Complainant

Respondent

Parties

Bernard  Mongan

Employment Development Information Centre  & Revamp 3R Store

Representatives

Self-Represented

Ms Murphy and Mr McManus, Centre Management.

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-00047566-004

08/12/2021

The issue in contention concerns a complaint that the Complainant, Mr M, suffered Discrimination, in his conditions of employment, on the grounds that he was a member of the Travelling Community.

The Employer is an Employment Development Information Centre (EDIC) with a subsidiary Traveller Youth Training venture – “REVAMP 3Rstore”.

The employment commenced in November 2010 and continued at the date of the complaint referral.

The rate of pay was stated to be €201 net for 19.5-hour week.

The issues can be traced back to an incident with the Complainant’s line Manager in REVAMP, Ms O’C, on the 6th of October 2021. He had raised the question of how his Bank Holidays were being paid and the Manager had responded most inappropriately.

The Complainant made a formal complaint to the Board of the Centre regarding the behaviour of Ms. O’C.  A counter complaint was made by the Manager against the Complainant.

Ms O’C made various defamatory remarks about the Complainant, the principal one being that he was a “Coward” and had falsified his attendance details. The allegation of being a “Coward”, in the presence of witnesses, was particularly upsetting and offensive to the Complainant personally.

Despite numerous efforts the Board of the Centre engaged in foot dragging and completely unacceptable delays in both investigating and attempting to resolve the issues.  Requests for copies of statements made by Ms O’C and other witnesses to the meeting of the 6th October were refused on the grounds that the persons concerned had “Left the company”. This was unacceptable.

If the Complainant had not been a Traveller, the Board would have taken his complaint much more seriously and the endless foot dragging would never have taken place.

The delays in dealing with a legitimate complaint were a clear case of Discrimination on the Traveller grounds and a breach of the Centre’s own Dignity and Respect in the Workplace Policy.

The Organisation is a Community based, social enterprise that has been successfully addressing the training and upskilling needs of citizens distanced, for whatever reason, from the formal Labour Market. The REVAMP offshoot is designed to cater primarily for the Traveling youth population which experiences a very high incidence of unemployment.

The Complainant began as a trainee in 2010 but was offered and accepted a permanent general operative position in 2011.

In August 2021 the Complainant raised the issue of proper Bank Holiday payments. He maintained that the methodology used was not a proper interpretation of relevant legislation. The issue was referred to SIPTU. It formed one of the issues in the disputed meeting with the REVAMP Manager, Ms O’C, in the 6th October meeting.

The Centre is a very committed Social Enterprise with Trade Union full time Officials on the Board.

The issues raised by the Complainant were addressed as quickly as possible but were handicapped by staff turnover, two Managers of REVAMP left in a short period of time including Ms O’C on the 29th October 2021 and other witnesses withdrew their statements.  Internal cross over within SIPTU further delayed matters and a very detailed examination of time sheets to establish the Complainant’s position was required. It was eventually agreed that a financial offer be made in June 2022 to the Complainant to “close off the issue”.

The Respondent pointed to the nine grounds of Discrimination in the Employment Equality Act,1998 and argued that the delays in this process did not fall under any of the Grounds. The Centre has upwards of 70% Traveller background employees and the allegation that the delay was due to the Complainant being a Traveller completely lacks substance. There is no “prima facie” grounds as required by Legislation and Case Law Precedents.

3:1        The Employment Equality Act, 1998 complaint – CA-00047566-004

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an Employment Equality case, such as here, it is necessary to firstly establish certain Legal issues -these being

1.       In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is he eligible to being a claim?

2.       Was he discriminated against?

3.       Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

4.       Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 if 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.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2      Was the Complainant covered by the Discrimination provisions of the Act?

In his complaint form he pointed to the Traveller grounds.

Clearly, he was of Traveller background.

Reviewing the evidence presented I think it fair to say that he satisfies this entry ground.

However as has been pointed out many times in Labour Court and other Legal precedents being a member of a Group or Category is not sufficient grounds, alone, to justify a Discrimination claim.

An individual may be a Traveller but if the allegedly bad treatment they receive is the same as the population generally then being a Traveller, is by itself, not grounds to base a Discrimination claim using the Traveller ground alone.

The normal burdens of proof, as in any case, have to apply.

3:3        Was he Discriminated against?

The Complainant argued that the processing of his, in his eyes, legitimate complaint was completely delayed and put off on the basis that he was a Traveller.

Whether or not this was a Discriminatory act must be discussed below in conjunction with the Burden of Proof question.

3:4        The Burden of Proof.

The Employment Equality Act Section 85(A) requires that the Respondent Employer effectively establish that the alleged Discrimination did not occur. Reviewing the evidence, I came to the view that the Burden of Proof rested with the Respondent employer.

The Respondent principal arguments was that none of the nine main grounds of Discrimination applied even allowing that the Complainant was a Traveller.

The evidence pointed to a very irritating, for the Complainant, series of delays.

The initial disputed meeting took place on the 6th October 2021. It was, from the evidence, a disputed affair. A first investigatory meeting with the Centre Manager and Chairperson was held on the 12th October 2021. Statements had been received from the Line Manager, another employee and the SIPTU Rep at this stage. On the 14th October the Line Manager gives notice of Resignation. The other employee withdraws her statements. The SIPTU Official meets with the Complainant on the 20th October. On the 21st the Line Manager withdraws her statement regarding the 6th October meeting.

On the 4th November the Complainant requests copies of all statements. The overall EDIC Manager replies that both employees had left the organisation and withdrawn their statements.

The Respondent now considered the matter of the 6th October 2021 meeting closed.

The Bank Holiday complaints continued well into 2022. For the Spring of 2022 SIPTU, for internal organisational reasons, were unable to engage with the Respondent.

To add complications a new Line Manager had been appointed on the 4th January 2022 but resigned on the 15th April 2022. A further new Manager was appointed on the 3rd May 2022 and engaged with SIPTU on the Bank Holiday issue. A meeting was held with all Parties on the 21st June and an offer made to the Complainant. The Offer was not accepted, and issues progressed. Mediation was now suggested by SIPTU, and the issue was being followed up between the parties as late as the day of the WRC Adjudication hearing.

3:5       Adjudication conclusion.

From an Adjudication point of view and the requirements of the Equality Act,1998 it was hard to see where the issue of the Complainant being a Traveller negatively influenced matters. The EDIC and REVAMP were heavily and positively focused on the Travelling community. 

The delays in this case had many contributory factors and players. Three Managers on the Respondent side, other resignations and withdrawals of witness statements had delayed and confused issues. The SIPTU internal issue had also not helped.

However, from a strict Equality Act,1998 perspective the Traveller background issue of the Complainant was not supported by any specific evidence directly related to this alone. Any other employee from any background could equally have been subject to the delays.

In ordinary language the delays and back and forths with numerous Personalities, SIPTU internal issues, staff turnover and statement withdrawals, would have

“Tried the patience of not one but multiple Saints”.

However, the Equality case before Adjudication, on the Traveller basis only, is not sufficiently strong to support the claim.

The complaint cannot be deemed to succeed.

Equality, Traveller Grounds, Discrimination.