ADJ-00015283

Complainant

Respondent

Parties

John Ryan

Seetec Employment & Skills Ireland Ltd Seetec Jobpath

Complainant

Respondent

Anonymised Parties

An Employment Advisor

A Training Company

Representatives

Jason Murray B.L instructed by Coleman Legal Partners

Ray Ryan B.L. instructed by Beale & Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00019900-001

20/06/2018

The complainant began his employment with the respondent on Jun 7th 2016 and is paid €2,500.00 per month. He remains in employment with the respondent.

The complaint is made against the complainant’s ‘Business Manager’ (BM).

He says that she favours female staff over men and dealt with a complaint he made in a discriminatory manner.

This discrimination began in October 2017 and took the form of various disparaging comments she made.

He instances four particular acts of discrimination, and then raises a more general mater about the handling of his complaints which he says was also discriminatory.

In October/November 2017, she interrupted a conversation the complainant was having with a colleague and said; ‘If you don’t mind, please continue your conversation during your break’.

The second was shortly after this (sometime before Christmas) and involved the BM querying why he had been answering the phone while clients had been sitting with him.

The third occasion (in October/November, and again on January 26th) involved a challenge to the complainant’s decision making in relation to client business.

Finally, the complainant says that the BM got unacceptably close to him on a number of occasions, on one of them, touching his arm.

Matters came to a head at the meeting on January 26th, 2018 where the BM made comments about the complainant’s father’s healthcare.

He was so upset by this meeting that he wrote on January 29th to say he was unwell and would not be attending work. He followed this up with medical certification the following day.

Despite this the BM telephoned him about a 3pm deadline that day, and later that a disciplinary process had been initiated against him and he was to receive a written warning. There had been no compliance with fair procedure requirements in the administration of this warning.

He in turn initiated a grievance against the BM on February 2nd and the respondent said his grievance would be investigated by an external third party neutral.

In fact, it was investigated by a senior manager who the complainant considers not to have been sufficiently independent. But he cooperated with the investigation and he met the investigator on two occasions in February and March and the investigation concluded on March 20th.

Of seven grievances, three of the complaints were upheld or partially upheld, and four were not. The investigator did not uphold the general complaint of bullying and harassment despite the fact that some of the individual complaints which were upheld providing grounds for bullying and harassment.

In addition, had the complainant been female those complaints which were upheld would have provided grounds for disciplinary action. None resulted in this case.

The complaint of victimisation relates to the proposal that he should move office.

The complainant appealed the findings. The appeal also noted evidence of less favourable treatment but did not provide a resolution.

The complainant says the outcome would not have been the same if the complainant had been a woman.

The complainant says that the January 26th meeting provides a continuum to bring the previous complaints within jurisdiction of time. While the harassment had ended by then but the acts of discrimination continued with the conduct of the investigation and the failure of the respondent to carry it out in a timely manner.

The respondent denies the contention that the complainant was harassed and discriminated against.

The complainant had been on a Performance Improvement Programme (PIP) since December 2017 and was on a warning. The meeting scheduled for January 26th was a Disciplinary meeting.

There is a preliminary issue regarding time limits.

The complaint was referred to the WRC on June 20th 2018, thereby excluding any acts which took place before December 21st 2017.

The complainant has not identified a valid comparator. Those submitted to the WRC on October 26th, 2018 for the purposes of the hearing cannot be considered to be comparators. There is no evidence that any of them had been treated more favourably than the complainant.

In addition, the onus which falls on the complainant to establish a prima facie case has not been discharged.

The complaints represent mere assertion. For example, the complainant speculates on a number of occasions about what would have happened had the gender roles been reversed. There is no basis for the speculation.

Harassment has a specific meaning under the Act which goes beyond a type of generalised mistreatment; it must relate to one of the protected grounds and have the effect of violating a person’s dignity.

Likewise, the examples provided by the complainant do not constitute gender discrimination. Indeed in the complainant’s letter of complaint of February 2nd 2018 he refers generally to bullying and harassment and makes no mention of gender.

The complainant has not established any connection between the alleged adverse treatment and his gender, and refers to Spasic v Dyflin Publications Ltd [EDA 0823] and McCarthy v Cork County Council [EDA 0821] in this regard.

Indeed, the internal management and processing of the complainant’s grievance was fair, thorough and objectively reasonable.

In respect of the alleged victimisation, the act complained of did not take place.

There are two issues to be considered first; one in relation to whether a prima facie case has been made out.

Then there is a second issue relating to time limits and jurisdiction.

There are four alleged incidents all of which are clustered in October, November and December 2017. Then there is a fifth on January 26th, 2018. All had been the subject of an internal workplace investigation.

Finally, there is the conduct and outcome of the investigation which the complainant alleges was discriminatory in that he was treated less favourably than a woman complainant would have been.

There was a lack of precision on the part of the complainant about when exactly these incidents occurred.

The first of the incidents complained of was the interruption of a conversation the complainant was having with a colleague with the remark; ‘If you don’t mind, please continue your conversation during your break’,

The second was shortly after this (‘sometime before Christmas’) and involved the BM querying why he had been answering the phone while clients had been sitting with him.

The third occasion (in October/November, and again on January 26th) involved a challenge to the complainant’s decision making in relation to client business.

Finally, the complainant says that the BM got unacceptably close to him on a number of occasions, on one of them, touching his arm. These incidents were described as ‘counts of harassment and discrimination’.

It is hard to detect any discriminatory content in these. No comparator was offered and the first three appear on their face to be reasonably normal business exchanges related to the complainant’s performance or otherwise of his duties.

The complainant’s demonstration of the arm touching incident to the hearing suggested a somewhat innocent act in that a hand was laid on the top of the complainant’s arm above the wrist, although he has of course the right to object to such physical conduct if it is unwanted.

Nonetheless, even taking all four incidents together they represent flimsy grounds for a case of harassment or discrimination.

The requirements of Mitchell v The Southern Health Board [2001] 21 E.L.R are clear in this regard.

The initial burden falls on the complainant to establish facts from which discrimination may be inferred.

Three relatively innocuous criticisms of the complainant do not meet this requirement and there was no evidence that in making these comments, the manager in question was treating the complainant less favourably than women in the same workplace.

Unacceptable as the complainant found the touching of his arm (and indeed so did the later internal workplace investigation) it too falls short of grounding an act from which discriminatory treatment may be inferred.

Indeed, the respondent noted in its submission that in his grievance complaint of February 2nd 2018 the allegation of bullying and harassment made by the complainant was not linked to gender but to his Business Manager’s management style. This in fact seems to be at the heart of the problem.

Therefore, leaving aside whether a nexus can be made with the later incidents for the purposes of being within time limits these events of late 2017 do not remotely ground a case under the Act.

As to the outcome of the investigation, I accept the respondent’s submission that there is no basis beyond speculation to support the suggestion that it would have been different if the complainant had been a woman.

But even on the basis of such speculation the matters complained of were so lacking in substance it seems highly unlikely that the result would have been any different. The conduct and findings of the investigation were measured and proportionate and as with any such exercise can only be assessed by reference to the particular facts of the case under investigation.

In any event I find that no prima facie case has been made out and the complaint fails.

For the reasons set out above I do not uphold complaint CA-00019900-001 and it is dismissed.

Discrimination