ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00039412

Parties:

	Complainant	Respondent
Parties	Ann Maria Desmond	SIPTU

	Complainant	Respondent
Parties	Ann Maria Desmond	SIPTU

Representatives

self

Matthew Jolley BL, Bowler Geraghty & Company

Complaint(s):

Act	Complaint	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00051066-001	09/06/2022

Date of Adjudication Hearing: 28/06/2023

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000,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.

Background:

This case is brought under the Equal Status Act 2000 as amended (Act) and has it has its genesis in a grievance made by the Complainant about her grade and hours of work during 2016 while on maternity leave. The complaint was referred to Adjudication in 2017. The matter was referred under the Industrial Relations Act 1969 and an agreement was reached between the parties prior to Adjudication and the complaint was withdrawn.

The Complainant alleged that arising from her maternity leave during 2016 while absent from employment an agreement made with her employer did not address her grading grievance.

The Complainant has brought this complaint against SIPTU Trade Union as a service provider and alleged that the service given to her amounts to prohibited conduct under the Act on the ground of gender.

PRELIMINARY MATTERS:

The Respondent has raised several preliminary matters.

In her complaint form the Complainant stated:

I sought SIPTU Union representation seeking regularisation of my post to CNM2 under the terms that had been accepted in the Haddington Road Agreement. I was on Maternity Leave when the terms were accepted and it was only on my return from leave that I learnt that other comparator positions were ratified. HSE local management were not willing to concede to this request and the issue was referred for Adjudication services with the WRC on January 11th, 2017.

This Equal Status complaint was referred to the Commission on 9th of June 2022 more than 5 years since the Complainant was on maternity leave.

The Respondent stated that the complaint is being brought against the wrong party. It is a grievance about an Industrial Relations grievance that was resolved in 2017 and very recently has resurfaced as an Equal Status complaint.

The matter is not properly before the Adjudicator and therefore this tribunal has no jurisdiction to hear the complaint.

A trade union is not a service provider as defined under the Act; the Union does not provide services to the public and provides services only to its members.

In the alternative the matter is time barred as the matters complained off relate to a grievance made in 2017 and it is alleged that at that time the Union failed to represent the interests of this member as she was on maternity leave.

Having regard to the agreement made between the parties in 2017 the Complaint in equity should be estopped as delay to commence a new action more than 5 years after the agreement was concluded is unreasonable.

The matter is an employment dispute, and the Complainant has brought the claim under the wrong statute.

The Complaint cannot succeed as the elements to make out a prima facie case do not exist. The Complainant makes out that she was discriminated against on the ground of gender and that the prohibited conduct related to an unsatisfactory agreement made by her Union and that it related to the fact that she was female. The facts are that the agreement reached was concluded in 2017 after the Complainant returned from maternity leave. This complaint is about the Complainant wanting to be placed on a higher grade in her employment and that is not an Equal Status Complaint.

The Complainant stated that in her view the matter was properly before the Adjudicator as her Union has stated that the matter is now closed and will not refer the matter to the Workplace Relations Commission on her behalf. That refusal is a recent occurrence and does not relate to 2017 and that refusal is ongoing and therefore the complaint is properly before the Adjudicator.

PRELIMINARY DECISION:

Section 22 of the Act states:

22.—(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission] specifying the grounds of the appeal.

The Equal Status Act requires that a Complainant make out a Prima Facie Case. And that test requires that the Complainant establish primary facts that are significant and have the character to ground a complaint. In other words that the Complainant establishes facts that there is a potential (not probable) link between the ground of discrimination and the less favourable treatment complained about.

The facts tend to show that the Complainant is aggrieved about how negotiations about a grading matter was agreed in 2016/2017 while she was on maternity leave. That is more than 6 years ago. No evidence has been presented that the service complained of in 2022 could constitute an Equal Status complaint.

In this case the Complainant stated that the Union has disenfranchised her of her right to representation because she was on maternity leave in 2016. That dissatisfaction with her Union arose in January 2022. On these facts there cannot be a link made to the ground of gender specifically that she was discriminated against because the Complainant was on maternity leave during 2016 and the prohibited conduct alleged arose from January 2022. A complaint should have been made sometime during 2017, on the facts it is difficult to see how that complaint could be made under the Equal Status Act as this essentially is a dispute about her grade. What is now complained about is alleged prohibited conduct that occurred in January 2022 by her Union by not engaging with her about her grievance:

January 20, 2022 I emailed Natasha Treacy SIPTU reiterating some of the events that I believe I am being discriminated on gender grounds under the Employment Equality Act.

There are no facts presented that show that in January 2022 she was discriminated against on the ground of gender. Her case was not pursued on the basis that it had no prospect of succeeding as it had already been referred to adjudication in 2017 and a settlement agreement was entered into. Her subsequent dissatisfaction with the implementation of that agreement do not establish facts to ground a complaint under the Equal Status Act.

The technical term of vexatious and misconceived mean in law that a matter cannot succeed. They are not pejorative terms. This Complaint is statute barred and in any case no prima facie case has been made out. As I have determined that the matter is statute barred and misconceived, no prima facie case has been made out and the dispute on the facts is an Industrial Relations grievance and not a complaint that could meet the prima facie test as required under the Equal Status Act, I dismiss the Complaint. I determine that the Respondent did not engage in prohibited conduct.

Summary of Complainant’s Case:

See preliminary matter.

Summary of Respondent’s Case:

See preliminary matter.

Findings and Conclusions:

See preliminary matter.

Decision:

Section 22 of the Equal Status Acts, 2000 – 2015 requires that:

Section 22 of the Act states:

The Equal Status Act requires that a Complainant make out a Prima Facie Case. And that test requires that the Complainant establish primary facts that are significant and have the character to ground a complaint. In other words that the Complainant establishes facts that show there is a potential (not probable) link between the ground of discrimination and the less favourable treatment complained about.

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’ And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude,[this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

In this case the Complainant stated that the Union has disenfranchised her of her right to representation because she was on maternity leave. However, there is no evidence to support that allegation. She is clearly upset that her Union have stated that the matter is closed. A delay of 6 years to bring the complaint must mean the complaint is statute barred.

As I have determined that the matter is statute barred on the fact that the maternity leave occurred in 2016 this complaint is misconceived.

This dispute is an Industrial Relations grievance and not a complaint brought properly under the Equal Status Act, I dismiss the Complaint as it is statute barred and no prima facie case has been made out. I determine that the Respondent did not engage in prohibited conduct.

Dated: 14-07-2023

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Statute Barred.