Complainant

Respondent

Parties

Keith  Gahan

Nevilles Bakery

Representatives

Self-Represented

Ms. Mairead McKenna BL, instructed by Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00042670-001

23/02/2021

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

CA-00042670-002

25/03/2021

The Complainant commenced employment with the Respondent on 4th August 2003. Throughout his employment he was a permanent, full-time employee. The received an average weekly remuneration of €503.60. The Complainant resigned his employment on 11th January 2021.

On 23rd February 2021, the Complainant issued a complaint under the Employment Equality Acts with the Commission. On this complaint form, the Complainant selected the option that stated that he was subject to an agreement that contained a discriminatory provision. Nevertheless, the “complaint specific details” section of the complaint form goes on to describe difficulties experienced in his employment, in particular regarding an inter-personal complaint that was made against him, to which he felt he did not have an adequate right of response.

On 25th March, the Complainant issued further correspondence stating that he wished to pursue a complaint for “constructive dismissal under discrimination/equality/equal status”. This correspondence set out the difficulties the Complainant experienced in his employment in further detail.

In denying the allegations, the Respondent submitted that the Complainant had not set out the grounds on which he believed he had been discriminated. Notwithstanding the same, the factual matrix presented by the Complainant was disputed, with the Respondent submitting the they had been fair in their dealings with the Complainant at all times.

A hearing in relation to the matter was convened for and finalised on 30th August 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant was a long-standing employee of the Respondent with a good work record. On 11th January 2021 the Complainant returned to work following seven months of absence due to a significant, non-work related injury.

On the morning the Complainant returned to work, he discovered that he had not been supplied with the appropriate footwear required for his role. After approximately two hours of work, the Complainant was approached by a member of management who informed him that he was suspended pending a meeting in three days’ time. The Complainant was taken aback by this and enquired as to the reason for the suspension. At this point, the manager stated that it related to a complaint that had been made against him.

On the morning of the meeting, the Complainant was informed that the same had been cancelled and the meeting was scheduled for 18th January. On this date the Complainant attended the meeting and was informed that the Respondent’s wage clerk had made a serious allegation against the Complainant. This meeting was chaired by the Complainant’s line manager but was attended by a third party that allegedly witnessed the incident in question and against whom the Complainant had raised an inter-personal issue previously. The Complainant was advised that this was his opportunity to give his account of events. The Complainant denied the allegations and stated that the meeting was nothing out of the ordinary. At the end of the meeting, the Complainant was advised that he would receive a copy of the complaint and was advised that he would have to receive a positive Covid-19 test prior to any further meetings being arranged. At this point the Complainant was informed that the Respondent would provide a test kit for this purpose.

After three weeks without any developments, the Complainant’s solicitor corresponded with the Respondent enquiring as to the status of his employment. By response, the Respondent stated that they were still investigating the complaint and that the Complainant would require a return to work certificate. When the Complainant issued this medical certificate, he was informed that he would require a further certificate from the surgeon that treated him for his injury.

Towards the end of February, the Complainant attended a meeting with the Respondent where a Covid-19 test was administered. During this meeting the Complainant was informed that he would be moved to a different department on his return to work. At this point the Complainant felt that he had no choice but to resign his employment

In summary, the Complainant submitted that he simply wished to clear his name of any wrongdoing. He strenuously denied the allegations made by the wage clerk and submitted that she may have had an ulterior motive for making such a complaint. He stated that his preferred outcome of the process was that he be cleared of all wrongdoing in relation to the incident.

In defending the claims made by the Complainant, the Respondent disputed the Complainant’s version of events and submitted that they acted reasonably at all times. In addition to the same, the Respondent submitted that the Complainant’s allegations are not actionable under the present legislation in any circumstance.

The Complainant raised an issue with his wages in April 2020. In or around that time he attended the office of the Respondent’s wage clerk to discuss the same. On the 9th June 2020, the wage clerk issued a formal complaint to management regarding the Complainant’s behaviour during this meeting.

As the Complainant had commenced a period of long-term, non-work related sick leave, at this point the process regarding the investigation of the complaint was paused. The Complainant returned to work on 11th January 2020. On this date the Complainant did not provide a medical certificate confirming his fitness to return to work or did not contact his manager to arrange a return to work meeting. On the morning of the 11th January, the Complainant’s line manager met with him to discuss the previous points. A meeting in relation to the same was initially scheduled for 14th January and was subsequently re-scheduled to 18th January 2021. In the course of this meeting the Complainant advised that he continued to experience some issues regarding his previous injury. At this point he was advised that he would have to provide medical certification evidencing his fitness to return to work. During this meeting, the Complainant was also informed of the complaint against him, and was given time to consider the same while he awaited the relevant medical certification.

The Complainant provided a fit to return certificate on 29th January 2021. In light of the Complainant’s early statement that he still experienced some pain from the injury, the Respondent deemed it necessary to seek additional medical information.  The information requested was received in early February 2021, following receipt of the same a meeting was arranged for 8th February to discuss the Complainant’s return to work. During this meeting the Complainant was advised that he would have to move to different area of the bakery in line with the Respondent’s requirements. It was submitted that the Complainant had completed this work previously and it was interchangeable with his previous role.  During this meeting the Complainant was empathic that he would not work in this area as he had difficulties his colleagues in the area. By email dated 18th February the Complainant resigned his employment. In the course of this email the Complainant stated that he was resigning due to complaint that had been made against him and the Respondent’s alleged failure to investigate his complaints.

In summary the Respondent submitted that the case advanced by the Complainant is misconceived. They submitted that the Complainant had not proven any facts from which an inference of discrimination may be adduced. The Respondent submitted that taking the Complainant’s case at its height, it is not clear what constitutes the allegation of discrimination for the present purposes. Notwithstanding the same, the Respondent summitted that they acted reasonably in all their dealings with the Complainant.

The complaint form as submitted seeks adjudication under Section 86 of the Employment Equality Act. Section 86 provides for adjunction regarding a term in a collective agreement that is discriminatory. The Complainant’s submissions then go on to describe difficulties he experienced in his employment, and alleged poor treatment by his employer cumulating in his resignation. Having regard, to the foregoing, it is clear that the “redress option” option of the form was completed in error, and the Complainant intended to refer a complaint under Section 77 of the Act.

A similar matter was considered in some length by the Supreme Court in the matter of County Louth Vocational Educational Committee -v- Equality Tribunal, [2016] IESC 40.

Here the Court stated that,

“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;”

Having regard to the aforementioned authority, I have no difficulty in processing the matter as a complaint under Section 77 of the present Act

Section 6 of the Employment Equality Act prohibits discrimination any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

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

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

“It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Cork City Council v McCarthy EDA 0821 the Labour Court held as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must 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.”

In the present case, the Complainant has submitted that he was treated unfairly by his employer in failing to allow him the appropriate right of response to a complaint made by him. In particular, he was concerned that he was not provided with an appropriate right of response and expressed a wish to clear his name of any wrongdoing. I note the Complainant’s letter of resignation states that sought to terminate his position as he had his hours reduced the year previous, that he was prevented from raising this issue with the wage clerk at the appropriate time, that he was not provided with an appropriate method by which to respond to a serious allegation against him and that he was not paid whilst on suspension pending an invention of the incident. These matters constituted the subject matter of the Complainant’s evidence during the hearing.

Taking this complaint at its height, and it should be noted this version of events is strongly contested by the Respondent, it is unclear what discrimination the Complainant is alleging against the Respondent. As set out previously, the complaint form lodged by the Complainant related to another statutory provision and did not identify the grounds under which the Complainant believed he was discriminated. When the Complainant was asked during the hearing, he confirmed that he believed he was discriminated under the “disability” ground. When asked to expand upon this, the Complainant reiterated that he believed that he had been treated poorly by the Respondent for the reasons outlined above.

While I note some matter potentially involving a disability are contained within the factual matrix presented by the Complainant, for instance the Complainant was informed of the complaint against him when he returned from a period of sick leave, it is unclear how these particular facts relate to a complaint of discrimination. The difficulties the Complainant outlined with the Respondent do not constitute a complaint of discrimination but rather a complaint regarding the alleged inappropriate handling of an inter-personal complaint. 

Having regard to the foregoing, I find that the Complainant has not proved the primary facts upon which he relies in seeking to raise a presumption of discrimination. As a consequence, I find that the complaint is not well-founded and the Complainant’s application fails.

CA-00042670-001

I find that the Complainant has not proved the primary facts upon which he relies in seeking to raise a presumption of discrimination.

Having regard to the foregoing, I find that the Complainant was not discriminated against and consequently his application fails.

CA-00042670-002

I find that the Complainant has not proved the primary facts upon which he relies in seeking to raise a presumption of discrimination.

Having regard to the foregoing, I find that the Complainant was not discriminated against and consequently his application fails.

Discrimination, Burden of Proof, Disability