Complainant

Respondent

Anonymised Parties

A clerical officer

A government agency

Representatives

SELF

Michelle Ní Longáin Byrne Wallace 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-00031928-003

29/10/2019

The Complainant commenced employment with the Respondent on 15th July 2019. This employment ended on 4th October 2019.

The Complainant initially submitted three complaints, two under the Industrial Relations Acts and one under section 77 of the Employment Act, 1998. As the Respondent exercised their right to object to the hearing of any complaints under the Industrial Relations Acts this decision only addresses the complaint CA -00031928 – 003.

The complaint form submitted with attached documentation names other companies and the Complainant contends that other companies are involved. It must be clearly understood that this complaint is made against the named respondent only.

The Complainant submitted several hundred pages with her complaint, mostly emails. I have gone through these carefully and now provide a list of the points highlighted by the Complainant.

During August 2019 the Complainant contends that her requests for training on the Respondent’s computer system were ignored by her line manager.

At the end of August, the Complainant contends that it was clear to her that the team were avoiding her and that ongoing meetings were happening that she was being excluded from. The Complainant checked the Outlook diary and discovered that team meetings were being held every Wednesday morning. The Complainant contends that those attending the meetings were complaining about her and were lying about her. The Complainant alleges that the Department Manager and Director were supporting the employees and took part in this exercise themselves.

Likewise, there was a social meeting every Friday morning where staff would have tea and cakes together. When the Complainant heard about this she started attending as she wanted to integrate and stop the discrimination that she was being subjected to by her colleagues knowing ‘she was employed for the wrong reasons’.

Early in September 2019 the Complainant received an email in relation to training on how to log emails to a spreadsheet, this contained written instruction on how to complete this task. The Complainant found this very degrading and humiliating but pretended it was very important and that she was doing a great job. The Complainant contends that she knew this was manipulation as every time she asked a relevant question she was not given information and was excluded.

The Complainant contends that on 16th September 2019 her responsibility was to update information on the computer system, to do this she had to send emails to two centres, to find out that they were already using the system. This information had not been communicated to the Complainant by her manager or anyone else directly involved with the centres. The Complainant contends that to enable her to complete her job she should have been made aware of this.

On 16th September 2019 when the Complainant returned from sick leave she discovered that two of her colleagues had been asked to update her work during her absence. The Complainant contends that this was not an urgent task and could have waited for her to return to work however her work was completed and this was not communicated to the Complainant. The Complainant then reviewed the work done by her colleagues and claims she found mistakes and incorrect recording. The Complainant’s line manager did not follow up on this but instead asked to meet with her in relation to her absence from work.

On the same date (16/09/2019) on the subject of absence the Complainant contends that she was approached by her line manager and was asked to go to a small office to discuss her absence. The Complainant informed her line manager that she would discuss it at the desk and was asked why she had not informed her line manager about her absence. The Complainant replied that she had contacted the Respondent organisation and informed that she was ill. The line manager then walked away from the Complainant’s desk, she did not ask what was wrong with the Complainant and how she was feeling now on her return.

On 23/09/2019 the Complainant contends that a document for process notification was created long before she was told about it. The Complainant had been asked to make suggestions on this and review the document. The Complainant contends that her knowledge was utilised at a time when she had been excluded from the process. This happened on the same date that the Complainant received an email informing her of a disciplinary process would be commencing in relation to her behaviour.

On 20/09/2019 the Complainant states that the Respondent circulated an email about the Recruitment Campaign for Clerical Officers needed to provide support across all statutory functional areas.

The Complainant states that this left her feeling disappointed that the Respondent had hired her for the wrong reason and would not utilise her knowledge, experience and skills despite her efforts to help them and to contribute to the organisation in a healthy way. The Complainant asked her line manager, all the team including the director, managers in other divisions to include her and consider her for involvement in projects. In the Complainant’s own words, they all ignored her, bullied her and humiliated her (or contributed to it) beyond repair.

On 27/09/2019 the Complainant emailed all members of her division asking them if she could attend all meetings relevant to her area of responsibility. She also asked to be included in all emails containing information relevant to her role. This was never actioned.

On 30/09/2019 the Complainant made a request for some annual leave – this was done 1 month in advance of the dates required. This request was not approved.

02/10/2019 – a task that the Complainant had been completing since 04/09/2019 was given to someone else with no explanation provided to the Complainant.

On 04/10/2019 the Complainant received (hand delivered) a letter from the senior Operations Director and delivered by the senior HR member of staff. This letter informed the Complainant that her contract was terminated with immediate effect and she was to leave the building immediately.

The Complainant refused to leave the office and eventually the Gardai were called and the Complainant was removed from the office.

Introduction

The Complainant submitted a complaint on 25th October 2019 of discrimination contrary to the Employment Equality Acts 1998 to 2015. The Complainant alleges that she was unlawfully discriminated against on the grounds of her age, gender, civil status, religion and race.

The Respondent denies that it discriminated against the Complainant in anyway. The Respondent maintains that it has no case to answer in law pursuant to the Acts and that it has at all times acted lawfully in respect of the Complainant. The Respondent cannot identify with any clarity the matters relied upon by the Complainant in this claim and furthermore, the Respondent cannot identify any specific allegations of discrimination. The Respondent denies the totally unfounded allegations made by the Complainant in their entirety, including, without limitation, the allegations of fabricated documents, fraudulent employment, recruitment and disciplinary procedure, inappropriate and provocative behaviour, use of details from the Complainant’s personal life, exclusion, humiliating and degrading acts, mischievous acts, lying, manipulation, criminal activities and illegality. Insofar as it can do so, the Respondent addresses the allegations of discrimination in this submission by setting out its treatment of the Complainant.

Background

The Complainant commenced employment with the Respondent on 15th July 2019 as a Clerical Officer. Another clerical officer commenced employment on the same day as the Complainant, that person was assigned to another section. The Respondent conducted an induction process for each of the employees. The Respondent managed the Complainant appropriately throughout her employment.

Following a number of issues, involving the Complainant’s conduct, being brought to the attention of the Respondent’s HR Department, the Complainant’s line manager arranged an informal meeting with the Complainant on 14th August 2019 in order to set out the Respondent’s expectations in respect of employees’ conduct particularly in relation to communicating with other staff members. The line manager sent an email meeting request to the Complainant on 14th August 2019. The Complainant declined this request. By email dated 14th August 2019 the line manager informed the Complainant that she was required to attend this meeting.   The Complainant replied by email dated 14th August 2019 stating that she was “expecting (Respondent named) apology prior to any meeting”. The line manager attended the meeting at the scheduled time and place, but the Complainant did not attend, despite being at work in the workplace at this time.

By letter dated 16th August 2019 the line manager informed the Complainant that she was required to attend a rescheduled meeting on 19th August 2019. The Complainant was informed that a refusal to attend this meeting “may be deemed as a breach of conduct with the relevant consequences”.   The line manager directed the Complainant, that if she had any concerns, the Employee Assistance Programme was available to her. The Complainant refused to attend this meeting, despite being at work in the workplace at this time.

The line manager requested that the Complainant attend meetings on two further occasions – 20th August 2019 and 22nd August 2019. These requests were declined by the Complainant. The line manager attended each of these meetings at the scheduled time and place, but the Complainant did not attend despite being at work in the workplace on each of these occasions.

On 22nd August 2019 the Respondent’s Senior HR Manager, invited the Complainant to attend a meeting with him on 23rd August 2019 “to catch up and get an understanding of this a little more”.   He sent an email meeting request to the Complainant, which she declined.

By letter to the Complainant dated 23rd August 2019 he confirmed that the Complainant was formally required to attend a rescheduled meeting with him and the line manager on 27th August 2019. The issues to be considered were outlined together with the consequences of refusal to engage. The letter stated that the issues to be considered were:

“1.          Expectations around communications and conduct whilst working with the Respondent.

2.           Your refusal to comply with the line manager’s request to meet you on 14, 19, 20 and 22 August 2019.

3.            Your refusal to comply with the Senior HR Manager’s request to meet you on 23 August  2019.

4.            Copying a private external email address on internal Respondent correspondence

We are keen to resolve these issues but cannot do so if you decline meeting requests. This meeting does not form part of the disciplinary process, however, you should note that any further refusal to comply with a management request to meet with you on this matter will be viewed as breach of conduct subject to the disciplinary code … to avoid evoking the disciplinary procedure or other consequences (which may include having your employment terminated) I would ask that you comply with my request to meet you”.

Again, the Complainant was reminded of the Employee Assistance Programme. This letter was sent to the Complainant as an attachment to an email meeting request. The Complainant again declined this meeting request and failed to attend the scheduled meeting, despite being at work in the workplace at this time.

Following the Complainant’s repeated refusals to engage with her manager or with HR, she was notified by letter dated 6th September 2019 that the Respondent’s disciplinary process was being commenced. This letter formally required the Complainant to attend an investigatory meeting with the Investigation Officer, Assistant Principal Officer in the Respondent on 13th September 2019. This letter set out the proposed conduct of the investigatory meeting, informed the Complainant of her right to be accompanied and of the potential consequences of refusal to engage. The letter stated “Please be aware that you must make reasonable steps to attend this investigation meeting. If you fail to attend without notice or good reason, the meeting may go ahead in your absence and the investigating officer may draw conclusions based on the evidence available to her. In order to give you every opportunity to participate in this process it is in your best interests to attend. As noted above, you should be aware that this is a serious matter and could result in disciplinary action”. The Respondent’s Employment Handbook which had been given to the Complainant at the commencement of her employment as part of the Induction process, was enclosed with the letter and the Complainant was reminded that the Employee Assistance Programme was available to her.   The Investigating Officer met with a number of witnesses as part of the investigation process. Witness statements were provided to the Complainant on 13th September 2019.

The Investigatory meeting was scheduled for 2.30pm on 13th September 2019. The notification letter was sent to the Complainant by email meeting request dated 6th September 2019. The Complainant declined this meeting request on 6th September 2019. The Investigating Officer and Assistant to Investigating Officer, attended the meeting at the scheduled time and place but the Complainant did not attend.

During this period, the Complainant failed to attend work on Tuesday 10th September 2019 and did not notify the Respondent of her absence. By letter to the Complainant dated 12th September 2019 (sent by email from the HR section dated 12th September 2019) it stated that he was “concerned to note that you have not attended work since Monday 9th September 2019 and that we have not heard from you since that date.   Unauthorised absence is absence from work without notification, permission or just cause and is regarded as a breach of conduct which could evoke disciplinary action with appropriate sanctions being taken”. HR manager asked the Complainant to contact him by 11am on Friday 13th September 2019 in relation to her absence.   The Complainant informed a member of the Reception Staff of the Respondent, by telephone call on the morning of Friday 13th September 2019, that she was absent due to illness and that she would not be attending work that day. The Investigating Officer and the Assistant to Investigating Officer were not provided with notice of this absence.

By letter from the Investigating Officer dated 18th September 2019 the Complainant was provided with a further opportunity to meet with the Investigating Officer on 20th September 2019 in order to respond to the witness statements and to provide any additional information that she considered relevant.   This letter was sent to the Complainant as an attachment to an email meeting request. Again, the Complainant declined this meeting request on 18th September 2019 and failed to attend the scheduled meeting. The Investigating Officer and Assistant to Investigating Officer attended the meeting at the scheduled time and place, but the Complainant did not attend, despite being at back at work and in the workplace at this time.

In the interim, by email dated 24th September 2019 the line manager informed the Complainant that her 3 month probation review was due to be completed by 15th October 2019. The line manager requested that the Complainant complete the relevant sections of the Probation Form and that the Complainant schedule a meeting with her to review the form in advance of the due date.   The Complainant declined this meeting request on 25th September 2019.

The Investigating Officer prepared a report dated 23rd September 2019 which was provided to the Complainant by email dated 25th September 2019. The report confirmed that the Investigation Officer had investigated the following areas of concern:

“1.          Expectations around communications and conduct whilst working in the Respondent organisation.

2.            Refusal to comply with Line Manager’s request to meet you on 14, 19, 20 and 22 August 2019.

3.            Refusal to comply with HR’s requests to meet with you on 23 and 27 August 2019.

4.            Copying a private external email address on internal correspondence”.

The Investigating Officer found that the areas of concern at 1, 2 and 3 above were legitimate but found that area 4 should not be regarded as misconduct.

The report concluded that “in light of the serious nature of the issues raised; the evidence obtained; the absence of any response from [the Complainant] and her refusal to meet with me as Investigating Officer, my conclusion is that the concerns expressed about [the Complainant’s] interactions with colleagues and her ongoing failure to engage with her line manager and HR when requested to do so are legitimate and warrant further action under the Disciplinary Code”.

On 27th September 2019 the Complainant sent an email to the Chief Executive of the Respondent copying HR with the subject line “Fwd: FYI Respondent – Bullying and Harassment”. This email contained no content. It attached correspondence and documents that the Complainant had received from management and HR in respect of the investigation, sick leave and the probation review meeting. On the same date, senior HR Manager at the request of the Chief Executive, responded to the Complainant by sending her an email meeting request for 30th September 2019 attaching the Respondent’s Dignity at Work Policy (the Complainant has previously received this policy at the commencement of her employment). He stated within this email meeting request that “given that there is no explicit instruction on your email I would like to meet with you to understand this further. If this time isn’t suitable please indicate one that is. Alternatively, you may send me a fuller indication of the nature of the complaint and its basis under the Dignity at Work policy”.   The Complainant declined this meeting request and did not respond to the invite email.

By letter dated 30th September 2019 from HR, the Complainant was informed that she was formally required to attend a Disciplinary Hearing Meeting on 3rd October 2019 with the Disciplinary Hearing Officer,   Assistant Principal Officer in the Respondent, and administrative assistant from HR. The letter set out the conduct of the meeting, informed the Complainant of her right to be accompanied and of the consequences of refusal to engage. The letter stated “Please be aware that you must make reasonable steps to attend this disciplinary hearing meeting. If you fail to attend without notice or good reason, the meeting will go ahead in your absence and the Disciplinary Hearing Officer may draw conclusions based on the evidence available to him”.

On 2nd October 2019 the Complainant sent an email copying saying that her access to one of the work systems was blocked. She requested that it be resolved as soon as possible and asked for a list of the system administrators. In reply to the Complainant’s email to request that he not be included in operational emails and to work through such issues with her line manager. The system access issue was organisation wide and was not personal to the Complainant.   Further details can be provided if so required.

The Complainant declined an email meeting request to attend a disciplinary hearing meeting.   The Complainant declined to do so.   The meeting on 3rd October 2019 was attended by management who waited a period of time to give the Complainant the opportunity to arrive before commencing the meeting. The Complainant failed to attend the Disciplinary Hearing Meeting, despite being at work in the workplace at this time.

In his report dated 4th October 2019 the HR manager found that “Matters 2 and 3 in the Investigator’s report involve an intentional or negligent failure to engage in a fundamental aspect of the employment relationship … It undermines both the basis and prospects for a normal employment relationship … there is simply no basis for a normal employment relationship and no point in the continuation of the probationary period given the pattern of failing to engage with line management. The Complainant’s non-engagement with the investigation and disciplinary hearing mean that I have no reason to expect any change in that approach”. For these reasons the deciding manager suggested the disciplinary outcome was dismissal/termination of probation.

The report dated 4th October 2019 was provided to the Chief Operations Officer of the Respondent, who was to make the final decision regarding the disciplinary process based on all the reports and information provided to him within the process. The Chief Operations Officer considered the matter and by letter dated 4th October 2019, he informed the Complainant of his decision to terminate her employment with immediate effect dated 4th October 2019. This letter set out his reasoning for his decision as follows:

“1.          Expectations around communications and conduct whilst working in the Respondent organisation.

2.            Refusal to comply with, the line manager’s request to meet you on 14, 19, 20 and 22 August 2019.

3.            Refusal to comply with HR’s requests to meet with you on 23 and 27 August 2019.

The Disciplinary Hearing Officer has concluded that his conduct is a breach of the Respondent’s rules and is deemed misconduct as outlined in the Employee Handbook

Due to your conduct as set out in the 3 numbered areas of concern, which you have not explained, I have decided to terminate your employment with immediate effect …”.

This letter informed the Complainant of her right of appeal. The Complainant did not exercise this right. The Complainant refused to leave the workplace and forwarded her email of 27th September 2019 with the same and some further attachments to all of the Respondent’s staff.

Legal Submissions

Section 77 (1) of the Employment Equality Acts provides that:

“A person who claims –

a) to have been discriminated against or subjected to victimisation

b) to have been dismissed in circumstances amounting to discrimination or victimisation.

c) not to be receiving remuneration in accordance with an equal remuneration term, or

d) not to be receiving a benefit under an equality clause

in contravention of this Act … may seek redress by referring the case to the Director General of the Workplace Relations Commission”.

Section 77A (1) of the Employment Equality Acts provides that the Director General of the Workplace Relations Commission may “dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter”.

Discrimination

Section 6(1) of the Employment Equality Acts provides that:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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) (in this Act referred to as the “discriminatory grounds”) ….”

Subsection 2 sets out the discriminatory grounds as between any two persons, which include the following:

“a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)

b) that they are of different civil status (in this Act referred to as “the civil status ground”)

e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religious ground”)

f) that they are of different ages but subject to subsection (3) (in this Act referred to as “the age ground”) and

h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the grounds of race”) “.

Burden of Proof

Section 85A (1) of the Acts provides as follows:

“(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”.

In order to demonstrate that the Claimant has received less favourable treatment and that the less favourable treatment arose from her age, gender, civil status, religion and/or race, the Claimant must first establish a prima facie case of discrimination. Prima facie evidence has been held in the Labour Court in the Rotunda Hospital v Gleeson [DDE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

The Respondent notes that this requires that a claimant has to not only establish the primary facts upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA21/2008, the Labour Court recommended that:

“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 in 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”.

In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Complainant’s complaint document sets out a vast number of disparate allegations (all of which are denied) in respect of the alleged conduct of her colleagues, which she alleges took place over the course of her employment from her commencement date on 15th July 2019 to the date of termination of that employment on 4th October 2019.   At no point in her complaint form or her complaint document has the Complainant explained how she contends that any of this alleged conduct amounts to discrimination nor has she linked any of this alleged conduct or any alleged incident to any of the protected grounds on which she claims discrimination.

Conclusion

The Respondent submits that the Complainant was recruited to and employed in a genuine employment. The Respondent at all times dealt with the Complainant in a non-discriminatory manner.   In summary the Respondent made the following attempts to meet with the Complainant, all of which the Complainant refused to attend:

a) Meeting on 14 August 2019

b) Meeting on 19 August 2019

c) Meeting on 20 August 2019

d) Meeting on 22 August 2019

e) Meeting on 23 August 2019

f) Meeting on 27 August 2019

g) Investigatory meeting on 13 September 2019

h) Investigatory meeting on 20 September 2019

i) Disciplinary hearing meeting on 3 October 2019

As outlined above, the Complainant completely refused to engage with the Respondent despite being given every opportunity to do so.

The Respondent has submitted that the Complainant has failed to adduce any evidence whatsoever to support her claims or to establish a prima facie case of direct or indirect discrimination on the grounds of gender, age, civil status, race or religion (or any other protected ground) and /or that she was treated unlawfully by the Respondent by discriminating against her in respect of getting a job, promotion, training, conditions of employment , dismissal, harassment, sexual harassment, victimisation or otherwise.

The Respondent also contends that any complaint of discrimination under the Acts is misconceived.

Section 85A (1) of the Acts provides as follows:

“(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”.

In the instant case the Complainant has failed to establish any facts in support of her allegations of discrimination on the part of the Respondent. I note the Complainant refused to attend all the meetings she was invited to, this was an opportunity to voice any grievance that she may have had in relation to discrimination, she failed to avail of these opportunities. The Respondent stated at the hearing that the Complainant did not make any complaint in relation to discrimination.

The Respondent has stated that the complaint as presented under the Employment Equality Act, 1998 is misconceived. I can find no reason to disagree with the Respondent.

The Complainant was not discriminated against.

The Complainant was not discriminated against.

Employment Equality Act, 1998.