Complainant

Respondent

Parties

Edward Fitzpatrick

Tipperary County Council

Complainant

Respondent

Anonymised Parties

Representatives

Tom O’Donnell, BL

Keith Irvine, LGMA

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-00030357-001

19/08/2019

The Complainant contends that he was victimised for pursuing a bullying and harassment complaint against his supervisor.

The Complainant is employed by the Respondent as a General Operative. The Complainant and others brought a grievance against his supervisor for bullying and harassment in or around 30th September 2013.     The Complainant and his colleagues subsequently withdrew their complaints when assurances were given by the Respondent that they would no longer be required to work under his supervision. In breach of the assurances given, the supervisor was restored to the same position and the Complainant suffered to his detriment in being compelled to work under the same supervisor he previously had a grievance with. The Complainant filed further complaints of bullying and harassment against the same supervisor in or around 14th July 2017 relating to incidents occurring on 5th and 6th July 2017. It is submitted that as a result of the sustained and orchestrated bullying and harassment the Complainant was subjected to, in or around 6th September 2017, he was compelled to apply for a transfer out of the division.   In his application, the Complainant cited the bullying he had experienced. The Complainant’s transfer request was ignored. The Respondent’s investigation of the Complainant’s grievances took one and a half years to complete. The Complainant’s complaint was not upheld, although neither the Investigator nor the Respondent considered whether the behaviour complained of occurred on the balance of probability, merely that both parties’ accounts could not be reconciled. The Complainant exercised his right to appeal, however as the Respondent concluded that “no new information or evidence“ was given, the appeal was disallowed. Overall, the Respondent took approximately two years to address the Complainant’s grievance.

By letter dated 21st May 2019, without advance notice and prior to the outcome of his appeal in relation to his bullying and harassment case, the Respondent unilaterally reassigned the Complainant to another area, due to (a) “boundary reconfiguration” and the Complainant’s (b) “previous expression of interest in transferring” out of his area. The Complainant was to be reassigned with effect from 1st June 2019.   The reassignment was for “one outdoor staff member only”. In response, by letter dated 23rd May 2019 the Complainant stated that since his expression of interest in a transfer (almost 2 years earlier) his “personal circumstances have changed” and he was no longer interested in a transfer. The Respondent replied on 24th May 2019 stating it was not an offer of a transfer rather “you were clearly informed of your reassignment .. as a consequence of the reconfiguration of the District boundaries”, and that the decision was the exercise of management’s right to utilise staffing resources as it sees fit.     It should be noted that the decision to transfer was made by the same Engineer who made the initial decision to dismiss the Complainant’s grievance in February 2019 who was at all times aware of the circumstances surrounding the situation. The Respondent’s Dignity at work policies provide that where a complaint is not upheld following an investigation, a “voluntary transfer” may be considered.   However, in this case the Complainant was not given the voluntary option but was compelled to transfer.   The Complainant appealed the transfer citing personal reasons (cares for a family member); distance from home to work would increase from 11km to 40km; he is happy to work under the current acting Services Supervisor. By letter dated 17th June 2019 the Respondent confirmed its decision to uphold the original decision to transfer the Complainant.  It is argued that no reference was made to any other employee in the Complainant’s area being offered the option of reassignment or even if any other member of staff was considered for reassignment.     The Redeployment arrangements for Local Authorities as set out in the Public Service Agreement 2010 provides that in situations where staff may be deemed surplus due to rationalisation or reconfiguration or restructuring, “the local authority should, in those circumstances, identify the numbers of staff at each relevant grade which are surplus”. In considering the redeployment of surplus staff, the Respondent is required to consider redeployment in the following order:

“1. Volunteers who are willing to redeploy should be sought from relevant grades in the organisation;

2. Where there are no or insufficient volunteers, staff for redeployment will be selected and will be required to redeploy.   Selection will be made in accordance with the “last in first out” principle (LIFO). Seniority is in the context of LIFO is defined as the most senior in terms of pensionable service within the grade save where different arrangements exist for the determination of seniority.”

Section 6.1 of the Respondent’s Grievance and Disciplinary Procedure includes that:

“During the course of the grievance procedure, the status quo will be maintained and work will continue without interruption.”

Despite the appeal process still pending, the Respondent breached the status quo and predetermined the outcome of the Complainant’s bullying and harassment appeal and wrongly reassigned the Complainant.   Further, the Respondent did not consider any less experience employee for reassignment and did not offer any other employee the choice of reassignment and did not apply the LIFO principle as shown by the following summary of the length of service and distance to reassigned location for the other employees in the area:

Employee        Service from   Distance from home

Complainant:       2003             40km

Mr A:                     2005             29km

Mr B:                     2014             27km

Mr C:                     2014             31km

Mr D:                     2016             18km            

The Complainant contends that he was victimised by being reassigned as a consequence of pursuing a grievance against his supervisor on 14th July 2017 and such adverse treatment is contrary to Section 74 (2) of the Employment Equality Acts 1998-2011.

The Complainant’s representative made a supplemental submission following the hearing. In it the Complainant’s representative addressed a number of matters.  It is submitted that as the Respondent had raised a point of law at the hearing, this was in contravention of the WRC’s Procedures in the Investigation and Adjudication of Employment and Equality Complaints (October 2015), and that the Complainant takes issue with being ambushed at the hearing. It is submitted that in ADJ-00017991, the Adjudicator found that a last minute ambush of documentation by one party prejudices the other party. It is argued that, in line with the Procedures, where the WRC indicates that in all cases, an adjudication officer hearing the complaint may draw such inference or inferences as he or she deems appropriate where relevant information is not presented in a timely manner, the Adjudicator should infer that the Respondent did not wish to adopt fair procedure by ambushing the Complainant at the hearing and further typifies the unfair procedure adopted by the Respondent throughout the initial bullying and harassment grievance and in the manner the Complainant was unfairly transferred.

Legal submission

Section 74 (2) of the Employment Equality Acts 1998 – 2011 defines victimisation as dismissal or other adverse treatment as a reaction to:

·         A complaint of discrimination made by the employee to the employer;

·         Any proceedings by a complainant

·         An employee having represented or otherwise supported a complainant;

·         The work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act;

·         An employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment;

·         An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or

·         An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Complainant raised a bullying and harassment grievance or “proceedings” against his supervisor.           Section 2 of the Employment Equality Acts 1998 -2011 defines “proceedings” as:

(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.

The Respondent’s Bullying and Harassment Prevention Policy states that bullying may amount to harassment.   Harassment is defined within Section 14A of the Employment Equality Acts 1998 – 2011 as follows:

14A (1) for the purposes of this Act, where –

(a) an employee (in this section referred to as ‘the victim’) is harassed .. either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is ..

(i) employed at that place or by the same employer

(ii) the victim’s employer

(iii) …

Or

(b) without prejudice to the generality of paragraph (a)

(i) such harassment has occurred, and

(ii) either –

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) It could reasonably be anticipated that he or she would be so treated,

The harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

The Complainant’s Terms & Conditions of Employment at January 2003 provide at paragraph 24, Equality as follows:

(The named Employer) is committed to a policy of Equality of Opportunity in its employment practices and has a positive action programme in place to realise this policy. (The Employer) is also committed to the maintenance of a working environment free of all forms of harassment.

Equality of opportunity has not been applied in the Complainant’s case, as despite being the longest serving and most experienced employee in the area, he was transferred without any consideration. Further, the Respondent guaranteed to protect against “all forms of harassment” not just limited to the usual nine grounds. Consequently, the Complainant contends he was treated differently to his fellow employees and victimised in relation to his conditions of employment pursuant to section 14A of the Act. It is therefore submitted that the Adjudication Officer has jurisdiction to hear and determine the matter.

Further or in the alternative, the Complainant requests that the dispute be investigated and the Complainant will accept the recommendation of the Adjudication Officer pursuant to section 20 (1) of the Industrial Relations Act 1969. It is presumed that this would be a matter which the Respondent would need to consent to. Should such a consent be forthcoming, as the Complainant has already given and completed his evidence on 27th January 2020, no further evidence would be necessary from the Complainant and would be open to examination by the Respondent. Should this not be consented to by the Respondent, the Complainant would bring a fresh claim under section 20 (1) of the industrial Relations Act 1969.   Similar argument would apply and the Complainant will be seeking the Adjudication Officer recommend that he be transferred back to his previous role.

In relation to the allegation of victimisation it is submitted that S74 of the Employment Equality Act 1998 identifies:

(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having in good faith –

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment)

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment

(c) given evidence in any criminal or other proceedings under this Act or any other repealed enactment or,

(d) given notice of an intention to do anything within paragraphs (a) to (c).

The Respondent has never been notified of any issues with regard to the Complainant in relation to an Equality issue and no complaint has ever been raised by the Complainant in relation to actions taken by the Respondent where equality grounds have been identified.

The Respondent would assert that as no complaint under the Act has been raised, it cannot have been seen to have victimised the Complainant.   The Complainant maintains he was “victimised for bringing a complaint and the Respondent failed to address his complaint promptly or at all in the hope that it would just go away.”   The complaint referred to was a bullying complaint which the Complainant brought against his Supervisor, which complaint was not upheld.

Based on all of the circumstances outlined, the Respondent contends that the Complainant has not established a prima facie case of discrimination or victimisation and the case should be dismissed.

Substantive issue

The issue for decision in this case is whether the complainant was victimised by the respondent within the meaning of S.74(2) of the Acts.

Section 74 (2) provides:

“(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)       An employee having represented or otherwise supported a complainant;

d)      The work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act;

e)       An employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment;

f)        An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or

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

In the case of Tom Barrett v Department of Defence EDA1017, the Labour Court set out the three components which must be present for a claim of victimisation under Section 74 (2) to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a) to (g) of Section 74 (2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.   In this instant case I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

The Complainant argued that he had lodged a complaint to his employer that he had been subjected to bullying and harassment by his supervisor and the ensuing investigation and process constituted “proceedings”. He contended that as a direct result, the Respondent proceeded to reassign him to an area some 40 kms from his home, whereas the area he was in was 11 kms from home.

Section 2 of the Employment Equality Acts 1998 -2011 defines “proceedings” as:

(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.

The Complainant argues that he instituted “proceedings” in the form of a bullying and harassment grievance against his supervisor. The question to be considered is whether this constituted a “request orreference” under the Employment Equality Acts 1998 -2011.  

Section 14A – (1) of the Acts provide:

“14A. - (1)   for the purposes of this Act, where –

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is -

(i) employed at that place or by the same employer

(ii) the victim’s employer

(iii) a client, customer, or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a) -

(i) such harassment has occurred, and

(ii) either –

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) It could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

Section 14 A – (7) of the Acts provides:

“(7) (a) In this section –

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds..

Section 6 (1) of the Employment Equality Acts 1998 – 2011 provide the definition of discrimination for the purposes of the Act, as:

“(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)..”

Section 2 of the Acts contains nine specific grounds of discrimination as follows:

The ‘gender’ ground

The ‘civil status’ ground (formerly marital status)

The ‘family status’ ground

The ‘sexual orientation’ ground

The ‘religion’ ground

The ‘age’ ground

The ‘disability’ ground

The ground of ‘race’ (including race, colour, nationality or ethnic or national origins)

The Traveller community.

I find that the Complainant, having submitted his grievance to the Respondent that he was subjected to bullying and harassment in the workplace, which allegation was not linked then or since to any of the nine grounds in the Act, did not take action that could be regarded as a “protected act”, and he therefore does not meet the first limb of the test as in the Labour Court decision in Barrett v Department of Defence. Therefore his complaint that he was victimised as a result of his action which was unrelated to the Employment Equality Acts cannot succeed.   In light of the foregoing, I find that the Respondent did not discriminate against the Complainant contrary to the Acts.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have concluded my investigation and have decided that the Respondent did not discriminate against the Complainant contrary to the Acts, and his complaint does not succeed.        

Harassment, victimisation, nine grounds.