ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014236
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Operative | A Production Company |
Representatives | Solicitors | IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018615-001 | 19/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00018615-002 | 19/04/2018 |
Date of Adjudication Hearing: 18/12/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 79 of the Employment Equality Acts, 1998 – 2015 andSection 7 of the Terms of Employment (Information) Act, 1994following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concern allegations of breaches of the Employment Equality Act ,1998 on grounds of Gender, Race, Victimisation, Conditions of Employment and Harassment, |
1: Summary of Complainant’s Case:
1:1 Terms of Employment (Information) Act, 1994: Complaint CA-00018615-001 The Complainant alleged that she had not received a copy of her written terms and conditions of employment as required under the Act. 1:2 Employment Equality Act,1998; Complaint – CA-00018615-002 In a Written and Oral Submissions, the Complainant alleged that she had been subjected to discrimination on Race and Gender Grounds by her Supervisor (Mr. Xa) – in relation to Toilet Breaks, Smoking Breaks, Dress code and generally by the Supervisor behaving in an intimidatory, undermining and derogatory manner towards her. He also made sexist and derogatory remarks about other employees which she found upsetting. She made numerous complaints to Management including a lengthy written Formal Grievance on the 25th February 2018 regarding Mr. Xa but the outcome of these complaints was completely one sided and unsatisfactory. She had been subject to Discrimination and allied Harassment and Victimisation. |
2: Summary of Respondent’s Case:
2:1 Terms of Employment (Information) Act, 1994Complaint CA-00018615-001 Absolutely denied and required documentary evidence was produced to support the Respondent position. 2:2 Employment Equality Act,1998 complaint – CA-00018615-002 The Respondent submitted a detailed Written Submission supported by an Oral Submission with substantial witness evidence. While accepting that there had been difficulties with Mr. Xa in regard to a number of employees none of these situations could be described as falling within the strict remit of the requirements of the Employment Equality Act,1998. There was absolutely no evidence of gender or racial Discrimination against the Complainant and equally no evidence of any Discriminatory Harassment or Victimisation as required by the Act. The Burden of Proof in an Employment equality case lies with the Complainant and she has failed to establish even a prima facie inference of any form of Discrimination on any Equality grounds. A Complaint of Bullying/Formal Grievance of the 25th February 2018, and other areas of complaint submitted by the Complainant was fully investigated by the Respondent and further considered on Appeal. While areas of genuine Managerial concern were identified in relation to Mr. Xa no issues directly linked specifically to the race or gender of the Complainant could be found. Likewise, no evidence of Discriminatory Harassment or Victimisation on Race or Gender grounds could be found. Many of the issues raised by the Complainant were non-specific and applied to many colleagues. Issues alleged such as timing and duration smoke breaks, toilet breaks, dress codes as applied to Health and Safety requirements, abrupt styles of conversation, alleged use of bad language etc were general day to day management issues impacting on many staff and not specifically to the Complainant. The Investigation and Appeal Reports were supplied in evidence. In summary the Responder strongly asserted that there was no case under the Employment Equality Act to answer here. |
3: Findings and Conclusions:
3:1 Terms of Employment (Information) Act, 1994Complaint CA-00018615-001 On reviewing the documentation produced I was satisfied that no basis for a claim exists here. The complaint is dismissed. 3:2 Employment Equality Act,1998 complaint – CA-00018615-002 The Relevant Law The law here is the Employment Equality Act,1998 supported by extensive legal precedents and established judgements. The key issue in this case rests of the legal “Burden of Proof” argument. 3:3 Consideration of the Burden of Proof
Section 85A of the Employment Equality Acts is quoted below 85A.— (1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary. (4) In this section ‘ discrimination ’ includes — ( a ) indirect discrimination, ( b ) victimisation, ( c ) harassment or sexual harassment, ( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
This section sets out the burden of proof requirement to be established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant “from which it may be presumed that there has been discrimination in relation to him or her”. The issue of the evidence needed by both Complainants and Respondents has been carefully considered in the case law of the former EAT and the Labour Court. The starting point is the decision of the Labour Court in Southern Health Board v Mitchell,)2001 ELR201). This is still considered the leading decision in this area. The Court considered the extent of the evidence required, which a claimant must produce, before a prima facie case of discrimination can be made out:
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant 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 is no infringement of the principle of equal treatment.”
This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Adjudicator or Labour Court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.
In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy EDA 0821 as follows:
“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
The argument that mere membership of a protected class ( in this case being of Polish origin and of the Female gender) and specific treatment was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to hat evidential rule. - Melbury Developments Ltd v Valpeters EDA 09/17
Therefore, the evidence produced by the Complainant must be of a sufficient strength / significance to raise a presumption of discrimination which then arises for answer /rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment. The mere difference in for example, gender, and a difference in treatment, cannot in itself provide a sufficient evidential basis upon which to raise a “presumption of discrimination”.
In their submission the Respondent pointed to case law such as the UK case of Madrassy v Nomura International plc (2007 IRLR 246) and quoted
“the mere difference in status( e.g. race) and difference in treatment is in itself insufficient to shift the probative burden”
In summary therefore, the key issue is that in a Discrimination claim good solid proof is required on the Discriminatory grounds being claimed -in this case Race and Gender to sustain a claim under the Employment Equality Act, 1998.
In plain English very solid facts regarding Gender and Race discrimination, as opposed to a range of other issues that may be upsetting to the Complainant but are of a general nature only and apply to a wide variety of staff irrespective of Race or Gender, are required in this case.
However, Legal Precedents notwithstanding, in all situations each case must be seen in the light of its own evidence and particular facts. I will consider these next.
3:4 Consideration of the Evidence (Oral and Written) presented. In this case it was clear that alleged difficulties had arisen around the Managerial style of Mr. Xa. The Complainant had lodged a lengthy Formal Grievance/Complaint against him on the 25th February 2018. This had prompted a detailed investigation and later an Appel Hearing against the results of the first Company Investigation. The Investigation Report and the Appeal report were presented in written evidence and supported by Oral evidence. This was subject to cross examination by the Legal Representative of the Complainant. The Complainant herself gave lengthy Oral evidence and was subject to cross examination by the Respondent Legal advisor. It is well established precedent that it is not the function of an Adjudicator to re run Investigations but to consider on the basis of probability whether acts of Discrimination could be inferred. 3:5 Conclusions Having heard all the evidence presented which included Oral evidence from the Complainant and interestingly also a colleague of the Complaint (also Polish and Female) together with Management parties I came to the firm conclusion that while there certainly were difficulties none of these were directly related to the Nationality or Gender of the Complainant. The work force in this case had a large Polish/non-Irish element and was of mixed gender. The taking /timing of Smoke Breaks/Toilet Breaks, what is or is not appropriate from a H&S point of view clothing, the manner of conversation of an individual Supervisor, his managerial style etc are not Gender or Race specific in a workforce that is of mixed Gender and Racial origin. A telling example was the fact that the Manager, Mr. Xa, was removed from front line engagement with staff due, for example, to alleged difficulties with a male member of staff who was Irish. The Respondent accepted that his manner was abrupt and could be seen as upsetting to staff regardless of Gender or Nationality. In summary the issues at the root of the whole situation were Managerial in nature and not based on any of the Discrimiatory grounds set out in the Act. Accordingly, I have decided that the required level of proof, a required prima facie level, in an Equality case has not been stablished to sustain the overall claim. The Complaints listed on the complaint form are set out below and the required decision is given on each. Discrimination on Grounds of Gender – no prima facie case Discrimination on Grounds of Race– no prima facie case Victimisation as set out in Equality Legislation – no prima facie case Harassment as set out in Equality Legislation– no prima facie case Discrimination in Conditions of Employment – no prima facie case |
4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 7 of the Terms of Employment (Information) Act, 1994requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Act | Complaint/Dispute Reference No. | Summary Decision. Please refer to Section Three above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018615-001 | Case not well founded. Complaint dismissed. |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00018615-002 | No prima facie case to the required level of proof has been established. Discrimination as set out by the Employment Equality Act,1998 has not been established. |
Dated: 21st March 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
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