Complainant

Respondent

Parties

Dragan  Bogdanovici

Emerald Contract Cleaners (Ireland) Limited t/a Emerald Facility Services

Representatives

Dave Curran SIPTU

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034849-001 WITHDRAWN

25/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035852-001

27/04/2020

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

CA-00035852-002

27/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035852-003

27/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035856-001 WITHDRAWN

27/04/2020

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

CA-00035856-002

27/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035856-003 WITHDRAWN

27/04/2020

The Complainant commenced working with the Respondent on 8 February 2008 and was dismissed on 28 November 2019.  The Complainant was paid a gross sum of €594 on a fortnightly basis for 27.50 hours work per week. The Complainant submits that he was unfairly dismissed and did not receive his statutory minimum notice. The Complainant further submits that he was subjected to discriminatory treatment and harassed by the Respondent on the grounds of race. The Complainant is of Romanian heritage.  The Respondent denies all claims.    

CA-00035852-001 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act 1977:

The Complainant submits that he was dismissed without a proper investigation in line with fair procedures and natural justice. The Complainant submits in particular that the Respondent failed to gather evidence in the investigation which verified his defence. Furthermore, the Complainant submits that the investigation meetings were biased from the beginning and that the Respondent was dismissive of his accounts.

On 17 September 2019 the Complainant was issued with a verbal warning by his Regional Cleaning Manager following an apparent disagreement between himself and a caretaker on site. No investigation was held into this.

On 3 October 2019 he received a letter from the Respondent stating a complaint had been made against him, namely that he had been on a site without permission on a Saturday. He was suspended pending an investigative meeting. A number of investigative meetings took place.  These meetings ran in parallel with a series of bullying and harassment complaints which the Complainant had previously submitted against a supervisor. 

A number of investigative meetings took place.  These meetings ran in parallel with a series of bullying and harassment complaints which the Complainant had previously submitted against a supervisor.          

The Complainant submits that at all times it was his understanding that he had the Respondent’s permission to go to a school site on a Saturday. This was to finish any leftover work from the previous Friday. The Complainant submits that two previous supervisors and a previous principal of the school, were aware of this practice but that the Respondent made no attempts to contact them.

The Complaint further submits that a colleague, Ms A, would verify the arrangements for working Saturdays but contends that in spite of a management assurance to contact Ms A, the Respondent never did so.

Ms A gave evidence that she had been in Poland for a number of weeks for a medical procedure during the time of the investigation but received no contact from the Respondent either in written form or by telephone. She testified that there was no evidence of missed calls on her phone from that time. Ms A ststed that the practice was allowed by previous supervisors to turn up at the site on Saturday to finish any work that was left from the previous weekdays. She stated this was done partly out of fear of being disciplined for not carrying out the full cleaning duties during the week as sometimes it was impossible to carry out the work allocated.   

At the investigative meetings the Respondent referred to a memo of 22 August 2019 which purported to show that staff were not to work Saturdays but to instead stay the full hours onsite on week days. The Complainant argues that this memo made no reference to Saturdays and was not understood by either the Respondent or the staff to refer to Saturdays. It instead relates to concerns about leaving early.

Legal Argument:

The Complainant cites the Employment Appeals Tribunal case Employee v Employer UD2040/2010 on the issue of witnesses not being interviewed where the Tribunal stated:

“it is clear to the Tribunal that not all relevant witnesses were interviewed, most notably Mr. (PB) whose recollections would have shed light on what had happened.”

On the matter of unclear instructions with regard to working, the Complainant cited the case of Patrick Garland v Irish Rail UD125/92.

CA-00035852-003 Complaint seeking adjudication under Section 12 of the Minimum Notice & Terms of Employment Act 1973:

The Complainant submits that he was summarily dismissed without notice and is entitled to 6 weeks’ notice, based on his service with the Respondent.

CA-0003-00035852-002 Complaint seeking adjudication under section 77 of the Employment Equality Acts 1998 – 2015; Discriminatory Treatment:

The Complainant submits that he raised serious allegations of bullying and harassment and that these allegations were not properly investigated by the Respondent.  The Complainant submits that the Respondent did not provide any documentation from interviews until after the investigation was finished. Neither were there agreed minutes. The Complainant submits that the investigation report refers to the Complainant ‘ranting’ when describing the supervisor not being good at his job and that the use of such subjective and dismissive language by the investigator indicates a lack of neutrality and undermined his serious allegations.  The Complainant contends that there was no appeal offered on the findings of his allegations. The Complainant submits that the discriminatory treatment arises from the unfairness and weakness of a flawed investigation and that such an improper investigation amounted to discrimination on the basis of his race.   

CA-00035856-002 Complaint seeking adjudication under section 77 of the Employment Equality Acts 1998 -2015; Harassment.

The Complainant submits that the Respondent treated him unlawfully by discriminating against him by nature of harassment. The Complainant gave evidence that he was Romanian by heritage and that a supervisor called him a ‘gypsy’. He reported this to the Respondent as part of a bullying and harassment claim. He submits that this was never investigated properly under the Employment Equality Act 1998, as amended and that such treatment constituted harassment.

CA-00035852-001 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act 1977:

The Respondent submits that the Complainant was properly and fairly dismissed.

On Saturday 28 September 2019 the Complainant was witnessed by the school principal on the school premises where he normally worked on week days. The Principal was unhappy and deeply concerned with the presence of the Complainant onsite, out of hours. The Complainant was subsequently informed of the allegation and was suspended on 3 October 2019.

The Complainant was invited to an investigative meeting where both a complaint of bullying, which he had previously made against a supervisor, and the investigation into the school incident were addressed. Subsequent meetings were also held to clarify ancillary points raised by the Complainant.

The outcome of the disciplinary process was issued to the Complainant on 28 November 2019 where it was found that he had attended a client’s site out of hours. The disciplinary outcome indicated that it did not believe that the Complainant was on site to work, or carry out cleaning duties for the following reasons:

·       He was not wearing a uniform;

·       There was no cleaning equipment to perform any task present;

·       There was no cleaning equipment in the classroom;

·       The Complainant gave different accounts as to what tasks he was completing;

·       The timeline of events as described by the Complainant did not make sense;

·       The premises were cleaned the previous day;

·       The Complainant was working for free on the Saturday in question.

On the balance of probabilities, his reasons for being on site could not be corroborated and it was found he was more likely on site without permission.  The outcome found that the Complainant’s actions amounted to gross misconduct and he was dismissed.  The Complainant was allowed an appeal to an independent external person who upheld the decision.

Mr B, Managing Director of the Respondent company, gave evidence that there was a full and fair investigation of the Complainant’s conduct. He also stated that he had tried at least twice, to phone Ms A, who the Complainant relied upon in the investigation as a potential corroborative witness, while she was in Poland but that the calls were not answered. He also gave evidence that former supervisors, who were named by the Complainant as having allowed Saturday working, had since left the company and were no longer contactable 

Legal Argument:

The Respondent cited section 6(4) of the Unfair Dismissals Act 1977, as amended, (the Act) to show that an employer can dismiss an employee for gross misconduct:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Respondent cited section 6(7) of the Act on the reasonableness of the conduct of the Respondent where it provides:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

The Respondent submits that the allegation of gross misconduct was properly investigated. The Complainant was informed of the allegations, he was represented throughout the process, given all the evidence and allowed to respond. Furthermore, the Respondent submits that the decision to impose a disciplinary sanction was reasoned and proportionate. The Respondent asserts that the Complainant was afforded the right of appeal to an external, independent person and that the decision of the Respondent was upheld.

CA-00035852-003 Complaint seeking adjudication under Section 12 of the Minimum Notice & Terms of Employment Act 1973:

The Respondent cites section 8 of the Minimum Notice and Terms of Employment Act 1973 where it states:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

The Respondent submits that the Complainant was not obliged to give statutory notice under the foregoing section.

CA-0003-00035852-002 Complaint seeking adjudication under section 77 of the Employment Equality Acts 1998 – 2015; Discriminatory Treatment:

The Respondent submits that the Complainant outlines procedural flaws in the course of the investigation of his bullying complaint but that he has identified no racial element either in his submission, or in the complaint form.

Legal argument – Burden of Proof;

The Respondent cites section 85A (1) of the Employment Equality Acts 1998-2015 (the Acts) where it provides:

“(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Respondent further relied on the Labour Court decisions in Rotunda Hospital v Gleeson DDE003/2000, Cork City Council v McCarthy EDA21/2008 and Melbury Developments Ltd v Valpeters [2010] ELR 64 to show the extent of the burden of proof that the Complainant needed to discharge.

The Respondent submits that the Complainant asserts that his dismissal in part resulted from lodging a bullying complaint. However, the Complainant has not shown any evidence of purported less favourable treatment during the investigation of his bullying claims, that can in any way be attributed to his race and therefore his claim should be dismissed on the basis that he has not established a prima facie case of discrimination.

CA-00035856-002 Complaint seeking adjudication under section 77 of the Employment Equality Acts 1998 -2015; Harassment.

The Respondent submits that the claim by the Complainant that he was called a ‘gypsy’ once by a supervisor when he worked on a previous site, formed part of a general complaint that was lodged with the Respondent. The Respondent submits that this particular claim was investigated but that the alleged perpetrator denied all knowledge of this incident. Furthermore, the Complainant has not provided a date for such occurrence neither at the time of the investigation nor at the hearing. The only reasonable inference arrived at by the Respondent was that it was inconclusive. Therefore, the Respondent submits that the Complainant has again not met the imposed burden of proof on this complaint.  

CA-00035852-001 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act 1977:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in relevant part, as follows:

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal… (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

The Complainant submits that the Respondent’s investigation was not carried out in line with fair procedure and natural justice. The Complainant put particular emphasis on a point that the Respondent did not gather evidence from Ms A, who it is claimed, had significant information to corroborate the evidence of the Complainant.

The Complainant opened the case Employee v Employer UD2040/2010 on the issue of witnesses not being interviewed where the Tribunal stated:

“it is clear to the Tribunal that not all relevant witnesses were interviewed, most notably Mr. (PB) whose recollections would have shed light on what had happened.”

The decision of the Court of Appeal in Iarnród Eireann v McKelvey [2018] IECA 346 gives guidance on what are precise employee rights when an employee is faced with allegations of gross misconduct. Particularly relevant in this case is their finding that Mr McKelvey was entitled to “…his right to call witnesses in support of his stated position.”

Ms A gave cogent evidence in support of the Complainant. She outlined how the practice of turning up for work on Saturday was allowed by two former supervisors so that unfinished work could be completed without extra cost to the company. Such evidence was pivotal in this case, in that if it been taken at the investigation it would have relegated the charge of the Complainant, in the eyes of any reasonable employer, from gross misconduct to a lesser charge, if any. However, Ms A was not invited to give evidence despite assurances that the Respondent would make efforts to do so. Mr B, on behalf of the Respondent, stated that he knew she was receiving medical treatment in Poland and gave evidence that he rang Ms B at least twice on her mobile phone but that she did not answer. Ms B, however, gave countervailing evidence that she had no missed calls when she was in Poland and stated, that she always returned missed calls. She also gave uncontested evidence that she received no written request from the Respondent to give evidence at the investigation. I prefer the evidence of Ms A on the lack of contact and conclude, on the balance of probabilities, that there was no attempt made by the Respondent to gather evidence in the investigation.

The investigation report was made available to me at the hearing. The Terms of Reference state as follows:

“(Mr B) has been requested to conduct an investigation into the circumstances surrounding an incident in XXXX National School on Saturday 28th September with (Complainant)

There followed a report of questions put to the Complainant and answers, which purports to show a finding of facts and Mr B concludes the investigation report as follows:

“On foot of this investigation, I am of the view that (the Complainant) has demonstrated an act of gross misconduct to the detriment of the company and should be dismissed immediately…

The Complainant received the said report of the investigation, accompanied by a letter of dismissal on 28 November 2019.

Mr B gave evidence that the he believed the above process was disciplinary and that the initial finding of fact was carried out by another employee before the Complainant was suspended. Any reasonable reading of the “Investigation Report” as it was labelled by the Respondent, shows that it was the concluding outcome of the investigation of gross misconduct. It also shows that there was a disciplinary process integrated into the investigative process and that Mr B both investigated the alleged gross misconduct and dismissed the Complainant, based on the findings of his own investigation. 

There is a well-established principle of natural justice: “nemo iudex in causa sua.”; no person must be a judge in their own case.  In a 2019 case the Labour Court in Dunne (complainant) v Medical & Industrial Pipeline Systems Limited (respondent) [2019] 30 E.L.R. 312   found as a matter of fact and law that a senior manager of the respondent who had conducted the investigatory meeting had also conducted the disciplinary hearing of 29 January 2016 and, although he had left the disciplinary meeting before any final decision had been taken, he had purported to suspend the complainant before doing so, and the respondent therefore breached fair procedures when it allowed the same representative to take part in both its investigatory and disciplinary meetings.

In this instant case, it is clear to me that there was no identified demarcation between an investigation and a disciplinary process. An investigator is obliged to be objective and fair when coming to a finding of fact. Mr B fulfilled both roles of being investigator and decision maker. The Respondent made the point that it was a small company and had not the spread of supervisors and management that larger companies might have, therefore there was a doubling up of roles when conducting a disciplinary process. I did not find this argument convincing. The Respondent already submitted that an external appeals person was employed to ensure objectivity. I cannot see why an external person, or other person within the organisation, besides the CEO, could investigate alleged gross misconduct when it came to the potential dismissal of a staff member.  

I conclude, that having full regard to the circumstances as outlined above, where crucial corroborating evidence was not gathered by the Respondent- nor was any reasonable attempt made to do so -and where the Respondent breached the natural justice principle of a person not being a judge in its own case, were of such a gravity as to imperil the fairness of the process. I consider the behaviour of the Respondent in relation to the dismissal to be unreasonable, with reference to section 6(7) of the Unfair Dismissals Act 1977, as amended. Therefore, I find that the Complainant was unfairly dismissed.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal:

(1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted that the financial losses: €594 per fortnight, for 38 weeks (19 fortnights) between 28 Nov 2019 and 13 August 2020 was €11,305.00. He became ill on 20 August 2020 and remained on sick leave up to the date of the hearing. The Complainant had been working at two jobs as a contract cleaner, until the dismissal with the Respondent. He continued to work 21 hours per week with the other company until his illness.

The Complainant is a qualified engineer and submitted applications in this field as well as with other contract cleaning companies. I am satisfied that the Complainant made satisfactory efforts to mitigate his loss. Having regard to all the circumstances of this case, I direct that the Respondent pay the Complainant €12,000 compensation for unfair dismissal. 

CA-00035852-003 Complaint seeking adjudication under Section 12 of the Minimum Notice & Terms of Employment Act 1973:

Section 4 of the Act sets out the relevant minimum statutory notice:

 (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

…(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

The redress provision at section 12 of the Act states:

 (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employee under section 6 may include such directions as the adjudication officer considers appropriate.

The Respondent gave no rebutting evidence on this complaint other than it was the decision to summarily dismiss the Complainant for gross misconduct therefore there was no requirement to give notice in line with section 8 of the Act.   The Complainant has more than ten years’ service, but less than fifteen years’ service therefore section 4(2)(d) applies. As I found that the Complainant was unfairly dismissed, I conclude that the Respondent contravened the Act by not giving the Complainant his proper six weeks’ notice of termination of employment. I direct the Respondent to pay the Complainant compensation of €1,782, equivalent to six weeks remuneration.

CA-0003-00035852-002 Complaint seeking adjudication under section 77 of the Employment Equality Acts 1998 – 2015; Discriminatory Treatment:

Section 6 of the Acts state that discrimination for the purposes of this Act:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

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

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85(a) of the Act states as follows:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the [Commission] to the [Director General] under section 85(1), facts are established by or on behalf of the [Commission] from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant asserted that the flawed investigation process both of his bullying complaints and the subsequent investigation of alleged gross misconduct which resulted in his dismissal, were racially tainted to such an extent that they were discriminatory. However, the Complainant cited no comparator of another race to suggest that such a person would have been treated differently nor any other evidence to show any credible evidence of a racial dimension to the investigations. The Labour Court in Arturs Valpeters   stated that facts have to be established first by the Complainant and that they be of sufficient significance to raise a presumption of discrimination. Having considered all the evidence on this complaint I find the Complainant did not establish such facts and he therefore did not discharge the burden of proof as referred to in section 85A of the Acts. I conclude that the Complainant was not subject to discriminatory treatment on the grounds of race.  

CA-00035856-002 Complaint seeking adjudication under section 77 of the Employment Equality Acts 1998 -2015; Harassment.

Section 14A of the Acts, in its relevant parts, refer to harassment:

14A. Harassment and Sexual Harassment

(1) For the purposes of this Act, where—

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

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

(ii) the victim's employer, or

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

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

(i) such harassment has occurred, and

(ii) either—

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

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

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

 … (7)

(a) In this section—

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

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The Complainant submits that he was discriminated against by nature of harassment on the grounds of race. He asserts that on a date unknown and at a previous work location, a supervisor called him a ‘gypsy’. He was of Romanian heritage therefore the Complainant submits that such spoken words were an unacceptable racial slur when taken in the context of his ethnicity. 

The Respondent gave evidence that they interviewed the supervisor on this matter, as part of a broader investigation of complaints, and that the supervisor completely denied he had spoken such words. The result of the Respondent’s investigation was that it was ‘inconclusive’ as there were no witnesses. The Complainant was questioned on the date of this occurrence but could not recall. If such words were spoken as described by the Complainant, then there is no doubt that it would amount to a reprehensible and unlawful racial slur. However, I found the Complaint’s evidence to be unsatisfactory in that it was vague, especially on a time line, and had the attributes of an assertion as distinct from an examinable primary fact.  fact. Again, relying on the above cited law in the previous associated complaint at CA-0003-00035852-002. I find the Complainant did not establish such a fact and he therefore did not discharge the burden of proof as referred to section 85A of the Acts. I conclude that the Complainant was not subject to discriminatory treatment by nature of harassment on the grounds of race. 

 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00035852-001: I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant compensation of €12,000

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00035852-003: I find that the Respondent contravened the Minimum Notice and Terms of Employment Act 1973 and I direct the Respondent to pay the Complainant compensation of €1782.00.

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

CA-00035852-002 Discriminatory Treatment: I find that the Complainant was not discriminated against.

CA-00035856-002 Harassment: I find that the Complainant was not discriminated against by nature of harassment.

Unfair Dismissals Act, Minimum Notice, Employment Equality Acts, race,