Complainant

Respondent

Parties

Shelia Mary  Busher

Bidvest Noonan (ROI) Limited

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Emily Maverley, Ibec

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-00056822-001

23/05/2023

The Complainant commenced employment with the Respondent as a cleaning operative in February 1990.  She works 13 hours per week and is paid €330 gross per fortnight.  The Complainant believes that she was  victimised by the Respondent over a number of years due to changes in relation to work practices.  She feels that she has been picked on since she spoke up for her colleagues.  The Complainant submitted a complaint seeking adjudication by the WRC under section 77 of The Employment Equality Act.  The Respondent submits that the complainant has not provided facts from which a prima facie case of discrimination can be established, so there is no case to answer by the Respondent and accordingly the matter should be dismissed.

The Respondent raised two preliminary matters.  The name of the Respondent was incorrect, and this was noted.  The second preliminary matter was that the Complainant had not discharged the burden of proof establishing a prima facia case of discrimination as required by Section 85A of the Employment Equality Acts 1998 to 2015.

The Complainant has failed to establish a prima facie case of discrimination as required by the Act and has merely speculated upon the possibility of its occurrence.

The Complainant has not selected a specific protected ground as set out in the Employment Equality Acts that she had been allegedly discriminated against.

The Respondent submitted that there is a considerable amount of case law which confirms that Section 85A of the Act places the onus upon a Complainant who is alleging discrimination to establish facts based on credible evidence.  Some of the cases noted were Melbury v Valpeters EDA/0917, The Southern Health Board v Dr Teresa Mitchell, DEE 011, Cork City Council v Kieran McCarthy, EDA0821.

It was submitted on behalf of the Respondent that the Supreme Court case of Brannigan v The Equality Tribunal and Louth VEC [2016] IESC 40 stated:

“It is both a trite and historical principle of law that a creature of stature must live by the statute.  Its jurisdiction is found solely within the provisions of the enabling Act.  It is no inherent capacity unlike, say, that of a constitutional court.  It is therefore bound by what has been conferred on it.  It has no further competence, and it cannot create, add or enlarge the jurisdiction so vested in it”.

The Respondent submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, there is no case to answer by the Respondent and accordingly the matter should be dismissed.

The Complainant submits that when she submitted her complaint, she was advised that her form was incomplete and could not be processed.  She provided some additional information.  The Complainant acknowledges that she did not select any of the protected grounds and felt that none of these were relevant as she was victimised after having spoken up on behalf of her colleagues.

This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. 

The Employment Equality Act, Section 85a (1) provides as follows:

“(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”.

In order to demonstrate that the Complainant has received less favourable treatment, and that the less favourable treatment arose from one of the protected grounds the Complainant must first establish a prima facie case of discrimination.  Prima facie has been held by the Labour Court in Rotunda Hospital v Gleeson [DEE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The Respondent notes that this requires that a Complainant has to not only establish the primary facts upon which they will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.  The Labour Court in Southern Health Board v Mitchell (2001) E.L.R. 201 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.

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”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can vary significantly from case to case.  The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.  The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.  This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

In Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Labour Court elaborated on the interpretation of Section 85A stating:

“Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Complainant has failed to outline any of the grounds on which she has been discriminated against by the Respondent.  The Complainant has outlined a range of changes to her work practices and the effects of these on her working life, but she has failed to link these to any of the discriminatory grounds.

On the facts of this case, I have to determine whether a prima facie case has been established and if so, has the rebuttal been sufficient.  In applying the test in Melbury above I am satisfied that the Complainant has not demonstrated sufficient facts that she was discriminated against because of any of the nine grounds outlined in the Act.

I am satisfied that the Complainant has failed to make out a prima facia case of discrimination.  I cannot find in favour of the Complainant and the claim cannot succeed.

I find that the Respondent has not discriminated against the Complainant on any of the grounds of contrary to the Acts and her complaint fails. The complaint as presented is not well founded.

Discrimination.  Prima facie.