Complainant

Respondent

Parties

Seamus Singleton

Air Corps Department Of Defence

Complainant

Respondent

Anonymised Parties

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Representatives

Lucy Dwyer BL instructed by Emmet Hayes, Chief State’s Solicitor

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-00058316-001

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00058316-002

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00058316-003

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00058316-004

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Part 3 Section 20 of (European Cooperate Society)(Employee Involvement) Regulations 2007

CA-00058316-005

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00058316-006

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00058316-007

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00058316-008

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058316-009

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058316-010

15/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058316-011

15/08/2023

The Complainant was employed by the Respondent from 8 August 1983 to 15 August 2023. In his complaint form, he made several allegations of employment rights breaches against the Respondent.

The Complainant has alleged, inter alia, that three of his complaints fall under discrimination/equality and equal status but failed to present any relevant evidence in relation to these. He also made several complaints under a number of categories of penalisation.

The Respondent stated that the details of the allegations made against them were not properly set out and also highlighted that it was not clear what remedies the Complainant was seeking.

CA-00058316-001:

Section 6 of the Employment Equality Act, 1998, states:

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.]

The various discriminatory grounds are set out in the Act at section 6(2).

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he has been discriminated against.

The Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addressed the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Findings:

Despite having been questioned by me repeatedly at the hearing, the Complainant was unable to specify the ground of alleged discrimination.

As the Complainant was unable to specify the ground of alleged discrimination, I find that he has not established a prima facie case of discrimination.

CA-00058316-002:

Section 3 of the Equal Status Act defines discrimination as occurring:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation which exists

The various discriminatory grounds are set out in the Act at section 3(2) of the Act.

The Burden of Proof

At section 38(A) the burden of proof that the Complainant is required to establish is:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

Both Adjudication Officers and Equality Officers in complaints made under the Equal Status Act have drawn on the Labour Court decision in Mitchell v Southern Health Board [2001] ELR 201 to explain what constitutes presumed prohibited conduct, also referred to as a prima facie case, stating 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 those 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 was no infringement of the principle of equal treatment.”

Findings:

Despite having been questioned by me repeatedly at the hearing, the Complainant was unable to specify the ground of alleged discrimination.

As the Complainant was unable to specify the ground of alleged discrimination, I find that he has not established a prima facie case of discrimination.

CA-00058316-003:

Section 41 of the Workplace Relations Act 2015 states: -

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

and

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Findings:

The Complainant stated in evidence that the alleged contravention of the legislation in relation to this complaint occurred in December 2022. Given that this complaint was not submitted to the WRC until 15 August 2023, and in the absence of any reasonable cause having been presented to explain the delay in referring the complaint, I do not have jurisdiction to hear this complaint because it statue barred, according to the legislation set out above.

CA-00058316-005:

Section 20 of the Act states:

20. (1) A relevant undertaking or an SCE shall not penalise—

(a) a member of the special negotiating body,

(b) a member of the representative body,

(c) an employees’ representative performing functions under an information and consultation procedure, or

(d) an employees’ representative in the supervisory or administrative organ of an SCE who is an employee of the SCE, its subsidiaries or establishments or of a participating company,

for the performance by him or her of his or her functions in accordance with these Regulations.

(2) For the purposes of this Regulation, a person referred to in paragraph (1) is penalised if he or she—

(a) is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

(3) Schedule 2 has effect in relation to an alleged contravention of paragraph (1).

(4) Subject to paragraph (6), a person referred to in paragraph (1) shall be afforded any reasonable facilities, including time off, that will enable him or her to perform his or her functions as a member of the special negotiating body or representative body or as an employees’ representative, as the case may be, promptly and efficiently.

(5) A person referred to in paragraph (1) shall be paid his or her wages for any period of absence afforded to him or her in accordance with paragraph (4).

(6) The granting of facilities under paragraph (4) shall have regard to the needs, size and capabilities of the participating legal entity or the SCE, as the case may be, concerned and shall not impair the efficient operation of the participating legal entity or SCE.

(7) This Regulation shall apply in particular to attendance by representatives at meetings of the special negotiating body or any other meetings within the framework of an agreement referred to in Regulation 8 or Schedule 1 or any meeting of the administrative or supervisory organ.

(8) If a penalisation of a person referred to in paragraph (1), in contravention of that paragraph, constitutes a dismissal of that person within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to that person in respect of that penalisation both under Schedule 2 and under those Acts.

(9) This Regulation is in addition to, and not in substitution for, any rights enjoyed by an employee’s representative, whether under any enactment or otherwise.

Findings:

As the Complainant stated in evidence that he was not an employee representative, the question of penalisation does not arise.

CA-00058316-007:

Section 6 of the Employment Equality Act, 1998, states:

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.]

The various discriminatory grounds are set out in the Act at section 6(2).

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he has been discriminated against.

The Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addressed the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Findings:

Despite having been questioned by me repeatedly at the hearing, the Complainant was unable to specify the ground of alleged discrimination.

As the Complainant was unable to specify the ground of alleged discrimination, I find that he has not established a prima facie case of discrimination.

CA-00058316-008:

Section 20 of the Act states

20. (1) An employer shall not penalise or threaten penalisation of a worker for—

(a) invoking any right conferred on him or her by this Chapter,

(b) making a complaint to the Workplace Relations Commission that a provision of this Chapter has been contravened, or

(c) giving notice of his or her intention to do either of the matters referred to in paragraph (a) or (b).

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Act of 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed, until the contrary is proved, that the worker concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of a worker, in contravention of subsection (1), constitutes a dismissal of the worker within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the worker in respect of that penalisation both under section 23 and under those Acts.

(5) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects a worker to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

Findings:

As no act of penalisation was presented by the Complainant in relation to this complaint, I find that this complaint is not well founded.

CA-00058316-009:

Section 41 of the Workplace Relations Act 2015 states: -

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

and

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Findings:

Given that the Complainant’s secondment ended in May 2022, no alleged contravention of the legislation in relation to this complaint can have occurred after this date. As this complaint was not submitted to the were not submitted to the WRC until 15 August 2023, and in the absence of any reasonable cause having been presented to explain the delay in referring the complaint, I do not have jurisdiction to hear this complaint because it statue barred, according to the legislation set out above.

CA-00058316-001:

As the Complainant failed to establish a prima facie case of discrimination, I find that he was not discriminated against.

CA-00058316-002:

As the Complainant failed to establish a prima facie case of discrimination, I find that he was not discriminated against.

CA-00058316-003:

I do not have jurisdiction to hear this complaint because it statue barred, according to the legislation set out above.

CA-00058316-004:

This complaint was withdrawn.

CA-00058316-005:

I find that this complaint is not well founded for the reasons set out above.

CA-00058316-006:

This complaint was withdrawn.

CA-00058316-007:

As the Complainant failed to establish a prima facie case of discrimination, I find that he was not discriminated against.

CA-00058316-008:

I find that this complaint is not well founded for the reasons set out above.

CA-00058316-009:

I do not have jurisdiction to hear this complaint for the reasons set out above.

CA-00058316-010:

This is a duplicate complaint and has been dealt with in the context of CA-00058316-009 above.

CA-00058316-011:

This complaint was withdrawn.