand over the family’s file.

When this conversation occurred, the Complainant states that were present. The Complainant states that there was a group of vulnerable adults in the meeting room and she states this conversation occurred in the hallway.

The Complainant states that she did not submit a complaint to the Respondent organisation as she had no faith in them. They were all friends. The Complainant didn’t have faith in the board members to address complaint fairly.

The Complainants partner gave evidence and stated that she was upset when she received the Respondents texts about the client visit following the incident on the 9th of March 2018. These texts were from the Respondent with regard to the client and to arrange a meeting to discuss the issues.

A witness for the Complainant who is also a teacher explained that the Complainant was a tutor for this family. She stated that in 2016 an issue was raised where the family got grant money for the tutor but they didn’t pay the tutor.

The witness stated that the Complainant couldn’t get payment from the family and she told the witness she would deal with it herself. In February, she asked the teacher to call to the family with reference to payment issues. She called to them on the 2nd of March. The witness was told that the money was there.

On the 9th of March the Complainant called for the money and it wasn’t all there.

The family of the child contacted the Respondent and complained about the Complainant following this.

The Complainant stated that she reacted in the heat of the moment in the office on the day as she was upset.

The board emailed the Complainant to ask her to submit complaint and they would investigate it.

The Complainant believed that as there was no background with the WRC that it would be better to have them involved. The Respondent organised the mediation with the WRC.

The Complainant agreed to go to mediation.

The WRC mediation contacted her early in May and she submitted her complaint at the end of May and then the Complainant didn’t think that the mediation would work and instead chose to submit a WRC claim.

The Complainant has been out sick from when the incident occurred. The Complainant states that she is now fit to return to work.

Summary of Respondent’s Case:

The Respondent confirms that on the 9th of March 2017 he received a phone call from the parent of a deaf child who was a client of the service.

The parent asked if they could meet up with the Respondent and confirmed that it was a family support matter.

The Respondent said that he would call to the mother’s house that same afternoon.

Whilst looking for the house the Respondent made a phone call to the office and asked the staff member on duty that if the Complainant comes to the office to ask for details of the client’s address.

The Respondent states that within a few minutes after that call both the Complainant and her partner arrived into the office.

A new part-time staff member, approached the Complainant and informed her of the request for the address. This staff member, who was present on the day, states that the reaction from the Complainant was an immediate outburst, with aggressive signing and anger about matters.

The Complainant continued her outburst about the client and her partner also made an allegation to a staff member that the client was withholding money from them for sign language tuition.

The Respondent was not aware of this incident as he was currently making his way to the client’s house. On arrival he met with the client who was visibly in a poor state and she confirmed that she had requested that the Complainant and her partner leave the property. The client informed the Respondent that following removal from the property that the Complainant threatened her and said that “I will get you for this”. The Respondent queried the role of the parties at the property and he was informed that the Complainant was there to provide freelance home tuition in Irish Sign Language and that she always brought her partner. The Respondent informed the client that although the Complainant did work for them as an ISL coordinator that any home tuition work was of a freelance nature. Similarly, that her partner, was also a freelance tutor.

Subsequently the Complainant stated that the mother of the client owed her for a number of hours for home tuition via text.

The Respondent advised the Complainant that whilst they would try to bring the matter to resolution if possible that he would have to advise the board on potential disciplinary action in relation to the incident at work as clients had witnessed the behaviour and her outburst.

It was then decided by the board that the Respondent should step away from this matter, and the Complainant was informed of the decision

Following the above, the Complainant attempted to contact the Respondent and the Respondent had missed calls from the Complainant’s mother. The messages demanded to meet the Respondent, and the other directors. Voice messages were also left on the phone of the sister of The Respondent demanding that he and the directors of the service meet with the Complainant.

Subsequently a complaint containing an allegation of Bullying against the Respondent was supplied to the board on the 16th of March 2017.

A complaint form was required with the details of the complaint but was never received.

Mediation was held on the 13th of July, 2017 but ultimately it was not successful. The Respondent became aware on this day that a complaint had already been submitted by the Complainant to the WRC.

The position of the Respondent is that the Complainant has not engaged in trying to resolve matters and fully denies that there has been any mistreatment of the Complainant.

The Respondent states that there is reference made to bullying by the Complainant against the Respondent approximately 27 months prior to the lodgement of the claim. This is also fully denied. No complaint was submitted by the Complainant to her employer during the period to which she refers.

The Complainant that spoke to the Respondent on the day of the incident in order to get the address from the Complainant was called as a witness.

The Witness stated that when she spoke to the Complainant that she slammed her hands down and got frustrated.

The Witness stated that they went into the back room and that there were other clients present and she was doing sound gestures. She didn’t know what was going on.

The other service users were asking what was going on and they said she should get paid.

The Witness told the Respondent about the matter as she was upset about it as it was an unfair reaction as she didn’t know what was going on.

The Respondent is aware that the Complainant has been teaching regularly and is doing freelance work since.

The Respondent stated that the incident from 3 years ago was reference to an incident when she was teaching and she was using her voice which wasn’t the way she was supposed to do it.

The Respondent stated that she was often late or eating when she shouldn’t be.

The Respondent stated that he approached her often about these issues.

On one day he had stated one more chance and that is it but the Respondent stated that he did not state the he would fire her.

The Respondent at the time apologised for raising issues in front of the group.

The Respondent stated that they had a very positive relationship that was friendly prior to this incident occurring.

The Respondent has stated that this has impacted the deaf community and the organisation as a result of the sock of this incident.

The Respondent states that he thought he could have mediated the situation between the client and the Complainant to ensure that she would get paid what she was due i.e. the parents of the child she was tutoring.

Findings and Conclusions:

The Complainant states that when she made the complaint under the Bullying and Harassment procedures, in relation to work related Bullying and that there was no one internally to deal with the matter as there was conflict of interest in relation to obtaining fair due process.

The Respondent had required details of the complaint but this was never received.

Mediation was held on the 13th of July through the WRC in agreement with the Complainant.

The Respondent became aware on this day that a complaint had been submitted.

The Mediation was unsuccessful and further procedures under the company polices were not invoked as the complaint had already been progressed to the WRC.

Section 77 of the Employment Equality Act, 1998 provides:

person who claims—

(a) to have been discriminated against by another in contravention of this Act,

Section 6(1) of the Employment Equality Act, 1998 provides:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”,) one person is treated less favourably than another is, has been or would be treated.

1. 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, disability, race or a member of the traveller community.

The Complainant states that she has been discriminated against by reason of her disability as she is deaf.

The Complainant states that the Respondent treated her unlawfully by discriminating against her and victimising her via her conditions of employment and by harassing her.

The Complainant states that there was an occurrence of bullying by the Respondent and that this occurred on the 9th of March 2017. The Complainant states that this occurred via text.

The Complainant states that there was unauthorised encroachment on her private and personal life as her free-lance work was interfered with by the Respondent.

The Respondent states that on the 9th of March 2017 he received a phone call from the parent of a deaf child who was a client of the service.

The parent asked if they could meet up with the Respondent and confirmed that it was a family support matter.

The Respondent then visited the client that the Complainant was working with on the client’s request.

The Respondent advised the Complainant that whilst they would try to bring the matter to resolution if possible - that he would have to advise the board on potential disciplinary action in relation to the incident at work where clients had witnessed the Complainants behaviour when she was discussing issues regarding the client in question.

The Adjudicator does not find that this was discriminatory behaviour by reason of the Complainants disability.

This appears to have been the Respondent managing a work-related situation at the time.

The Complainant states that previous bullying by the Respondent happen was 27 months ago in the workplace in front of the student, clients and staff members.

The Respondent stated that the incident from 3 years ago referred to her doing training when she was teaching and that she was using her voice which wasn’t the way she was supposed to do it.

The Respondent stated that she was often late or eating also while she was at work.

The Respondent stated that he approached her often about these issues.

On one day he had stated one more chance and that is it but the Respondent stated that he did not say that he would fire her.

The Respondent at the time apologised for raising issues in front of the group.

The Adjudicator recognises that this may not have been appropriate behaviour from the Respondent but accepts that this was acknowledged by the Respondent at the time.

The Adjudicator finds that this incident happened 27 months ago and that this was not discriminatory behaviour due to the Complainants’ disability but was the Respondent managing a workplace situation at the time.

Recommendation

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.

Industrial Relations Act

The Complainant did not exhaust the internal procedures available to her to address her grievance.

The Adjudicator finds that the Complainant was treated to fair procedures during this process and I find no bullying, harassment, victimisation or discrimination occurred.

The Complainant has been out sick but confirmed at the hearing she would be ready to return to work. The Respondent should engage with the Complainant as a result in line with the normal return to work requirements.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and the Employment Equality Act.

The Adjudicator finds that based on the evidence presented the Complainant was not bullied, harassed, victimised or discriminated against due to her disability.

Therefore, this complaint fails.

Dated:   18th January 2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Key Words: