Complainant

Respondent

Anonymised Parties

Technical Records Assistant

An Airline

Representatives

Richard Grogan & Associates

Roland Rowan B.L. instructed by McDowell Purcell Solicitors

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-00016573-002

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016573-003

22/12/2017

The Complainant is a Hungarian National who works as a Technical Records Assistant and was paid €20,500 per year. She claims that she suffered an injury at work and had been certified as unfit for work for a period of time. The Complainant claims that she was told to return to work by the Respondent, which she said was to do with her Gender and Race. The Complainant claims that she was penalised and victimised for making complaints.

The Respondent is an Airline which has a diverse multi-cultural workforce. It refutes that the Complainant suffered an injury at work and it sought to return her back to work on light duties following an investigation into the claim and after she was deemed fit to return to work following two occupational health assessments. It also disputes the claims made of discrimination on Gender and Race grounds and victimisation and the other alleged breaches of employment rights’ legislation.

Preliminary matters

The Complainant, in reply to the Respondent’s application for a preliminary ruling on whether these complaints are an abuse of process being, frivolous, vexatious and bound to fail and in particular on whether the Complainant has satisfied the burden of proof in showing that a prima facie case has been established against it in relation to the Employment Equality complaints, said that she was content that the cases proceed as per the usual Workplace Relations Commission’s practice and procedure and by the issuing of one decision.

The Complainant said that should the Respondent leave the hearing that the stenographer should not be allowed to stay in the room and take notes for it in its absence.

The Complainant raised other issues as regard the burden of proof in specific cases under the Organisation Working Time and whether the Workplace Relations Commission is an adversarial or inquisitorial tribunal.

Substantive matters

CA-00016573-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Complainant maintains that she issued proceedings under the Employment Equality Acts, 1998 and accordingly, she was subsequently subjected to a disciplinary procedure and deems that to be an act of victimisation under the Employment Equality Acts. The Complainant has submitted all the documentation in relation to the disciplinary procedure, hearing and outcome.

The Complainant said that all her absences were certified however she was still brought through the disciplinary process and finally got a written warning. She said that she was never medically examined, which the Respondent could have done if it chose to.

The Complainant also maintains that she was refused access to the Respondents discretionary sickness benefit scheme and this too was an adverse decision by the Respondent for her making her complaints.

The Complainant said that there is a sufficient nexus between her raising the complaints and the Respondent’s course of action.

CA-00016573-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The facts are the same as outlined above.

The Complainant maintains that she issued proceedings under the Organisation of Working Time Act, 1997 and accordingly, she was subsequently subjected to a disciplinary procedure and deems that to be an act of penalisation under the Organisation of Working Time Act, 1997. The Complainant has submitted all the documentation in relation to the disciplinary procedure, hearing and outcome.

The Complainant also maintains that she was refused access to the Respondents discretionary sickness benefit scheme and this too was an adverse decision by the Respondent for her making her complaints.

The Complainant said that all her absences were certified however she was still brought through the disciplinary process and finally got a written warning. She said that she was never medically examined, which the Respondent could have done if it chose to.

The Complainant said that there is a sufficient nexus between her raising the complaints and the Respondent’s course of action.

Preliminary matters

The Respondent said that these complaints should be the subject to a determination on a preliminary issue, namely that the Complainant’s case is an abuse of process being, frivolous, vexatious and bound to fail. In particular it claims that it requires a preliminary determination from the Adjudication Officer on whether the Complainant has satisfied the burden of proof in showing that a prima facie case has been established against it, in relation to the Employment Equality complaints - reference number CA 00016573-002 - prior to having it to go into evidence and be put at a cost in defending its position.

The Respondent claims that the Complainant in respect of the claims pursuant to the Employment Equality Act has not provided it with a submission other than to say that she is female and Hungarian and has failed to disclose a prima facie case. It refers to Desmond Shields, Abusive of Process – unjust and Improper Conduct of Civil Litigation in Ireland, First Law 2002 quoting Lord Denning in Goldsmith v. Sperrings [1977] 2 AER 566 to support its claim that “[…] legal process is the keeping order and doing justice. It can be used properly, or it can be abused […]”, and when this happens the adjudicator should step in and protect such a Respondent.

It referred to numerous decisions which show proceedings as vexations and said that the within claims by the Complainant, is using a scattergun of claims which amounts to multifarious proceedings brought for purposes other than the assertion of legitimate rights. It claims that there needs to flexibility to manage this, as was recognised in Hunter v. Chief Constable of the West Midlands Police, [1981] 3 AER 727 and the need for the Courts to protect against any abuse of process which is used as a tool to cause unfairness and hardship on defendants, Sun Fat Chan v. Osseous Limited [1992] 1 IR 425.

It claims that the Complainant has sought to bombard the Respondent with a variety of claims which are duplicated by making identical complaints and seeking to rely upon various statutory provisions. It claims that this puts into question whether this method as an abuse of power should be considered solely by way of a preliminary issue, which would lead to considerable saving in both time and cost, citing Bus Eireann v. SIPTU PTD 8/2004.

In particular, the Respondent stated that it desired a preliminary decision on where the Complainant has satisfied the burden of proof in showing a prima facie claim in the Employment Equality cases. There are four such cases in total. It states that the burden of proof as set out in Section 85(A) rests with the Complainant, citing Regan and Murphy’s book, Employment Law, and the tests in relation to shifting that evidential burden are set out in Michell v. Southern Health Board [2001] 12 ELR 201 and McCarthy v. Cork City Council, EDA 0821 [2008]. It said that the Complainant has not provided any facts from which it can be presumed that there has been discrimination other than the bare assertions of the grounds themselves.

It claims that it finds it difficult that the claim of discrimination can be levelled on it, a Respondent, a multiple nationality employer of multiple thousands of a workforce. It referred to the Labour Court decision in Valpeters v. Melbury Developments Limited [2010] 21 ELR 64 in particular “[…] Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn […]”

It has called on the Adjudication Officer to make a preliminary determination on the case.

The Respondent has also asked that should the case proceed, and should it decide to leave the proceedings that the Adjudication Officer would allow for its stenographer to remain on to take a note.

The Respondent left the hearing room following its presentation of its preliminary application and after I informed the parties of how I was to conduct the hearing and process with my inquiry in to the complaints.

Substantive matters

CA-00016573-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Respondent was not present at the hearing when this complaint was opened, and I have not been presented with a submission in relation to this.

CA-00016573-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent was not present at the hearing when this complaint was opened, and I have not been presented with a submission in relation to this.

Preliminary matters

The Respondent at the outset of the hearing made a particular preliminary application where it sought that these complaints be dealt with by means of a preliminary determination by the Adjudication Officer and, in particular, it sought for me to determine by a preliminary decision whether the Complainant’s had established a prima facie case before the Respondent must incur the evidential burden and the costs to defend against the Complainant’s allegations in respect of the complaints under the Employment Equality Acts.

The Complainant was present and suggested that the case should be conducted in accordance with the normal practice of the Workplace Relations Commission.

Having considered the arguments presented by the Respondent on the day of the hearing, I am satisfied that I could not accede to the request without having heard the evidence in the case first. This was all the more pointed in terms of the complaint under the Employment Equality Acts, where there was a long-established approach, adopted by the Equality Tribunal for many years previously, that the totality of the evidence from both parties must be heard before any conclusions were reached – an approach which was underpinned by the well-established jurisprudence on the matter. At the beginning of the day I clearly informed the parties how I intended to conduct the hearing. I noted that some of the complaints dated back to 2016, and it was my intention to expedite this case and bring it to a conclusion and a decision as speedily as I could, having due regard to my obligations to comply with procedural fairness and natural justice. I said that I would go through the individual complaints on a case-by-case basis and ask the Complainant to inform the hearing whether each of the complaints were still being pursued, so as to determine the full set of complaints before me for consideration. I said that following this exercise I would listen to any preliminary matters that the parties wished to address and, notwithstanding, it was my intention to proceed by hearing all the evidence on a case-by-case basis, and preferably for completion that day and where I would then issue a composite decision dealing with all the issues raised and by each individual complaint in order.

The cases have been delegated to me for inquiry by the Director General of the Workplace Relations Commission and I am satisfied that it is for me to conduct that inquiry in the most appropriate way, as long as I adhere to the principles of fairness and natural justice. I am satisfied that the approach decided by me is fully in line with the Workplace Relations Commissions’ practice and the procedure, that I have continually applied in all my hearings heretofore. I considered that my proposed methodology would offer the best opportunity to proceed expeditiously. I also noted that I failed to see how I could accede to such a request without first having heard all the evidence relating.  

As noted above I have not heard any evidence other than a preliminary presentation from the Respondent stating that the Complainant’s complaints are an abuse of process, frivolous and vexatious. I have been asked to make a preliminary determination on whether the Complainant has established a prima facie case in regard to the Employment Equality complaints prior to putting the Respondent to the expense of defending the case. I am satisfied that Section 79 (3A) of the Employment Acts does allow for preliminary determinations in certain circumstances, and in particular, in Equal pay cases (Section 79(3)), where there are some agreements on the facts. I determined that this is not the case here. The request before me, is in relation to whether the Complainant has established of a prima facie case in the substantive matter of the complaint. It is clear from the outset, that the facts are not in agreement. I have noted that the superior courts have continually supported unitary hearings and composite decisions as the preferred approach. In particular I note the Supreme Court decision of Mr. Justice McKechnie in Campion Concrete Products Limited and Voran House Limited v South Tipperary County Council unreported [2015] IESC 79, in relation to a similar request for a preliminary determination on a planning application, and I note in particular at paragraphs 21 and 22 under the heading Encouraging Efficiency he said -

“In more modern times, particularly in light of litigation becoming ever more complex, costly and lengthy, many attempts at official level have been made to identify ways in which the consequences of such events can be avoided, or at least ameliorated. Hence, both legislative provisions and specific rules of court with that intention in mind, have been adopted in several different sectors of litigation, including personal injuries, commercial and competition, to name but some, as well as provision being made for mediation, conciliation and other forms of alternative dispute resolution. (Order 56A RSC). Side by side with these changes there has been much innovation at judicial level by way of case management, modular hearings and other imaginative steps, to the same end. Largely the results have been very positive, but still vigilance must be exercised lest through the prism of expedition, truncated hearings will end up having the opposite effect. I am satisfied that such would be the situation if the appeal in the instant case was allowed.

22. Despite the undoubted advantages of such insightful moves, it remains the position that at primary level, a unitary trial is the starting point. Experience throughout many decades of litigation has shown that in the vast majority of cases this is the best mechanism by which justiciable issues can be determined, not only so as to achieve justice, but also as representing the most expeditious and cost-effective way of doing so. Therefore, whilst I greatly favour all suggestions which curtail the possibility of having diffuse and lengthy trials, one must be sure however that what is provided for in that regard, will in fact achieve, the intended end.”

I also note at paragraph 26 where reference was made to the Supreme Court in McCabe v. Ireland [1999] 4 I.R. 151 where at p. 157 of the report, Lynch J. stated: - “A preliminary issue of law obviously cannot be tried in vacuo: it must be tried in the context of established or agreed facts. The facts relevant to the preliminary issue must not be in dispute, but they may be agreed for the purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual determination of the preliminary issue should not dispose of the matter at issue. The facts must be agreed or the moving party must accept, for the purposes of the trial of the preliminary issue which he raises, the facts as alleged by the opposing party.”

I further note at paragraphs 55 and 57 he finds: - “…it is highly probable that even a decision in favour of the appellant on the preliminary issues, would not reduce significantly the number of potential witnesses who might be relevant to this particular claim: nor would it necessarily curtail the issues which would have to be traversed at the hearing. Likewise it is difficult to see any substantive decrease in the necessary preparation for the hearing of this issue when compared with the overall claim. As a result, it inevitably follows that there would be very little saving in either costs or time and certainly it does not appear convenient to embark on the course as suggested by the council. In fact the contrary would likely be the position, as same would involve two substantive hearings rather than one. Accordingly, on this basis I would also dismiss the appeal.

56. Finally, it is at least as likely as not, that if the issues were determined by way of a preliminary hearing, either party, if aggrieved by the result, may undertake an appeal in respect thereof to this or as may now be more appropriate, to the Court of Appeal. Duffy v. Newsgroup Newspapers Limited (No.2) [1994] 3 I.R. 63, is apt on point where O'Flaherty J. said:-

“I would also make the observation that the whole point of setting down a preliminary point of law is to save in time and costs. This is surely not being achieved in the course of these proceedings. Even if there were a preliminary hearing on this matter whoever lost would, presumably, appeal to this Court and would mark the third appeal in an interlocutory manner in these proceedings.””

I also take note of the decision in Bisi Adigun v The Equality Tribunal [2015] ESC 91 in the Supreme Court where Justice Charleton, in a case of appeal from the High Court on a judicial review proceeding addressed questions relating where the Equality Tribunal should always conduct cases expeditiously and by affording the appropriate remedies of the Acts, where he said:-

“15. While it is correct to argue that a unitary trial is the normal and most satisfactory method of proceeding with a case in court, there are also many circumstances where the trial of a preliminary issue may resolve the substance of a legal dispute. Even apart from the subsection quoted above, it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly. Sometimes, the parties will consent to that. The advantage of the Employment Equality Acts is that the circumstances under which such a course may be taken by the Equality Tribunal are clearly spelt out. Central to any issue as to whether redress in respect of discrimination within employment is available under the Acts, is whether a person was employed or not. That issue was inescapably part of, and fundamental to, the admissibility of a claim for redress, which is defined in statute as being available only to employees. Hence, even apart from legislative provisions, it would make sense that once the issue was raised, it should be determined in advance of what was likely to be a substantial hearing. The resources of courts and tribunals are limited. It is a pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must cross. That can be fairly isolated and tried in advance. There is nothing in the papers on this appeal to suggest that the Equality Officer misconstrued the relevant legislation or exercised the discretion which it gave him in any unreasonable or capricious manner.

16. …It is within the scope of the Acts that preliminary issues can be tried and ruled on, either in advance of the substantive hearing of which they form part, or in order to obviate the necessity for such a hearing. Every tribunal and court has a duty to move with reasonable expedition. Litigation is a stressful and unfamiliar experience for those who initiate a claim or who are called on to respond. […] The Equality Officer, on the relevant correspondence, was motivated by the need to both grasp the essentials of the case and to move it along towards resolution, one way or the other. There is a range of appreciation in respect of the conduct of quasi-judicial bodies which should be respected. Clear statutory authority for the Equality Officer's actions existed. In addition, reasonable decisions as to how a case should proceed are not to be substituted, even by a contrary reasonable view. That is not the function of judicial review…

18. … the function of the Equality Tribunal lies entirely within its statutory remit. Bisi Adigun complains that having been disfavoured, as he claims, it is against the principles of justice that he should have nowhere to turn for redress. This, however, ignores the fact that it was he who decided that the statutory remedy invoked by him in his application to the Equality Tribunal was appropriate …”

It is clear that Section 79 of the Employment Equality Acts provides for the investigation of complaints by the Director General or indeed one of its Adjudication Officers. I note in the Labour Court’s decision in Courts Service v 28 named employees EDA 19/2007, where it said that 79(3A) authorised the determination of preliminary issues, in particular, arising from Section 19(5) of the Employment Equality Acts in relation to equal remuneration. However, it said that this action was an exception to “the general principle that all issues arising in a case should be disposed of in a single set of proceedings and that litigation should not be fragmented”. I am satisfied that the case law supports this general principle and I note the decisions in the Supreme Court Aer Lingus Teoranta v The Labour Court & others [1990] ELR 113 and in the High Court of The Commissioner for Valuation v The Valuation Tribunal [2019] IEHC 23 similarly supports this approach.

I am satisfied that the case should proceed as I indicated herein and I informed the parties accordingly on the day of the hearing. The Respondent asked for a short adjournment to consider the implications to which I granted. On the Respondent’s return to the room it said that it was leaving the hearing and I advised them that I intended to proceed with the case.

In relation to the Respondent’s request that the stenographer be allowed to remain in the room once it had indicated that it would leave. I am satisfied that the Courts have ruled that a party may bring with it a stenographer to assist it in its note taking. The purpose of the Workplace Relations Commission’s hearings is to allow parties present their case and adduce the evidence from the witnesses present to assists the Adjudication Officer in their inquiry into the case, and ultimately in making their decision. The independent stenographer in the instant case was not going to assist in that role for the Respondent.

I note that the Workplace Relations Commission has not objected to the use of stenographers in accompanying parties heretofore. However, once the Respondent had indicated that it was withdrawing from the proceedings and would play no further part in the hearing, I am satisfied that the stenographer should also leave. Otherwise I, as the Adjudication Officer, would be opening a hearing to hear all the evidence in a case, which as stated in the relevant Acts shall be held in private, with the Complainant on one side and an independent note taker on the other, which is neither the Respondent or a representative for the Respondent. Accordingly, I am satisfied that the stenographer should not remain in such circumstances.

In relation to the other preliminary matters raised on the day, I am satisfied that none of which require any additional preliminary determination in the instance case.

Substantive matters

CA-00016573-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Complainant maintains that she issued proceedings under the Employment Equality Acts, 1998 and accordingly, she was subsequently subjected to a disciplinary procedure and was refused access to the Respondent’s discretionary sickness benefit scheme and deems these as acts of victimisation under the under the Employment Equality Acts.

The Relevant Law.

Section 74(2) of the Acts defines victimisation as follows

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

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

(b) any proceedings by a complainant,

(c) n/a”

(g) an employee having given notice of intention to take any of the actions mentioned in the preceding paragraphs”

Conclusion

In the case of Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2) The Complainant was subjected to adverse treatment by the Respondent, and;

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

In the case of the Public Appointments Service -v- Kevin Roddy [EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act”

Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.”

Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that a Complainant demonstrate the connection between her actions in relation to defending entitlements under the Act and the adverse treatment complained of.

The Complainant identifies the protected act as lodging her complaints of discrimination with the Workplace Relations Commission under the gender and race grounds and that the two decisions here by the Respondent were in response. The Complainant in her own submission said that she did not know of how others in the Respondent’s company were being treated in the same circumstances. She had no evidence. I note the Complainant has provided me with company documentation in relation to these issues and the full suite of correspondence regarding the disciplinary procedure.

I have carefully reviewed them and found that all appears to be sound. The circumstances alleged as victimisation from the evidence provided appears as what would apply to an employer who has to address an employee that has amounted sick leave that exceeds the maximum permitted under the sickness benefit scheme and has massed substantial ad hoc absences in a short period of time.

I have not been invited by the Complainant to adjudicate on the Respondent’s procedure or the disciplinary process themselves, but rather that these procedures were brought to bear on the Complainant in her circumstances.

Having considered the test set out in Barrett above, I am left to consider whether there is a sufficient nexus between the alleged adverse treatment suffered by the Complainant namely, the disciplinary procedure and being refused access to the Respondent’s discretionary sickness benefit scheme, was in reaction to the protected action having been taken by the Complainant rather than the Respondent dealing with a common everyday function of the Human Resources department. As the Complainant alluded to herself in her own evidence she has no evidence and no insight as to what would happen to others in the same circumstances. Accordingly, I am satisfied that the Complainant has not demonstrated the connection between her actions in relation to defending entitlements under the Act and the adverse treatment complained of. There is no supporting evidence to carry her over a threshold of establishing the alleged claim of victimisation.

Accordingly, I find that the Respondent has not victimised the Complainant in terms of section 74(2) of the Acts in terms of alleged adverse treatment.  

CA-00016573-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant maintains that she issued proceedings under the Organisation of Working Time Act, 1997 and accordingly, she was subsequently subjected to a disciplinary procedure and was refused access to the Respondent’s discretionary sickness benefit scheme and deems these as acts of penalisation under the Organisation of Working Time Act.

The Relevant Law.

Refusal by an employee to co-operate with employer in breaching Act.

26.— (1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act or the Activities of Doctors in Training Regulations.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

I have considered the same facts above in relation to the alleged victimisation and I have found on those facts that there was no victimisation. Based on the same fact I have considered the claim to penalisation under the Organisation of Working Time Act, 1997, and I find that my position remains the same and that the actions of the Respondent appear credible.

Accordingly, I do not find that the Complainant was penalised.

CA-00016573-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that the Respondent has not victimised the Complainant in terms of Section 74(2) of the Acts. Accordingly, her complaint fails.　

CA-00016573-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the within complaint is not well founded