Complainant

Respondent

Parties

Ethal  Gavin

Irish Prison Service

Representatives

John Curran B.L. instructed by  P.C Moore & Co Solicitors

Aoife McMahon B.L. instructed by  Chief State Solicitor's Office

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-00035627-001

23/03/2020

The complainant asserts that her removal from her temporary post of Acting Campus Governor in May 2018 (effective from 2nd June 2018) was discriminatory on the grounds of gender and family status. The complainant also stated that she was discriminated against in respect of promotional opportunities and in respect of “other”. The complaint in respect of “other” was not pursued at adjudication. A further complaint of victimisation relates to a complaint of bullying and harassment that was submitted against the complainant by the HR Manager who was administering the complaint that the complainant herself had submitted against another senior member of staff.

The complaints were lodged to the WRC on 23rd March 2020 in respect of the incidents of May 2018 and the investigation processes that followed and how matters were addressed by the respondent thereafter.

The respondent raised a preliminary point that the complaints are out of time as no acts of discrimination occurred within the six months prior to the referral of the complaints. The respondent outlined the provisions of Section 77(5) of the Employment Equality Act, 1998 in respect of the referral of a complaint to the WRC.

In respect of the complaints submitted, the respondent contends that the original discriminatory act complained of is alleged to have occurred in May 2018 which is 22 months prior to the referral of the complaint and is outside of the statutory referral period.

The respondent stated that Circular 11/2001 did not apply to the complainant as the grievances centred around her assignment to an allowance post and the circular does not apply to such posts. It was further confirmed that ad hoc mediation had not been accepted by the complainant. As circular 11/2001 did not apply and given the serious nature of the grievances, the HR Manager engaged an external consultant to conduct an investigation into the grievances raised. The complainant was notified of the investigation into her grievances on April 3rd 2019. Despite her initial dissatisfaction with that process, the complainant participated in the investigation and her grievances were not upheld. The respondent contends that the issuing of the investigation report in November 2019 was not ultra vires or a discriminatory act as contended by the complainant.  

In respect of the complaint of bullying and harassment submitted by the HR Manager against the complainant in February 2020, the respondent refutes that this was an act of victimisation against the complainant. The respondent stated that the complaint in question arose in good faith as a result of how the complainant is alleged to have treated the HR Manager while she was administering the complaint submitted by the complainant against a senior member of staff.

In conclusion, the respondent contends that the complainant has not established acts of discrimination within the cognisable period of the complaint and on that basis the complaints are out of time.

The complainant contends that the complaints are within time. Counsel for the complainant stated that the original discriminatory treatment of the complainant arose in May 2018 when she was removed from her position as Acting Campus Governor 1 effective from 2nd June 2018. Having submitted a grievance in relation to same, the complainant was denied a mediation process as provided for in Circular 11/2001 and instead, the HR Manager initiated an investigation process which was ultra vires and discriminatory. The investigation report issued in November 2019 and is within the cognisable period of the complaint. The complainant was also refused post investigation mediation having requested same on 5/12/2019 and 10/3/2020 for discriminatory reasons which is also within the cognisable period of the complaint.

Furthermore, the HR Manager subsequently lodged a complaint of bullying and harassment against the complainant on 20th February 2020 which is an act of victimisation against the complainant and also occurred within the cognisable period of the complaint.

The Applicable Law

Discrimination

Section 6(1) of the Employment Equality Act, 1998 provides as follows:

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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Section 6(2) of the Employment Equality Act, 1998 at relevant part states as follows:

6(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) not relevant

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

Time limits

Section 77(5) of the Employment Equality Act 1998 provides as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period 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.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

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.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

The following issues were raised by the complainant as being acts of discrimination/victimisation within the cognisable period of the complaint. As counsel for the complainant considered the complaints to be in time, there was no application made to extend time despite a statement on the complaint form that an extension of time was being sought if necessary. On that basis I will address incidents of discrimination alleged to have occurred within the cognisable period (24th September 2019 – 23rd March 2020.) If incidents of discrimination are found to have occurred within the cognisable period, I will then address issues of discrimination outside of the cognisable period in considering if there was a continuum of discrimination dating back to May 2018.

Issue 1 – Failure to provide mediation in line with Circular 11/2001

Counsel for the complainant stated that the provisions of Circular 11/ 2001 provide for a mediation process resulting in a recommendation and that this was denied to the complainant. The respondent argued that the circular did not apply as the grievance centred around the complainant’s assignment to a post carrying an allowance which are excluded from the application of the circular.

I note that initial discussions between the HR Manager and the Mediator in question resulted in the matter being deemed unsuitable for mediation given the broad number of issues contained in the grievance as well as the fact that it was submitted against a senior member of staff. On that basis, the HR Manager sought advice and proceeded to arrange for an investigation to be carried out and despite initial dissatisfaction, the complainant participated in the investigation process. I also note that the complainant declined the offer of ad hoc mediation outside of the terms of Circular 11/2001.

Having been advised that Circular 11/2001 did not apply to her and having declined ad hoc mediation, the matter was addressed by way of an investigation. In her complaint form to the WRC alleging discrimination, the complainant stated that she was denied mediation post investigation having requested same on 5/12/19 and 10/3/20. However, at that point the investigation had concluded, and the grievances had not been upheld.  In my view if the complainant perceived that there were discriminatory reasons why she was not offered mediation, these issues should have been addressed in April 2019 prior to the investigation taking place and not after that process had concluded.

Having considered the documentation and submissions of the parties on this point, I find that the respondent acted on the genuine belief that the circular did not apply to the complainant and arranged for an investigation process given the nature and contents of the grievance. On that basis I do not accept that there were acts of discrimination on the grounds of gender and family status with regard to access to mediation within the cognisable period of the complaint.

Issue 2 – Collier Broderick Report

The Collier Broderick report addressed the grievances raised by the complainant in respect of her removal from her role in May 2018. The report issued on or about 8th November 2019 and did not uphold the grievances the complainant had raised relating to a senior member of staff.

Counsel for the complainant stated that the report was discriminatory and “ultra vires” as Circular 11/2001 does not provide for an investigation. It provides for a mediation process and a recommendation. On this point, I note that the respondent was acting on its belief that the circular did not apply and that an investigation was deemed to be the most appropriate way to address the issues raised by the complainant.  Having considered the issue, I find that the Collier Broderick Report was not “ultra vires” as it was put in place in circumstances where the respondent acted on the basis that the circular did not apply and where ad hoc mediation had not been accepted by the complainant. I find that within the cognisable period of the complaint, there was no discriminatory actions on the part of the respondent with regard to the investigation or the acceptance of the report that concluded that process.

Issue 3 – Victimisation complaint

The HR Manager submitted a complaint of bullying and harassment against the complainant on 20th February 2020. The complainant asserts that this was an act of victimisation as the HR Manager knew and worked with the senior member of staff who was the subject of the complainant’s grievances. The HR Manager’s view was that the complainant had subjected her to bullying and harassment while she was administering the complainant’s grievances and raised a formal complaint in relation to same. Only two elements of the complaints were upheld. Counsel for the complainant cites the complaint as an act of victimisation within the cognisable period of the complaint.

Conclusions

Counsel for the complainant confirmed the position that a complainant cannot await the result of an internal grievance before submitting a complaint to the WRC as to do so could result in the complaint(s) being referred outside of the statutory time limit. Counsel contends that this is not what occurred in this case as there were acts of discrimination within the cognisable period which meant the complaints are within time and were part of a series of related acts that amounted to a continuum of discrimination.

The complainant stated in evidence at the adjudication hearing that she was always of the view that her removal from her post in May/June 2018 was discriminatory, but that time had moved on, she had sought mediation, was not aware of a statutory time period for the referral of her complaints to the WRC and had hoped that the matter could be resolved. Unfortunately for the complainant, the alleged act of discrimination occurred in May/June 2018 which is outside of the cognisable period of the complaint. The initiation of the Collier Broderick report was notified to the complainant in April 2019 and if that was perceived to be a discriminatory act, the complainant was required to submit a complaint within six months of that date. I do not accept that the report itself, which issued in November 2019 and did not uphold the complainant’s grievances, was discriminatory on the grounds of gender and family status.

In respect of the report into the complaint made by the HR Manager against the complainant in February 2020, I do not accept that this was an act of victimisation. The assertion that the HR Manager submitted a complaint against the complainant as a result of the complainant submitting a grievance against a colleague of the HR Manager is without any foundation in my opinion. The HR Manager had perceived she was being bullied and harassed by the complainant while administering the complainant’s grievances and submitted a formal complaint as a result. The HR Manager gave evidence on this point at the adjudication hearing. I found the HR Manager to be honest and sincere in her description of how she felt she had been treated by the complainant and the reasons why she addressed the issue formally. I note that the complaint of bullying and harassment against the complainant was not upheld but that she had been found to have undermined the HR Manager and behaved towards her in a manner that could reasonably be considered to be an affront to the HR Manager’s dignity in the workplace.

In all of the circumstances of the complaint, I find that the complainant has failed to establish that there were incidents of discrimination within the cognisable period of the complaint (24/09/2019 – 23/03/2020). On that basis, I find that the complaint is out of time and is therefore statute barred.

For the reasons stated above I find that the complaint is out of time and is therefore statute barred.

Discrimination, Time limits, complaint out of time

Cases cited by complainant:

Arthur v London Eastern Railway Ltd [2007] I.R.L.R. 58

County Cork VEC v Hurley EDA 24/2011

A Named Female Employee v A Named Respondent DEC-E2003-001

Waldron v North Western Health Board DEC-E2003-021

A Former Employee v Financial Services Company DEC-E2016-107

Cases cited by respondent:

Dublin City Council v SIPTU and IMPACT, LCR20669

Marnane v South Tipperary County Council DEC-E2009-059

County Cork VEC v Hurley EDA1124

Department of Finance v IMPACT [2005] E.L.R. 6

Cementation Skanska v Carroll DWT0338

A Former Employee v Financial Services Company DEC-E2016-107