Complainant

Respondent

Parties

Lukasz Wegrzyn

Pallas Foods Limited

Representatives

Caoimhe Heery Solr.                                        Ronan Daly Jermyn Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027457-001

02/04/2019

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated 2nd of April 2019) seeks redress from the Respondent in circumstances where he claims the Employer behaved unlawfully and discriminated against him in the course of his employment.

The Complaint has been brought within the six months from the date of the (disclosed) occurrence and therefore within time limits.

Section 6 of the Employment Equality Act 1998 where

Sub Section (1) For the purpose of this Act…discrimination shall be taken to occur where –

(a)    A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)..(the “discriminatory grounds”)

Sub Section (2) As between any 2 persons the discriminatory grounds..are…

(b)    That they are of different civil status (the civil status ground)…

(c)     That one has a family status and the other does not (the family status ground)..

These are the grounds under which the Complainant has brought his claim.

In addition to this, the Complainant has said that he has also suffered victimisation in the workplace. Victimisation is defined in Section 74(2)of the Act –

“as adverse treatment of an employee by his or her employer” as a reaction to a complaint of discrimination having been made by the employee to the employer.

The Acts specifically protect a person against dismissal or other adverse treatment by their employer because they have made a complaint to their employer about possible discrimination or taken proceedings under the Equality Legislation or opposed by lawful means an act which is unlawful under these Acts etc. Penalising a person for any of these reasons is defined as victimisation. The Acts provide for complaints about victimisation to be made to the Workplace Relations Commission   in the same away as for complaints of discrimination and with the same provision for redress. Per Section 74 of the Act.

The Complainant has also, he says, been harassed in the workplace. Harassment is described in Section 14(A)(7) of the Acts –

“as any form of unwanted conduct related to any of the discriminatory grounds” which “has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person.”

The Complainant has additionally made an allegation that the Employer has provided him with less favourable conditions of employment than another or other employees and which amounts to a discrimination per Section 8 of the Act.

In the event that the Complainant is successful it is open to me to make an award of compensation and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

The Complainant gave evidence on his own behalf.

The Respondent provided me with a formal submission and I heard some evidence from relevant witnesses.

I have carefully considered the evidence adduced. The Complainant works in the warehouse facility owned by the Respondent Employer. He has worked as a general Warehouse operative since 2015 and I note that he continues to work with the Respondent at the time of the hearing.

The Complainant gave his version of events which he says commenced on or about Wednesday the 27th of March 2019. On that date a fellow employee (D) who was known to the Complainant, came to the Complainant, and raised an issue with him. The Complainant says that the confrontation was highly aggressive and threatening. D wanted to physically fight the Complainant and appeared to move in to headbutt the Complainant. At the end of this interaction the Complainant was left, he says, depleted and intimidated. The Complainant immediately wrote an email to several of his line managers. In the email he explains that an incident has taken place and that he feels personally worried and scared for his own safety and that he needs the protection of the company against his alleged attacker - D.

The Complainant in his evidence states that the Company did nothing about this complaint, though I have been shown some evidence from Management of their efforts (within 24 hours of the email) to move in to talk to and take statements from a number of witnesses. This included an interview with the alleged perpetrator. It is clear to me (from the handwritten notes of that meeting) that D expressly blames the Complainant for the heated interaction between the parties on the 27th of March. In the circumstances, I accept that the Respondent company was faced with a situation of having to conduct an investigation into an argument in the workplace where each of the two parties blamed the other for initiating same. The Respondent says it told the Complainant that an investigation was underway.

Some four working days later, the Complainant issued the workplace relations complaint form which ultimately has triggered the Adjudication process herein. This was issued on the 2nd of April 2019. I note that on that same date of the 2nd of April 2019 the Complainant had also been taken to task by his line Manager for not being at his workstation for a considerable period of time in the earlier hours of his shift that day. The Complainant was upset that his moves were being monitored by Management who had been able to detail his absences by looking at the CCTV footage which covered the Complainant’s area of work. The Complainant raised the spectre that this was a retaliation for the complaint that he had previously made against D. It was that night that the Complainant issued a WRC complaint. The Complainant went out on a period of certified sick leave on the next day which stalled the investigation into the argument on the 27th of March though I note this did subsequently get completed.

It was clear to me that the Complainant was dissatisfied with his employer in the immediate aftermath of the incident with D. He felt that the investigation was too slow and that no structures had been put in place to guarantee his safety. As against this the Employer had not yet been able to make preliminary or final findings such that it could assume that D was violent and/or had violent tendancy directed at the Complainant.

However, what has not been made clear to me is how any action or inaction by or on the part of the Employer gave rise to a discriminatory treatment of the Complainant? In his own evidence the Complainant did not reference his family or marital status as having been an issue at any point in the interaction between his employer and himself between the relevant dates from 27th of March and the 2nd of April 2019.

In the normal course of events it is up to the person making the case to prove their case. In EU law Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –

“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove   that there has been no breach of the principle of equal treatment.”

This has been transposed into Irish law by section 85A of the Employment Equality Acts:

“in any proceedings facts are established .. By… a complainant from which it may be presumed there has been discrimination in relation to him/her, it is for the respondent to prove the contrary.”

The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):

“the 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 where 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.

Consequently, it is a matter for the Adjudication Officer to decide whether or not the facts established are of sufficient significance to establish a prima facie case. Should the complainant fail to discharge the initial probative burden which he bears, his case cannot succeed as no prima facie evidence of discrimination can be established.

In Melbury v Valpetters (EDA 917) the Labour Court held that the facts adduced must be established as such 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 that evidential rule.

In considering the events that preceded the Complainant’s decision to issue a Complaint through the WRC I cannot find that he has provided a factual basis from which I can infer a discrimination. The Complainant has not made out a Prima Facie case.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00027457-001 – The Complainant’s claim fails as he has not made out a Prima Facie case against the Employer