Complainant

Respondent

Parties

Maja Stanislawska

Jaguar Land Rover Ireland

Representatives

N/A 

Desmond Ryan BL, instructed by Lewis Silkin, 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-00030204-001

09/08/2019

The Complainant commenced her employment with the Respondent, a vehicle manufacturing company, on 1 October 2018, in the role of a Technical Lead.

In December 2018, the Complainant made a complaint to her Line Manager (Mr A) in relation to a series of issues which had arisen in relation to her work situation. The Chief Engineer at the Respondent’s Engineering Department (Mr B) was assigned to conduct an investigation into the Complainant’s complaints. A series of three meetings took place, in late January 2019, between the Complainant and Mr B In relation to her complaints.

Following the first of these meetings, the Complainant received an email from HR advising that three formal complaints against her had been received from staff members.

By way of letter dated 1 February 2019, the Complainant was invited to attend a disciplinary hearing, which would be conducted by the Respondent’s General Manager (Mr C), on 6 February 2019. The Complainant did not attend the disciplinary hearing. By way of letter dated 18 February 2019, Mr C informed the Complainant that her conduct constituted gross misconduct and, as a result, her employment should be terminated.   The Complainant was offered the opportunity to appeal the decision within five working days.

Following a series of email correspondence between the Complainant and Mr C in the days following the issuing of the dismissal letter, Mr C wrote to the Complainant on 21 February 2019, advising her that, given their concerns with regard to the Complainant’s fitness to participate in an appeal process, they would not continue with the appeal until they were in receipt of medical confirmation that the Complainant was fit to engage with the process.

Following further email correspondence from the Complainant, Mr C advised, in an email dated 27 February 2019, that if the Complainant felt she was able to participate in the appeal process, the Company would proceed to arrange an appointment with a certified Occupational Health Specialist in order to confirm her fitness to engage with the process. In a further series of emails to Mr C, the Complainant, inter alia, objected to the Respondent deciding on issues relating to her medical condition.

By way of letter dated 1 March 2019, Mr C confirmed to the Complainant that the offer of an appeal process was withdrawn and that the termination of her employment was being confirmed with effect from 18 February 2019.

On 9 August 2019, the Complainant submitted two complaints to the Workplace Relations Commission as follows:

·       A complaint seeking adjudication under Section 21 of the Equal Status Act, 200, in relation of allegations of discrimination on the grounds of gender and sexual orientation. (Complaint Reference: CA-00030204-001)

·       A complaint seeking adjudication under the Industrial Relations Acts, in relation to allegations of unfair dismissal. (Complaint Reference: CA-00030204-002)

The above complaints were submitted to the WRC on behalf of the Complainant by the Legal Aid Board. In submitting the complaints, the Legal Aid Board confirmed to the WRC that they were acting purely in an advisory capacity and were not in a position to provide representation to the Complainant in the pursuance of her complaint.

By way of letter dated 26 September 2019, the WRC (Information and Customer Services Unit) sought clarification from the Complainant as to which legislation, the Equal Status Acts or the Employment Equality Acts, she wished to pursue her complaint reference CA-00030204-001. Following receipt of an email from the Complainant, dated 30 September 2019, the WRC confirmed, by way of letter dated 16 October 2019, that the Complainant’s specific complaint reference CA-00030204-001 would proceed to Adjudication under Section 77 of the Employment Equality Act, 1998.

The letter on 16 October 2019 further confirmed that the Complainant’s specific complaint reference CA-00030204-002, submitted under the Industrial Relations Acts, was considered as being withdrawn. Following further correspondence from the Complainant, the WRC wrote to her on 23 October 2019, confirming that the notification, contained in the letter of 16 October 2019, that her specific complaint reference CA-00030204-002 had been withdrawn, was an error and that this complaint would proceed to Adjudication under the Industrial Relations Acts.

On 11 November 2019, legal representatives for the Respondent informed the WRC that they were exercising their right, under Section 36 (1) of the Industrial Relations Act, 1990, and were objecting to the Complainant’s complaint, reference CA-00030204-002, being investigated by an Adjudication Officer. In a letter dated 14 November 2019, the Complainant was advised of this objection and of her option to have the matter referred to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969.

Consequently, the Complainant’s remaining complaint, reference CA-00030204-002, was delegated to me for investigation and adjudication. A hearing for this purpose was listed for Tuesday, 25 August 2020.

For the record, the Respondent submitted a detailed submission to the WRC, by email, on the afternoon of 23 August 2020, effectively one working day prior to the hearing.   Given the volume of documentation involved, the Respondent sent the submission in three separate tranches, the first of which was also copied to the Complainant. However, on receipt of an immediate response, by email, from the Complainant, to the effect that she did not wish to receive any further documentation, the remainder of the submission was exchanged only with the WRC.

Prior to the formal commencement of the hearing on 25 August 2020, the Complainant informed me that, in a context where the Respondent and the representatives would be in attendance, she was unable to participate in the hearing. While I endeavoured to outline to the Complainant how the process worked and, in particular, that hearing evidence on an ex parte bases would not be consistent with the requirements for a fair process and would not be in compliance with the Employment Equality Acts or with the Workplace Relations Act 2015, I felt that, given the nature of the Complainant’s reactions on the day, it was appropriate and reasonable to adjourn without formally commencing the hearing. I advised both parties that I would reflect on the matter and would revert with clarification on how I proposed to progress the hearing of the Complainant’s complaint.

Having carefully considered all aspects of the matter and, in particular, the requirement to provide a fair and transparent process to all concerned in the hearing of this complaint, I came to the conclusion that the most appropriate approach was to reschedule the case for oral hearing. By way of letter dated 3 September 2020, I advised both parties of my decision in this regard. A rescheduled hearing was set for 29 September 2020.

However, given that the late presentation of the Respondent’s detailed and comprehensive submission had not, in my view, provided the Complainant with a reasonable timeframe in which to consider it in advance of the hearing on 25 August 2020, I offered the Complainant the opportunity to review those submissions and to submit any responses or comments that she may wish to make in reply by 16 September 2020. For the record, the Complainant did not submit any response to or comments on the Respondent’s submission prior to the rescheduled hearing on 29 September 2020.

At the commencement of the hearing on 29 September 2020, the Complainant made a rather robust contribution, which included the use of foul and inappropriate language. I advised all parties present that the hearing must be conducted in a professional, respectful manner and that inappropriate behaviour would not be tolerated from any person in attendance. I also made it clear that if, for any reason, the hearing could not proceed to conclusion on the day, I would conclude and retire to consider all of the evidence adduced up to that point in the process, following which I would issue my decision.

At the outset, I outlined for the parties the process I intended to follow in conducting the hearing into the Complainant’s complaint. Given that the Respondent had submitted two preliminary objections, I decided that it was appropriate to first hear the Respondent’s evidence in relation to these points and any contribution the Complainant may wish to make in reply, before moving to hear the Complainant’s substantive complaint and the Respondent’s submission in response.

The legal representative for the Respondent made his submission in relation to the first preliminary objection. However, when he proceeded to present his submission in relation to the second preliminary objection, that relating to the allegedly frivolous and vexatious nature of the complaint, the Complainant interrupted and, speaking loudly, directed abuse towards the members of the Respondent party, the WRC and towards me, as Adjudication Officer.

Despite my several attempts to restore some calm to the proceedings and having cautioned the Complainant on a number of occasions about her behaviour, she continued to be disruptive and, in fact, became louder and more abusive in her contribution. Consequently, I was left with no option but to conclude the hearing and proceed on the basis as outlined to the parties prior to commencement.

Introduction:

The Complainant submitted that she is transgender and has been diagnosed as having gender dysphoria.

According to the Complainant’s complaint, she was dismissed from her employment as a consequence of making a complaint in relation to work practices, which she believed were based on gender discrimination. The Complainant further stated that she believes that many of the difficulties she has suffered, as a consequence, have arisen due to the distress she suffered given how she had been treated as a transgender person. According to the Complainant’s complaint, she has suffered from depression, as a consequence of this discriminatory treatment.

Background:

According to the Complainant’s submission, she entered into a contract of employment with the Respondent on 1 October 2018. The Complainant further submitted that her contract stated her job title as Technical Lead, with a salary of €75,000 per annum gross.

According to the Complainant, she had undertaken managerial roles in the past in Poland. However, the Complainant stated in her submission that, since she transitioned, she believes that she has been pushed down in her roles. The Complainant stated in evidence that when she initially applied for the Technical Lead position with the Respondent she was offered a different role, but ultimately secured the Technical Lead job.

However, notwithstanding the fact that she secured the Technical Lead role, the Complainant believes that she was initially not allowed to undertake any work in the role for which she had initially applied and that she was treated like a developer, which is a lower grade than a technical lead.

According to the Complainant’s submission, when she was initially hired, her manager, Mr A, who was one of interviewers, had the final say in her recruitment. The Complainant stated that she believed Mr A may have been attracted to her and, initially, her desk was situated next to his. However, the Complainant contends that Mr A became somewhat hostile towards her once he found out that her sexual inclination was lesbian. In her complaint, the Complainant submitted that, while she had no proof of her contention in this regard, it was the impression she initially had of Mr A.

The Complainant further submitted that during the course of her employment with the Respondent, she was consistently pushed down from a technical lead role to that of a developer type role and, as a consequence, mistakes were made, in a number of cases, because her advice was not followed. According to the Complainant, her experience was never respected and other team members consistently refused to take into consideration her extensive experience in her particular field.

With regard to the salary of €75,000 attaching to her position, the Complainant submitted that she believes such salary level is more applicable to a developer’s role, however, she indicated that she is unsure whether this is fully the situation as she was working outside of Dublin.

Incidents of discriminatory behaviour:

According to the Complainant’s submission, matters came to a head during December 2019 following on from a number of, what she described as discriminatory incidents. The Complainant gave the following incidents as examples of the discriminatory behaviour:

·       Technical issues with her Laptop:

The Complainant submitted that, from the commencement of her employment, she had a number of technical issues with her laptop, which were never fully resolved.

The Complainant further submitted that there was also an issue with her name being misspelled. According to the Complainant, she regularly contacted Technical Support to try and resolve this and other issues. However, the Complainant submitted that she believed the issues were not properly addressed. She further submitted that she advised Technical Support that they need to revise their database, however, they placed the onus on her to individually pick out each incident of misspelling rather than revising the database itself.

According to the Complainant’s submission, a further issue arose when she installed a software package which Technical Support misdiagnosed as a virus. The Complainant further stated that matters came to a head when Technical Support rang her twice, in the space of 15 minutes, when she was away from her desk.

In conclusion on this aspect of her complaint, the Respondent stated that it is extraordinary that these issues were never resolved, given the size of the corporation.

·       Issues with another Technical Lead Employee:

In evidence, the Complainant stated that another Polish national, Mr D, was also taken on as a Technical Lead by the Respondent. According to the Complainant, the workload and the responsibility as Technical Lead was supposed to be shared equally between her and Mr D. However, the Complainant submitted that Mr D regularly told her to stay away from shared workloads.

According to the Complainant, she was eventually appointed, by her line manager, Mr A, to lead a “proof of concept” project and was given the official Technical Lead over this project. However, the Complainant submitted that, after a number of weeks, the other Technical Lead, Mr D, started to intervene and bypass her, speaking directly to the developers in relation to the project. The Complainant further submitted that this happened to such an extent that various mistakes were made in the project, which later had to be rectified by her. The Complainant further stated that, in January 2019, she had to spend a period of two weeks attempting to rectify what Mr D had coordinated incorrectly with the developers.

In her submission, the Complainant stated that matters escalated to the extent that one of the developers questioned her openly on the project and she had to go so far as to discuss it at length with one of the team managers, who in turn had to persuade the developers to come into line with what she was advising.

In conclusion on this aspect, the Complainant submitted that she believes these issues arose from the fact she is transgender and there was a deliberate attempt to undermine her and her allocated role.

·       Undermining of her position by her Line Manager:

The Complainant submitted that, in January 2019, her line manager, Mr A, requested her to undertake a presentation, for which she was only given two days’ notice. According to the Complainant, due to the short notice, she was unable to secure the physical product necessary for the demonstration because of trouble with supply lines and, as a result, was left with no option but to order the product directly through Amazon.

The Complainant further submitted that she was given no defined date for the demonstration and was only told at the final hour that external guests, from the Respondent’s Head Office would be attending the presentation.

According to the Complainant’s submission, she had to insist on the developers rectifying a particular issue which arose as a consequence of Mr D’s previous interventions. The Complainant submitted that she was accused by Mr A of placing undue pressure on the developers to have the matter rectified. However, the Complainant submitted that this was necessary in order for matters to be properly presented at such short notice and she advised Mr A that it was he who had, in fact, caused the undue pressure by not giving sufficient notice and not advising her of the attendance of the external guests.

In summarising on this matter, the Complainant submitted that she believed Mr A was attempting to humiliate her in front of the external guests with a view to undermining her position.

·       Incident after Christmas Party:

According to the Complainant’s submission, the difficulties that had arisen with her colleague Technical Lead, Mr D, arose from an incident which had taken place at the staff Christmas Party in early December 2018.

The Complainant submitted that as she was driving Mr D and another employee home from the party when an argument ensued between Mr D and the other employee. According to the Complainant’s submission, when she attempted to defuse the situation and had dropped off the other employee, Mr D took issue with her, grabbed her clothing around the neck area and told her to shut up. The Complaint stated that she had to subsequently restrain Mr D by tightly holding his wrists.

According to the Complainant’s submission, Mr D later apologised for the incident. However, the Complainant submitted that, notwithstanding the apology, she believed that as a result of the incident Mr D had turned against her and was attempting to undermine her position at work.

·       Issue with HR Department:

The Complainant submitted that when she commenced work with the Respondent, a profile was placed on the canteen information board, which was a common practice to help introduce new employees to the rest of the staff. According to the Complainant’s submission, the profile in her case described her as a middle developer and not a senior member of staff. The Respondent contended that this caused difficulties for her from the outset as many staff thereafter considered her to be in a role as set out in the profile description by HR.

In addition, the Complainant’s submitted that the HR Manager, Ms E, failed to adequately transfer her pension and health insurance entitlements in good time. According to the Complainant this matter was not attended to until five months later. The Complainant further submitted that, when she addressed these matters with Ms E, she felt that she did not deal with the matters adequately and that she spoke down to her.

·       Complaints procedure:

The Complainant submitted that, given the extraordinary number of issues arising within a short space of time during her employment with the Respondent, she decided to bring a complaint in relation to some of the matters arising. According to the Complainant, she initially made a verbal complaint to her line manager, Mr A in December 2018.

According to the Complainant submission, the main focus of the initial complaint was in relation to, her manager allegedly not giving her adequate support and the allegedly patronising/unhelpful behaviour of the HR Manager, Ms E. However, the Complainant submitted that during the course of the complaint process, she expanded her complaints to include other issues that had arisen, which were outlined under previous headings above.

The Complainant submitted that, when she lodged her complaint, she was initially contacted by a Senior Manager, Mr B, with whom she had three meetings in late January. According to the Complainant, she believed that her complaints were deliberately misconstrued by Mr B, who, in his initial report, wrote that she was actually complaining of anti-Semitism. According to the Complainant, she had merely used the analogy of anti-Semitism during the Nazi period, comparing it with people’s attitudes towards transgender people.

According to the Complainant’s submission, after her first meeting with Mr B she received an email from HR saying that three complaints had been received against her from other staff members. The Complainant stated that she was suspended in late January 2018, pending investigation, but was never given a timeline for that investigation.

In her submission, the Complainant stated that during her second meeting with Mr B the issue of the complaints against her were addressed and that during her third meeting with Mr B, the issue relating to the assault on her by Mr D, following the Christmas party in 2018, was also dealt with.

The Complainant further submitted that, following their meeting, Mr B commenced disciplinary procedures against her and, the procedure dealing with her complaints effectively concluded, as it was not progressed once the disciplinary procedures commenced.

According to the Complainant’s submission, she believes that the complaints against her were artificially contrived to undermine her position and skew her own complaints. The Complainant stated that, unfortunately, she then sent a number of emails in which she vented her anger and used some insulting language. The Complainant stated that these emails were then used against her. According to the Complainant’s submission she regretted doing this but felt that the prevailing circumstances pushed her into this behaviour.  

·       Disciplinary procedure implemented against her

The Complainant submitted that she refused to participate in the disciplinary procedures as she believed her own complaints were not properly dealt with or advanced in accordance with proper procedure after the complaints against her were received.

According to the Complainant’s submission, she received a letter of dismissal on 18 February 2019 and sent a response by return stating that she was appealing the decision.

The Complainant stated that she subsequently sent more emails to HR, outlining how other transgender people, as a consequence of bullying, ended up with suicidal ideation. According to the Complainant, she was contacted by the HR Manager Ms E, who advised that she was concerned about the Complainant’s mental health. The Complainant further stated that two Gardaí called to a house later that evening, explaining that they had been contacted by Ms E with concerns about her mental health. The Complainant stated that when she became agitated and extremely upset, the Gardaí advised that they wanted to bring her to the acute unit to be assessed and that they would use force to do so, if necessary.

According to the Complainant’s submission, she believed the involvement of the Gardaí to be a deliberate attempt to intimidate her. She stated that the involvement of the Gardaí, by Respondent, which led to her involuntary detention, was extremely heavy-handed and unnecessary. Consequently, the Complainant stated that she believed Ms E’s motivations in this regard to be highly suspicious and dubious.

The Complainant stated that she then received an email from, Mr C, the Respondent’s General Manager, stating that her appeal would only be considered if she agreed to meet a psychiatrist, who would be appointed by the Respondent. According to the Complainant, her appeal was dismissed when she refused to meet the psychiatrist and she received a letter of dismissal from Mr C.

According to the Complainant’s submission she was further discriminated against by the manner in which the disciplinary procedure was conducted. In support of her claims in this regard, the Complainant quoted from the Respondent’s Disciplinary Procedure as follows: “in the event of an employee appealing against suspension or dismissal, no action will be taken until the appeal has been concluded”.

The Complainant submitted that, having indicated she wished to appeal the dismissal decision, the Respondent unfairly imposed a condition on her prosecuting that appeal, whereby they would only consider her appeal if she agreed to meet a psychiatrist, who would be appointed by the Respondent. According to the Complainant, this requirement was unique and highly questionable.

The Complainant further stated that the Respondent had already caused her to be the subject of an involuntary admission to a psychiatric facility, from which she was released immediately following examination and assessment. According to the Complainant’s submission, the Respondent was again demanding that she submit herself to psychiatric examination, as a precondition to exercising her legal right to an appeal of their decision to dismiss her. The Complainant submitted that this was an unjustifiable and unreasonable position for the Respondent to take.

Conclusion:

In summarising her complaint, the Complainant submitted that she had been discriminated against and ultimately dismissed because of gender-based discrimination. According to the Complainant, the dismissal was in and of itself unfair and based on the discrimination as outlined above. The Complainant stated that the examples of discriminatory behaviour, provided in her submission, by her work colleagues and management in the Respondent, individually and collectively amounted to discrimination against her arising from her transgender status. According to the Complainant, she believes it is impossible for the Respondent to adequately account for and/or to explain away such an extraordinary degree of incidents and wrongfully applied procedures towards her, as anything other than gender discrimination.

According to the Complainant, not only have her complaints not been properly dealt with, in accordance with the Respondent’s own complaint procedures but they have been used to undermine her position and skew her own complaints. The Complainant states that her dismissal is and of itself unfair, as proper procedure had not been followed and her appeal was thwarted by the imposition of unfair preconditions to it being prosecuted in fair and open manner.

In conclusion, the Complainant stated that given all of the factors, as detailed in her submission, she feels she has a valid complaint of unfair dismissal on the basis of gender discrimination and also on the basis of improper procedures being applied to her complaint process and also in respect of the disciplinary process as implemented by the Respondent.

Respondent’s Preliminary Objections:

The Respondent made two preliminary objections to the jurisdiction of the Workplace Relations Commission to hear the Complainant’s complaint. These objections are set out under the following headings:

1.       The WRC has no jurisdiction to hear the complaint as it is in breach of Section 41 of the Workplace Relations Act, 2015.

The Respondent submitted that the WRC lacks jurisdiction to hear any complaint pursuant to the Employment Equality Acts t, 1998 – 2015, in circumstances where the Complainant did not at any material time issue any such complaint, but instead issued a complaint under the Equality Status Acts. The Respondent further submits that, accordingly, neither the Complainant nor the WRC have complied with the statutory requirements laid down under Section 41 of the 2015 Act and, on that basis, the Respondent respectfully requested that the WRC should decline jurisdiction in this case.

The Respondent further submitted that, as a creature of statute, the WRC can only act within the powers conferred upon it by the Oireachtas, specifically those powers set out in the Workplace Relations Act 2015. In this regard, the Respondent made specific reference to Section 41 of the 2015 Act, which relates to the presentation of complaints and referral of disputes.

According to the Respondent, the Complainant, in presenting her complaint, did not allege that any provision specified in Part 1 or 2 of Schedule 5 of the Act, as referred to in Section 41 (1), had been contravened. The Respondent contended that the Complainant specifically instituted her complaint under the Equal Status Act 2000, which is not contained in either part of the aforementioned Schedule 5.

The Respondent contends that the legal effect of this error by the Complainant in instituting the complaint is that the WRC has never been presented with the complaint of the client required by Section 41 of the Act and, therefore, has no jurisdiction on which to hear the complaint.

In support of their submission in this regard, the Respondent’s representatives noted that the Complainant had legal assistance in filling out a complaint form. However, it was further pointed out that in any event, ignorance of the law is no defence. In support of their submission in this regard, the Respondent placed reliance on the precedent set in the decision of the WRC in the case An Employee v A Supermarket (ADJ-00007376). According to the Respondent, in the aforementioned case, where the facts were identical to those of the within case, the WRC declined jurisdiction on the basis that the employee had wrongly lodged the complaint under the Equal Status Act.

While placing significant relevance on the decision in the aforementioned case, the Respondent acknowledged that the WRC has not always been consistent in their approach in this regard and referenced the decision of the Adjudication Officer in the case of McCormack v Power City (ADJ-00003730) to illustrate this point. However, the Respondent submitted that the decision in McCormack was wrongly decided on the basis of the clear wording of Section 41 of the Act.

In addition, the Adjudication Officer in McCormack placed reliance on the fact that the Complainant in that case had not had the benefit of any legal advice at the time of submitting the complaint form. According to the Respondent, that position is entirely distinguishable from the present case, where the Complainant’s complaint form was submitted by a solicitor.

Further, in this regard, the Respondent cited the decision of the Supreme Court in County Louth Vocational Education Committee v Brannigan [2016 IESC 40], which it submits, is authority for the proposition that once an outline of the main complaints is made under the appropriate statutory provision, then it is open to the Adjudication Officer to allow further detail to be provided even where such detail is not provided on the form. According to the Respondent, this is manifestly a very different situation to that which pertains in the within case.

Consequently, the Respondent relies upon the Brannigan decision and the statutory wording underpinning the holding of a WRC hearing in order to impugn the jurisdiction of the WRC to proceed with the within complaint. The Respondent further submitted that their interpretation of the Brannigan decision has recently been endorsed and accepted by the WRC in the case of an employee versus an employer (ADJ-00024725)

In conclusion on this point, the Respondent submitted that the failure by the Complainant to present a Workplace Relations Complaint Form identifying a complaint under the Employment Equality Acts means that it is ultra vires for the WRC to proceed to hear this complaint.

2.       The Complaint should be dismissed on the grounds that it is frivolous and vexatious, within the meaning of Section 42 (1) of the Workplace Relations Act, 2015.

In submitting this preliminary objection, the Respondent accepted that this jurisdiction should be exercised sparingly and with caution. However, the Respondent firmly argued that the vexatious nature of the present case is sufficiently exceptional, unusual and extreme to meet the test required.

According to the Respondent the terms “frivolous and vexatious” are not employed in any way pejoratively against the Complainant but are employed as legal terms defined in case law. According to the Respondent’s admission, these terms apply to a situation such as that in the within case where a litigant has clearly determined to have recourse to the legal process in a deliberate attempt to embarrass, scandalise and cause inconvenience to another party to such an extent as to comprise an abuse of process, in circumstances where the Complainant has no stateable basis in law for the very serious allegations she makes and where her case is bound to fail.

The Respondent submitted that, in the context of Section 42 of the Workplace Relations Act 2015, the complaint before the WRC is vexatious in the extreme. According to the Respondent, the allegations of discrimination, which have been persistently made by the Complainant since the outset of her employment, are scandalous and oppressive and have been presented in an unacceptably aggressive and gratuitously abusive manner. The Respondent submitted that the clear aim of the Complainant is to expose the Respondent to the hardship, inconvenience and burden of having to defend appalling allegations which are entirely lacking in substance and which do not meet the prima facie hurdle of discrimination.

According to the Respondent, it is abundantly clear that these proceedings are being conducted out of spite and out of a desire to harm the Respondent and its employees. The Respondent submits that this is seen, inter alia, in the Complainant’s repeated calls, in starkly abusive language, for various employees of the Respondent to be fired and in the unauthorised and extremely inappropriate public communications by the Complainant of totally false allegations against the Respondent on social media.

The Respondent further claims that the Complainant’s communication to and about the Respondent are replete with threatening and abusive language, with outlandish and wholly inappropriate references to mistreatment that is gratuitously and knowingly denigrating of the Respondent and its employees. On that basis, the Respondent submits that it is an abuse of process for the Complainant to seek to have recourse to the WRC in this manner and for this purpose.

While accepting that it is an onerous task to meet the abuse of process definition to the extent that it would make a complaint frivolous and vexatious, the Respondent submitted that the Complainant’s complaint meets this definition in three very specific ways:

Firstly, the Respondent submitted that the manner in which the Complainant has gone about having recourse to the WRC and the most offensive nature of her communication to the WRC is unacceptable and is designed to embarrass the Respondent and its employees and to subject them to personal ad hominem vilification and abuse. According to the Respondent submission, in this regard, the WRC has the power and indeed the responsibility, under Section 42 of the Act, to prevent its processes being used as an instrument of abuse and derision by the Complainant, whose actions are vexatious within the meaning of Section 42.

Secondly, the Respondent submitted that, as is evident from the extensive documentation, being presented in evidence in support of the Respondent’s submissions, the Complainant has made multiple repeated threats, from the outset of her employment with the Respondent, to take the Respondent to court. It is further submitted that the Complainant has referred to large financial awards she claims she would obtain and has repeatedly threatened, in abusive language, to humiliate and cause harm to the Respondent’s personnel, including by causing some to lose their jobs. In addition, the Respondent submitted that the Complainant has repeatedly published, in electronic form, grossly pejorative and defamatory comments about the Respondent and its employees, including making wholly baseless allegations of mistreatment and, for example, likening the Respondent’s actions to rape.

Thirdly, the Respondent submitted that the Complainant has, since the outset of her employment, repeatedly made wild and unsubstantiated allegations of homophobia, transphobia and gender discrimination, such that even routine and banal interactions between co-workers and the Complainant were misrepresented by the Complainant in a grossly distorted manner. According to the Respondent, this has consistently caused fear, concern and upset amongst many of the Respondent’s personnel, ten of whom registered complaints, formal and informal, against the Complainant.

The Respondent further submitted that the Complainant’s repeated use of extremely offensive language is not only totally inappropriate but is itself vexatious of the Respondent and its staff. According to the Respondent, there is absolutely no basis whatsoever for any alleged link between the Complainant’s status as a transgender person and the occurrence in the workplace leading up to the Complainant’s dismissal for gross misconduct, which arose from her extremely inappropriate, offensive and menacing behaviours over a sustained period of time, including the repeated use of the extremely offensive and inappropriate word “faggot” and several other wildly inappropriate and vexatious terms repeatedly uttered by the Complainant.

According to the Respondent, the actions of the Complainant, in the above pattern of behaviour, all of which is documented in correspondence submitted in evidence by the Respondent to the WRC, are not isolated examples of intemperate communication by the Complainant, rather they represent a repeated pattern of the behaviour in which she has engaged since the commencement of her employment.

According to the Respondent, the Complainant’s actions/behaviour is overly oppressive to the Respondent and its employees and, therefore, meets the legal test of a complaint that is vexatious, in that it amounts to an abuse of the process of the WRC. In this regard, the Respondent places reliance on the case of Magat v CD Ireland Ltd (ADJ-00016752)

The Respondent further submits that the legal meaning of the term “frivolous and vexatious” is set out in the judgement of the Supreme Court in Fay v Tegral Pipes Ltd [2005 2 I.R], where, according to the Respondent, the comments of McCracken J aptly captures the reality of the Complainant’s complaint in the within case and illustrates why it is clearly frivolous and vexatious in the legal sense.

The Respondent also submits that the circumstances in the within case, amply meet the definitions of “frivolous “ and “vexatious”, as defined by the Oxford English Dictionary. The Respondent urged the Adjudication Officer to read the entirety of the documentation exhibited by the Respondent in its defence of this complaint, which, the Respondent claims, itself illustrates the frivolous and vexatious nature of the complaint.

In conclusion on this preliminary objection, the Respondent submitted that, in all the circumstances, the Complainant’s complaint comes firmly within the compass of Section 42 (1) of the Act and that the WRC should therefore dismiss the complaint as being frivolous and vexatious as a matter of law.

Respondent’s response to Complainant’s substantive complaint:

Without prejudice to their two preliminary objections, the Respondent submitted that they are fully satisfied the Complainant’s complaint is entirely without merit, such that it does not come anywhere close to meeting the prima facie case that must be established in order to make a complaint of discrimination. The Respondent proceeded to make the following submissions in support of their contention in this regard.

With specific reference to Section 6 (1) of the Employment Equality Acts, the Respondent submitted that the Complainant must establish that she has been treated less favourably by the Respondent than any other person in comparable circumstances on one or more of the discriminatory grounds in order to raise a prima facie case of discrimination.

According to the Respondent, the Complainant has failed to discharge the onus upon her to establish such a prima facie case. The Respondent submitted that the Complainant had repeatedly made most serious allegations of an entirely unsubstantiated nature and has in fact never been treated less favourably by the Respondent on the grounds of gender or any other ground. According to the Respondent, groundless speculation, generalisations and unsupported assumptions have consistently characterised the Complainant’s communications with and about the Respondent. The Respondent submitted that they are an equal opportunities employer and are appalled at the unfounded allegations which the Complainant has repeatedly made.

The Respondent then proceeded to make submission in relation to the various assertions made by the Complainant in her complaint form as follows:

a)       Work Role:

In response to the complaints made by the Complainant in relation to this issue, the Respondent accepted that an incorrect job title of Senior Software Developer was included, in error, in the Complainant’s contract. However, the Respondent submitted that this was corrected by the Respondent on 21 September 2018.

In addition, the Respondent submitted that the HR Manager (Ms E) met with the Complainant on 27 September 2018, to speak to her above her emails in which she had alleged gaslighting and discrimination. The Respondent further submitted that Ms E reassured the Complainant that the issue in relation to the job title was a genuine mistake and offered full support to the Complainant in order to meet her needs.

According to the Respondent’s submission, this issue does not meet the hurdle of a prima facie case and clearly has nothing to do with the Complainant’s gender or any discriminatory ground.

b)      Technical issues with Laptop:

In response to the issues under this heading of the Complainant’s complaint, the Respondent fully accepted that the Complainant’s name was misspelled on its system in error. According to the Respondent, the IT Department endeavoured to fix the issue and the process unfortunately took some time.

The Respondent further confirmed that the Complainant’s incorrect title was not properly updated on the welcome new hire template which meant that the title on the canteen wall was “Software Developer”. According to the Respondent, when the Complainant emailed HR on 18 October 2018, they apologised and undertook that it would be rectified the following next day when the person involved returned to the office. According to the Respondent, when the Complainant sent an email, threatening constructive dismissal, a further meeting was held between the Complainant and HR on 31 October 2018 to address the matter of the emails which she (the Complainant) had sent. The Respondent further stated that in response to the number of allegations being made by the Complainant she was expressly asked if she wished to bring a grievance, but she did not

The Respondent further submitted that there then ensued an exchange of emails between the Complainant and the IT Department about various matters. According to the Respondent, IT raised concerns with regard to the Complainant. When the Complainant’s manager, Mr A, spoke to the Complainant about this, she agreed to try to avoid that type of confrontation in future.

In conclusion, in relation to this matter, the Respondent submitted that it is clear that the issues raised simply did not meet the hurdle of a prima facie case and clearly had nothing to do with the Complainant’s gender or any discriminatory grounds.

c)       Issues with another Technical Lead:

The Respondent entirely rejected the Complainant’s allegation that another Technical Lead, Mr D, attempted to undermine her and her role because she is transgender. According to the Respondent’s submission, the Complainant was permitted to raise concerns about Mr D during the bullying and harassment investigation meeting she had with Mr B on 10 January 2019 and was thus afforded a formal avenue of complaint in this regard.

d)      Allegations that the Complainant’s Manager sought to undermine her:

Under this heading, the Respondent referred to the Complainant’s allegation that her manager, Mr A, put her under pressure to do a presentation at short notice and without telling her that Head Office personnel will be attending. The Respondent completely denies any link between this routine work task and the Complainant’s gender.

The Respondent submitted that this issue does not meet the hurdle of a prima facie case and clearly has nothing to do with the Complainant’s gender and or discriminatory ground

e)      Incident after Christmas Party:

In response to the Complainant’s allegations that Mr D physically assaulted her after the Christmas party in December 2018, the Respondent submitted that when the Complainant raised this issue with Mr B, in the context of the bullying and harassment investigation, she was expressly advised to contact an Garda Siochana, given the seriousness of the allegation.

The Respondent further submitted that the Complainant later confirmed to Mr B that she did not wish to pursue the matter pursuant to the Respondent’s antidiscrimination procedures. Accordingly, the Respondent submitted that this issue does not, therefore, meet the hurdle of a prima facie case on the basis that it was never progress by the Complainant so as to be investigated.

According to the Respondent, without prejudice to this point, even if any inappropriate act occurred – which was never established – the Respondent in any event involves the defence available under Section 15 (3) of the Employment Equality Acts, 1998 – 2015.  

f)        Issues with HR Department:

While acknowledging, as already referred to above, that the notice on the canteen wall was an error, the Respondent completely refute any allegation of irregularities regarding the Complainant’s pension/health insurance entitlements, which are in any event nothing whatsoever to do with her gender or any discriminatory ground, such that the Complainant again fails to make out a prima facie case.

g)       Complaints procedure:

In response to the various issues raised by the Complainant, as set out in her complaint document under this heading, the Respondent maintains that the Complainant cannot make out even a prima facie case of discrimination regarding the Respondent’s complaints procedures, which have been applied with scrupulous fairness to the Complainant.

According to the Respondent when the Complainant sought to invoke complaints pursuant to the Respondent’s procedures, the Respondent fully complied with procedures and afforded the Complainant all necessary support, with the complaint is being investigated by Mr B.

The Respondent further submitted that ten complaints (three formal and seven informal) which were raised against the Complainant by her colleagues, illustrate the sheer toxicity of the working environment that was brought about by the inappropriateness of the Complainant’s behaviour and communications towards her colleagues, were also investigated by Mr B within the same process.

In support of their submission in this regard, the Respondent made specific reference to email correspondence between the HR Manager and the Complainant on 22 November 2018 with details of how to raise a complaint under the Dignity at Work policy. The Respondent also relies on the fact that Mr B contacted the Complainant about her complaint on 14 December 2019 and all appropriate procedures were followed. In addition, the Respondent submitted that the three formal complaints made against the Complainant were provided to her at a meeting with the HR Manager on 23 January 2019. The Respondent further submitted that the Complainant was placed on paid leave from that date, which was entirely appropriate in all the circumstances as evidenced by the documentation being presented by the Respondent.

In conclusion on this matter, the Respondent submitted that this issue does not meet the hurdle of a prima facie case and clearly has nothing to do with the Complainant’s gender or any discriminatory ground.

h)      Disciplinary Procedure leading to Complainant’s dismissal

The Respondent completely denies that the disciplinary process and its outcome were discriminatory. According to the Respondent, the Complainant was ultimately dismissed for gross misconduct arising from her extremely offensive and abusive behaviour over a sustained period of time. The Respondent further submitted that the finding of gross misconduct was made only after a fair, thorough and impartial disciplinary process in which the Complainant was afforded, but chose not to avail of, the full panoply of rights of procedural fairness, participation and input throughout.

The Respondent emphasised the extreme seriousness of the wrongdoing which the Complainant committed. According to the Respondent, the Complainant’s language, sorry tone and attitude in multiple correspondence to co-workers constituted threatening and inappropriate conduct towards her colleagues, which is of such a serious nature that it was found to be gross misconduct.

The Respondent submitted a series of emails in support of their submission in this regard. Specific reference was made to 9 emails, which the Respondent alleges involved the Complainant repeatedly using derogatory and extremely offensive language, of a totally unacceptable and wholly unprofessional nature, which was found to comprise completely inappropriate behaviour. The Respondent also submitted that the Complainant’s verbally abusive and threatening behaviour towards Ms E and Mr B was also found to be totally inappropriate and unacceptable.

According to the Respondent, the Complainant was afforded every opportunity to participate in the disciplinary procedure which was set up to consider the allegations against her and she was invited to a disciplinary hearing, to be conducted by the General Manager, Mr C, to allow her to explain her behaviour and/or provide any mitigating circumstances and information which should be considered by Mr C in reaching his decision.

It was submitted that the Complainant declined to attend the disciplinary hearing and only provided Mr C with further email responses that were also inappropriate. The Respondent further submitted that there were no mitigating circumstances brought to the attention of Mr C and the Complainant also failed to acknowledge, at any point, that her behaviour, conduct and the language, tone in her emails was inappropriate. The Respondent drew particular attention to the Complainant’s email responses to the invitation to attend the disciplinary hearing, which, it was submitted, was similar in tone and language to the correspondence previously sent to Mr B and Ms E.

According to the Respondent, the language and tone of the Complainant’s communications with Mr C caused him further concern in that the Complainant clearly did not consider that she had done anything wrong in the email correspondence which was the subject of the disciplinary procedure. According to the Respondent, instead of providing any mitigation for the emails which were the subject of the disciplinary hearing, the Complainant, in fact, continued to use inappropriate language in her emails to Mr C, who was the disciplinary decision-maker.

It was further submitted by the Respondent, that in reaching his determination that the Complainant should be dismissed for gross misconduct, Mr C considered correspondence which had been received from St. Columcille’s Hospital, Loughlinstown, which requested that the Respondent do everything in its power to ensure that whatever investigation was ongoing was done with transparency and objective assessment of the Complainant’s work.

According to the Respondent submission, the sanction of dismissal in this case was clearly appropriate and open to a fair and prudent employer. It was further submitted that the Respondent sought to make an appeal available but was obliged to withdraw the appeal in light of the Complainant’s suicide threats and concerns for her welfare and for that of other employees in all the circumstances.

Summary and Legal Argument:

In concluding their submission, the Respondent argued that the Complainant had wholly failed to make out a prima facie case of discrimination. The Respondent cited the Labour Court requirements for a case of prima facie evidence, as set out in Mitchell v Southern Health Board [2001 ELR 201].

The Respondent further submitted that the Complainant’s reliance on the gender ground of discrimination does not permit her to bypass the prima facie burden resting upon her in this complaint. The Respondent supported its argument, in this regard, by reference to the case of Graham Anthony & Company Ltd v Margetts [EDA 038], where the Labour Court further commented on the potential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established. The Respondent further cited the case of Arthurs Valpeters v Melbury Developments Limited [2010 21 ELR 64].

The Respondent submitted that the Complainant had failed to discharge the evidential burden required of her and had failed to establish a prima facie case of discrimination accordingly, the Respondent submitted that the Complainant’s complaint should be rejected in its entirety. The Respondent further submitted that it is only if this initial prima facie burden is discharged and the WRC is satisfied that the facts are established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent.

It was further submitted that, in the event that the WRC concludes that the Complainant has met the prima facie threshold, which the Respondent denies she has, then it can readily discharge any onus transferred to it to show that the occurrence in question was not discriminatory for the reasons set out in the above submission.

In conclusion, the Respondent submitted that, notwithstanding the foregoing arguments and without prejudice to each and every one of the preliminary objections, it is the Respondent’s position that the Complainant was always treated fairly, appropriately and lawfully by the Respondent and that the termination of her employment was brought about entirely legitimately and appropriately in circumstances where the Complainant was guilty of gross misconduct of the most extreme and serious nature such as to meet the legal test for a vexatious approach. According to the Respondent’s submission, the Complainant’s recourse to these discrimination proceedings is an abuse of process and should be dismissed on that basis.

In making submission in response to the Complainant’s complaint, the Respondent’s legal representative raised two preliminary objections, before proceeding, on a without prejudice basis, to argue that the Complainant had failed to discharge the onus placed upon her by Section 6 (1a) of the Employment Equality Acts, to establish a prima facie case of discrimination. Consequently, I propose to deal with the matters and consider the submissions made in that order, as follows:

Preliminary Objection 1: The complaint is in breach of Section 41 of the Workplace Relations Act, 2015

The Complainant’s complaint, as submitted to the WRC on 9 August 2019, consisted of two specific complaints, under Section 21 of the Equal Status Act, 2000 and the Industrial Relations Acts respectively.

As is set out in detail in the previous section, the legal representative for the Respondent argued that the WRC lacks jurisdiction to adjudicate on a complaint pursuant to the Employment Equality Acts where, in fact, the complaint has been submitted under the Equal Status Acts. The Respondent contends the Complainant did not make an employment related complaint and, therefore, has not complied with the statutory requirements as laid down under Section 41 the Workplace Relations Act 2015.

The Complainant’s complaint was, in fact, submitted under the Equal Status Act, 2000. However, I am further satisfied that the narrative in the complaint form clearly shows the nature of the substantive claim being made by the Complainant concerns an employment relationship matter between the Complainant and the Respondent. Therefore, it is clear that, in submitting the complaint, the Complainant had, in effect, ticked the wrong box on the initial complaint form.

In considering the objection made by the Respondent in this regard, I place significant reliance on the Supreme Court case: County Louth VEC v Equality Tribunal, [2016] IESC 40. In that judgement, McKechnie J explained the status and the importance of the EE1 form, which was in use by the Equality Tribunal at that time. In paragraph 9 of the judgment, McKechnie J summarised the findings made by McGovern J in the High Court, as follows:

“…(iii) That the EE1 Form, which had no statutory footing and which was merely an administrative document, had as its purpose the setting out, in brief outline, of the nature of the complaint; as such, a Complainant was not limited to its contents.

(iv) That as a result, by analogy with court proceedings, there was no reason why the claim as formulated could not be amended so long as the general nature of the complaint remained the same;…”

I note the Respondent’s argument that the Brannigan decision should not be taken as an authority for the proposition that it is not necessary to submit any Employment Equality Act complaint form whatsoever. On the contrary, the Respondent argues that Brannigan is an authority for a very different proposition, i.e. that once an outline of the main complaint is made under the appropriate statutory provision, then it is open to the adjudication officer to allow further detail to be provided even where such detail is not provided on the form.

In paragraph 32 of his judgement in Brannigan, McKechnie J further states:

“I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose;”

In the context of the above views as expressed by McKechnie J, I do not accept the Respondent’s narrow interpretation that it is necessary for an employment-related complaint to be submitted in a particular format or on a specific form. At paragraph 9 above, McKechnie J refers to amending the claim as formulated provided the “general nature of the complaint” was protected. In the within case, the narrative of the substantive complaint is clear and unambiguously set out and is not amended or altered in any way by re-designating it as an employment equality claim.

The WRC Complaint Form is not a statutory form, therefore, according to Brannigan, the WRC is not required by the legislation to comply with any strict legislative requirements of form and substance.

In submission supporting this preliminary objection, the Respondent relies on Section 41 of the Workplace Relations Act, 2015. In doing so, I am of the view that the Respondent is relying on the incorrect legislative provision. In my view, the relevant provisions, as regards equality complaints, are Sections 79(6)(b), 77 and 75 of the Employment Equality Acts.

Having reviewed those provisions, I am satisfied that there is nothing therein to suggest that a complaint must be submitted to the Director General of the WRC in a strictly specified form or substance. I am also satisfied that no regulations have been made by the Minister under Section 79 (4) of the Employment Equality Acts.

I note the Respondent’s reference to the Complainant’s complaint form having been submitted by a solicitor and to their contention that this fact rendered the within case as entirely distinguishable from the circumstances pertaining in the case of McCormick v Power City [ADJ-00003730], wherein the Adjudication Officer in that case placed reliance on the fact that the Complainant had not had the benefit of legal advice at the time of submitting the complaint form.

The complaint received by the WRC on 9 August 2019 was submitted on her behalf by the Legal Aid Board, who were at that time were supporting the Complainant in an advisory capacity and who had no subsequent involvement or representation in the pursuance of the complaint. I also note from the covering correspondence received, at the time, by the WRC, that difficulties had been encountered when trying to submit the complaint in the electronic format and, as a result, it had to be submitted in the manual format, as a PDF document.

In all the circumstances pertaining at the time of the submission of the Complainant’s complaint, I do not find that they constitute reasonable grounds on which to reject the complaint as submitted.

Finally, in reaching my decision on this preliminary objection, I am satisfied that the Respondent will not suffer any prejudice as a result of my determination on this point. In this regard, I refer, once more, to theBrannigan judgement where, MacMenamin J, stated as follows, at paragraph 61:

“It goes without saying, first, that the duty of the [Adjudication] Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry.”

Given the clear narrative in the complaint form, which was available to the Respondent, in the within case, from the commencement of the process, I am satisfied that the Respondent was clearly on notice of the substantive complaint and cannot suffer any prejudice in circumstances where I accept jurisdiction to hear the complaint.

Consequently, taking all of the above into consideration, I determined that I have the jurisdiction to investigate the substantive complaint under the Employment Equality Acts and, as a result, I dismiss the Respondent’s preliminary objection in this regard.

Preliminary Objection 2: The complaint is frivolous and vexatious, within the meaning of Section 42 (1) of the Workplace Relations Act, 2015.

The Respondent’s second preliminary objection is that the Complainant’s complaint should be dismissed on the grounds that it is frivolous and vexatious. In support of this objection, the Respondent firmly argued that the vexatious nature of this case is sufficiently exceptional, unusual and extreme to allow it to be dismissed on this basis.

In raising this preliminary objection, the Respondent’s legal representative cited Section 42 the Workplace Relations Act, 2015 as the appropriate provision. However, I find that this not to be the correct provision as regards equality complaints. In such cases, the relevant provisions are Section 77 A(1) of the Employment Equality Acts, 1998 – 2015, which states as follows:

“the Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that is has been made in bad faith or as frivolous, vexatious or related to a trivial matter.”

The Respondent submitted that the Complainant’s complaint has been lodged out of spite and a desire to harm the Respondent, with the view to exposing the Respondent to the inconvenience and burden of defending the allegations being made. The Respondent contends that the allegations are entirely lacking in substance and do not meet the prima facie requirement for discrimination.

Having carefully reviewed all of the evidence opened by the Respondent in support of their submission to have the complaint dismissed as vexatious and frivolous, I find there to be a certain validity or credibility to their arguments in this regard. The Respondent’s evidence in this regard contains, multiple examples of abusive language, threats and pejorative or defamatory comments about the Respondent and its employees. The Respondent also cited, what they described as, the offensive nature of the Complainant’s communication with the WRC during the progression of her complaint from submission to adjudication.

Based on the evidence presented, I find the tone and nature of the Complainant’s correspondence and communication, including internally with management within the Respondent, with the administrative staff in the WRC and, more particularly, publicly on various social media platforms, to be wholly inappropriate and unacceptable. While it is clear that the Complainant feels deeply aggrieved in her current circumstances, this does not justify the indiscriminate displays of aggressive and abusive behaviour that have been witnessed in this case.

However, notwithstanding the above views, I believe it is important not to allow the Complainant’s behaviour in pursuing her complaint to become conflated with the validity of that complaint. The Respondent contends that the complaint is lacking in substance and does not meet the criteria for establishing a prima facie case of discrimination. I am satisfied that in order to test the validity of the Respondent’s contention in this regard, it is necessary for me to test the Complainant’s substantive claim.

Consequently, to dismiss the complaint solely on the basis of the Complainant’s behaviour, the majority of which arises post the raising of her internal grievance and the submission of her complaint to the WRC, would be unreasonable in the circumstances, as it would deprive the Complainant of the opportunity to have her complaint properly investigated consistent with the required application of fair process and procedures.

In the Supreme Court case of Farley v Ireland & Others [1997 IESC 60]. Barron J provided a definition as to the meaning of “frivolous and vexatious”, when he stated as follows:

“So far as the legality of matters is concerned frivolous and vexatious our legal terms. They are not pejorative in the sense or possibility in the sense that Mr Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding than the law says it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.”

Similar views were expressed by McCracken J in the Supreme Court case of Fay v Tegral Pipes Limited & Others [2005 IESC 34] when he stated as follows:

“The real purpose of the Court’s inherent jurisdiction to dismiss frivolous and vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for lost causes. And secondly the parties would not be required to defend proceedings which could not succeed”.

It is inherent in both of the above determinations with regard to “frivolous and vexatious” that the case being pursued is a “lost cause” or has “no chance of succeeding”. Given the subjective nature of discrimination complaints in general and, in particular, the specific nature of the complaints being made by the Complainant in the within case, I am satisfied that I would not be in a position to determine the possibilities that the claims might succeed or fail without, at least, first investigating those claims and considering any evidence which may be underpinning the allegations being made.

Having carefully considered all of the above, I find that it would be unreasonable and inappropriate for me to accede to the Respondent’s request that the case be dismissed, without further investigation, on the basis that it is frivolous and vexatious. Therefore, the Respondent’s second preliminary objection is not upheld.

Complainant’s substantive complaint of discrimination:

On the basis that the Respondent’s preliminary objections were not upheld, I now proceed to consider the Complainant’s substantive complaint of discrimination on the grounds of gender and sexual orientation.

Section 85 A(1) of the Employment Equality Acts, 1998 – 2007 states:

“Where in any proceedings facts are established by or on behalf of a claimant 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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he/she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

In particular, the Labour Court elaborated on the interpretation of Section 85 A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "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 submitting her complaint of discrimination on the grounds of gender and sexual orientation, the Complainant set out initial difficulties she encountered with regard to her work role, which she contended were based on gender discrimination. The Complainant then went on to list several examples of what she described as discriminatory treatment. In considering the Complainant’s complaint, I examined each of these incidents/events in order to determine whether or not they established a prima facie case of discrimination.

Work Role Issues:

According to the Complainant’s submission, she applied for the role of Technical Lead with the Respondent. The Complainant stated she was initially offered a different role but was ultimately successful in securing the Technical Lead job.

The evidence adduced in this regard, shows that the Complainant was issued with an offer of employment by the Respondent on 20 September 2018. The job offer identified the Complainant’s role as that of a Developer. The Complainant immediately brought the matter to the attention of the Respondent’s HR Department and indicated that she would not be accepting the Developer role as it was offensive to her experience and skillset. On the following day (21 September 2018) the Complainant sent a further communication to HR which stated, inter alia, that the offering of a lower role was a form of discrimination and, in particular, amounted to gaslighting.

According to the evidence submitted, a representative from the Respondent’s HR Department contacted the Complainant immediately and explained that the title on her contract of employment was an unfortunate error, for which she apologised. The error was immediately rectified and a new contract of employment issued to the Complainant.

Having carefully reviewed the evidence, I find none that would support the allegation that the error in relation to the job title in the contract of employment formed any part of a deliberate or coordinated attempt to discriminate against the Complainant. I am satisfied that the error in question was a genuine mistake on behalf of the HR Administrator, who quickly rectified and apologised for same. In addition, the evidence suggests that the HR Manager, Ms E, met with the Complainant on 27 September 2018 to respond to the allegations of discrimination/gaslighting and to reassure her that the error was a genuine mistake. The evidence further suggests that Ms E also offered the Complainant the Respondent’s full support in order to meet her needs during her employment.

Other than the initial inconvenience of having to bring the matter to the Respondent’s attention and have a revised contract issued, I find that the Complainant suffered no detriment, as the revised contract of employment accurately represented the position she applied for. In addition, there is no evidence to suggest that the Respondent’s actions in this regard represented an attempt to provide the Complainant with a lesser role/salary than that for which she had applied and been interviewed.

In her correspondence to the Respondent, in relation to the contract issue, the Complainant stated that being sent job offers which were lesser than those applied for and being offered lower salary, was a regular occurrence since she transitioned.   While I am not in a position to comment on the veracity of the Complainant’s experiences with other employers, were it to be as she contends, it is, on the balance of probability, very likely that she may have incorrectly attributed similar motivation to the Respondent’s actions in this case.

However, irrespective of what the Complainant may have experienced in other employments, I am satisfied, from my review of the evidence adduced, that such was not the case on this occasion.   As already stated, the error cannot be attributed to anything other than a genuine mistake, which was quickly rectified once notified. Consequently, I can only conclude that the Complainant’s complaint in this regard could not be construed as meeting the requirement associated with the establishment of a prima facie case of discrimination.

A further allegation made by the Complainant in relation to her work role suggested that she was consistently “pushed down” from her Technical Lead role to that of a Developer type role. She also contended that her experience was never respected by other team members. The Complainant further stated that this situation led to many errors at work because her advice was not followed.

The Respondent provided evidence in relation to interactions between the Complainant and some of her colleagues in the IT department. Having carefully reviewed this evidence, I am satisfied that these interactions represent nothing more than technical/professional exchanges and, on occasion, differences of opinion between the parties. While the interactions may have become somewhat contentious, I find that the Complainant’s confrontational communication style was a significant contributor to the unnecessary escalation of these issues.

I also note in this regard that senior members of staff in the respective line reporting channels, who became aware of the issues between the Complainant and her IT colleagues, intervened in an effort to establish a more professional and appropriate working relationship between the parties. On one particular occasion, when the Complainant’s line manager, Mr A, spoke to her about the inappropriate manner in which she was interacting with people, the Complainant indicated that she would try to avoid this type of confrontation in the future.

However, notwithstanding the above commitments from the Complainant, her manager, Mr A, was required to write to her again on 26 November 2018 drawing to her attention, inter alia, “the outrageous, abusive and discriminating” nature of her communications with IT staff, several disagreements with IT staff and the use of a derogatory term towards a colleague at a meeting.

In this communication, Mr A further stated that, while he was happy with the Complainant’s technical performance, how she engaged with her colleagues was an equally important part of her role and the expectation was that she would lead by example and conduct herself in a professional manner at all times. This provides further evidence that the Complainant’s confrontational and unprofessional communication style was giving rise to serious tensions in her working relationship with her colleagues.

Consequently, having carefully reviewed the evidence, I find none which would suggest that the actions/behaviours of her colleagues in this regard could be construed as evidenced for the establishment of a prima facie case of discrimination.

Finally, under this heading, the Complainant alleged that her direct manager, Mr A, was attracted to her until he became aware of her sexual inclination. The Complainant contends, in her own submission, that she had no proof to support allegations but that it was an impression she had. Clearly, such unsupported impressions cannot be considered as a valid basis for a prima facie case of discrimination.

Consequently, taking all of the above into consideration, I find that the allegations made by the Complainant with regard to her Work Role do not satisfy the burden required to establish a prima facie case of discrimination.

Technical issues with Laptop:

The issues raised by the Complainant under this heading are quite similar in nature to those referred to above and the evidence referred to is also applicable to this issue. The Respondent is contending that her colleagues in technical support refused to assist in the resolution of issues, among which were the misspelling of her name on the IT system and technical issues with her laptop.

Once again, the Respondent has provided significant documentary evidence in relation to these issues. This evidence clearly shows the HR Department were actively seeking to have the necessary corrections made to the system and to address the technical issues with the laptop. The evidence suggests that, despite the active involvement of the HR Department in this regard, there were some delays in having the issues rectified. However, I am satisfied that the reasons for these delays cannot be attributed to the Complainant’s gender or sexual orientation.

In addition, in the documentation provided by the Respondent, I note evidence to the effect that other staff, of a different gender to the Complainant, also encountered IT issues with laptops etc, when first joining the Company. This clearly demonstrates that, for whatever reason these issues occurred, they were not attributable to gender.

Having carefully reviewed all of the evidence, I am satisfied that the delays which took place in having the technical issues resolved cannot be seen in the context of discrimination based on either the Complainant’s gender or her sexual orientation. Consequently, these issues could not be construed as meeting the requirements for a prima facie case of discrimination.

Issues with another Technical Lead:

The next example of discriminatory incidents raised by the Complainant in support of her allegations related to issues she encountered with a colleague Technical Lead, Mr D.   According to the Complainant, Mr D failed to share the workload and responsibility associated with their roles. The Complainant alleged that even when she was appointed by her line manager to lead a specific project, Mr D intervened and bypassed her, speaking directly with the Developers in the project.

The Complainant further stated that this led to various mistakes which had to be rectified by her subsequently. She also alleged that she was openly questioned by Developers who subsequently had to be persuaded to accept her advice on the matter.   According to the Complainant’s submission, all of these issues arose from the fact that she is transgender and it represented a deliberate attempt to undermine her in her allocated role.

Having carefully reviewed all of the evidence, which is significant in volume, it is clear that the working relationship between the Complainant and Mr D was fraught and dysfunctional. On 15 January 2019, Mr D submitted a detailed complaint setting out the difficulties he was encountering with the Complainant both from a professional/technical perspective and from an interpersonal behavioural perspective.

While the evidence clearly points to a poor relationship between the parties, there is nothing in that evidence to suggest that Mr D’s attitude towards the Complainant was influenced by her gender or represented an attempt to undermine her because of her gender/sexual orientation. Rather, the evidence suggests that the growing difficulties in the working relationship between the parties mirrored those emerging in the Complainant’s relationships with other colleagues/departments. Based on that evidence, I am satisfied that the Complainant’s inherently confrontational style, rather than her gender or sexual orientation, lay at the core of her quickly deteriorating relationships with colleagues within her workplace.

Consequently, taking all of the above into consideration I find there to be no basis to the Complainant’s contention that her colleague’s behaviour constitutes a prima facie case of discrimination.

Allegations that the Complainant’s Manager sought to undermine her

The Complainant’s complaint under this heading relates to a presentation she was requested to do by her manager, Mr A, in which she alleges she was provided with very short notice and was not informed that personnel from the Respondent’s Head Office would be in attendance. The Respondent refutes this allegation, stating that it was a routine work task, without any link to the Complainant’s gender.

While the Complainant only refers to the issue of the presentation in support of her allegation of being undermined, as a result of her gender, it is clear from the evidence presented by the Respondent, that by January 2019, the Complainant’s relationship with her direct manager was deteriorating, in a similar manner as with some of her other colleagues.

The evidence further shows that, on 22 January 2019, Mr A submitted a formal complaint to HR In relation to the Complainant’s behaviour towards him. According to his complaint, when Mr A requested the Complainant to behave professionally in meetings, she accused him of being sexist and homophobic. In his complaint, Mr A also stated that he was “afraid to correct her behaviour for fear of it been taken as discrimination. This is causing my position to be undermined with the team and is making it much more difficult for me to do my job.”

Having carefully reviewed the significant amount of documentary evidence provided by the Respondent in support of their rejection of the Complainant’s allegations under this heading, I find nothing to suggest that Mr A’s behaviour towards and/or his interactions with the Complainant was motivated by her gender/sexual orientation. In fact, in common with the evidence provided in relation to her behaviour towards others, I find the Complainant’s unprofessional and confrontational approach to her colleagues is the key factor in the deteriorating relationship with her line manager, which resulted in him making a formal complaint against her.

Consequently, taking all of the above into consideration I find that this particular allegation does not contribute to the establishment of a prima facie case of discrimination.

Incident after Christmas Party:

The Complainant’s complaint under this heading refers to an incident which took place after the Christmas Party in December 2018. The Complainant alleges that she was the victim of a physical assault by one of her colleagues, Mr D, when he grabbed her by her clothing around the neck area and told her to shut up. While the Complainant acknowledged in her submission that Mr D apologised following the incident, she believes that, from that point on, he had turned against her and was attempting to undermine her position at work.

In this regard, I also note that the Complainant did not raise this issue with the Respondent at the time it allegedly occurred, nor did she do so during her meeting, on 10 January 2019, with Mr B, who was investigating her complaints at that time. The evidence suggests that it was first raised with the Respondent during the Complainant’s meeting with Mr B on 28 January 2019.

In addition, there is nothing in the evidence which suggests that the alleged assault was brought to the attention of the alleged offender, Mr D, or that a response was sought from/ or provided by him. Consequently, any consideration of the Complainant’s claims in this regard is, therefore, based solely on her account of the alleged incident. 

Having carefully considered all of the evidence adduced in relation to this incident, I am satisfied that, in addition to it having occurred outside of the workplace, there is nothing, even in the Complainant’s own submission in this regard, to suggest that the incident was in any way linked to the Complainant’s gender or sexual orientation.

Consequently, taking all of the above into consideration I find there to be no basis to the Complainant’s contention that the incident after the Christmas Party constitutes a prima facie case of discrimination.

Issue with the HR Department:

The Complainant’s complaint in this regard relates, primarily, to two issues. The first relates to the already referenced issue of the Complainant’s profile description, which was placed on the Company information board in the canteen, containing an error. The second issue related to an allegation that the HR Manager, Ms E, failed to adequately transfer the Complainant’s pension/health insurance entitlements in a timely fashion. In addition, the Complainant alleges that, when she brought these matters to Ms E’s attention, they were not adequately dealt with and she was spoken down to.

As has already been set out above, I am satisfied that the issue with regard to the erroneous description of the Complainant’s profile, which appeared on the information board in the canteen, was a genuine error and was not connected to her gender/sexual orientation.

With regard to the issue of insurance, I note, from the evidence presented by the Respondent, that the HR Department sent a detailed email to the Complainant on 3 October 2018, which contained information relevant to a new starter in the Company. This information included, inter alia, details in relation to health and life insurance. In addition, I note that a general communication issued to all new starters, advising that representatives from the insurance company would be on site on 5 October 2018, to advise with regard to any queries they may have in relation to their insurance.

With regard to the pension issue, the evidence shows that, at a meeting, on 31 October 2018, with the HR Manager, Ms E, the Complainant sought contact information for the Respondent’s pension company. In an email dated 20 November 2018, Ms E provided the Complainant with the contact details of the Client Relationship Manager in the pension company, who would be in a position to address any queries the Complainant may have had in relation to her previous company schemes. In this correspondence, Ms E explained that the delay in responding was due to the fact that she had only received an update, that morning, in relation to another matter which the Complainant had also raised at the meeting on 31 October 2018.

Having carefully considered all of the evidence, I can find nothing which would support the contention that the manner in which the HR Department and/or individual staff within that department dealt with the Complainant was in any way inappropriate. On the contrary, I find that, not just in relation to these particular issues but in general, the HR Department dealt with the Complainant in a supportive and professional manner.

Consequently, taking all of the above into consideration I find no grounds to suggest that in her dealings with the HR Department, the Complainant was treated in a manner that would be consistent with a prima facie case of discrimination.

Complaints Procedure/Disciplinary Procedure:

The Complainant made separate submission in relation to the procedure enacted by the Respondent to consider her complaints/grievances and the disciplinary procedure implemented against her. Given that both procedures overlap in a significant way I have decided to combine my consideration of both issues under one heading as part of a comprehensive consideration of the allegations being made by the Complainant and the responses provided by the Respondent.

While the bulk of the evidence adduced in this regard was provided by the Respondent, I found that the comprehensive nature of the documentation submitted was such that I am satisfied it covers the vast majority of the relevant correspondence/interactions which the Complainant had with the Respondent and their various employees during her employment.

Following a detailed review of that evidence, I am satisfied that, in relation to both the grievance process which commenced into the Complainant’s complaints and the subsequent disciplinary processes, the following aspects of comprehensive and fair application of procedure are clearly exhibited:

·       When the Complainant initially raised concerns, both with her line manager and with HR, she was advised and encouraged to pursue her grievance/complaint and was provided with the appropriate policy/procedure to inform and facilitate the lodging of a grievance/complaint.

·       A senior manager, Mr B, was appointed to conduct an investigation into the Complainant’s complaints. The evidence clearly shows that Mr B approached his task in a fair and objective manner.

·       In the period between the 15th and the 23rd of January 2019, the Respondent received seven written complaints from colleagues of the Complainant in relation to difficulties they were experiencing in their working relationship with her. Given the number and seriousness of the complaints received, the Respondent proceeded to formally investigate the complaints from those complainants who were willing to engage in a formal investigation.  

The Respondent decided the Mr B would conduct these investigations in parallel with his investigation into the Complainant’s complaints. Given that the Respondent was, in effect, dealing with a set of complaints/counter complaints which contained many common issues, this created sufficient overlap to suggest that the decision to task Mr B to conduct an investigation covering all complaints, was reasonable and appropriate, in the circumstances.

The Complainant was placed on paid leave pending completion of the investigation processes. Given the nature of events that were unfolding, I am satisfied that it was reasonable for the Respondent to take this action and I also believe that the Complainant was not, in any way, prejudiced by the Respondent’s action in this regard.

·       During the course of Mr B’s investigations, the Complainant engaged in correspondence with him and with the HR Manager, Ms E. According to the Respondent the language, tone and approach of the Complainant’s correspondence/communications in this regard potentially constituted threatening and inappropriate conduct. Consequently, the Respondent then appointed a senior executive, Mr C, to conduct a Disciplinary procedure with regard to these allegations.

·       The Complainant failed to attend a disciplinary hearing on 6 February 2019, following which Mr C corresponded with her advising that he would proceed to conclude his investigation based on the evidence already in his possession. However, Mr C indicated that he would be willing to consider any submissions the Complainant may wish to make in this regard and provided her with a reasonable timeframe in which to reply.

·       When Mr C later discovered three items of evidence which had not been exchanged with the Complainant, he forwarded same to her immediately and provided her with an opportunity to respond.

·       Having taken due time to consider the evidence before him and having given the Complainant adequate opportunity to make both oral and written representations, Mr C issued his decision, that the Complainant be dismissed, in a detailed letter on 18 February 2019, which set out in a very comprehensive manner his reasons for reaching that decision.

The Respondent was also provided with the option of appealing the decision, if she so wished. By return, the Complainant indicated that she wished to appeal.

·       On the back of a significant volume of emails which he received from the Complainant and telephone calls made to the HR Manager, Mr C wrote to the Complainant on 21 February, expressing his concerns as to her welfare and ability to fully participate in the appeal process. Mr C further indicated that, based on medical advice from the Company Doctor, he intended to pause the appeal process pending confirmation that the Complainant was medically fit to participate in the process. Mr C also confirmed that he was willing to make an appointment with the Company Doctor for this purpose.

Having carefully reviewed the tone, tenor and nature of the Complainant’s correspondence to Mr C following the issuing of his decision on 18 February 2019, I am satisfied that the Respondent’s decision to postpone the appeal process pending medical certification of fitness to participate in the appeal process, was appropriate in the circumstances and one that any reasonable employer might take.

·       The Complainant responded negatively to the suggestion that she should have to submit to medical examination by the Respondent’s Doctor. Based on the tone, tenor and content of this correspondence, Mr C wrote to the Complainant on 1 March 2019, advising that the right to appeal had been withdrawn and confirming the termination of employment, with effect from 18 February 2019.

Based on the tone and nature of the Complainant’s correspondence to Mr C, I can only conclude that the Respondent’s decision to withdraw the appeal and confirm the dismissal could not be considered as unreasonable and, once again, it is a decision that any reasonable employer, in a similar set of circumstances, might well take.

In some of the Complainant’s correspondence to the Respondent, during the course of the investigation process, she contended that any inappropriate behaviour on her part towards colleagues was in response to discriminatory treatment she was experiencing from them. Having carefully reviewed all of the evidence, I cannot concur with the Complainant’s contentions in this regard.

Firstly, the evidence does not support the Complainant’s allegations that she was subjected to discriminatory behaviour/actions by her colleagues. Secondly, the behaviour/actions, for which the Complainant was disciplined and subsequently dismissed, following due process, were of a most egregious and wholly unprofessional nature. Such behaviour is not justifiable in any context.

Consequently, based on all of the above and taking all the circumstances into consideration, I am satisfied that the Complainant’s dismissal was based on reasonable and well-established grounds of gross misconduct. I am also satisfied that the dismissal was not linked to or influenced by the Complainant’s gender or sexual orientation.

Conclusion:

Consequently, taking all of the above into consideration and having carefully reviewed all of the evidence adduced in this regard, I find that the Complainant has failed to establish a prima facie case of discrimination, such that the burden should shift to the Respondent to prove the contrary, as set out in Section 85 A (1) of the Employment Equality Acts, 1998 – 2007.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of gender and sexual orientation and her complaint in that regard is, therefore, not upheld.

Employment Equality

Gender

Sexual orientation

Frivolous/Vexatious