ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034502
Parties:
| Complainant | Respondent |
Parties | Cathal Russell | University Hospital Limerick |
Representatives | Self-Represented | Ms V Enright of the HSE. |
Complaint
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-00045155-001 | 13/07/2021 |
Date of Adjudication Hearing: 07/09/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 & Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
No issues were raised regarding confidentiality.
Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.
Background:
The issue concerns an alleged delay in handling a Grievance referral by the Employee. The Employment was a large Mid-Western HSE University Hospital. It was maintained that a Grievance by a non-national female employee was handled most expeditiously (within 48 hours) while the Grievance lodged by the Complainant (an Irish, white male) was grossly delayed – some six weeks passed before his grievance was even given a form reply.
The Complainant lodged a Discrimination complaint on the Discrimination grounds of Gender, Race and Other Grounds.
The Complainant was employed as a Catering Manager since June 2017 until January 2022. The rate of pay was stated to be Grade 7 approximately € 65 K for a 37-hour week. |
1: Summary of Complainant’s Case:
1:1 Time Limits issue The Complainant accepted that he was outside of the six-month limit but pleaded that he had been sick for a period and also, on his return to work, was in the full forefront of the Covid epidemic at the Hospital. Furthermore, the well-publicised Cyber-attack on the HSE had severely restricted access to his Work PC which was necessary for records etc connected his case. On these grounds he requested the Adjudication Officer to allow a six-month extension to his time limits for the complaint. 1:2 Main Case The Complainant submitted a lengthy statement which he supported by an Oral Testimony. In essence he alleged that a female non-Irish national lodged a Grievance on the 30th January 2019. This was handled expeditiously by the HSE/Hospital and the issue was closed by an outcome on the 1st May 2019. He queried this and the Outcome letter was amended with a new letter of outcome issuing on the 23rd September 2019. By comparison a Grievance lodged by the Complainant on the 5th October 2020 was not resolved/decision issued until the 12th November 2020 with a final note from HR on the 18th December 2020. Clear HSE Grievance Policy Guidelines were breached, and the case was delayed completely unnecessarily. This was a clear case of Discrimination against the Complainant on the Grounds of Race; he was Irish and Gender -he was a Male while the other Complainant was Female and non-Irish.
|
2: Summary of Respondent’s Case:
2:1 Time Limits – Case out of time. The Respondent pointed to the fact that the complaint in hand, CA-00045155, was lodged at the WRC on the 13th of July 2021 alleging a last date of Discrimination as the 6th November 2020. Taking the accepted six months rule the cognisable period would have been from the 13th January 2021 to the 13th July 2021 -clearly outside the date of the 6th November 2020. As such the complaint is statute barred on time grounds. 2:2 Main case The Respondent gave an Oral testimony supported by a written submission. In the Oral Testimony it was accepted that some delays had occurred in the processing of grievance case in the periods in question. HSE Policy guidelines had been exceeded. However, it had to be accepted that the period in question was in the full brace of the Covid epidemic with the Hospital in question absolutely on the daily point of being overwhelmed. The HSE Nationally had shut down most HR/IR and Grievance procedures from March 2020 to July 2020 to allow staff focus on the clinical crisis facing the Service. The Respondent cited three cases in their evidence all involving the Complainant, a Hospital manager either as Respondent or Complainant. The days taken to conclude the cases were 91, 38 and 105 respectively. The Complainant’s main case was the 38-day case. It was accepted that delays had occurred but there was no way it could it be argued that any of these delays in the Complainant’s case were due either to his Gender-male or his racial background - Irish nationality. The case simply lacks a prima facie legal basis with little or no real evidence being presented. The Respondent Representative accepted, in final conclusion, that delays had happened. She publicly apologised for these, but none were Legally Discriminatory. They were largely due to the exceptional circumstances faced by all HSE personnel during a Covid 19 pandemic. |
3: Findings and Conclusions:
3:1 Time Limits It was accepted the Complaint had missed the first six-month deadline. However, in view of the extenuating circumstances, both Personally to the Complainant and Organisationally with Covid 19 & the Cyber-attack, an extension of a further six months was allowable by the Adjudication Officer. The case proceeded on this basis. 3:2 Applicable Law and Legal Precedent The relevant legislation is the Employment Equality Act 1998 Section 6 defines Discrimination as follows Discrimination for the purposes of this Act. 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,
The key reference is to a person being treated “less favourably” than another. The legal issue is that of the Burden of Proof in Section 85 A Burden of proof.
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.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.
(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.
Legal precedent has interpreted this to mean that a Complainant has, as a first step, to establish a prima facie inference of Discrimination. In other words, they have to establish an “inference” of Discrimination. It does not have to be proved by the Complainant at this stage - just that there is a case worthy of further investigation. It then becomes the responsibility of the Respondent to rebut the case -i.e., to disprove the allegation of discrimination. Landmark Legal cases especially Mitchell v Southern Health Board [1999] E.L.R. 120and Cork City Council v McCarthy EDA0821 have established that a prima facie case has to be based onsolid Legal foundations – assumptions and speculations by a Complainant are not sufficient and are warned against. Legal issues not withstanding all cases rest on their own factual matrix and evidential background, and these must be looked at next. 3:3 Evidence presented both Orally and in Written submission. The Respondent accepted that delays had taken place and were regretted. However, in all the evidence presented by both sides it was impossible to ascertain where Discrimination,” treated less favourably than another” on the grounds of Gender or Nationality had actually taken place. The HSE/Hospital concerned was in the middle of the Covid crisis. The Complainant’s Department – Catering - was very much a Front-line operation. It also had a very large Staff compliment which considerably added to the difficulties of the Director of Services/Facility Manager and the Complainant as the Manager. On the Balance of Probability, the Complainant case that the overall head of Department, Ms F, the Facility Manager had actively Discriminated against the Complainant in favour of a Non-national female was not sustainable. The evidence presented, which was limited enough, simply did not support this view. Mutual Cross examination by both parties did not change this position. 3:4 Adjudication Conclusion The Adjudication conclusion has to be that Discrimination as alleged did not take place. |
4: Decision:
CA: - 00045155-001
Section 41 of the Workplace Relations Act 2015 & 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 of the cited Acts.
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.
Accordingly, the Adjudication decision is that Discrimination of the Gender and Nationality Grounds. as alleged, did not take place.
The case does not succeed.
Dated: 10th February 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Gender, Race Discrimination, Delays in Grievance procedures. |