FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : MENTAL HEALTH COMMISSION (REPRESENTED BY BYRNE WALLACE SOLICITORS) - AND - MS VIOLETA CUCOVIC DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00025124 CA-00031928-003. Ms. Cucovic, ‘the Complainant’, was employed as a Clerical Officer by the Mental Health Commission, ‘the Respondent’, from 15 July 2019 to 4 October 2019. The Complainant lodged a complaint under the Employment Equality Acts 1998-2015, ‘the Acts’, with the Workplace Relations Commission. The Adjudication Officer did not uphold the complaint. The Complainant appealed the decision to this Court. Issue of Process At the outset of the hearing when the Court had determined, in response to an issue raised by the Respondent, that the Complainant’s appeal had been received in time and that there was a valid appeal before the Court, it was outlined to the parties that the Court wished to hear arguments in order to determine if there was a ‘prima facie’ case for alleged breaches of the Acts. The Complainant indicated that she wished to ask a question. In the course of doing so, she accused the Court of ‘lying’. She was afforded the opportunity to modify her language. She chose not to do so. The Court then advised the parties that the hearing had concluded. While the Acts and the Workplace Relations Act 2015 provide for a right to be heard by the Labour Court, they make no provision for circumstances in which a party makes it impossible for a hearing to be conducted. The two parties to a case before the Court are entitled to a Determination and the Court is issuing this Determination based on the arguments set out in the written submissions received. Summary of Complainant arguments Note: Voluminous material was received from the Complainant. This summary is an attempt to set out the background and relate it to the appeal before the Court in a coherent fashion. Requests for training by the Complainant were ignored. The Complainant’s team avoided her. They were complaining about her and lying about her. She was being discriminated against by her colleagues who believed that she was ‘employed for the wrong reasons’. In September 2019, the Complainant received an email detailing training tips. This was degrading and humiliating. Every time she sought information she was excluded. The Complainant could not complete the updating of bed occupancy rates because the information was not conveyed to her. When she was out sick, two of her colleagues completed her work in her absence even though the tasks were not urgent. She reviewed the work and found mistakes but her line manager did not follow up and asked to meet her regarding her absence from work. She was asked why she had not informed him about her absence and she advised that she had told the Respondent organisation. He was never asked how she was. The Complainant was excluded from a process but her knowledge was utilised. This occurred at the same time as she was advised that she was the subject of a disciplinary process. The Respondent advertised for Clerical Officers. This disappointed the Complainant as the Respondent would not utilise her knowledge, experience and skills despite her best efforts to get them out of a criminal offence. The Complainant’s line manager, all the team, the director and managers in other divisions ignored her, bullied her and humiliated her. The Complainant’s request to be included in meetings was never actioned. A request by the Complainant, made a month in advance, for annual leave was not approved. One of the Complainant’s tasks was given to another member of staff. The Complainant’s contract was terminated. She refused to leave the building. The Gardai were called and the Complainant was removed from the building. This is organised discrimination in conjunction with 4 other employments in order to bully, harass, eliminate and disable the Complainant. The Adjudication Officer misused facts and used creative wording. His decision is incomplete and manipulative. Facts are excluded and evidence is ignored. The Adjudication Officer ignored facts and evidence regarding a ‘prima facie’ case. On grounds of sex/age/civil status/religion/race/nationality, a name fellow employee is male/in his 30s/married/Catholic/Irish. The Complainant is Female/in her 40s/single/non-Catholic/Naturalised Irish. On ground of age/religion/race-nationality, a named fellow employee is in her 20s/Catholic/Irish. The Complainant is in her 40s/non-Catholic/ naturalised Irish. On grounds of age/religion/race-nationality, a named fellow employee is in her30s/Catholic/Irish. The Complainant is in her 40s/non-Catholic/naturalised Irish. None of these employees was treated like the Complainant. None of the employees who started work for the Respondent at the same time as the Complainant was treated as she was treated, including disrespect and bullying, false allegations and a cover up by senior management. The Adjudication Officer ignored the fact that the Complainant was interviewed in order to be bullied, harassed, dismissed and unable to find work; that she requested a job specification and was provided with an expired one; that she was given misleading information. The presence of a named employee from a previous employment at the interview is linked to the organised discrimination. There were deliberate delays in setting up the Complainant’s work-station. The Complainant was allocated temporary seating. The HR Manager was red faced every time she met the Complainant. She never asked how the Complainant was settling in. The Division Manager was rude to the Complainant. Another manager was arrogant all the time. False allegations were made against the Complainant. The line manager lied about the Complainant. She was manipulative and disrespectful. Two other employees were red faced when greeting the Complainant. A Clerical Officer was manipulative. Another employee lied about the Complainant. The Adjudication Officer failed to carry out a proper investigation. There was substantial evidence that is set out in detail. This was ignored by the Respondent and the Adjudication Officer. The Respondent used PC hacking as a method to bully and harass the Complainant. The Respondent and two Gardai humiliated the Complainant and abused power. The Court is requested to order maximum compensation and an urgent apology and to protect the Complainant from further, organised discrimination. Summary of Respondent arguments The Respondent denies strenuously that it discriminated against the Complainant in any way. The Respondent has no knowledge of any other claims involving the Complainant. After a number of complaints were raised with the Respondent’s HR Department regarding the Complainant’s manner of communicating with colleagues, her line manager arranged to meet the Complainant in order to achieve an informal resolution. The Complainant refused to attend. A further meeting was arranged. The Complainant was advised that failure to attend this meeting may be regarded as a breach of conduct, with the relevant consequences. Again, the Complainant refused to attend. Two further attempts were made to get the Complainant to attend but she refused. On 22 August 2019, the Respondent’s HR Manager invited the Complainant to meet him. She declined. On 23 August 2019, the HR Manager advised the Complainant formally that she was required to attend a meeting with him and the line manager on 27 August 2019, to discuss the manner of communications, the refusal to meet management and the fact that a private external email address had been copied on internal correspondence. The complainant failed to attend. The Complainant was then notified on 6 September 2019 that the Respondent had commenced a disciplinary process. She was told to attend an investigatory meeting. She did not attend. On 10 September 2019, the Complainant failed to attend for work without notifying the Respondent of her absence. The HR Manager wrote to her regarding her unauthorised absence. On 13 September 2019, the day she was due to meet the Investigation Officer, the Complainant informed a member of reception staff that she would not be attending work that day due to illness. No notice was given to the Investigation Officer. A further opportunity to meet the Investigation Officer was provided on 20 September 2019. Again, the Complainant declined to attend. In that period, the Complainant declined to meet her line manager for her three-month probation review. The Investigation Officer issued his report and found that communications and conduct, refusal to meet the line manager and refusal to meet the HR Manager were legitimate areas of concern warranting further action but that the copying of an email address could not be regarded as misconduct. The Complainant sent an email headed ‘Mental Health Commission-Bullying and Harassment’ to the CEO of the Respondent on 27 September 2019. The email had no content. She was contacted about meeting a manager to discuss the mail. She did not respond. The Complainant was called to a disciplinary meeting to take place on 3 October 2019. She declined to attend. The Chair of the meeting questioned the Investigation Officer. He issued his report on 4 October 2019 and found that there was no basis for the continuation of the probation period, given the pattern of engagement by the Complainant with line management. The report was provided to the Chief Operations Officer for a final decision. He considered the matter and informed the Complainant that her employment was being terminated. She was advised of her right to appeal. This right was never exercised. The Complainant has not established a ‘prima facie’ case of discrimination, evidence of which is as per the definition inRotunda Hospital v. Gleeson, DDE003/2000,‘Evidence which, in the absence of contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred’. As perCork City Council v. McCarthy, EDA 21/2008,the Complainant must establish not only the primary facts on which she seeks to rely but also that those facts are of sufficient significance to raise an inference of discrimination. As perMelbury Developments v. Valpeters (2010) ELR 64,‘mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. The Complainant has set out a vast number of disparate allegations, all of which are denied. At no point has she demonstrated or explained, beyond mere speculation or assertions, how any of this alleged conduct was based on any of the grounds of discrimination. The Complainant sets out what she says are comparators with what she says are different characteristics to her. The Respondent does not keep such information regarding employees but is aware that some of the details given are incorrect. At all times the Complainant was treated reasonably, respectfully and in a non-discriminatory manner by the Respondent. The Complainant has adduced no evidence to support her claims or to establish a ‘prima facie’ case on any protected ground. The applicable law Employment Equality Acts Discrimination for the purposes of this Act. 6.— (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 —
The forum for seeking redress. 77.— (1) A person who claims —
(12) (a) Not later than 42 days from the date of a decision of the Director General of the Workplace Relations Commission on an application by a complainant for an extension of time undersubsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal. (b) On the appeal the Labour Court may affirm, quash or vary the decision.
85A. — (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 Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority 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,
Deliberation The Complainant did not specify any grounds under the Acts under which she is alleging that discrimination has occurred. However, the first task for the Court is to determine if there is a ‘prima facie’ case of discrimination under any of the nine grounds. In this regard, the Court applies the definition set out inRotunda Hospitalas to whether a reasonable person would conclude on the basis of the arguments put forward by the Complainant that discrimination had probably occurred. The Complainant has set out a considerable series of allegations against a wide range of people in the Respondent’s employment, (all denied by the Respondent) and other former employments in which she worked, (who are not party to these proceedings), but the requirement on her is to establish that her arguments would lead a reasonable person to believe that discrimination by the Respondent had occurred under one or more of the nine protected grounds. To that end, she listed characteristics which she believes to exist in comparators, notes that they had no cause to make similar allegations and, as a consequence, bases a claim of discrimination on these differences. As was noted inValpeters, mere speculation or assertions are not enough to establish an inference of discrimination. Something more is required from the Complainant. An approach of making allegations against a wide range of people and then turning those complaints into a claimed discrimination contrary to the Acts because the Complainant alleges that she has different characteristics to comparators who were not provided with reasons to make similar allegations, cannot be a sufficient basis, in and of itself, for the Court to conclude that a ‘prima facie’ case has been made out. At the very least, the Court might expect to be provided with a basis for examining if any allegations could be linked to the existence of any of the nine protected grounds. No such basis has been provided. The Court has done its best to try and capture the numerous allegations and the rambling presentation of the allegations into some sort of coherent set capable of assessment. Insofar as it can, the Court has endeavoured to set these out above. Nothing in the allegations suggests any basis of linkage to any of the protected grounds. In effect, they are, to use the phraseology ofValpeters,mere assertions. As such, no reasonable person would look at them and say that discrimination had probably occurred. Therefore, a ‘prima facie’ case has not been made out and the claim under the Acts must fail. Determination The Decision of the Adjudication Officer is affirmed.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
