ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016597
Parties:
| Complainant | Respondent |
Anonymised Parties | A Former CE Participant | A Charity |
Representatives | Liga Kalace | Peninsula Group Limited |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00021603-008 | ||
CA-00021603-009 | ||
CA-00021603-010 | ||
CA-00021603-011 | ||
CA-00021603-012 | ||
CA-00021603-013 | ||
CA-00021603-014 | ||
CA-00021603-015 | ||
CA-00021603-016 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
The Complainant and her mother (A Retired CE Scheme Participant) referred a total of sixteen complaints to the Workplace Relations Commission (hereinafter WRC) on 7th August 2018 on the same complaint form. The WRC wrote to the Complainant and her mother confirming that as it is not possible to register a single complaint against two complainants, they were allocated different complaint reference numbers. Seven of the complaints were closed (because a workplace inspection was requested in CA-00021603-001, the statutory requirements for referral to the WRC were not met in CA-00021603-002 and the Respondent submitted a valid objection under Section 13(3) of the Industrial Relations Act 1969 in CA-00021603-003, 004, 005, 006 & 007) as notified to the Parties. The Complainant and/or her mother submitted 116 exhibits totalling over 1000 pages of documentation relating to their employment on a CE Scheme with the Respondent. They had also sent an ES1 Notification to the Respondent under the Equal Status Acts 2000-2015 but had not pursued a complaint. The complaint form did not distinguish between the complaints being made by the Complainant and her mother and contained minimal or no detail in relation to the complaints being pursued. There was no narrative linking the documentation submitted or outlining its relevance. A written submission on behalf of the Respondent outlined the Complainant and her mother’s work history with the Respondent and raised the following preliminary objection being: “That neither the Respondent nor the Workplace Relations Commission is in a position to discern the identity of the claimant by whom each complaint is made and, more specifically, whether one, other or both named complainants is pursuing each claim places the Respondent in the odious position of defending a claim the nature and extent of which is not merely unknown but which is unknowable.”
In accordance with Section 79 of the Employment Equality Acts, Part VII of the Pensions Act 1990-2015, Section 41 of the Workplace Relations Act 2015 and Section 23 of the Industrial Relations (Amendment) Act 2015, following referral to me by the Director General, I inquired into the remaining complaints and gave the Parties an opportunity to be heard by me and to present any relevant evidence. They were originally listed for hearing on 9th November 2018. The Complainant represented herself at the hearing and the Respondent was represented by Peninsula and a number of witnesses attended on its behalf. She contended that her mother was both a witness to the events giving rise to her complaint and was also representing her as a McKenzie friend and vice versa. Both the Complainant and her mother sought to have their complaints heard together. At the hearing, the Complainant was unable to identify which complaints referred to her and which referred to her mother and stated that this could be discerned from the accompanying documentation. Cognisant that she was a lay litigant, I sought to afford her appropriate latitude.
I adjourned both cases until 14th December 2018 for the purposes of enabling the Complainant and her mother to identify which complaints pertain to whom and outline same so that the Respondent knew what case to meet and they could be adjudicated on. This was to be received by 30th November 2018 with the Respondent to respond by 12th December 2018. Additionally, a Latvian interpreter was required to assist the Complainant’s mother with translation. Given their apparent difficulties in presenting their complaints, they were also afforded an opportunity to avail of advice and/or representation. They did not respond in writing as directed and objected to having to provide such clarification as to the complaints being pursued. In emails sent to the WRC on 10th November 2018, they raised a number of other issues with the conduct of the adjudication process which were comprehensively addressed in a letter dated 19th November 2018. An email of 30th November 2018 including excerpts from grievances and/or ES1 Form did not clarify matters further. On the rescheduled hearing date of 14th December 2018, in the absence of the written clarification sought, I afforded the Complainant another opportunity to distinguish her complaints from those of her mother and to factually outline same. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision. All evidence, submissions, supporting documentation and law presented by both Parties have been taken into consideration.
Background:
The Complainant and her mother were employed by the Respondent Charity as a Catering Assistant and Hygiene Technician respectively on a Community Employment (CE) Scheme for 19.5 hours per week earning €220.50 each. The Complainant was employed on 27th November 2017 and had her employment terminated during an extended probation period on 13th July 2018. The Complainant’s mother commenced employment with the Respondent on 28th May 2012 and her employment terminated when she retired on 28th September 2018 as required by the CE Scheme. The Complainant had submitted complaints of unfair and/or constructive dismissal with less than a years’ service along with complaints about the disciplinary sanctions imposed and of bullying and harassment under Section 13 of the Industrial Relations Act 1969. However, following valid objections to adjudication by the WRC under Section 13(3) of the Act, I had no jurisdiction to investigate same. The Complainant pursued the remaining complaints as set out hereunder.
Summary of Complainant’s Case:
In direct evidence, both the Complainant and her mother made generalised complaints about being treated unfairly and less favourably than the Respondent’s other employees including Irish and non-nationals on the grounds of their Latvian nationality, civil and family status. The Complainant said that she had applied for promotion to an administrative position but was not considered and also that her training had been different from other staff. She contended that she had been subject to sexual harassment by client/s which had not been properly investigated by the Respondent. The Complainant and her mother both contended that they had been penalised for raising health and safety and working time issues including being given dirty jobs and in the Complainant’s case, by being dismissed. Throughout the hearing, the Complainant gave evidence of extraneous and historical personal matters and expressed the view that these had been regarded negatively by the Respondent. The Complainant sought compensation and/or reinstatement by way of remedy.
When questioned, neither the Complainant or her mother were able to say clearly which complaints related to whom. Nor were they able to provide a clear factual basis for their complaints or relate them to the accompanying documentation or requisite statutory provisions. Other than generalised statements, they were unable to identify what protected actions they had taken and/or the alleged consequential adverse treatment giving rise to penalisation and/or victimisation under the Acts.
The Respondent submitted detailed written submissions setting out the factual background to the Complainant and her mother’s employment on CE Schemes with the Respondent Charity. This was confirmed and supplemented with direct oral evidence from the Assistant Services Manager and Acting National Services Manager. The Respondent maintained its objection that it was not possible to distinguish between the complaints being submitted by the Complainant and those by her mother. The Assistant Services Manager confirmed that the majority of its CE participants were non-national. She further confirmed that any grievances raised by the Complainant and/or her mother were properly investigated and/or addressed in accordance with its internal grievance procedures as set out in the Respondent’s Handbook. The Acting National Services Manager outlined the circumstances giving rise to the termination of the Complainant and her mother’s employment. She confirmed that the Complainant’s probation period had been extended owing to inappropriate behaviour towards colleagues and management and failure to follow procedures by making allegations to third parties. In light of her response, the Respondent had reached a view that her employment could not continue and it was terminated on 13th July 2018. She was afforded due process including an appeal and extension of time for same but her appeal was not received until after the deadline when it was too late. She said there had been no issues with the Complainant’s mother until she had involved herself in her daughter’s difficulties. She had retired on 28th September 2018 upon reaching the State Pension age of 66 years in accordance with her CE Scheme. She further confirmed that the Respondent is an Equal Opportunities employer with comprehensive bullying and harassment procedures which were adhered to in relation to the Complainant. Overall, the Respondent sought to have these complaints dismissed for want of certainty and merit.
Findings and Conclusions:
The onus/burden of proof rests with the Complainant in relation to all of the complaints referred herein. “The Labour Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with sufficient particularity to allow a Respondent know what it is they are being accused of.”(Able Security Ltd -v- Hardijs Langsteins, DWT1319) Despite affording the Complainant and her mother every opportunity to distinguish between their complaints, the position was unfortunately no clearer after their oral hearing. As a consequence, I have to conclude that it was impossible for the Respondent to fairly meet and/or rebut the complaints or to adjudicate on same. Aside from this fundamental difficulty, the evidence proffered was so vague and incoherent that no real factual and/or legal basis was provided for any of the complaints pursued. Neither was any effort made to relate them to the copious documentation submitted. As an additional precaution, I read through all of the documentation but was still unable to adduce a clear factual and/or legal basis for these complaints. In relation to the complaints of discrimination, harassment and sexual harassment on the grounds of race, civil and family status, there was no clear evidence of less favourable or any such treatment under any of these grounds that could potentially give rise to a prima facie case. In relation to the complaints of penalisation and victimisation, no clear evidence of the requisite acts or consequent adverse treatment was identified. Additionally, some of the complaints referred were clearly misconceived such as the allegation of a discriminatory provision in an employment agreement contrary to the Employment Equality Acts when no such agreement was identified. I consider access to the WRC to unrepresented lay litigants to be of paramount importance and have sought to accommodate the Complainant and her mother in every possible way in terms of presenting their complaints. However, in all the circumstances of this particular case, I have to conclude that these complaints have been made in bad faith and/or are frivolous, vexatious or misconceived and/or relate to a trivial matter under the respective Acts within their legal meaning.
CA-00021603-008 –Complaint of Discrimination in relation to Promotion and Training, Harassment and Sexual Harassment on the Grounds of Race, Civil & Family Status under the Employment Equality Acts 1998-2015
Decision:
Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint has been made in bad faith and/or is frivolous, vexatious or misconceived and/or relates to a trivial matter pursuant to Section 77A of the Employment Equality Acts 1998-2015 and accordingly, dismiss same.
CA-00021603-009 – Complaint of Discrimination by way of Occupational Pension under the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004
Decision:
Part VII of the Pensions Acts 1990-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint has been made in bad faith and/or is frivolous, vexatious or misconceived and/or relates to a trivial matter pursuant to Section 77A of the Employment Equality Acts 1998-2015 as inserted into Part VII of the Pensions Acts and accordingly, dismiss same.
CA-00021603-010 – Complaint of a Discriminatory Provision in an Employment Agreement under the Employment Equality Acts 1998-2015
Decision:
Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint has been made in bad faith and/or is frivolous, vexatious or misconceived and/or relates to a trivial matter pursuant to Section 77A of the Employment Equality Acts 1998-2015 and accordingly, dismiss same.
CA-00021603-011 – Complaint of Penalisation for refusing to cooperate with a breach of the Organisation of Working Time Act 1997
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint is frivolous and/or vexatious pursuant to Section 42 of the Workplace Relations Act 2015 and accordingly, dismiss same.
CA-00021603-012 – Complaint of Penalisation for complying with or making a complaint under the Safety, Health & Welfare at Work Act 2005
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint is frivolous and/or vexatious pursuant to Section 42 of the Workplace Relations Act 2015 and accordingly, dismiss same.
CA-00021603-013 – Complaint of Victimisation for taking an action set out in Section 74 of the Employment Equality Acts 1998-2015
Decision:
Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint has been made in bad faith and/or is frivolous, vexatious or misconceived and/or relates to a trivial matter pursuant to Section 77A of the Employment Equality Acts 1998-2015 and accordingly, dismiss same.
CA-00021603-014 – Complaint of Penalisation for invoking rights under the Industrial Relations (Amendment) Act 2015
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint is frivolous and/or vexatious pursuant to Section 42 of the Workplace Relations Act 2015 and accordingly, dismiss same.
CA-00021603-015 – Complaint of Penalisation for reporting breaches of the Charities Act 2009
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint is frivolous and/or vexatious pursuant to Section 42 of the Workplace Relations Act 2015 and accordingly, dismiss same.
CA-00021603-016 – Less favourable treatment in respect of Employment Conditions than a comparable full-time employee under the Protection of Employees (Part-Time Work) Act 2001
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I am of the opinion that this complaint is frivolous and/or vexatious pursuant to Section 42 of the Workplace Relations Act 2015 and accordingly, dismiss same.