Complainant

Respondent

Parties

Fergus  Browne

An Garda Síochána

Representatives

  Complainant

 Paul Hardy IRO, An Garda Síochána

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045904-001

01/09/2021

The complainant, Mr Fergus Browne, alleged that he had been dismissed from his temporary position as an administrator in a Garda Station because of his nationality. 

Evidence was given under oath/affirmation by the complainant, and by Ms Lisa Canney, Assistant Principal, and Ms Jacqueline Friel, Executive Officer for the respondent.  All evidence was subject to cross examination.  Submissions were received from both parties, and these were considered.

The complainant was given a fixed term contract as Clerical Officer, with the Letterkenny Garda Station, commencing on 31st May 2021.  However, the respondent ended the contract on 11th June 2021 before the end of the probation period.  The complainant believes he was discriminated against and treated less favourably because of his origin.  He was not given a desk or a computer and was given no training. The complainant had been a Temporary Clerical Officer on eight occasions over twenty years in different public sector employments. 

On his first day of employment the complainant reported to Mr Kielty, Divisional Executive Officer, at Letterkenny Garda Station who showed him around the station. Mr Kielty took him out to the front of the station and told him the station was full up and that there was no room. He said they were not expecting the complainant even though the employment contract was very detailed and specific on how and why he was required. Mr Kielty then told took the complainant to another location where he was left for the day without any further guidance. The next day, Tuesday 1 June 2021, the complainant arrived at the Garda Station at 9.30am.  He was taken to a room that was the office of an employee who was not going to be using it on that day. This was the only day he had access to any computer and therefore it was the only time he was able to clock in and out. The complainant completed online courses.  Wednesday 2 June 2021 the complainant arrived at work at 8am and left a message for Mr Kielty that he would wait in the canteen. He sat there until lunch time. After lunch Mr Kielty appeared and asked him if he had work to do to which the complainant replied no. At 2.30pm he was taken up to a room which had three desks. Two of these desks belonged to Gardaí and the other one was that of a civilian employee.  Mr Kielty requested the complainant to look at files and make a list of any that did not have an Irish driving licence on file. The files were extremely bulky and had flimsy tabs on them that came off very easily. The complainant finished checking the drawer by 4pm.  On the following day, Thursday 3 June 2021, the complainant arrived at work at 8.10am. He left a message again for Mr Kielty that he would wait in the canteen. He was left sitting there again the whole morning and just before 12.30pm he went to the toilet. Mr Kielty came into the toilets and said they were looking for the complainant. The complainant told him that he was going to lunch but that Mr Kielty could instruct the complainant on what he was to do in the afternoon.  Mr Kielty took the complainant to the same room as the day before and it was only at this stage that he gave specific instructions on what drawers the complainant had to work on as a continuation of the task the day before. The complainant worked on the files in the afternoon.

 On the following day, Friday 4 June 2021, the complainant arrived at work at 8.10am and was let in to the room when the other occupant arrived. On Tuesday 8 June 2021 the complainant arrived at work at 8.10am. Mr Kielty was off work in the morning and therefore the complainant did not get in to the room until after 10am when the other occupant arrived. The complainant finished the task by the end of the day. On Wednesday 9 June 2021 the complainant arrived at work at 8.10am. He was given an inventory and an ancient map of the station. The inventory involved recording fixtures and fittings for ever room, office, store and toilets. The complainant felt very uncomfortable doing this task as it involved going to private rooms of high-ranking Garda and sensitive areas on his own. When a civilian employee saw the map he printed out a more recent Station map saying the one he had been given was of little use. A Garda made amendments to the more recent map to bring it more up to date. The complainant did this task from Monday to Friday.  

The complainant had morning tea break at 10.30am in the canteen. Ms Jacqueline Friel appeared and sat at a nearby table and made the comment "Belfast Bomber" and proceeded to tell a story where she said she was quoting somebody saying "I don't trust you, you're from the North." She then said "Belfast Bomber" again and giggled. The complainant felt offended. The complainant continued the inventory work on Thursday 10th June.

Around 3pm, Mr Kielty came told the complainant to come to a meeting where he was told he was dismissed. The complainant said that knew it was because of where he was originally from and queried why he was being dismissed when his probation was 4 weeks. He also said that he had gotten no training.

The complainant’s complaint is that he was dismissed on ‘the ground of race’ within the meaning of section 6(2)(h) of the 1998 Act. On the Complaint Form, he claims that he was accorded less favourable treatment because of his ‘origin/accent’. He is white and has stated his nationality as Irish. He has at all material times given as his address Carndonagh, Co. Donegal. For the avoidance of doubt, the employer would not accept that being a white Irish person from Northern Ireland constitutes ‘ethnic origins’, having regard to the test set out by the Labour Court  Dublin Institute of Technology & Awojuola.

It is for the complainant to establish as a factual matter what his ‘ethnic or national origins’ are and this is not set out in his statement. ‘National origins’ is not defined in the 1998 Act and there is no Irish authority on the point. However, the UK Employment Appeal Tribunal, in Northern Joint Police Board v Power [1997] IRLR 610, in construing the definition of ‘national origins’ in section 3(1) of the UK Race Relations Act 1976, held that: It seems to us, so far as there needs to be an exhaustive definition, what has to be ascertained are identifiable elements, both historically and geographically, which at least at some point in time reveals the existence of a nation.

Belfast is not a nation. It is not accepted that Northern Ireland is a nation and therefore it is not accepted that for an Irish person to be from Northern Ireland constitutes a difference in ‘national origins’ vis-à-vis other Irish people. Similarly, the Equality Tribunal in Curran & Department of Education held that Irish people from the Gaeltachtaí do not have distinct national origins.  

Articles 1-3 of the Constitution of Ireland refer to ‘the Irish nation’ (singular) and that Northern Ireland is referred to in article 3 as one of two ‘jurisdictions’ on the island. Article 2 provides that ‘It is the entitlement and birth right of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation.  That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.”

The complainant claims that his ‘probation was 4 weeks’, but this was not a necessarily fixed period. Although ‘a trial period of at least four weeks’ is recommended for employees appointed to short-term contracts  by the Probation Guidelines  of the Department of Finance, this recommendation is not an entitlement of staff. In respect of the complainant, Mr Kielty had identified and reported performance issues which, in the view of Ms Canney, AP,  rendered him unsuitable for continued employment at an early stage. She took action accordingly.  The worker’s origins were of no relevance to that decision.

The contract issued to and agreed by the complainant stated that the probationary period ‘will normally last for 4 weeks’ which therefore clearly envisaged the possibility of a shorter period.        The contract also provided that ‘An Garda Síochána reserves the right to terminate your employment prior to the date of cessation on giving of the appropriate notice’ and that ‘An Garda Síochána also reserves the right to terminate your employment for stated reasons.’

In the case of Donovan v Over-C Technology [2021] IECA 37,  the court held that:

‘ If an employer has a contractual right – in this case a clear express right – to dismiss an employee on notice without giving any reason, the court cannot imply a term that the dismissal may only take place if fair procedures have been afforded to the employee, save where the employee is dismissed for misconduct.’

The mere existence of a contractual right to dismiss does not in any way affect the rights conferred by the 1998 Act. However, it is argued for the employer that the possibility of dismissal during the probation period was in this case provided for by the contract and therefore that, in and of itself, exercise by the employer of that right should not lead to an inference of discrimination.

The complainant asserts that he was discriminated in respect of training and his duties.  It was explained to the complainant during his initial meeting on 31 May that clarification of required duties, and therefore training, awaited the return of the District Officer from leave on 2 June.

The complainant cites remarks said to have been quoted by Jacqueline Friel in the canteen on 9 June 2021 as having caused him offence. No assertion causally connecting these remarks with his dismissal has been made.

The complainant has alleged that he was discriminated against insofar as he was dismissed on the grounds of his nationality.  His contract was fixed term for 4 months and was terminated after 11 days. The respondent’s position is that he was dismissed on the grounds of performance, unrelated to this nationality.  In any event the respondent argues that as he is from Northern Ireland, he does not have the protection of the Employment Equality Act on the grounds of nationality.

Having listened to the evidence in relation to the remarks about ‘Belfast Bomber’ I do not believe these were directed in any way to the complainant and I have not found them relevant to my decision.

In evidence the respondent submitted an unsigned and undated report, purportedly prepared by Mr Kielty, the EO to whom the complainant reported.  This report details the complainant’s performance on a daily basis from the commencement of his employment up to and including the day before he was dismissed.  In evidence, Ms Canney, stated that this report was prepared at her request.

The report includes a paragraph under the entry for the 4th of June as follows;

4th June 2021 – concerns re rumours were brought to my attention. PULSE checked and proven correct……

 HR Probations section contacted. Nothing can be done to terminate despite Supt & C/Supt not willing to continue with him. We have to use the processes regarding standard of work during 4 week probation period. Another week needed to assess his work and to take any measures to for him to improve. ……

This section of the report clearly indicates that by day 5 of his employment the senior Gardai were unwilling to work with him, despite the fact that the negative report had not yet been prepared by Mr Kielty.  The only items in Mr Kielty’s report that predated the 4th June related to grubby clothes (which improved the next day), files left in disarray (improvement noted the next day) and no initiative.  The only conclusion I can reach is that the reference to the rumours having been proved correct was a key factor in the unwillingness of the senior Gardai to retain the complainant. In evidence the complainant confirmed that he had previously made a complaint to GSOC concerning alleged verbal abuse from members of the Gardai and that his complaint stated that he believed this abuse was based on the fact that he was from Northern Ireland.  The respondent did not provide any evidence to refute this assertion.

Ms Canney, who conducted the interview on the day the decision to terminate the complainant was taken, stated in evidence that she was unaware of the GSOC complaint, and did not inquire into the section of Mr Kielty’s report in which he mentioned ‘rumours’ and the unwillingness of the senior Gardai to continue with the complainant.  She stated that the decision to dismiss was based entirely on performance issues.  Ms Canney was unable to say when she asked for the report from Mr Kielty except that it was after 10th June.  The complainant was dismissed on the 11th June.

From the evidence given it is an inescapable conclusion that the issue of the GSOC complaint, and the resulting unwillingness of the Senior Gardai to work with the complainant, was a significant contributor to the decision to terminate his employment.  As, in the unrefuted evidence of the complainant, this complaint he had made to GSOC was based on the alleged treatment he had received because he was from Northern Ireland, then it is clear that his origin was a significant factor in his dismissal.

The respondent has argued that the complainant based his complaint on the ‘race’ grounds. Section 6 of the Employment Equality Act states; (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).  Therefore, complaints in relation to nationality are comprehended in this Section of the Act.

The respondent has argued that Northern Ireland is not a nation and therefore it is not accepted that an Irish person from Northern Ireland has different national origins and therefore the complainant would not be covered by the nationality grounds in the Employment Equality Act. 

Article 2 of Bunreacht Na hEireann states as follows;

It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage

The protection of the Constitution does not require people born in Northern Ireland to be citizens of Ireland.  It is an entitlement, not an obligation.  People born in Northern Ireland may choose to be citizens of either or both jurisdictions i.e. Republic of Ireland and/or the UK.  A resident of Northern Ireland, who had opted to be a British citizen only, when faced with similar circumstances as the complainant in this case, would undoubtedly have the protection of the Employment Equality Act on the grounds of nationality.  To determine that someone else from Northern Ireland, who was entitled to, or perhaps exercised his/her entitlement to, citizenship of the Republic of Ireland, should be denied recourse to the Employment Equality Act would be an absurd interpretation of the Act. I therefore conclude that the complainant has recourse to the Employment Equality Act on the grounds of nationality.

Based on the above I conclude that a substantial part of the reason to dismiss the complainant, was based on the complainant he had made to GSOC relating to his nationality, and therefore he was discriminated against. 

The complainant was discriminated against and I order the respondent to pay him compensation of €10,000.

Discrimination on the grounds of nationality.  Northern Ireland.