Complainant

Respondent

Parties

Mark  Wells

Shopify International Limited Shopify

Representatives

 Alastair Purdy & Co. Solicitors

Rosemary Mallon BL instructed by DLA Piper Ireland  

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-00054561-001

19/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054561-002

19/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00054605-001

21/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054605-002

21/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00054638-001

23/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054638-002

23/01/2023

The complainant submits that he was victimised by the respondent.

Preliminary Issue:

In response to the preliminary issue raised by the respondent the complainant confirmed that the complainant was only proceeding with his claim of victimisation under the Employment Equality Acts (CA-00054561-001).

Substantive Issue

The Complainant commenced employment with the Respondent as a “Shopify Guru” on 17/10/2016 in a customer service style role and received a copy of his contract of employment.  On 01/02/2021, the Complainant was on a call with a “merchant” when that merchant began a tirade of abuse against the Complainant. Despite not knowing the Complainant, this merchant made wild accusations against the complainant of domestic abuse, swore at him repeatedly, made unsubstantiated complaints about his knowledge base, belittled him on the grounds of his gender and was racially abusive about other individuals. This abuse continued in follow up emails from this merchant, which contained further racist comments, personal insults and sexual harassment.

The engagement by email with the merchant included comments:

“What a LOSER! No idea how to LISTEN, so FULL OF HIMSELF he FLAUNTS IT...A quote "I HAVE WORKED AT SHOPIFY FOR 4 YEARS. Get upset when I explain the same thing OVER and OVER again. Says he understand it, BUT DOESN'T HAVE A CLUE. After years of domestic violence I would presume this guy is beating up on his partner.  SO PRECIOUS HE IS FRIGHTENED OF SWEARING (when it is the Aussie way). TOTALLYL USELESS GURU. One thing I can give him is he had enough balls to send through for the review. I would NOT recommend him to ANYONE! I WOULD RATHER OF RUNG THE Philippines (and that is saying something). THANKS FOR NOTHING!!!"” (sic).

In a second email the merchant made comments such as:

"HERE YOU GO YOU ARROGANT ARSEHOLE. I asked you about shopify documents, but the LOSER who has been WORKING THERE FOR FOUR YEARS, has NO IDEA WHERE TO FIND THEM. (sic)

The complainant immediately reported same to his team lead, Ms. A and subsequently, personnel from the Respondent duly responded to this merchant and apologised to the merchant as opposed to condemning the behaviours displayed and stated that the Complainant would receive training.  The response to the merchant included

“I have listened back to the call in question, and I am sorry that you didn't get the support you have come to expect from our Support Team. I can assure you that I am following up on this interaction, to ensure that this experience isn't repeated.”

A further email to the merchant stated:

"Hi ….I am responding to your email to clarify why I sent the warning. I understand you did not have a great experience on the call and I can confirm that the relevant coaching has been provided to the advisor.”

Following this extremely unpleasant interaction, the Complainant lodged a grievance dated the 22/04/2021 which is an approximately 14 page letter setting out the level of abuse sustained by the Complainant from this individual and the shocking response from the Respondent.  The grievance raised included:  

“The use of my sex against me makes me wonder how homophobic or sex based comments directed at females compared to male staff is handled”

And

“…how Incident Response victim blamed me, appeased the merchant who abused, bullied, sexually harassed, threatened me while also expressing a racist and xenophobic comment to our X and Y colleagues. 

On 20/05/2021 following meetings with management, Ms B for the Respondent, found against the Complainant and his grievance was not upheld.  The Complainant appealed this decision in line with the Company Policy and Mr C on 19/07/2021 found in favour of the Complainant and upheld his grievance.  The complainant was eager to ascertain what action was to be taken now that his grievance had been upheld and on 03/01/2022 he tried to contact Mr C but was told that Mr C was no longer an employee with the Respondent.

The Complainant also contacted Mr. D Managing Director for the Respondent, as this individual had also been part of the appeal process and at the time, had assured the Complainant that the respondent would learn from the experience and commended the Complainant for making a stand on matters.  Unfortunately, the Complainant felt “fobbed” off with this interaction and concerned about this lack of feedback and on the 23/06/2022 the Complainant, lodged a second grievance/complaint with the Respondent, via his immediate Supervisor, Mr. E highlighting what he believed were matters of gender-based discrimination and sexual harassment amongst other things.

The contents of this second grievanceincluded

“I wish to take a formal grievance out against: (Employee 1, 2, 3, 4, 5, 6)…The details of my grievance are …..On February 1st, 2021 I was subjected to misandry from a merchant. The definition of misandry is: dislike of, contempt for, or ingrained prejudice against men (i.e. the male sex) This was reported to the above leadership/management which initially resulted in my support being blamed as to the cause of the merchants abuse, racism, misandry etc. Challenging this with all the named Leads met with no action that the response was wrong. …On reviewing the whole situation, I realised that I was treated differently by the named Leads by being male. In the age of MeToo, and even before it, any woman subjected to abuse including misogyny, would have been supported in a totally different way. In no way would they have been blamed and nor would subsequent leadership/management have not corrected that error. 

I identify as male.

I was subject to misandry.

All leadership involved up to employee X adjudicating identify as female“

Further on the Grievance 2 letter outlines

“..Any attempt by Shopify leadership to retaliate or bully me over reporting this discrimination will be reported to the Workplace Relations Commission.”

On the same date, after lodging his grievance, Mr E then initiated disciplinary proceedings against the Complainant and the complainant was informed of this by his Supervisor.  

It was submitted that despite the disciplinary matter only being raised with the Complainant on the 23/06/2022 and immediately after his grievance/complaint was lodged, the allegations made against him were dated back to the previous March 2022.  It was submitted that by 18/07/2022 disciplinary proceedings against the Complainant were “closed out” and discontinued. The next day, 19/07/2022 a meeting was held with the Complainant about his grievance and parties tasked with investigating same reported into one of the people named in the Complainant’s grievance.  On 25/07/2022 the complainant was notified that his second grievance had not been upheld. On the very next day, 26/07/2022 without any notice or process, the Respondent informed the Complainant, via email, that his position was now redundant.

It was submitted that the Complainant was never informed that he was part of any redundancy process and he was not put on notice that his position was at risk of redundancy, he was not informed of any selection process or the basis for any redundancy. He was not consulted about any alternatives to redundancy or offered the option to appeal the decision and, it appears that he was the only member of his team selected for redundancy while junior members of his team (only 2 weeks on the team), who had not lodged discrimination grievances, were not made redundant.   The Complainant’s employment was terminated on the 26/07/2022.

It was submitted that because the complainant raised a grievance on 22/04/2021 and 23/06/2022 where he alleged that he was treated differently than female colleagues that he was victimised and that after lodging a first and second grievance, he was brought into a disciplinary process and a day after being informed that his grievance was not upheld he was made redundant.  The complainant submitted that this case fully meets the threshold for victimisation as a complaint of discrimination was made by the Employee to the Employer, the Complainant was subjected to adverse treated by the Respondent and the adverse treatment was in reaction to the protected act having been taken by the Complainant.

Case law cited included Jacek Kozik v Kellor Services (Ire) Limited ADJ-00033436, Department of Defence-and- Tom BarrettEDA1017. 

The complainant gave evidence that he started in 2016 as a general support and was told he would have to take a pay cut when he was asked to go into another job and was then made redundant.  He said he was always respectful and supported colleagues who were suffering at the hands of merchants.  In 2021 he had a call with a merchant who had a history of being difficult.  He said there was a note on the file that she did not like men.  She started swearing at the complainant and he found it unsettling and she abused the complainant and he hung up.  He said he took a five minute break as he was shaken by the interaction and saw that she had sent two follow up emails where she said she had been a victim of abuse and also said in the email that the complainant was probably a domestic abuser.  He said that she was racist against employees from another country and that recounting the incident still shakes him up.  He contacted his manager and said that action needed to be taken and she spoke to incident response and it was suggested that the complainant needed retraining.  He said there was no apology and nothing was happening to the merchant for her behaviour.  The complainant took a grievance and that as a result of the incident he suffers anxiety and did not want other people to experience what he experienced.  He said that he was abused and his supervisor did not stand up for him.  The outcome of the initial grievance that he raised was not upheld and then he appealed that and it was mostly upheld that the complainant was abused.  The complainant was told changes would be made and the company would learn but no changes were implemented.  The complainant said he had previously got a warning but had moved on from that and was not aware that there was further action proceeding against him.  The complainant said that he then raised a second grievance that he was treated the way he was treated because he was male and that he should not be treated differently because he is a man.  He said after the grievance was done a disciplinary followed and that the dismissal came out of the blue.

The complainant said he was the only one made redundant and the only one selected for redundancy and that someone who joined 2 weeks before him was surprised that the complainant was selected and there was no reason why the complainant was selected.  The complainant said that he believed the trigger for dismissal was taking the grievance and that because he took a grievance and that a Director had said that if he was not on board then he should ship out. The complainant said that this had affected him and his anxiety levels have increased and it was not a valid redundancy and that he secured another job that he loves and gets on very well in this job.

Under cross examination the complainant said that his first grievance was that he had been abused by the merchant and that management did not help and that his second grievance was that he was discriminated against by 6 women and he was unable to answer if he took a number of grievances and that it was because of these grievances.  He said he was abused by the women involved because of his sex.  He said that he was not aware of any retaliation after the first grievance on 22/04/2021.   He said that if he was a women the behaviour he experienced would not have happened.  He said the victimisation that he experienced was being put through a disciplinary and the dismissal and no one else was made redundant.  He said the disciplinary occurred on 06/05/2022 and might have been because of the first grievance which was termed a “formal caution” and this was 6 weeks before his grievance. The complainant said that the respondent was bending what he was saying and that if it was a woman it would not have happened and confirmed that it was a general letter.  He said that he got a caution on 06/05/2022 and that on 11/05/2022 he had engaged in a conversation with an employee and she said she did not want to discuss it as it related to the grievance in February 2021 that a manager felt uncomfortable and wanted to shut it down and that the complainant continued with the discussion. 

He confirmed he was made redundant on 26/07/2022 and that 10% globally were made redundant but nobody else on his team was made redundant.  He confirmed the CEO posted about redundancies on 26/07/2022 and it was a shock to everyone.  He said that he was the only one in his team selected and confirmed he was one of the 10% made redundant globally.  He said he was selected because of what happened.  He said he had been working as normal and saw an email and read it announcing redundancies and he got the email around 10/11:00 am.  He found he had no access and he messaged his manager saying he had no access and then he seemed to be the only one with no access.  He said that about 2/3pm he was told he was gone and did not recall if he was told he could have someone with him and was not shown a matrix and told that his role had doubled up and nothing explained about he was selected and the meeting lasted 15/20 minutes max.  He was locked out of the respondent’s IT systems immediately.

Preliminary Issue:

The respondent queried how many complaints were submitted and whether the WRC had written to the complainant seeking him to make an election regarding complaints.

Substantive Issue:

It was not in dispute that the complainant raised a grievance on or about the 22/04/2021 in relation to a call he had with a merchant.  The grievance was not upheld and the complainant appealed this.   The appeal was upheld where it was stated that

“I have made a decision to overturn in part the grievance outcome which was provided to you on May 20, 2021. In regards to your concerns about Incident Response’s reply to the merchant, we are taking this opportunity to have Incident Response review the details of this case again and will be providing guidance that responses to instances of abuse by merchants should not normally imply the need for coaching or remedial action on the Support Advisor’s part. Moving forward, Incident Response will be asked to ensure that in such circumstances, the severity of the merchant’s behaviour is highlighted and our Support Advisors feel appropriately supported

As a general reminder, we do want to take this opportunity to reiterate that we have an Employee Assistance Program that is available to you should you require additional support at this time, as well as your Business Partner who will be informed of the outcome of your appeal. Being the final step in the appeal process, this decision is final and there will be no further internal right of appeal available to you after this stage. Please know that we appreciate you bringing forward these concerns with the intention of bettering Shopify and we will continue to work towards continuous improvement of our processes..”

 “in such circumstances the severity of the merchant’s behaviour is highlighted and our Support Advisors feel appropriately supported”. 

The complainant submits that he wanted to know what action the respondent would take and it was submitted that it was incredible to think that the complainant appeared to assert that he needed to be further informed by the respondent as to what action would take place.

A second grievance was lodged on 23/06/2022 by the complainant whereby he named 6 female employees that he alleged treated him differently after the merchant call. 

“On February 1st, 2021 I was subjected to misandry from a merchant. The definition of misandry is: dislike of, contempt for, or ingrained prejudice against men (i.e. the male sex) This was reported to the above leadership/management which initially resulted in my support being blamed as to the cause of the merchants abuse, racism, misandry etc. Challenging this with all the named Leads met with no action that the response was wrong. …On reviewing the whole situation, I realised that I was treated differently by the named Leads by being male. In the age of MeToo, and even before it, any woman subjected to abuse including misogyny, would have been supported in a totally different way. In no way would they have been blamed and nor would subsequent leadership/management have not corrected that error.” 

It was submitted that the grievance failed to particularise any alleged mistreatment/discrimination and that the complainant made general and nonspecific assertions of wrongdoing and the notes from the grievance meeting outlined that there were general and nonspecific assertions of wrongdoing and the complainant never particularised his complaints against the six women.  The complainant’s grievance was not upheld and a copy of the decision issued 25/07/2022.  This included:

“During our meetings on July 19, 2022 and July 25, 2022, a number of questions were asked by the Investigation Team in order to ascertain detailed allegations, evidence and/or facts regarding the allegations of discrimination that you made in your grievance. However, you were ultimately unable to provide specific events or evidence that would indicate that discrimination on the basis of sex had taken place after the merchant call in question or during your initial grievance process. Instead, you solely relied on speculation and assumptions that you would have been treated differently if you were not a male. Therefore, as a result of the lack of clear and specific evidence, facts and/or detailed events and information, the Investigation Team has concluded that your grievance is unfounded.”

Long before this second grievance, the complainant was issued an informal caution due to areas of concerns with his behaviour and this was issued on 06/05/2022.  It was evident that between 01/06/2022 and 16/06/2022 that the disciplinary process was well underway long before the complainant raised his second grievance on 23/06/2022. 

The Claimant in his submissions appears to suggest that it was strange that the disciplinary process was closed out on the 18th of July 2022. It was not strange and indeed it was fully explained to him in an email of the 18th of July  which states inter alia:

“As discussed on 15th July 2022, I can confirm that Shopify has decided that no disciplinary action is warranted in relation to the allegations set out to you on 23 June 2022.

After having reviewed the information gathered to date I am satisfied that the allegations relating to Feb 24th, March 17th and April 25th 2022 are included within the caution of May 6th 2022 therefore it is our view that it is not necessary to review these allegations against a new process.”

The complainant alleges that he was informed of disciplinary proceedings on 23/06/2022 but he was made well aware of this back in May 2022.  A decision to have a disciplinary meeting was entirely unconnected with the grievance that he raised.  On 25/07/2022 the complainant was informed that his grievance was not upheld.  The decision to make the complainant’s position redundant was unrelated to the grievance and on 26/07/2022 the CEO announced a reduction in workforce of 10% and also in May 2023 the respondent announced further reductions in workforce.

Although it was unfortunate that the complainant’s position was impacted, it had nothing to do with his grievance. Over 100 employees in support functions including 8 in Ireland, 10 in New Zealand, 95 in Canada were impacted on 26/07/2022 owing to significant economic retraction in the ICT sector.  It was submitted that while the complainant might be unhappy with the decision and procedures adopted, it would be impossible for him to argue any alleged procedural problem was an act of penalisation or victimisation.

The respondent submitted the three-tiered test for establishing a prima facie and that while the complainant may have issues regarding procedural fairness about the redundancy process, it is irrelevant to equality claims.  The disciplinary issue had been discussed long before the complainant raised his grievance and he was one of 1,000 made redundant.  It was submitted that there was no facts to establish victimisation.

It was submitted that it is undoubtedly the case that the complainant is unable to establish the required nexus. In relation to the disciplinary process this was discussed long before the grievance was raised.  The complainant can point to absolutely no facts to establish victimisation. It is undoubtedly the case that the complainant is entitled to his opinion but it is his opinion and not based on fact.  The respondent submitted that the complainant is not entitled to the relief claimed and/or any relief.  His grievance had nothing to do with the redundancy.  The unfortunate reality is, the ICT sector has experienced significant economic retraction in recent times. The Claimant’s role was selected for redundancy as it was no longer required by the business. It is also important to note the Support Specialist Plus group has been impacted by further reductions, since the termination of the Claimant’s employment which is further evidence the Claimant was not targeted in his role.

Case law cited included Nathy's College v Rena Burke EDA 1512, Rescon Limited v Scanlan EDA 085/2008, Galway Mayo Institute v Vlad Telecanca EDA 1835, Mitchell v Southern Health Board [2001] ELR 201.       

No witnesses gave evidence on behalf of the respondent.

Preliminary Issue:

I note that the respondent raised there had been various complaints submitted by the complainant and inquired as to whether the WRC had written to the complainant requesting the complainant elect which complaint was proceeding.  The complainant confirmed that the only complaint which remained was CA-00054561-001. The hearing, therefore, proceeded with regards to CA-00054561-001.

Substantive Issue:

The complainant submitted that he was belittled by a merchant on the grounds of his gender and raised a first grievance which was not upheld, which he appealed and this first grievance was partly upheld on appeal; that he submitted a second grievance regarding the discriminatory manner in which the first grievance was dealt with and this grievance was not upheld.   It was submitted that the complainant was brought through disciplinary action and was selected for redundancy and his employment ended.

The complainant submits complaints of victimisation, namely, that he was victimised when disciplinary action was initiated as a result of his first grievance, that he was victimised when disciplinary action was initiated as a result of his second grievance, that he was victimised as he was selected for redundancy as a result of his first grievance and dismissed, that he was victimised as he was selected for redundancy as a result of his second grievance, and dismissed.

The respondent denies the claims and submits that there was no victimisation, that the disciplinary process was initiated in advance of Grievance 2 and that the complainant’s selection for redundancy was unrelated to raising any grievances and that he was not the only person impacted by redundancies.

Section 85A(1) of the Act provides in relation to the burden of proof on a Complainant who alleges discrimination or victimisation treatment contrary to the Act:

“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 Labour Court in Southern Health Board v Mitchell [2001] ELR 201 determined the extent of evidential burden imposed on a Complainant by section 85A and held:

“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.

Only if such primary facts are established and regarded as being of sufficient significance to raise a presumption of victimisation, that the burden shift to the respondent.  A complainant, therefore, has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination.  In Melbury Developments Ltd v Valpeters [2010] ELR 64, it was set out that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Section 74(2) of the Act defines victimisation as follows:

For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”.

In effect as set out in EDA1017 Barrett v Department of Defence

The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

The Labour Court outlined in EDA1935 ESB International v Asim Mumtaz, where the complainant in that instant case raised a claim of victimisation under Equality legislation that the seminal case in setting out a test for penalisation / victimisation is Toni & Guy Blackrock Limited v Paul O’ Neill Determination HSD095.  In the Toni & Guy Blackrock Limited v Paul O’ Neill case the Labour Court held that

“in order to make out a complaint of victimisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by the Act. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is noted that the complainant has not submitted a claim of discrimination but a claim of victimisation.  Indeed it is not a requirement for a complaint of discrimination to be upheld for a claim of victimisation to be successful as Section 74 refers to the making of a complaint of discrimination or the bringing of proceedings which was seen in Claimant v A Department Store DEC-E2002-017.

In the first part of the complaint of victimisation, the detriment complained of was that the complainant was subject to disciplinary action following raising Grievance 1. I note this grievance is approximately 14 pages in large print and I am satisfied that the complainant took an action of a type referred to at Section 74(2) as his letter of grievance clearly includes reference to

how Incident Response victim blamed me, appeased the merchant who abused, bullied, sexually harassed, threatened me while also expressing a racist and xenophobic comment to our X and Y colleagues. 

I am satisfied that disciplinary action is adverse treatment by an employer.  The complainant’s first grievance was raised on 22/04/2021 with the outcome issued 21/05/2021 and the outcome of the appeal was issued on 19/07/2021. I note that the complainant’s own evidence was that he was not aware of any retaliation that occurred during the year after raising his first grievance.  I also note that the disciplinary process regarding incidents of 24/02/2022, 17/03/2022 and 25/04/2022, commenced around 06/05/2022, over a year after the raising of the first grievance.  I donot find that the adverse treatment of disciplinary process was in reaction to the protected action having been taken by the Complainant when he raised Grievance 1.  In those circumstances this aspect of the complainant’s complaint of victimisation must fail.

The second part of the complaint of victimisation is that the detriment complained of was him being subject to disciplinary action following raising Grievance 2.  I am satisfied that the complainant took an action of a type referred to at Section 74(2) as his letter for Grievance 2 clearly sets out:

“I wish to take a formal grievance out against: (Employee 1, 2, 3, 4, 5, 6)…The details of my grievance are …..On February 1st, 2021 I was subjected to misandry from a merchant. The definition of misandry is: dislike of, contempt for, or ingrained prejudice against men (i.e. the male sex) This was reported to the above leadership/management which initially resulted in my support being blamed as to the cause of the merchants abuse, racism, misandry etc. Challenging this with all the named Leads met with no action that the response was wrong. …On reviewing the whole situation, I realised that I was treated differently by the named Leads by being male. In the age of MeToo, and even before it, any woman subjected to abuse including misogyny, would have been supported in a totally different way. In no way would they have been blamed and nor would subsequent leadership/management have not corrected that error. 

I identify as male.

I was subject to misandry.

All leadership involved up to employee X adjudicating identify as female“

Further on the Grievance 2 letter outlines

“..Any attempt by Shopify leadership to retaliate or bully me over reporting this discrimination will be reported to the Workplace Relations Commission.”

I am satisfied that disciplinary action is adverse treatment by an employer.  The complainant’s second grievance was raised on 23/06/2022 with the outcome issued 25/07/2022.  I note that the disciplinary process regarding incidents that were alleged to have occurred 24/02/2022, 17/03/2022 and 25/04/2022 commenced around 06/05/2022 which was prior to the complainant raising the second grievance.  I donot find that the adverse treatment of disciplinary process was in reaction to the protected action having been taken by the Complainant with Grievance 2. In those circumstances this aspect of the complainant’s complaint of victimisation must fail.

The third aspect of the complaint of victimisation is that the detriment complained of was being selected for redundancy and employment terminated following his raising of Grievance 1.  I note this grievance is approximately 14 pages in large print and I am satisfied that the complainant took an action of a type referred to at Section 74(2) as his letter of grievance 1 clearly outlines

“how Incident Response victim blamed me, appeased the merchant who abused, bullied, sexually harassed, threatened me while also expressing a racist and xenophobic comment to our X and Y colleagues. 

I am satisfied that dismissal action is adverse treatment by an employer.  The complainant’s first grievance was raised on 22/04/2021 with the outcomes issued on 21/05/2021 and the outcome of the appeal issued on 19/07/2021. I note that the complainant’s own evidence was that he was not aware of any retaliation that occurred during the year after raising his first grievance and that the selection for redundancy which led to dismissal occurred over a year later on 26/07/2022. I note that in Securikey Limited v. GajdosEDA1317 the Labour Court took into consideration the manner and …the time at which it chose to (dismiss) I donot find that the adverse treatment of selection for redundancy and dismissal was in reaction to the protected action having been taken by the Complainant when he raised Grievance 1.  In those circumstances this aspect of the complainant’s complaint of victimisation must fail.

The fourth aspect of the complainant’s claim of victimisation is that the detriment complained of was being selected for redundancy and employment terminated following his raising of Grievance 2.  I am satisfied that the complainant took an action of a type referred to at Section 74(2) as his letter of Grievance 2 clearly outlines

“I wish to take a formal grievance out against: (Employee 1, 2, 3, 4, 5, 6)…The details of my grievance are …..On February 1st, 2021 I was subjected to misandry from a merchant. The definition of misandry is: dislike of, contempt for, or ingrained prejudice against men (i.e. the male sex) This was reported to the above leadership/management which initially resulted in my support being blamed as to the cause of the merchants abuse, racism, misandry etc. Challenging this with all the named Leads met with no action that the response was wrong. …On reviewing the whole situation, I realised that I was treated differently by the named Leads by being male. In the age of MeToo, and even before it, any woman subjected to abuse including misogyny, would have been supported in a totally different way. In no way would they have been blamed and nor would subsequent leadership/management have not corrected that error. 

I identify as male.

I was subject to misandry.

All leadership involved up to employee X adjudicating identify as female“

Further on the Grievance 2 letter outlines

“..Any attempt by Shopify leadership to retaliate or bully me over reporting this discrimination will be reported to the Workplace Relations Commission.”

The complainant’s second grievance was raised on 23/06/2022 with the outcome issued on 25/07/2022.  I note that the following day the CEO advised employees of a reduction in workforce that will see about 10% leave by the end of the day.  The complainant was advised by email that he was one of those selected.  The respondent elected not to give direct evidence and the complainant’s evidence was that he was the only person on his team selected, that he was not advised of any matrix explaining the selection criteria and that somebody who had started employment after him had not been made redundant.  I found the complainant’s evidence credible and noting that in Securikey Limited v. GajdosEDA1317 the Labour Court took into consideration the manner and …the time at which it chose to (dismiss) I find that the adverse treatment of selection for redundancy and dismissal was in reaction to the protected action having been taken by the Complainant through Grievance 2.  The respondent has not discharged the statutory or evidential burden of proving compliance with the Acts. I find that the complainant was victimised by his dismissal and taking into consideration all the circumstances including that protection against victimisation must enable such employees “to raise complaints without fear of retribution.” (Barrett v Department of Defence EDA 1017) I award the complainant €10,000.

 This complaint was withdrawn.

 This complaint was withdrawn.

 This complaint was withdrawn.

 This complaint was withdrawn.

 This complaint was withdrawn.

CA-00054561-001

I find that the complainant was not victimised by disciplinary action by raising Grievance 1 and 2 and was not victimised by dismissal by raising Grievance 1.  I find that the complainant was victimised by his dismissal by raising Grievance 2 and the respondent has not discharged the statutory or evidential burden of proving compliance with the Acts and taking into consideration all the circumstances of this case I award the complainant €10,000 for the act of victimisation.

Equality, victimisation, disciplinary, dismissal