ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033829
Parties:
| Complainant | Respondent |
Parties | Edel McCall | Our Lady's Hospice & Care Services Dac |
Representatives | Stephen O’Sullivan BL instructed by Carley and Connellan | IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044677-001 | 17/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044677-002 | 17/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00044677-003 | 17/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007 | CA-00044677-005 | 17/06/2021 |
Date of Adjudication Hearing: 23/05/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
These complaints were referred to me by the Director General in accordance with Section 41 of the Workplace Relations Act, 2015 and a hearing was organised for the above date.
After I arrived into the room at the appointed time of 10am, the barrister for the Complainant, Stephen O’Sullivan BL, asked me to delay starting the hearing because he was waiting for the Complainant’s solicitor to print off her submissions. I explained to him that submissions should have been furnished before then and highlighted that the Complainant had been on notice of the hearing for over six weeks. He stated that he had been waiting for the Respondent’s submission which he only received on Friday afternoon. I explained to him that as these were his complaints, it was his responsibility to make his submissions first, that he did not need to wait for the Respondent and also stated that it was unacceptable to be looking to start the hearing late. Stephen O’Sullivan BL then stated that the complaints had been detailed in the original complaint form. I highlighted however that there was no suggestion of any discrimination in the narrative on the complaint form. Nonetheless, I said that I would allow a further 10 minutes both for the submissions to be printed off and for the Respondent to discuss if they wanted to proceed, given the absence of the Complainant’s submissions.
When I arrived back into the room at approximately 10 20am, the Complainant’s submissions had been printed and the Respondent stated that they were anxious to proceed. Prior to reading the submission, Stephen O’Sullivan BL stated that the Complainant was withdrawing two of the complaints, namely 44677-01 and 44667-005, and would only be pursuing the discrimination complaints on the gender and family status grounds and not on the civil status and age grounds as also listed on the complaint form.
Stephen O’Sullivan BL then read through his submission after which I highlighted that no prima facie evidence of discrimination had been highlighted and that no comparators had been provided. He stated that this would be provided in direct evidence and accused me of having pre-judged the matter. I asserted that I had not pre-judged the matter but that prima facie evidence and names of comparators would usually be included in the written submission. He again stated that this would be provided in evidence and the Complainant then began her direct evidence.
In the course of her direct evidence, Stephen O’Sullivan BL initially asked the Complainant how long she had worked with the Respondent, about her children and for the names of colleagues, who were allowed to work from home during the pandemic unlike her. The Complainant named five purported comparators all of whom were female – I interrupted once when she named someone called Terry to ask whether or it was a male or a female – she clarified that she was female. Stephen O’Sullivan BL did not ask any questions about the family status of the named female comparators.
Having completed his questions around the comparators he turned to me, alleged that I was not taking notes and because I was not doing so claimed that I had pre-judged the matter. He then demanded that I recuse myself. I explained that I would not do so because I had not pre-judged the matter and added that I only took notes of relevant evidence, none of which had been presented in the Complainant’s direct evidence. He then asked for time to speak to his client and they left the room. He subsequently returned, asked me once again to recuse myself, which I refused to do because there was no legitimate basis for such a request, then stated that the Complainant was withdrawing from the hearing and that he would be writing to the WRC to look for a new Adjudication Officer. He then asked the Respondent if they would support him in his application but they refused to do so.
While I am reluctant to comment both on the Complainant’s representative’s suggestion that I did not conduct the hearing fairly and his demand that I recuse myself, I want to for the purposes of transparency explain my position in this decision.
Firstly, it is standard practice that all prima facie evidence is included in the written submission and that this is presented to the other side in advance of the hearing to avoid ambushing and allow for adequate preparations to be made. Moreover, in the absence of any prima facie evidence in the written submission, I must question the purpose of providing a submission and do not accept that I pre-judged the matter when I noted the absence of such evidence in the Complainant’s submission.
Secondly it is a matter for me, as an independent Adjudication Officer, to decide how to run a hearing and whether to take notes. For the purposes of transparency and full disclosure however, I wish to highlight that it is my practice to only take notes of relevant evidence and that in the instant case, the Complainant did not present any such evidence. Specifically, she gave the names of five female colleagues who it was alleged were treated more favourably than her and were allowed to work from home. As she had alleged discrimination on the gender and family status grounds however, but no names of any male comparators were given and no evidence of the family status of the five named female colleagues was presented, the evidence given by the Complainant, namely the names of female comparators was not relevant and it was therefore, in my view, unnecessary to take notes.
In light of the foregoing, I am at a loss to understand why her representative asserted that I had pre-judged the matter and find that, accordingly, there was no reason whatsoever for me to recuse myself.
Background:
The Complainant is employed as a Clinical Nurse Specialist (Occupational Health) with the Respondent. She alleged that she was discriminated against because of her gender and family status and that she suffered a detriment as a result of having made a complaint in the workplace. |
Summary of Complainant’s Case:
The Complainant is employed as a Clinical Nurse Specialist (Occupational Health) and is paid a gross salary of €52,255 having commenced her employment with the Respondent on 10 January 2015. She worked 4 days per week, 32 hours per week. She is married and has 2 children aged 13 and 17.
Pre Covid, the Complainant worked 4 days on site. After Covid, the Complainant worked two days at home and two days on site. This was approved by the Respondent and took into account Government Guidelines and the Complainant’s family responsibilities. In November 2020, the Director of Nursing (DON) sought to end the flexible working arrangements the Complainant enjoyed and stated that the Complainant was expected to be onsite for her 4 working days despite other staff continuing to work from home. The Complainant in her direct evidence named five other female staff who, unlike her, were all allowed to work from home. No evidence surrounding the family status of these purported comparators was presented.
It was stated in the Complainant’s written submission that she made a verbal complaint on 27 February 2021 about the way in which the DON had spoken to her on 25 February 2021. It was also asserted that, as a direct result of having made this complaint, she was denied the opportunity to participate in a QQI Level 6 leadership course that she had applied for. |
Summary of Respondent’s Case:
The Respondent was not given the opportunity to reply to the Complainant’s evidence that she was discriminated against because she withdrew from the hearing. It was outlined in the Respondent’s written submission that no prima facie evidence of discrimination had been presented. The Respondent accepted that the Complainant she made a verbal complaint on 27 February 2021 about the way in which the DOH had spoken to her on 25 February 2021. Thereafter the HR Department met with her and advised her of how a complaint could be progressed and offer her the option of mediation. On 13 April 2021, the Complainant advised that she would be progressing her complaint formally. The Respondent asked her to provide details of the complaint by 5 May 2021. The Complainant did not present her formal complaint until 17 June 2021, the same day on which the instant complaint was referred to the WRC. |
Findings and Conclusions:
CA-00044677-002 The Law Discrimination Discrimination in accordance with the Acts is set out in section 6 and states: 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 — ( 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— ( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”), ( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”), ( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”), ( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”), ( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”), ( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”), ( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”), ( 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 The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015. “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.” Findings The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, the responsibility is on the Complainant to show that, based on the primary facts, she was discriminated against because of her gender and family status, as she asserted. I note firstly that the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addresses the onerous nature of the burden of proof: “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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” The Complainant in the instant case asserted that she was discriminated against because she was expected to be onsite for her 4 working days despite other staff continuing to work from home and named five female colleagues who, unlike her, were allowed to work from home. In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination, the Complainant must show that she was discriminated against because of her gender and family status. Having regard to the Complainant’s evidence presented at the hearing, there was no relevant evidence presented by her which suggested that the Respondent discriminated against her because of her gender and family status. As highlighted in the Valpeters decision however, “the Complainant must first establish facts from which discrimination may be inferred.” and that such facts must “be of sufficient significance to raise a presumption of discrimination. Crucially, it also highlights that these “must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. In the instant case however, given that the Complainant only made assertions that she was discriminated against because of her gender and family status and that these assertions were unsupported by relevant evidence, I cannot find that she has established a prima facie case of discrimination. CA-00044677-003: No direct evidence was presented in relation to this complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00044677-001: This complaint was withdrawn CA-00044677-002: As the Complainant failed to present any prima facie evidence of discrimination, I find that she was not discriminated against. CA-00044677-003: As the Complainant failed to present any direct evidence in relation to this complaint, I find that it is not well founded. CA-00044677-005: This complaint was withdrawn |
Dated: 20/06/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
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