Complainant

Respondent

Anonymised Parties

Prison officer

Irish prison Service

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-00011535-001

23/05/2017

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

CA-00011535-002

23/05/2017

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

CA-00011535-003

23/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00011535-004

23/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00011535-005

23/05/2017

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

CA-00011535-006

23/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00011535-007

23/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00011535-008

23/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 6(1) of the Prevention of Corruption (Amendment) Act 2010

CA-00011535-009

23/05/2017

The complainant has been employed as a prison officer with the Irish Prison Service since 1998.

An incident occurred on 13 June. He contends that he was shouted at in an abusive manner by a superior officer. He reported the incident to the respondent. A counter report of the incident was submitted by his superior officer, Assistant Chief Officer 1 to which he was asked to respond. The possibility of disciplinary proceedings was notified to him the day after submitting his complaint.

His gross fortnightly salary is €2468.

He submitted his nine claims to the WRC on 23 May 2017.

The last act of discrimination is dated the 24 /11/16.

CA-00011535-001.Section 13 of the Industrial Relations Act,1969.

The complainant seeks adjudication of this dispute

On 13 June, his superior officer asked why he was in the laundry as opposed to the Circle, the area to which he was detailed. The superior officer, Assistant Chief Officer (ACO) 1 spoke to him in a very abusive fashion. The complainant reported the incident to the respondent. The superior officer, ACO 1, filed a report of the incident. The respondent in investigating the incident of the 13 June and Assistant Chief Officer 1’s report, asked the complainant to respond to the counter allegations against him under the aegis of the Prison Disciplinary Code for Officers.

The claimant reports that the times of assignments were changed and notified to prison officers during the break time which he did not attend. Hence he was not in his scheduled detail at 5pm which was his normal break time, but was in the laundry.

He objects to the activation of the disciplinary procedure against him and seeks a recommendation from the adjudicator that this was unwarranted.

CA-00011535-002.Section 13 of the Industrial Relations Act,1969.

The complainant seeks adjudication of this dispute under section 13 of the Industrial Relations Act,1969.

Complainant maintains that the same incident of the 13 June and the respondent’s response to same is indicative of bullying behaviour against him and is unwarranted. The meeting under the disciplinary code on 24 November to consider the incident of 13 June was unwarranted.

CA-00011535-003.Section 77 of the Employment Equality Act, 1998

The complainant states that he was discriminated on age and gender grounds. The complainant maintains that the submission of a report by ACO 1 about his actions on 13 June, was an action intended to needlessly initiate disciplinary proceedings against him. This act and the investigation of ACO1’a report, concerning the 13 June 2016 is evidence of less favourable treatment on grounds of age and gender. He believes that ACO 1 is more disposed to activate disciplinary proceedings against older males. He asked the Prison Service to disclose the number of disciplinary proceedings in train, initiated by this superior officer and the gender and age profile of the subjects of these proceedings. He has not received this information.

CA-00011535-004. Complaint under theEqual Status Act, 2000.

The respondent’s treatment of his complaint of the 13 June and their response to his report is an act of discrimination on age and gender grounds contrary to the provisions of the Equal Status Act, 2000.

He states that ACO 1’s abusive behaviour towards him on 13 June 2016 constituted harassment on the grounds of age and gender. The act of victimisation was the submission of ACO 1’S report on the 14 June concerning the complainant’s actions on the 13 June The interview of the 24 November 2016 into ACO 1’s report of his absence from this assignment at 5pm on 13 June with Chief Officer 2 under the auspices of a disciplinary procedure constituted harassment on grounds of age and gender, and victimisation .

The complainant asked the respondent to provide him with details of similar incidents involving ACO 1 and other staff, the age and gender of these staff members; details of investigations by Irish Prison Service or any other agency of the same ACO 1’ S behaviour towards staff/ agency employees ( gender and Age profile of same), or prisoners by ACO1 ; the number of disciplinary investigations in train in the prison, the number and percentage of which were initiated by ACO 1; and who initiated the report on 13 June.

CA-00011535-005. Penalisation under section 28, Safety Health and Welfare at work Act

The complainant argues that he was penalised for making a complaint of abusive behaviour which was a protected act. The penalisation was ACO 1’s submission of a report to the Chief Officer of alleged improper behaviour on his part – which he denies, and which was intended to activate disciplinary proceedings against him. The complainant advised that Chief Officer 1 told him of options of grievance procedure and anti- bullying procedure.

CA-00011535-006. Penalisation, Employment Equality ACT 1998.

The complainant states that the initiation of an investigation having the potential to lead to disciplinary sanctions plus the investigation under the disciplinary code on 24 November was an act of penalisation for having submitted a complaint against ACO 1’s behaviour. In addition, the complainant states that his reference in his letter of July 4 to Chief Officer 1 that he is considering legal advice and the referral of his complaint to another forum was a protected act.

CA-00011535-007.Penalisation, Schedule 2 of the Protected Disclosures Act, 2014.

The complainant states that he requested information from the IPS on any Garda investigations into ACO 1’s behaviour.

CA-00011535-008. Whistle-blowers,Schedule 2 of the Criminal Justice Act 2011.

Complainant stated that he wanted to be confident that he had done the right thing if any issues about Garda enquiries about treatment of prisoners came to light.

CA-00011535-009. Section 6(1) of the Prevention of Corruption (Amendment) Act 2010.

The complainant states that this complaint refers to his enquiries to the Governor about possible Gardai investigations into disciplinary processes in the prison .

CA-00011535-001. Section 13 of the Industrial Relations Act,1969.

Section 23(3) of the Industrial Relations Act, 1990 expressly excludes persons employed by the state. The complainant being a prison officer, employed by the state, does not fall within the category of workers who can use this statute as a mechanism to have their disputes investigated.

CA-00011535-002. Section 13 of the Industrial Relations Act,1969.

Section 23(3) of the Industrial Relations Act, 1990 expressly excludes persons employed by the state. The complainant being a prison officer, employed by the state, does not fall within the category of workers who can use this statute as a mechanism to have their disputes investigated.

CA-00011535-003.Section 77, Employment Equality Act.

Burden of Proof

The respondent refers to the burden of proof which rests with a person making a complaint of discrimination under any of the grounds cited in the Acts. The respondent refers to the Labour Court determination,   Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 where itconcluded that”

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.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.”

The respondent asserts that the complaianat has failed to put forward any facts at all from which it can be inferred that he was treated less favourably than another person would have been on the grounds of age or gender.He has failed to discharge the burden of proof . Hence the burden does not shift to the respondent to rebut the charge.

CA-00011535-004. Complaint under section 21, the Equal Status Act, 2000.

The Adjudicator does not have jurisdiction to hear this complaint as the Act of 2000 confers protection on service users attempting to access goods and services. It does not apply to an employment contract.

CA-00011535-005. Penalisation under section 28, Safety, Health and Welfare at work Act, 2005.

No details are provided as to when the complainant made the complaint under the Safety, Health and Welfare at work Act, 2005. The respondent received notification on 17 October 2017 that the complainant had submitted a complaint of bullying to the Health and Safety Authority. This was eight months after the investigation of the 19 February 2017, conducted under the disciplinary code.

Penalisation is denied.

CA-00011535-006.Section 77, Employment Equality Act.

The respondent denies that the complaianat was victimised as asserted.The respondent sees no evidence of a link between actions encompassed by section 74 of the Acts and any steps taken by the respondent. The complaianat made no reference to age and/or gender in any of his comminication s to the prison authorities or in his letter submitted on 24 November.

CA-00011535-007. Schedule 2 of the Protected Disclosures Act, 2014.

The complaianat has made no protected disclosure complaint and therefore his complaiant is misconceived.

CA-00011535-008. Schedule 2 of the Criminal Justice Act 2011.

The respondent has recived no notification from the complaianat of any breach of thr Criminal Justice Act, 2011.

CA-00011535-009. Section 6(1) of the Prevention of Corruption (Amendment) Act 2010.

The complaianat has not made any report to the respondent of a   breach of the Prevention of Corruption (Amendment) Act 2001

.

CA-00011535-001. Section 13 of the Industrial Relations Act,1969.

As the statute expressly excludes state employees from its reach, I do not have jurisdiction to investigate this dispute concerning an alleged improper use of disciplinary processes.

CA-00011535-002.Section 13 of the Industrial Relations Act,1969.

I do not have jurisdiction to investigate this dispute concerning an allegation of bullying by a state employee.

CA-00011535-003. Section 77, Employment Equality Act.

The matter for adjudication is whether or not the respondent discriminated against the complainant, and contrary to Section 6 (2)(a) and (f) of the Employment Equality Act, 1998 in activating an investigation under the disciplinary process and failing to respond to his own complaints. The complainant states that the incident of the 13 June 2016 and its aftermath is evidence of discrimination on the basis of age and gender.

The complainant must satisfy the probative burden set out in section 85 A which requires him to set out facts which raise an inference of discrimination.

The argument that mere membership of a protected class and difference in treatment is sufficient for a complainant to meet his or her burden of proof in terms of section 85A was rejected by the Labour Court in Melbury Peters V Arturs Valpeters, EDA 0917.

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit…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.”

The starting point for the complainant’s complaint is the abusive statement made to him by ACO 1 on 13 June 2016. There was no reference to age or gender in that statement. It was a universally applicable statement. The complainant states that the submission of a report by ACO 1, intended to trigger a disciplinary process against him, is further evidence of less favourable treatment on age and gender grounds towards older males. He advanced no evidence to support his belief that the activation of disciplinary processes against younger females is far less frequent. I accept that evidence on this might be hard to come by. I note that he did look for data on the profile by age and gender of those prison officers subjected to disciplinary processes by ACO 1 and that this wasn’t forthcoming. However, ‘trigger happy’ ACO 1 might have been in initiating disciplinary processes on 13 June 2016, in circumstances where the complainant states he was not advised of a changed schedule, it is not, on the balance of probabilities, evidence of less favourable treatment towards older males.

His complaint centres around ACO 1’s behaviour but the prison itself investigated ACO 1’ s report and concluded that responsibility lay with prison officers to identify their schedule and assignments.

The complainant advises that he was informed of the processes available to him to have his complaint against ACO 1 investigated but that he did not have any confidence in the processes and so did not use them.

I do not find that the evidence demonstrates that the complainant has established facts from which discrimination based on gender and age grounds can be inferred. Therefore, his complaint cannot succeed.

CA-00011535-004.Complaint under section 21, the Equal Status Act, 2000.

This complaint submitted under the Equal Status Act is based on the same set of facts grounding the claim under the Act of 1998. However, the Act of 2000 is intended to promote equality and prohibit types of discrimination, harassment and related behaviour for members of the public trying to access goods and services. It does not offer protection in respect of employment contracts.

CA-00011535-005. Penalisation under section 28, Safety, Health and Welfare at work Act, 2005. Section 27(1) of the Act of 2005 defines penalisation as

“any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment”.

Section 27(2) states that

penalisation includes—                

(e) coercion or intimidation.”

Section 27 (3) protects an employee as follows:

“An employer shall not penalise or threaten penalisation against an employee for—

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”,

I accept that the report to Chief Officer 1 on 13 June was a protected act.

The complainant identifies the detriment as the submission of a report concerning his absence from his scheduled assignment on the 13 June 2016, the initiation of an investigation under the disciplinary code, the meeting with Chief Officer 2 on the 24 November inviting him to respond to ACO 1’s report-steps designed to intimidate him and coerce him not to proceed any further with a complaint which he had made about abusive behaviour.

The Labour Court considered if an investigation conducted within the ambit of a disciplinary code amounted to a detriment in determination HSD 1311 where a Garda Officer was subject to an inquiry based on complaints levelled against her following a complaint made by her about a colleague which was accepted as a protected act. The court stated “The question for determination at this stage in the appeal is whether the initiation of these inquiries is capable of constituting a detriment within the meaning ascribed to that term by s.27(1) and (2) of the Act. The investigations were initiated by the Chief Superintendent pursuant to a statutory power”. …….. it seems clear that exposure to such an enquiry, where an officer of sufficient rank considers it necessary for the proper management of the force, is integral to the conditions under which a member of An Garda Siochána is employed.”

Hence, it seems clear from the language of s.27(1) of the Act that the act or omission on which a claim of penalisation is grounded must amount to a detriment in the Claimant’s terms or conditions of employment and something that merely has the potential to lead to such a result is not enough”. The labour Court concluded that her appeal could not succeed.

So also, in the instant case, the investigation into the absence of the complainant from his detailed location on 13 June was done in accordance with S.I 289/1996- Prison (Disciplinary Code for Officers) Rules, 1996, which allows for its use in the circumstances that prevailed on the 13 June 2016. It was a protracted process with which the complainant was slow to engage. It culminated in the production of a report in February 2017 by Chief Officer 2 which upheld the observations of ACO 1 that the complainant should have been in the Circle at the scheduled time of 5pm as detailed, and not in the Laundry. No sanction was imposed. The same disciplinary code allows for an appeal, an option which the complainant did not exercise, and which had the potential to alter the conclusions in the February 2017 report.

The complainant stated that up to that point he had been steadily punctual and that he had no issues with ACO previously. Given that, it’s not clear that the submission of a report was a wilfully malevolent act.

In all of the circumstances described above, I do not find that the actions complained of by the complainant amount to a detriment.

CA-00011535-006.Section 77, Employment Equality Act.

The complainant maintains that he was penalised. The complainant must have taken an action of a type referred to at Section 74(2) of the Acts before considering if adverse treatment followed and if so, whether or not it was it connected to the exercise of a protected act. Even if the complaint of discrimination does not stand up, it is the making of such a complaint (of discrimination) that triggers protection under this Section. Section 74 of the Act of 1998, as amended, defines victimisation as

“(2) For the purposes of this Part, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs”

In retaliation for

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings concerning a claim of discrimination by a complainant,

c) notification of intention to pursue a complaint of discrimination.

The adverse treatment identified by the complainant is the submission of a report by ACO 1 leading to an investigation under the disciplinary code in retaliation for the complainant having reported ACO 1’s alleged abusive behaviour to his superior officer.

The complainant did not indicate in his statement to ACO 1, or to Chief Officer 1 on 13 June that the actions were discriminatory or potentially discriminatory. His letter to Chief Officer 2, dated 4 July referred to the possibility of the onward referral of his complaint to another forum but it did not link the forum to one having investigative powers to examine complaints of discrimination on age or gender grounds. It came after the adverse treatment complained of. His letter submitted on 24 November did ask for details by age and gender of disciplinary cases initiated by ACO. But this request came after the adverse treatment identified by the complainant. The investigative meeting of 24 November 2016 made no findings.

The protected act must be the operative reason for the adverse treatment.

I do not find that the complaint of victimisation matches the requirements set out in section 74 of the Acts.

CA-00011535-007. Schedule 2 of the Protected Disclosures Act, 2014.

The complainant’s evidence on this complaint is that he was penalised because he asked the respondent for evidence of disciplinary cases taken against Prison Officers and he also asked for evidence in relation to Garda investigations. This enquiry was submitted on November 24, 2016.

He does not identify the act or date of penalisation.

This was an enquiry.

Section 5 of the Act of 2014 states

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 ,

” a disclosure of relevant information …. made by a worker”.

Information is “relevant information” if—

                                (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

Section 5 (3) states “The following matters are relevant wrongdoings for the purposes of this Act—

                                (a) that an offence has been, is being or is likely to be committed,”

While the complainant made an enquiry, the complainant did not make a protected disclosure in accordance with the provisions of the Act of 2014

CA-00011535-008. Schedule 2 of the Criminal Justice Act 2011.

The complainant draws on the protection of section 20 of the Criminal Justice Act 2011. He states on his complaint form that he was penalised. Section 20 provides that

(1) “An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee— (a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or

b) for giving notice of his or her intention to do so.”

Section 20 (6) of the 2011 Act defines disclosure as

“disclosure”, in relation to an employee, means a disclosure by the employee to a member of the Garda Síochána of information which he or she knows or believes might be of material assistance in

(a)preventing the commission by any other person of a relevant offence, o

r (b) securing the apprehension, prosecution or conviction of any other person for a relevant offence”

So, it is necessary to identify in the first instance if the complainant made disclosures of a nature comprehended by the 2011 Act. The complainant submitted no evidence of making a disclosure to the Gardai. He did make an enquiry to the respondent as to whether any outside agencies had been involved in investigating any possible complaints from prisoners of abusive behaviour by ACO 1 against them. The issue of penalisation does not therefore arise.

In the absence of making such disclosures as defined by section 20(6), this complaint cannot succeed.

CA-00011535-009. Section 6(1) of the Prevention of Corruption (Amendment) Act 2010.

The complainant gave no evidence of having conformed to the requirements of section 8 A.

Section 8A (5) of the Prevention of Corruption Act 2001 prohibits penalisation in respect of an employee who has given an

“opinion that an offence under the Prevention of Corruption Acts 1889 to 2010 may have been or may be being committed”8A(1).

I do not find this complaint to be well founded.

CA-00011535-001. Section 13 of the Industrial Relations Act,1969.

I do not have jurisdiction to investigate this dispute

CA-00011535-002. Section 13 of the Industrial Relations Act,1969.

I do not have jurisdiction to investigate this dispute

CA-00011535-003. Section 77, Employment Equality Act.

The complainant has not established facts from which discrimination based on gender and age grounds can be inferred. Therefore, his complaint fails.

CA-00011535-004.Complaint under section 21, the Equal Status Act, 2000.

I do not have jurisdiction to investigate this complaint

CA-00011535-005. Penalisation under section 28, Safety, Health and Welfare at work Act, 2005.

I do not find this complaint to be well founded.

CA-00011535-006.Section 77, Employment Equality Act.

I do not uphold this complaint of victimisation.

CA-00011535-007. Schedule 2 of the Protected Disclosures Act, 2014.

I do not find this complaint to be well founded

CA-00011535-008. Schedule 2 of the Criminal Justice Act 2011.

I do not find this complaint to be well founded

CA-00011535-009. Section 6(1) of the Prevention of Corruption (Amendment) Act 2010.

I do not find this complaint to be well founded.

Prison officer treated less favourably on gender and age grounds; use of disciplinary process; protected disclosure; penalisation.