ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003730

Parties:

Complaint(s):

Date of Adjudication Hearing: 15/02/2018 and 24/05/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 77 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

At the hearing of 15th February 2018, the Respondent submitted that the complaint referred to an employment matter and was therefore incorrectly submitted under the Equal Status Act 2000. The Respondent therefore contended that as the complaint was submitted under the incorrect legislation the adjudication had no jurisdiction to hear an employment complaint under the Equal Status Act 2000, and on that basis the complaint must fail.

The Complainant maintained that he thought he had made the complaint under the correct legislation, but notwithstanding it was a case of workplace discrimination on the grounds of his age, and that he had submitted the specifics of that case in his complaint form and submission to the WRC. He was therefore seeking to have his complaint of discrimination in the workplace heard.

The Respondent contended that it was wrong to progress the hearing as the complaint had been made under the wrong the statute, and if the hearing was to progress without prejudice to its position, which it strongly held, it was not prepared to make a response at the time of the first hearing. Whilst acknowledging both parties felt strongly about their positions to have the complaint either heard or dismissed on a preliminary matter, the hearing was adjourned to consider the preliminary issue, and in light of the Respondent not having prepared for a response to an employment equality complaint.

The hearing was reconvened on 24th May 2019 to afford the Complainant make his complaint and for the Respondent to submit its response to the complaint of employment discrimination without prejudice to its position that the Adjudication Officer has no jurisdiction to hear a wrongly submitted complaint.

Background:

The Complainant was employed as a sales assistant with the Respondent from 15th June 2015.He resigned from his job on 24th December 2015 on the basis he had been discriminated on the grounds of age under the Employment Equality Act 1998, as amended.

The Respondent denied that it had discriminated against the Complainant and contended that the Complainant had resigned his position as a result of personal family circumstances.

Summary of Complainant’s Case:

The Complainant submitted that he had no option but to resign his position on the basis he had been subject to discrimination on the grounds of his age from his work colleagues and from his line manager. The Complainant maintained that when he raised his complaint about the discrimination it was not responded to by management and the discrimination continued to the point that he could not continue at work due to the discrimination and the lack of action of management to address the discrimination.

The Complainant submitted that from the first day of his employment on 15th June 2015 he was being teased about his age as he was 59 years of age at the time. He submitted comments were made to him such as did he have a free travel pass, and where he was called the old man. The Complainant maintained these comments amounted to bullying and were made by his colleagues and his supervisor.

The Complainant has submitted that he raised his concerns to the Managing Director on 20th December 2015. The Complainant advised that when he met the Managing Director a couple days later there was no mention of the bullying issues he had complained of. As a consequence, he provided the Respondent with a weeks’ notice on 24th December 2015 and terminated his contract of employment on the basis the Respondent failed to address his complaints of age discrimination.

In his evidence the Complainant submitted that the bullying/abuse continued constantly for first six to eight weeks of his employment and then he casually confronted his colleagues saying that “the old man jokes might be funny tosome but they could be construed as bullying to others”. The Complainant submitted that the main offenders in the abuse were senior staff. He maintained that after the confrontation the abuse subsided for about a week but gradually increased again to an almost every day occurrence. A new member of staff joined the company in September 2015 and the Complainant observed that this new colleague was also being abused/bullied which highlighted that bullying was rampant in the store. The Complainant further submitted that the new employee turned from being bullied to also making derogatory remarks to the Complainant about his age.

The Complainant stated that the bullying/abuse towards him became particularly bad on Sunday 20th December 2015 and that prompted him to ring the Manging Director. During this call the Complainant maintained that he told the Managing Director about the previous events of bullying and discrimination on the grounds of his age, and as he had thought that he had things under control he did not bring it to the Managing Directors attention before then. During the call the Complainant maintains that he asked the Managing Director if he and the company condemned name calling in the store, but the Managing Director was not quick to come back to him with an answer and also advised that he could not comment on the Complainant’s complaint.

The Complainant also submitted that he was having issues with his supervisor in December 2015 over a genuine request for time off over the Christmas period due to family issues, but he was told to reconsider his request for the time off. Accordingly, in light this and of the Managing Director’s response of not wanting to hear about or condemn the bullying, the Complainant gave a weeks’ notice to his line manager to terminate his position and that he would finish working on 24th December 2015.

The Complainant advised he had met with his line manager a couple of days later who wished him well but never mentioned any of the bullying incidents. The Complainant also maintained that having brought his concerns to his line manager, who was one of the perpetrators of the bullying on previous occasions, he was unsure if the line manager reported this to head office. In light of the Respondent’s lack of action to address the name calling and age related comments, the Complainant submitted he had no option but to leave due to the failure of the Respondent to address the discrimination he had experienced.

Summary of Respondent’s Case:

The Respondent maintained that procedurally as the Complainant was made under the Equal Status it was not within the remit of the Adjudication Hearing to entertain a complaint of workplace discrimination. Notwithstanding, and without prejudice to its position the Respondent maintained that the Complainant resigned his position as result of personal family issues and not as a result of his allegations of bullying and age discrimination.

The Respondent submitted that it was not at all aware of any complaint raised by the Complainant regarding discrimination on the grounds of his age until the Complainant brought this to the attention of the Respondent at his meeting with the Managing Director on 21st December 2015. The Respondent maintained the Complainant was a good employee and it did not want to see him leave his employment.

The Respondent maintained that the Complainant had several meetings with senior management during his employment, and where senior management would have visited the store regularly, but he had not made them aware of his allegations of bullying until the meeting with the Managing Director on 21st December 2015. The Respondent also contended that the Complainant had not advised the Respondent at any time prior to his resignation that he was being discriminated against on the basis of his age. It submitted that the Complainant had only raised one complaint of bullying on 21st December 2015. When this matter was raised it was taken seriously and led to immediate action where the Managing Director sought for the Complainant to raise a formal grievance, but this was never submitted. The Respondent further submitted evidence of the policy and procedures it has in place and how these are brought to employees’ attention. On that basis the Respondent submitted the Complainant was aware of the policies and procedures available to him if he felt he was subject to bullying behaviour or discrimination, but he never utilised these procedures at the time.

The Respondent was of the view that the Complainant resigned because the Respondent was not in a position to confirm that it could give the Complainant time off over the Christmas period, which was its busiest trading period. When it was considering providing the Complainant with time off to facilitate his personal circumstances the Complainant had submitted his resignation, and resigned before any of his concerns could be addressed. The Respondent also submitted that the Complainant was asked to submit his complaint on the 21st December 2015, and on two further occasions after he had resigned but that the Complainant failed to do so. On that basis the Respondent maintained the Complainant left before it was given any opportunity to address the complaints of bullying and discrimination, concerns it maintained it had only become aware of on 21st December 2015.

Findings and Conclusions:

The Complainant submitted that his complaint referred to workplace discrimination and whilst initially submitting the complaint under the Equal Status Act he maintained it was a workplace issue which was clear in his written submission.   The Respondent raised a preliminary issue advising that as the Complaint was a workplace issue the Complainant was not entitled in this instance to make an application under S21 of the Equal Status Act.

Having considered this mater I am satisfied that the complaint does refer to an allegation of workplace discrimination, and this was clear in the written submission made to the WRC. It is therefore clear that the Complainant, who was not represented by a trade union or legal professional, believed he had made the complaint correctly.

With regard to this preliminary matter I refer to jurisprudence where a complaint was made under the wrong Act. In the decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, (unreported, High Court, McGovern J. 24th July 2009). This decision provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same. In Brannigan, McGovern, J said, “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time…Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

Accordingly, with reference to the above decision, I am satisfied the nature of the complaint submitted in error under the Equal Status Act in the case within is the same to that which should have been submitted under the Employment Equality Act. On that basis I do not uphold the preliminary issues raised by the Respondent. The WRC complaint form is not a statutory document. Moreover, whilst the evidence to be relied upon was to be expanded at the hearing I adjourned the hearing to afford the Respondent with a reasonable opportunity to deal with these complaints. Therefore, the procedures have been fair and reasonable and in compliance with the principles of natural and constitutional justice. The Respondent for its part did respond in detail, and with witnesses, at the hearing.

The Complainant alleged that he has been discriminated by reason of his age with regard to the comments made to him by his colleagues in the workplace. He maintained he was treated unlawfully by being discriminated in relation to the comments made about his age, and the failure of local management to deal with his concerns when he mentioned them informally in the workplace, and in the Managing Director’s failure to address his concerns when he raised them with the Managing Director on 21st December 2015. As a consequence, the Complainant resigned his position on 24th December 2015 on the grounds he had no other option due to the Respondent’s failure to reasonably deal with the alleged discrimination.

The Employment Equality Act 1998 (the Act) as amended, defines under S6 that discrimination shall be taken to occur when 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) (in the Act referred to as ‘discriminatory grounds’). With reference to the case within, the discriminatory groundis where the Complainant was of a different (and older age) than his colleagues who he maintained were treating him less favourably which in this Act is referred to as “the age ground”.

At the hearing the Complainant provided uncorroborated evidence that his work colleagues had been making derogatory comments about his age and whilst he addressed this informally at the place of work, it continued some time later. He submitted that his line manager failed to bring his complaints forward to senior management and furthermore that when he brought his concerns to the Managing Director on 21st December 2015, the Managing Director failed to reasonably respond to his concerns. He has contended that on 24th December 2015 he had no option but to resign his position due to the failure of the respondent to address the discrimination.

The Respondent advised that the Complainant’s resignation was due to the fact he had been seeking time off over the Christmas period and as the Respondent was not in a position to confirm this time off the Complainant submitted a letter of resignation. The Complainant subsequently spoke with the Managing Director on 21st December 2015 seeking the time off and where he also informed the Managing Director of the allegations of the age-related comments.

Having heard the case made by both parties I am satisfied that there is insufficient evidence to support that the Complainant did raise concerns regarding being discriminated on age grounds until he spoke with the Respondent’s Managing Director on 21st December 2015, and that was after the Complainant had issued his resignation letter. I am also satisfied at that time the main concern for the Complainant was that he was not happy his request for leave over the Christmas period might not be granted. Whilst there may have been comments made about his age by his work colleagues, the Respondent has published policies and procedures regarding harassment and bullying at work. Accordingly, I find that the Respondent had set out to meet its obligations under 14A of the Act. The Complainant would have been aware of how to raise such a complaint. Notwithstanding I am satisfied that once the Complainant put the Managing Director on notice about feeling he had been discriminated the Managing Director did ask for a formal complaint, but the Complainant left before progressing his complaint formally.

I therefore do not uphold the complaint that the Respondent failed to reasonably address the Complainant’s concerns of discrimination. For his part I find that the Complainant should have formally made his complaint of being discriminated as requested by the Managing Director, but instead he decided to leave before providing the Respondent with a reasonable opportunity to investigate the concerns of discrimination. It is probable his main reason for leaving at that time was to be able to take the time off over the Christmas due to his personal circumstances.

Decision:

In accordance with section 79 of the Employment Equality Acts, 1998 – 2015, having considered the evidence presented I do not find in favour of the Complainant and do not uphold that the Respondent is in breach of its obligations under the Employment Equality Act.

Dated:   17th April 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: Employment Equality Act, Discrimination, Age.