CORRECTION ORDER
ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1988
This Order corrects the original Decision ADJ 42040 issued on 19th of April 2023 (19/04/2023) and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042040
Parties:
| Complainant | Respondent |
Parties | Marcel Houssou | Trinity Care Group, Saint Peters Nursing Home |
Representatives |
| Katie Ridge, Head of Employer Relations, Adare Human Resource Management |
Complaints:
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-00052787-001 | 13/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00053087-001 | 03/10/2022 |
Date of Adjudication Hearing: 22/03/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Any complaint being made under the Employment Equality Acts concerning discrimination, victimisation, discriminatory dismissal, unequal remuneration etc., is brought before the Workplace Relations Commission following a referral to the Director General per Section 77. In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has already been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated 13th of September 2022) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Race (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…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) …...(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),
In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the victimisation experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Section 85A of the Employment Equality Act states:
- (1) Where in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
This amounts to the Prima Facie obligation on the Complainant. 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.
There is no exhaustive list of circumstances which are required in terms of discharging the initial burden - the Labour Court has consistently stated that “the type or range of facts which may be relied upon by a complainant can vary significantly from case to case. “.
The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“The 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 where 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.”
The Adjudicator must determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of.
In addition to this, the Complainant has said that he has also suffered victimisation in the workplace. Victimisation is defined in Section 74(2)of the Act –
“as adverse treatment of an employee by his or her employer” as a reaction to a complaint of discrimination having been made by the employee to the employer.
The Acts specifically protect a person against dismissal or other adverse treatment by their employer because they have made a complaint to their employer about possible discrimination or taken proceedings under the Equality Legislation or opposed by lawful means an act which is unlawful under these Acts etc. Penalising a person for any of these reasons is defined as victimisation. The Acts provide for complaints about victimisation to be made to the Workplace Relations Commission in the same away as for complaints of discrimination and with the same provision for redress. Per Section 74 of the Act.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant swore an oath to tell the truth. I was provided with a comprehensive submission on the “topics” the Complainant wanted to cover on the 16th of March 2023, and these were shared with the other side. The Complainant also relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent. The Complainant alleges that he was discriminated against on the grounds of his race in the course of his employment with the Respondent Employer. The Complainant seems to be making the case that he was subjected to racial discrimination every day that he worked in the Nursing Home. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. The Complainant raised a preliminary issue requesting that I should anonymise the decision. The Complainant issued two complaint forms herein. The first was presented on the 13th of September 2022 and the second was presented on the 3rd of October 2022. |
Summary of Respondent’s Case:
The Respondent entity was represented by Ms. Ridge who had provided me with a submission in advance of the hearing on the 13th of March 2023. I have additionally heard from a witness for the Respondent – Mr. Andy Shorthall. All evidence was heard following an Oath. The Respondent rejects that there has been Discrimination and has also raised a preliminary issue concerning the length of time it has taken the Complainant to bring a complaint of this nature against the former Employer. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have given careful consideration to the evidence adduced before me in the course of this hearing. Dealing with the first of two preliminary issues raised, the Complainant had requested that I might anonymise any decision I make arising out of this hearing. The Complainant failed to elaborate on why I should do this, and I have been provided with no special set of circumstances which could justify the anonymisation of the within matter. The Respondent entity did not have a view either way and was satisfied that the parties should be identified. I am aware of my obligation to protect the identities of residents in the Respondent nursing home. On balance I am not inclined to a accede to the Complainant’s request to anonymise the parties to the proceedings. The second preliminary issue deals with the application of Section 77(5) of the Employment Equality Act which states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In general terms, this means I cannot entertain a complaint presented by this Complainant after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. As stated, the Complainant’s evidence tends to suggest that he was discriminated against every day which I am going to assume included the very last day i.e. the 24th of February 2021. The Complainant should therefore have brought a complaint on or before the 23rd of August 2021.
In the circumstances I was obliged to confirm with the Complainant when exactly his employment with the Respondent had ended and I was advised (by way of sworn evidence) that the employment herein terminated on the 24th of February 2021. This means that the Complainant waited nineteen months to issue a complaint against his Employer for the alleged discrimination he suffered in the course of his employment in the workplace. A second complaint form issued twenty months after the last day of employment.
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. However, this will not exceed a twelve-month period and the Complainant has not brought either complaint within the twelve-month period after the end of the employment. The Complainant sought to excuse his tardiness by stating that he had very little understanding of the legal system here. I have sympathy for the Complainant, but I cannot remedy the situation as the Statute is mandatory.
The Complainant indicated that some fourteen months after the termination of his employment, the Complainant was contacted by a member of an Garda Siochana concerning a complaint raised by a family member of a resident in the nursing home. It seems the Complainant was questioned about this issue. I understand that the Complainant believed that his former Employer had something to do with this, but I am satisfied that it was a family member who triggered the issue with the Gardai and that the Employer had no part in the matter.
The Complainant has not been prosecuted and needs confirmation of the fact that no prosecution is pending, to allow him to proceed to obtain Garda vetting and continue to work and support his family. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00052787-001 – The Complainant has not established discrimination or victimisation in circumstances where his Complaint was out of time. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00053087-001 - The Complainant has not established discrimination or victimisation in circumstances where his Complaint was out of time.
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Dated: 19/04/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042040
Parties:
| Complainant | Respondent |
Parties | Marcel Housson | Trinity Care Group, Saint Peters Nursing Home |
Representatives |
| Katie Ridge, Head of Employer Relations, Adare Human Resource Management |
Complaints:
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-00052787-001 | 13/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00053087-001 | 03/10/2022 |
Date of Adjudication Hearing: 22/03/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Any complaint being made under the Employment Equality Acts concerning discrimination, victimisation, discriminatory dismissal, unequal remuneration etc., is brought before the Workplace Relations Commission following a referral to the Director General per Section 77. In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has already been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated 13th of September 2022) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Race (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…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) …...(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),
In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the victimisation experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Section 85A of the Employment Equality Act states:
- (1) Where in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
This amounts to the Prima Facie obligation on the Complainant. 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.
There is no exhaustive list of circumstances which are required in terms of discharging the initial burden - the Labour Court has consistently stated that “the type or range of facts which may be relied upon by a complainant can vary significantly from case to case. “.
The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“The 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 where 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.”
The Adjudicator must determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of.
In addition to this, the Complainant has said that he has also suffered victimisation in the workplace. Victimisation is defined in Section 74(2)of the Act –
“as adverse treatment of an employee by his or her employer” as a reaction to a complaint of discrimination having been made by the employee to the employer.
The Acts specifically protect a person against dismissal or other adverse treatment by their employer because they have made a complaint to their employer about possible discrimination or taken proceedings under the Equality Legislation or opposed by lawful means an act which is unlawful under these Acts etc. Penalising a person for any of these reasons is defined as victimisation. The Acts provide for complaints about victimisation to be made to the Workplace Relations Commission in the same away as for complaints of discrimination and with the same provision for redress. Per Section 74 of the Act.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant swore an oath to tell the truth. I was provided with a comprehensive submission on the “topics” the Complainant wanted to cover on the 16th of March 2023, and these were shared with the other side. The Complainant also relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent. The Complainant alleges that he was discriminated against on the grounds of his race in the course of his employment with the Respondent Employer. The Complainant seems to be making the case that he was subjected to racial discrimination every day that he worked in the Nursing Home. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. The Complainant raised a preliminary issue requesting that I should anonymise the decision. The Complainant issued two complaint forms herein. The first was presented on the 13th of September 2022 and the second was presented on the 3rd of October 2022. |
Summary of Respondent’s Case:
The Respondent entity was represented by Ms. Ridge who had provided me with a submission in advance of the hearing on the 13th of March 2023. I have additionally heard from a witness for the Respondent – Mr. Andy Shorthall. All evidence was heard following an Oath. The Respondent rejects that there has been Discrimination and has also raised a preliminary issue concerning the length of time it has taken the Complainant to bring a complaint of this nature against the former Employer. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have given careful consideration to the evidence adduced before me in the course of this hearing. Dealing with the first of two preliminary issues raised, the Complainant had requested that I might anonymise any decision I make arising out of this hearing. The Complainant failed to elaborate on why I should do this, and I have been provided with no special set of circumstances which could justify the anonymisation of the within matter. The Respondent entity did not have a view either way and was satisfied that the parties should be identified. I am aware of my obligation to protect the identities of residents in the Respondent nursing home. On balance I am not inclined to a accede to the Complainant’s request to anonymise the parties to the proceedings. The second preliminary issue deals with the application of Section 77(5) of the Employment Equality Act which states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In general terms, this means I cannot entertain a complaint presented by this Complainant after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. As stated, the Complainant’s evidence tends to suggest that he was discriminated against every day which I am going to assume included the very last day i.e. the 24th of February 2021. The Complainant should therefore have brought a complaint on or before the 23rd of August 2021.
In the circumstances I was obliged to confirm with the Complainant when exactly his employment with the Respondent had ended and I was advised (by way of sworn evidence) that the employment herein terminated on the 24th of February 2021. This means that the Complainant waited nineteen months to issue a complaint against his Employer for the alleged discrimination he suffered in the course of his employment in the workplace. A second complaint form issued twenty months after the last day of employment.
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. However, this will not exceed a twelve-month period and the Complainant has not brought either complaint within the twelve-month period after the end of the employment. The Complainant sought to excuse his tardiness by stating that he had very little understanding of the legal system here. I have sympathy for the Complainant, but I cannot remedy the situation as the Statute is mandatory.
The Complainant indicated that some fourteen months after the termination of his employment, the Complainant was contacted by a member of an Garda Siochana concerning a complaint raised by a family member of a resident in the nursing home. It seems the Complainant was questioned about this issue. I understand that the Complainant believed that his former Employer had something to do with this, but I am satisfied that it was a family member who triggered the issue with the Gardai and that the Employer had no part in the matter.
The Complainant has not been prosecuted and needs confirmation of the fact that no prosecution is pending, to allow him to proceed to obtain Garda vetting and continue to work and support his family. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00052787-001 – The Complainant has not established discrimination or victimisation in circumstances where his Complaint was out of time. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00053087-001 - The Complainant has not established discrimination or victimisation in circumstances where his Complaint was out of time.
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Dated: 19/04/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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