Complainant

Respondent

Parties

Caitriona  Jones

Forsa

Representatives

Claire Bruton B.L., instructed by  Daniel Spring & Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00042454-001

11/02/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave their evidence under affirmation.

The finalisation of this decision was delayed by the impact of Covid 19.

The complainant submitted that she sought representation in pursuing matters concerned with seeking social welfare payments.  She submitted that jobseeker’s benefit is set at a particular rate, however there are increases for qualified adult and child dependents.

The complainant submitted that the respondent had no dealings in completing the UP38 form (which is carried out by the employer) but that the respondent is not a bystander, it is charged with collectively bargaining where there is an injustice.  This is what happened in the complainant’s case.

The complainant submitted that she and some of her colleagues were actively seeking representation and never stopped seeking representation.

The complainant submitted that the respondent refused to provide her with fair representation on the grounds of her civil status and her family status.   The respondent's actions in engaging with the employer and seeking to compensate employees according to a single person's welfare rates left the complainant at considerable disadvantage as a result of marital and family status.

The complainant submitted that the respondent refused to provide her with representation during their initial consultations with the employer and later on, on several occasions, when the complainant appealed for the respondent to examine and rectify the mistake that she felt that they had made.

Preliminary issue – Legislation

The respondent submitted that the complaint is fundamentally misconceived under the Equal Status Acts, 2000 – 2014 and rather should have been brought under the Employment Equality Acts, 2000 – 2018 arising from the alleged discrimination in relation to a trade union as per Section 13 of the Employment Equality Acts.

Substantive case

The respondent raised a preliminary objection wherein they submitted that the complainant did not name the individual employee against whom she made her claims of a lack of representation at the outset.  Additionally, the respondent submitted that the complainant has failed to provide any evidence of the alleged discriminatory treatment instead relying upon broad sweeping and unsubstantiated allegations.

The respondent also submitted that no discriminatory treatment has been outlined for the six-month period recognised by the legislation.

The respondent denied that it discriminated against the complainant.

The respondent submitted that this complaint arose due to the impact of the Covid pandemic. The respondent is a membership organisation, a trade union.  The complainant was always a paid-up member working on the employer’s operational side.  The employer is involved in the aviation industry.  The pandemic imposed travel restrictions impacted upon the employer however they agreed to discharge a reduced level of salary.  The basic salary of affected staff was reduced by 50%.

The respondent submitted that there was a significant amount of uncertainty between April and August 2020.  Employees were put on the temporary wage subsidy scheme (TWSS) as and when it was introduced. The respondent determined that the document concluded between the employer and a group of unions should be put to a ballot of its members.  This ballot was overwhelmingly rejected by the members.  Therefore no agreement was concluded between the respondent and the employer.

The respondent submitted that from June 2020 the salary of a category of employees was reduced to 30% with the assistance of the TWSS. A number of members sought to clarify their entitlements and the respondent engaged with its members, the employer and attended Oireachtas hearings in November 2020, February 2021 and May 2021.  Employees received the TWSS until August 2020 and thereafter the Employment Wage Subsidy Scheme (EWSS). 

The respondent submitted that the Department of Employment Affairs and Social Protection determined that in order for an employee to have an entitlement to job seekers payments alongside the TWSS the employee had to satisfy the Department that no remuneration was payable for any such day of unemployment requiring the specific pattern and remuneration arrangement in place for each individual being examined.  The respondent submitted that it appeared that the Department was not able to satisfy itself on that basis.

The respondent submitted that it engaged with the employer throughout the period of the Covid pandemic to the benefit of the complainant and its members.  The respondent submitted that is it not responsible for any issues with job seekers benefit, or the level of such benefit at all.

The respondent submitted that there was no agreement with the complainant’s employer which interfered with the legal entitlement to social welfare, as alleged or at all or in a manner which constitutes discrimination.

The respondent submitted that the was no refusal of representation, including the alleged failure to complete paperwork to submit to the Department of Employment Affairs and Social Protection, as alleged or at all.

In conclusion, the respondent submitted that the combined discrimination of civil status and family status does not arise as a matter of law and rather the complainant must demonstrate discrimination on each of the protected grounds individually.

Preliminary matter – legislation

At the start of the hearing, the respondent submitted that this matter is more properly considered under the Employment Equality Acts.  The complainant made no observations on this point.  I note that respondent was aware that the complaint is more properly considered under the Employment Equality Acts and did not suggest that it would be at a disadvantage to consider the complaint under the Employment Equality Acts.  I also note that the ES1 form is not a statutorily proscribed form.

In the case of Kearney v Workplace Relations Commission (ADJ 31944), the Adjudication Officer, Mr Baneham, noted the following:

‘Excessive formalism’

The European Court of Human Rights has an extensive jurisprudence on ‘excessive formalism’ in civil procedure and decision-making in civil law. This includes administrative rules and practice, but also the decisions of quasi-judicial decision-makers, such as adjudication officers. At 6.2.2 of the Handbook of European Law relating to access to justice (Fundamental Rights Agency and ECHR) 2016, it is stated:

‘Excessive formalism refers to particularly strict interpretations of procedural rules that may deprive applicants of their right of access to a court. This can include strict interpretations of time-limits, rules of procedure and evidence.

The court’s role and alternative avenues of redress available to an applicant may be relevant in examining the question of formalism. For example, where a court has a unique role in reviewing administrative decisions, acting both as court of first and last instance, its procedure should not be excessively formalistic, as this deprives individuals of an avenue of redress.

A particularly strict construction of procedural rules by constitutional courts may deprive applicants of their right of access to a court, for example, if a procedural rule – such as a time limit – is construed in such a way that it prevents applicants’ actions from being examined on the merits, this undermines the right of access to a court.

Excessive formalism may also occur when a court attaches paramount importance to a factual consideration (such as an applicant’s illegal residence status) without balancing this properly with the applicants’ fundamental rights (for example, their right to family life under Article 8). Self-reflective practice might assist courts in avoiding practices that can undermine access to justice.’

This Article 6 jurisprudence on excessive formalism is the prism through which procedural decisions of adjudication officers and the respondent should be assessed. I also note the invocation of ‘excessive formalism’ in EU law, mainly in the context of the Habitats Directive (see Friends of the Environment v Government of Ireland [2021] IECA 317).

In this case, the formalism relates to the requirement to use a pre-litigation form (the ES1 form) and then to use a non-statutory originating document (the WRC complaint form).

Per the European Convention on Human Rights Act, 2003, an ‘organ of State’ such as the respondent must perform its functions in a manner compatible with the State’s obligations under the Convention provisions. This includes the ECHR jurisprudence in civil procedure under Article 6 of the Convention.

In this regard, I am satisfied that, as noted by the respondent, this matter should have cited the Employment Equality Acts, and I am further satisfied that the respondent is not placed at a disadvantage by proceeding to hear the compliant under the Employment Equality Acts.  Therefore having regard to the submissions of the respondent, I am proceeding to hear these matters in relation to the Employment Equality legislation.

Section 13 of the Employment Equality Acts, 1998, as amended, states in relation to Membership of certain bodies that

13.(1)—A body which—

(a) is an organisation of workers or of employers,

(b) is a professional or trade organisation, or

(c) controls entry to, or the carrying on of, a profession, vocation or occupation,

shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.

[(2) A body referred to in subsection (1) shall not discriminate against a person by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in so far as the advertisement relates to—

(a) membership of that body or any benefits, other than pension rights, provided by it, or

(b) entry to, or the carrying on of, a profession, vocation or occupation controlled by that body.

Representation of members in dealings with an employer is a benefit of trade union membership.  Accordingly, I am satisfied that representation falls within the ambit of the Employment Equality Act.

Section 85A(1) of the Act is concerned with the Burden of Proof in discrimination complaints.  It states that:

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.

The complainant has not provided detail of when she sought representation, nor from whom she sought representation.  On the contrary, the documentation submitted seems to indicate that although the complainant had queries, these were answered by the respondent, in as far as was possible.  I also note that the documentation submitted does not indicate any issue relating to either of the grounds suggested.

Having considered the written and oral evidence in relation to this matter, I am not satisfied that the complainant has established that she sought representation or that there was a failure to represent her.  In addition, I am not satisfied that the complainant has established that any alleged failure to represent her is linked to any of the grounds outlined in that Act.  On the basis of the foregoing, I find the compliant has not established facts from which it may be presumed that there has been discrimination in relation to her.

Having considered all the written and oral evidence in relation to this complaint, my decision is that the complainant was not discriminated against.

Equal Status Act – Employment Equality Act – Excessive formalism – complaint form – Burden of proof – not established