Complainant

Respondent

Parties

Mr. Brendan  Ogle

Unite the Union

Representatives

Mr. Peter Murphy of McInnes Dunne Murphy LLP, instructing Ms. MP Guinness BL.

Ms. Karyn Harty, Ms. Lesley Caplin and Mr. Tiernan Nix of Dentons Ireland LLP, instructing Mr. Mark Harty SC and Mr. Barra Faughnan BL.

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-00056727-001

18/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00056727-002

18/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00056727-003

18/05/2023

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

CA-00056727-004

18/05/2023

The Complainant’s Case:

The Complainant, a trade union official, has been employed by the Respondent since 2004. The Complainant was appointed a Grade 10 “Senior Officer” in around August 2018 and (now) earns approximately €7,108.50 gross monthly.

The Complainant was diagnosed with cancer and was on sick leave from July 2021 until July 2022. The Complainant alleged that upon his return to work, he was subjected to discrimination on the ground of disability. In short, the Complainant submitted that he was discriminated against, inter alia, in the following ways:

1.           His Grade 10 Senior Officer role was fundamentally changed; his political role was reallocated; and his tasks were removed. He no longer has a full-time role insofar as he is not fully engaged and his current role involves two days’ work per month overseeing Education.

2.           He was pressured to accept, the Grade 9 Dundalk Regional Officer role, a demotion.

3.           There was a “strategic plan” excluding him.

4.           He was not part of the “Organisational Review” prepared by Mr. Fitzgerald which was presented in December 2022.

5.           His grievances dated 11 November 2022 (regarding the removal of contractual duties and role); and 28 March 2023 (regarding the promotion process) were not concluded.

6.           He was excluded from meetings and conferences and he was allocated a car of a lower specification.

The Complainant submitted, inter alia, that he had “a full and varied role as the Senior Officer prior to getting cancer. Now he has no substantial role.” He further submitted that “[w]hen he returned  to work from cancer his role had been removed”. The Complainant filed his WRC Complaint Form on 18 May 2023, alleging that the Respondent had discriminated against him on the ground of disability, in violation of the Employment Equality Acts 1998-2015 (the “EEA”).

The Respondent’s Case:

The Respondent denied the allegations in full. The Respondent submitted that the Complainant was not discriminated against and that the Complainant has failed to meet the burden of proof. The Respondent further submitted that the Complainant has failed to adduce a comparator. In short, the Respondent submitted, inter alia, that:

1.           The Complainant’s Grade 10 Senior Officer role was mostly focused on political campaigns. The Respondent submitted that the Complainant carried out other tasks, but these did not occupy significant amounts of time. The Respondent submitted that its direction / emphasis changed from political matters to industrial matters following the appointment of a new General Secretary, Ms. Sharon Graham in August 2021. As General Secretary, Ms. Graham had also mandated a review of, and emphasis on, Education. Against this background, Mr. Pollock, the Regional Secretary, allocated the Complainant the combined role of Education (for all of Ireland) and Legal (for the Republic of Ireland) Officer. This was a substantial role, commensurate with the Complainant’s grade and position. Moreover, no tasks were removed from the Complainant.

2.           The Grade 9 Dundalk Regional Officer role was held open for the Complainant, as per his request and no pressure was placed on him to accept it.

3.           There was no “strategic plan” excluding the Complainant.

4.           The “Organisational Review” document was prepared as by Mr. Fitzgerald as part of his function as Grade 10 Regional Coordinating Officer (the “RCO”). The same document concerns membership growth; was discussed at Irish Executive Committee meetings; and was not a “secret enterprise”.

5.           The processing of the Complainant’s grievances was delayed for a number of months by agreement while the Complainant took annual leave and later to facilitate without prejudice discussions.

6.           The Complainant was not excluded from meetings and conferences; and his allegation concerning his car allocation is unfounded and outside the cognisable period.

The Respondent submitted, inter alia, that the complaint is “entirely artificial” and “an effort to shoe-horn an industrial relations / management issue into first a penalisation claim and then an equality one”. Finally, the Respondent submitted that the crisis in relations and the meetings and the grievances regarding his duties, all post-dated his wife’s “Facebook” post on 11 September 2022.

The Complainant provided detailed written and oral submissions.

Preliminary Matters:

The Complainant’s Complaints:

The Complainant took issue with the Respondent’s assertion that it is “contradictory and untenable” for him “simultaneously to assert that both his alleged unfavourable treatment was due to a dispute before he had a disability and also to say it was because of his disability”. The Complainant submitted that he can maintain claims under the Protected Disclosures Act 2014, the Safety Health and Welfare at Work Act 2005 and the EEA. The Complainant submitted that the Respondent’s criticism must be viewed in the light of the Respondent’s approach and position. The Complainant submitted that he was first provided with the “Organisational Review” document after four days of evidence, on 8 April 2024. The Complainant submitted that his case never changed. He further submitted that there has been “animus” towards him since his appointment and the Respondent took the “opportunity of the Complainant’s illness to act on that”. 

The Burden of Proof:

The Complainant submitted that as the Respondent accepted that his role has fundamentally changed since his return to work, and has put reasons forward for this change, the burden of proof has shifted to the Respondent.

Comparators:

In terms of comparators, the Complainant first referred to three colleagues who had also returned to work following serious illness. The Complainant further submitted that Ms. Cartmail was treated differently because she is “close to the General Secretary”. On 18 June 2024, during Closing Submissions, the Complainant referred, for the very first time, to Mr. Fitzgerald, another Grade 10 Officer, as his comparator. The Complainant asserted that Mr. Fitzgerald’s role was expanded to include some roles which the Complainant had carried out, while the Complainant’s role was diminished.

Relevant Timeframe:

The Complainant submitted that the relevant timeframe is 19 November 2022 until 18 May 2023. The Complainant submitted that the WRC can consider matters outside of this timeframe “for the purposes of considering whether any such material is probative, or corroborative, of allegations coming withinthe [relevant timeframe]”. The Complainant submitted that he was discriminated against since his return to work and continues to be discriminated against and therefore all matters outside of the relevant timeframe should be considered.

Substantive Matters:

The Complainant’s Appointment and Role:

The Complainant submitted that he was “the Senior Officer” (Complainant’s own emphasis) and that prior to his diagnosis he had a “full and varied” role which covered “political matters, day to day matters within the office, members complaints, liaison with 6 officers, member of ICTU Committee together with engagement on policies, collective bargaining and interaction with other unions”. The Complainant submitted the following:

·             Mr. McCluskey and Mr. Pollock were in agreement that he was the “right person for the job” of Senior Officer in the Republic of Ireland (the “ROI”). The Complainant referred to Mr. McCluskey’s evidence that his role was “to cover all aspects of the union as a senior officer, whether that be dealing with issues with the staff, issues with other officers [and] intervening in industrial disputes”.

·             Some of his day-to-day tasks were set out in Mr. Pollock’s email (the “Tasks Email”) dated August 2018.

·             He had the following additional duties: “[e]verything on a day-to-day basis; Unite’s representative on the Irish Congress of Trade Unions Executive Committee; Unite Senior Management; Policies and interaction with other unions; Meeting other General Secretaries; Member complaints.”

·             The Complainant referred to Mr. Browne’s evidence that while he (Mr. Browne) covered industrial matters, the Complainant was responsible for everything else.

·             The Complainant provided significant assistance to Mr. Fitzgerald and all of the officers.

·             The Complainant referred to Mr. Fitzgerald’s evidence as “instructive” and submitted that they had more than just “casual” dealings and that the Complainant “actively assisted and took the lead on certain industrial matters”. In particular, the Complainant referred to documentation that was opened and put to Mr. Fitzgerald under cross-examination.

·             The Complainant further submitted that he applied the Covid protocols and managed the day-to-day affairs of the office during Covid and that this is no longer the case.

The Complainant submitted that he engaged in good faith with Mr. Pollock regarding an alternative role. The Complainant submitted that he first received a “take it or leave it offer” in writing on 2 November 2022. The Complainant submitted that this was the first time he received anything in writing from the Respondent, stating that it had removed his previous role. The Complainant further submitted that the role was “utterly unsuitable.”

The Complainant submitted that his Grade 10 Senior Officer role was changed and his duties and tasks were reallocated and removed. He submitted that he no longer has a substantial or full-time role insofar as he is not fully engaged and his current role involves two days’ work per month overseeing Education.

The Dundalk Role and the Return-to-Work Meeting on 22 July 2022:

The Complainant submitted that it is accepted that he contacted Mr. McCluskey while on sick leave, about the possibility of taking on a Grade 9 Dundalk Regional Officer role (the “Dundalk role”). The Complainant referred to Mr. McCluskey’s evidence that it would be the Complainant’s choice as to “which role he would ultimately come back to”. The Complainant submitted that in December 2021, Ms. Kielim, the Respondent’s Director of HR Training and Development, provided him with a draft contract to sign, which outlined “reduced terms and conditions of employment”. This was due to “her misunderstanding” that he had taken the Dundalk role. The Complainant submitted that while he "had informed Mr Pollock by text that he would not be accepting the role in Dundalk […] it is accepted that during a phone call in February 2022 with Ms. Kielim that the Complainant agreed that this matter would be discussed on his return” to work.

The Complainant submitted that he was subsequently referred for an Occupational Health (“OH”) assessment, based on the role that he held prior to going on sick leave. The Complainant submitted that his GP certificate had referenced stress and that this was included a part of the referral for the OH assessment. The Complainant submitted that he was assessed as fit to return to work “with some reasonable accommodations regarding a staggered number of days, returning over a period of weeks”.

The Complainant submitted that the Return-to-Work Meeting was predicated on an OH Report which found him fit to return to his original role. The Complainant submitted that “on a clear reading of the minutes of the [Return-to-Work] meeting, pressure was placed on [him] to go to Dundalk”. The Complainant submitted that Mr. Pollock and Ms. Kielim engaged in “repeated questioning regarding moving to Dundalk”. The Complainant submitted that Mr Pollock, in his evidence, accepted by the end of the Return-to-Work meeting, that the Complainant was “returning to his job”.

The Whiteboard Meeting on 24 August 2022:

The Complainant submitted that while Mr. Pollock was operating on the basis that the Complainant was returning to his role, Mr. Fitzgerald was not. He submitted that Mr. Fitzgerald initially thought that the Complainant was still taking up the Dundalk role, and later he thought that the Complainant was taking up a Grade 9 Regional Officer role in Dublin.

The Complainant referred to the [now called] “Whiteboard Meeting” which took place on 24 August 2022. The Complainant submitted that there is a conflict of evidence regarding what was actually said at the meeting. The Complainant submitted that during this meeting, Mr. Fitzgerald outlined the Respondent’s “strategic plan” which excluded the Complainant and that Mr. Fitzgerald sketched this plan out in the form of a schematic diagram on the whiteboard. The Complainant submitted that his version of evidence is more credible in that he maintained his position that Mr. Fitzgerald was “shaping a plan” for the RoI and “looking at growth, industrial and all other political issues and issues which would have been carried out by the Complainant”. The Complainant submitted that his credibility is further supported by his email to Mr. Fitzgerald dated 1 September 2022 in which he stated “I am struggling with the fact that I don’t know why this is happening or why nobody in a senior position I report to is talking to me about whatever matters exist.”

The “Organisational Review” Document:

The Complainant submitted that he does not appear in the “Organisational Review” document prepared by Mr. Fitzgerald and presented in December 2022. He also referred to Mr. Fitzgerald’s email correspondence with the General Secretary on 13 July 2022 entitled “RoI plan”. The Complainant submitted that Mr. Fitzgerald’s explanation for not including the Complainant in the “Organisational Review” was that it would have been “controversial”.  

The Complainant submitted that Mr. Fitzgerald was “shaping a plan for the RoI since 13th July” when Mr. Fitzgerald emailed the General Secretary. The Complainant submitted that Mr. Fitzgerald was looking at areas which were part of the Complainant’s role. The Complainant submitted that the “Organisational Review” document “references matters wider than the industrial and Mr. Fitzgerald’s name is put beside matters that the Complainant would ordinarily have been responsible for”.

The Complainant further submitted that it was Mr. Fitzgerald’s evidence that “he is now dealing with member complaints, industrial ballots, absences, overnights etc all tasks previously carried out by the Complainant.”

The Complainant’s Two Grievances:

The Complainant submitted that he lodged two grievances – one dated 11 November 2022 regarding the removal of his contractual duties and role; and one dated 28 March 2023 regarding the promotion application process.  The Complainant submitted that neither of the grievances have been concluded. The Complainant submitted that “no satisfactory evidence was offered” by the Respondent as to why there has been no outcome.

The Promotion Application in February 2023:

In his written submissions, the Complainant states, inter alia, that Ms. Susan Fitzgerald, the successful candidate, had ten years less experience than him. He further submits that the process was flawed. This encompassed: the Respondent pressing ahead with the interview while the Complainant’s grievance was outstanding; the formation of the interview panel; and the Complainant having to request Mr Woodhouse’s recusal.

Exclusion from Meetings and Conferences and Allocated Car of a Lower Specification:

The Complainant submitted that his exclusion from meetings and conferences and the allocation of a car of a lower specification to him, was evidence of discrimination against him:

·             The Complainant referred to not being invited to the Irish Executive Committee meeting in Malahide which took place on 25 July 2022.

·             The Complainant referred to not being seated at the top table at the Respondent’s Irish Policy Conference in Malahide on 19 September 2022.

·             The Complainant referred to not being invited to the General Secretary’s meeting in Dublin on 3 May 2023.

·             The Complainant submitted that he was “treated less favourably and deliberately targeted” in relation to the car allocated to him.

Law Relied Upon:

The Complainant relied upon, inter alia, the EEA; Mitchell v. Southern Health Board [2001] ELR 201; Tesco Ireland Limited v. Grzegorz Kowalski, EDA 1812; and Cork City Council v. McCarthy, EDA 082.

Oral Evidence:

The Complainant – Oral Evidence:

The Complainant’s Appointment and Role:

The Complainant outlined that he began his trade union career while working at London Underground and British Rail in London and Scotland. He returned to Ireland where he continued his activism and became involved in the rail dispute in 2000. He began his official trade union career in 2004 in the (then) ATGWU Trade Union which subsequently, alongside “Amicus”, became the Respondent in 2007.  The Complainant had responsibility for representing ESB members, to where he was seconded, until 2014.

The Complainant returned to the Respondent in 2014 as the Education Officer. He also took up the political role “to oversee the political aspect of [the Respondent’s] role in the Republic of Ireland”. He discussed the Respondent’ political platform in Ireland. He outlined that in 2014, he became the national spokesperson for the “Right2Water” campaign. He also discussed the “Right2Change” campaign. The Complainant outlined that the Respondent’s rules required a political role.

The Complainant outlined that when he became a Grade 10 Senior Officer in around August 2018, he continued the political role that he held. The Complainant outlined that while the title of Senior Officer was unique, the duties “were not in any way unique.” He outlined that the Respondent has ten regions, of which the RoI is the smallest in terms of membership. The Complainant outlined that the RoI did not have a designated Political Officer or Legal Officer. The Complainant outlined that on the island of Ireland, the Respondent deals with two jurisdictions and the European Union adds another layer of complexity. The Complainant outlined that the Respondent has approximately 20,000 members in the RoI and offices in Dublin, Dundalk and Waterford. He outlined that the Regional Office for Ireland is in Belfast.

The Complainant outlined that he reported directly to Mr. Pollock, the Regional Secretary, who delegated tasks to him. The Complainant outlined that the Tasks Email dated August 2018 sets out “quite well” what he did on a day-to-day basis. The Complainant outlined that he also wrote papers; and that he and Mr. Pollock represented the Respondent at the Irish Congress of Trade Unions (“ICTU”). He stated that he dealt with “anything that came up in Ireland”, while reporting to Mr. Pollock. The Complainant stated that he had some interactions with other unions on big issues and that he met with general secretaries from other unions – SIPTU, Forsa, Mandate. He stated that he also dealt with member complaints and support. He provided “significant assistance” to Mr. Fitzgerald, Ms. Jean O’Dowd, Ms. Patricia Rogers and Mr. Bernard Byrne. The Complainant outlined that during the Covid-19 Pandemic, he continued to work as the Respondent was involved in major interventions such as “getting [the] construction sector closed down at a key time in relation to public health”. He outlined that the Respondent has a “very sharp political focus” and was often called upon by the media for comment. The Complainant outlined that he was at the front of communications, internal and external. The Complainant stated that he was also responsible for health and safety matters within the Respondent, as a workplace. The Complainant outlined that “overarching all of this” he also had a responsibility to “forge an expression of the [Respondent’s] political objectives” in an uncontroversial way.

The Complainant stated that there was huge resistance to his management of Covid in the office and to his rigorous approach. He submitted that his sister died of cancer in February 2020 and that his mother died six months later of Covid.  He submitted that he refused various employee applications to attend the office. He said that Mr. Davy Kettyles, the Head of the Organising Department intervened on their behalf. The Complainant then emailed Mr. Kettyles, stating that the latter was engaging in a campaign of bullying and harassment. The Complainant stated that the employee applications subsequently stopped.

The Complainant’s Diagnosis and Sick Leave:

The Complainant outlined that in April 2021, he became ill with Covid. He outlined that in the summer of 2021, he was diagnosed with cancer. He subsequently had surgery, radiotherapy and chemotherapy. His treatment finished in November 2021.

The Dundalk Role:

The Complainant stated that after his treatment, while staying at his brother’s caravan in Wexford, he called Mr. McCluskey, the former General Secretary. He told him that he did not think that he would be able to return to work, but if he did, he asked about the recently vacated Dundalk Grade 9 Regional Officer role.  He understood that Mr. McCluskey would talk to Ms. Graham, the new General Secretary and see if it was possible to hold the Dundalk role open for him. He understood that it was implicit that his own job would be kept open for him, in the event that he made a full recovery. He further stated that Mr. McCluskey said that his salary would be “red-ringed”.  The Complainant stated that he was subsequently sent a letter to sign dated 8 December 2021, outlining that he accepted the Dundalk role. The Complainant stated that the letter did not reflect what was agreed regarding the role and that he would not sign it. The Complainant stated that the Respondent proceeded to behave as if he had signed the letter. The Complainant stated that he sent a text to Mr. Pollock, stating that he was not taking up the Dundalk role. He believed that Mr. Pollock would make arrangements to fill the vacancy.

The Complainant stated that his health improved and that in June 2022, he believed that he could return to work. He said that there was a six-week delay so that the Respondent could organise an OH Report dated 15 July 2022.  The Complainant submitted that the OH Report assessed him as being fit to return to his existing role and that the suggested adjustments were minimal.

The Return-to-Work Meeting on 22 July 2022:

The Complainant outlined that he had a Return-to-Work meeting on 22 July 2022 with Mr. Pollock and Ms. Kielim. He stated that it was a “difficult” meeting; that it was “unwelcoming, coercive”; that he was “shocked”; and that he was unhappy with the meeting notes. The Complainant stated that he was repeatedly asked about the Dundalk role which he had not accepted. He also referred to the statement in the minutes that stress could cause a cancer relapse. He said that there was no mention of stress in his OH report. Following the Return-to-Work meeting, the Complainant made amendments to the meeting notes. The Complainant returned to work on a phased basis.

The Whiteboard Meeting on 24 August 2022:

The Complainant outlined that, in his absence, Mr. Fitzgerald was appointed RCO, a Grade 10 role, replacing Mr. Browne. The Complainant said that he had a good relationship with Mr. Fitzgerald. Following the Network Technicians Association Conference, the Complainant received a call from Mr. Fitzgerald. He stated that they had a long conversation and that Mr. Fitzgerald said that “people had been talking about [the Complainant’s] role”; that there “was uncertainty about [the Complainant’s] role”; and that “Dundalk would have been mentioned again”. The Complainant stated that at Mr. Fitzgerald’s suggestion, they arranged to meet the following week.

The Complainant outlined that at the outset of the arranged meeting they discussed, for some time, the Complainant’s recently deceased sister and mother. The Complainant said that the meeting then “took a bit of a turn”. He stated that Mr. Fitzgerald outlined that he had been asked to draw up a strategy by Ms. Graham, the General Secretary, for the RoI. Specifically, the Complainant stated as regards the strategy:

“[Mr. Fitzgerald] said that I wasn’t to be in it and Sharon had made a decision that I wasn’t to be in it. This was quite shocking to me. I wasn’t aware of any issue between me and the new General Secretary, I had never had any issue with her. […] And Tom was outlining […] that the various roles that I was listing, the political role, the community role, the Right2Water campaign the discussion that was taking place at ICTU and at government level about collective bargaining, these were going through and Tom was outlining, how, you know, he had assigned those to different people. And that basically a directive had been given to him that I wasn’t to be involved in any of them.”

The Complainant then stated that Mr. Fitzgerald drew the “strategic plan” in the form of a schematic diagram on the whiteboard. The Complainant stated that there was also some discussion around him having a role in sustainability. The Complainant stated that he was “reeling” with this information and that he took a photograph of the whiteboard. He outlined that the meeting ended after he had received this “devastating news”.

Events after the Whiteboard Meeting on 24 August 2022:

The Complainant outlined that he was trying to understand what was going on. He outlined that after he returned from his sick leave, his role was gone. He outlined that this was “crystal clear” to him. The Complainant stated that he began to notice a “worrying pattern”. He did not receive a welcome back email on his return to work. He was also not invited to the Irish Executive Committee meeting in Malahide, held a few days later. He stated that he was not getting any emails. He said that he would go for lots of walks, drink coffee, buy the paper and check his phone.

The Complainant outlined that the Respondent’s biennial Policy Conference took place on 19 September 2022. The Complainant outlined that he was normally centrally involved in organising it, but he was only invited to the last “Zoom” call in the lead up to the conference. The Complainant outlined that he attended the conference, which had a delayed start. He said that he met Mr. Tony Woodhouse, who addressed him in an irate manner, in the reception area. The Complainant stated that he had never had an exchange like it before. The Complainant referred to his wife’s “Facebook” post, dated 11 September 2022, in which she had outlined her concerns from her point of view. This “Facebook” post was picked up by at least one media outlet. The Complainant stated that, in his opening speech, Mr. Woodhouse referred to lies being told about the Respondent, but that he did not name the Complainant specifically. The Complainant outlined that this was a public forum which included his entire peer group and that he tried not to portray any emotion, even though he was shocked. He said that there was a tea break and he left at the end of the afternoon session. The Complainant referred to an email dated 19 September 2022 that he sent to Mr. Woodhouse in which he outlined his concerns regarding Mr. Woodhouse’s comments; and his concerns regarding his role following his return from sick leave.

The Complainant outlined that on 13 September 2022, he attended a meeting with Mr. Pollock, his Line Manager and Mr. Griffiths, the Respondent’s Head of HR Operations, on foot of his wife’s “Facebook” post. The Complainant outlined that he brought Mr. Douglas to the meeting with him as a (non-legal) representative. He said that he outlined to them what Mr. Fitzgerald had said during the Whiteboard Meeting. Specifically, he told them about the “strategic plan” and that he wasn’t to be part of it. He also outlined that he told them that he had received no communication from the Communications Officer since his return. The Complainant outlined that they both appeared to be genuinely shocked at what he said.

The London Meeting on 21 September 2022:

The Complainant outlined that soon after that, he received an email from Ms. Cartmail, inviting him to a meeting in London. He stated that the following week, he and Mr. Douglas went to Holborn, London and met with Ms. Cartmail and Ms. Kielim. The Complainant stated that Ms. Cartmail started the meeting by asking him about how his role came about in the first place. He stated that she outlined concerns about his health and said that the Respondent had a duty of care to him. The Complainant stated that he was most concerned about his treatment at work. He referred to the “strategic plan” and that he was not part of it. The Complainant stated that Ms. Cartmail was emphatic that the General Secretary had made no such decision to exclude him. He also stated that she said that the General Secretary gave support to those who had supported her and that she operated on the basis of loyalty. The Complainant stated that Ms. Cartmail also raised historical issues regarding his mental health. The Complainant said that Ms. Cartmail said that she would talk to his Line Manager, Mr. Pollock.

The Complainant’s Communications with Mr. Pollock concerning his Role:

The Complainant outlined that Mr. Pollock contacted him in October 2022 and asked him to meet alone and off the record at the Ballymascanlon Hotel. The Complainant outlined that he brought a one-page document along with him to the meeting that he had drafted, entitled “Draft Job Description” and “Officer for Education, Legal, Environment and EU Affairs”. The same document also set out his proposed duties. The Complainant outlined that the duties concerning Environment and European Affairs were new. He believed that following internal discussions that he could be on the Environment team and he thought that that there was a possible oversight role concerning EU Affairs too. The Complainant stated that the meeting went well and that Mr. Pollock said that he would talk to Ms. Cartmail and get back to him.

The Complainant outlined that Mr. Pollock called him a week later and said that he had a position for him regarding Education and Legal. However, Mr. Pollock stated that the other roles were not available for the Complainant at the moment and that he would have to trust him and see once things settled down. The Complainant said that he was extremely annoyed. He said that Education was already part of his role and involved two days of work per month. He said that Legal is mostly looked after by the relevant solicitor and involves three days of work per month.

The Complainant then referred to Mr. Pollock’s letter dated 2 November 2022 in which he was appointed Education and Legal Officer. He said that the letter clarified that his role was changed after he had been diagnosed with cancer.  He said that the letter clarified months of angst.

The Complainant’s Grievances:

The Complainant outlined that he then submitted a grievance regarding the changes to his role on 11 November 2022. He stated that the Respondent’s policy was that a grievance was to be investigated within five to seven days. He stated that he took annual leave over six to seven weeks. He stated that it was “common cause [sic] that the grievance procedure, notwithstanding the time scales set out, couldn't, in effect, take place until my annual leave had expired.”

The Complainant detailed the investigation meeting which took place on 8 February 2023 in the Malahide Hotel. He said that Peter Hughes, the Regional Secretary for Wales was appointed to oversee the process. The Complainant and Mr. Douglas attended, as did Mr. Griffiths, the Respondent’s Head of HR Operations. All agreed that the meeting could be recorded. The Complainant outlined that during the meeting, he discussed inter alia, his grievance concerning the changes to his role. The Complainant outlined that Mr. Hughes and Mr. Griffiths did not have a copy of Mr. Pollock’s letter to the Complainant dated 2 November 2022, which was the source of his grievance. After the meeting, the Complainant forwarded the same letter to Mr. Hughes, who he understood was “considering the position”. The Complainant submitted that he never received the outcome concerning his grievance. He said that he was left in a difficult position as he had to carry on with his duties while his authority was being undermined. In this regard, the Complainant referred to staff continuing to bring various issues to him regarding, inter alia, bicycles and first aid rooms.

The Complainant outlined that Mr. Pollock, his Line Manager and the Regional Secretary, announced that he was retiring. The Complainant stated that he applied for the vacancy. The Complainant stated that he “was the most senior officer not only in terms of job title but in terms of time at the organisation”. The Complainant stated that he referred to his ongoing grievance in his online job application. The Complainant was informed that the recruitment process would not be delayed pending the outcome of his grievance. He was also informed that he had met the criteria for interview.

The Complainant stated that Mr. Hughes contacted Mr. Douglas, asking for a meeting via “Zoom”. Approximately one week before his interview, the online “Zoom” meeting took place. The meeting concerned whether the Complainant’s exit from the Respondent could be agreed. The Complainant said that Mr. Hughes indicated that there was anxiety about the Complainant’s attendance in London for the interview. The Complainant stated that he “wanted his job back”.

The Complainant outlined that he flew to London the following week for his interview, which was taking place in Ms. Cartmail’s office. The Complainant stated that he was shocked to discover that, given recent developments, the interview panel was chaired by Mr. Woodhouse. The Complainant asked Mr. Woodhouse to recuse himself. Mr. Woodhouse said that he had conducted two interviews already. The Complainant stated that he did not have a chance and asked Mr. Woodhouse again to recuse himself. After some discussion, Mr. Woodhouse left and Ms. Cartmail chaired the interview panel in his stead. The Complainant stated that approximately two hours later, Ms. Cartmail called him and complimented him on a good interview but told him that Ms. Susan Fitzgerald was the successful candidate. The Complainant stated that he had “no question about the abilities or the competencies of any of the other two candidates but [he] did have fundamental issues with the process”. The Complainant outlined that the successful candidate is approved by the Executive Council for approval. On 3 March 2024, he emailed the Secretary of the Executive Council, attaching a letter setting out his concerns regarding the interview process. The Complainant stated that he did not receive any response.

The Complainant outlined that he followed up on this email approximately five days later. In response, he received an email from Ms. Kielim, the HR Director who stated, inter alia, that to maintain the integrity of the proceedings, Mr. Woodhouse did not score the candidates and that he recused himself from the Complainant’s interview panel. The Complainant responded to the email, indicating inter alia: “I have no concerns whatever with the other candidates. My concerns are fundamentalandsolely around what I believe is a flagrantly flawed process”.

The Complainant outlined that he also submitted a grievance on 28 March 2023 in which he took issue with “the discriminatory manner in which the position of Regional Secretary, Ireland, was recently filled.” The Complainant stated that this grievance was not investigated.

The Meetings on 2 and 3 May 2023:

The Complainant outlined that on 2 May 2023, Ms. Graham, the General Secretary, subsequently visited Belfast. He said that no one told him not to go, so he drove there. Following the General Secretary’s presentation, she asked if there were any questions. The Complainant submitted that Mr. Fitzgerald then gave a political report as if it were his role. 

The Complainant stated that on 3 May 2023, Ms. Graham had a meeting in Dublin with the most senior officers and he was not invited.

The Car Allocation:

The Complainant stated that the Respondent replaces officers’ cars every three years. He stated that other officers had cars of a higher specification and that this was further evidence of discrimination against him.

The Complainant stated that he is not here by choice and that he has done everything within his powers to resolve matters.

Cross-Examination:

The Complainant’s Role:

Under cross-examination, the Complainant confirmed that “Senior Officer” is a job title for a demarcated Grade 10 position. He confirmed that he was paid the same as the RCO, which was also a Grade 10 position. He confirmed that he was not senior to everyone else as he reported to the Regional Secretary.

The Meeting on 3 May 2023:

The Complainant confirmed that he was never invited to a meeting between senior representatives and Ms. Graham, as the General Secretary.

The Complainant stated that he was not surprised to learn that Mr. Fitzgerald was also not invited to the General Secretary’s meeting on 3 May 2023. It was put to the Complainant, that if Mr. Fitzgerald was also not invited then it was not a discriminatory act in not inviting the Complainant. The Complainant maintained that nevertheless, he (the Complainant), should have been invited.

The Dundalk Role:

The Complainant confirmed that he spoke with Mr. McCluskey about the Dundalk role approximately ten days after his treatment concluded. He stated that the discussions came to a halt in December 2021 due to the pay issue and as he was asked to sign his contract immediately. He said that he was not prepared to do this while on sick leave.

The Complainant confirmed that Ms. Kielim called him on 16 February 2022 and that it was a “pleasant experience” during which they discussed, inter alia, his occupational therapy. He stated that Ms. Kielim told him that he should not have been sent the letter in December and that if he decided to take up the Dundalk role, his current pay and pension would be maintained. The Complainant stated that they agreed to “discuss it when [he got] back and [would] see how he felt then”. The Complainant confirmed that it was clear that there were two options open to him when he returned to work – to return to his current role, or, to take up the Dundalk Grade 9 role while maintaining Grade 10 pay and pension arrangements. The Complainant also confirmed that he raised the Dundalk role with Mr. McCluskey in the first instance.

The Return-to-Work Meeting on 22 July 2022:

The Complainant was referred to the Return-to-Work meeting and specifically to “stress” not being mentioned in the OH Report. The Complainant was also referred to the GP certificate dated 10 June 2022 which stated inter alia “[the Complainant] should try to avoid stress in work because stress can cause relapse of the cancer”. The Complainant confirmed that the Return-to-Work meeting notes were correct in noting Mr. Pollock’s reference to the same GP certificate. The Complainant further confirmed that Mr. Pollock should have considered the GP’s advice. The Complainant confirmed that he outlined his functions to the OH Doctor, as set out in the OH Report. The Complainant also confirmed that he did not discuss with the OH doctor that there were two roles open to him or what role he was returning to.

The Complainant stated that he confirmed that he was not taking up the Dundalk role during his Return-to-Work meeting. The Complainant stated that he did not say that Mr. Pollock and Ms. Kielim were aware of his decision concerning his chosen role before the Return-to-Work meeting. He said that the Return-to-Work meeting “was the meeting where we were going to discuss what role I was back in”. The Complainant outlined that the OH Report was predicated on his old role.

The Complainant confirmed that he received his OH Report on 15 July 2022 and that he returned to work on 22 July 2022. He confirmed that he worked 50% for weeks one and two and 75% for weeks three and four. The Complainant maintained that the failure to invite him to the Irish Executive Committee meeting which took place on 25 July 2022 was discriminatory. The Complainant accepted that he had not yet returned to work when the invitations for the Irish Executive Committee meeting were issued. The Complainant stated that he could have been told at the Return-to-Work meeting on Friday 22 July 2022 about the Irish Executive Committee meeting which was taking place on Monday 25 July 2022.

The “Facebook” Post, dated 11 September 2022:

The Complainant stated that his wife created her “Facebook” post on 11 September 2022 without discussing it with him or consulting him. He confirmed that it did occur to him that the “Facebook” post and the resultant media coverage in the “Irish Examiner” would damage relations with individuals within the Respondent. He stated that he did not ask his wife to remove the post. He said that that the Respondent could have engaged with his wife.  The Complainant stated that he had received legal advice by 3 March 2023 that Mr. Woodhouse had defamed him at the conference in September 2022. 

The Lead-Up to, and the Whiteboard Meeting on 24 August 2022:

The Complainant accepted that Mr. Fitzgerald was surprised to see him at the Network Technician Association Congress on 17 August 2022. The Complainant stated that Mr. Fitzgerald called him afterwards to confirm that they would meet during the Whiteboard Meeting on 24 August 2022 – his first full week back at work.

The Complainant confirmed that he and Mr. Fitzgerald are the same grade, of equal seniority, and that Mr. Fitzgerald has “absolutely” no authority to dismiss him or render him redundant. The Complainant confirmed that he was not being made redundant during the Whiteboard Meeting. The Complainant was referred to the schematic diagram on the whiteboard. He accepted that Mr. Pollock was not identified by name in the schematic diagram. In response to questioning, the Complainant could also not point to where Mr. Fitzgerald was identified by name in the schematic diagram.

The Complainant was questioned regarding the Regional Industrial Officers (the “RIO”s) doing EU and Legal work, as per his description of the schematic diagram. The Complainant accepted that the “strategic plan” could not fully operate in the way described in his evidence-in-chief.

The Complainant stated that Mr. Fitzgerald told him that he “would have no further role in anything in his strategy, by direction of the General Secretary”.

The Complainant confirmed that he never asked Mr. Fitzgerald when he was asked to create a plan without him. The Complainant confirmed that he also never asked Ms. Graham, the General Secretary. The Complainant stated that he addressed it with Ms. Cartmail who “very emphatically said that the General Secretary, Sharon never made that decision or those comments”. The Complainant stated that he accepted Ms. Cartmail’s statement that Ms. Graham operates on the basis of loyalty and will support those who supported her campaign. The Complainant stated that this was the closest to an explanation that he had ever got. The Complainant said that he had no reason to question Ms. Cartmail. The Complainant confirmed that it was his “honestly held belief”, based on the meeting with Ms. Cartmail, that Mr. Fitzgerald used his discretion to force him out and that this was “a source of the gravest disappointment”.

The Complainant stated that he confirmed to Mr. Fitzgerald at the Whiteboard Meeting that he was not taking the Dundalk role.

The Complainant accepted that Mr. Fitzgerald discussed growing the Respondent’s industrial influence and that a business case would have to be made to get more resources.

The Complainant denied that he asked Mr. Fitzgerald about the Respondent’s political work.

The Complainant stated that he discussed the areas of sustainability and the environment. The Complainant confirmed that he expressed an interest in being nominated to the Labour Court if a vacancy arose.

The Complainant stated that he “didn't accept, and still [does] not accept and will never accept that [his]duties, a major part of which was the political role, could and should have been removed from [him]”. The Complainant stated that Mr. Fitzgerald said that he is overseeing the “Right2Water” campaign. The Complainant stated that there was an issue in respect of moving water workers to Irish Water, which was a matter of collective bargaining.

The Complainant was referred to his and Mr Fitzgerald’s emails dated 1 and 2 September 2022. The Complainant accepted Mr. Fitzgerald’s statement in the email that Mr. Pollock was in favour of them meeting to see if options could be identified that he would be happier with than the “Dundalk / allocation route etc.”

The Complainant did not accept that Mr. Fitzgerald did not know that he took a photo of the schematic diagram on the whiteboard.

The Complainant’s Penalisation Complaints:

The Complainant confirmed that he submitted penalisation complaints to the WRC. The Complainant stated that he withdrew those complaints on legal advice.

The Respondent’s Change of Direction / Emphasis:

The Complainant stated that he knew that there might be a change of direction / emphasis in the Respondent following the election of Ms. Graham as General Secretary.

The Complainant accepted that every member of staff was required to abide by the new policy that they must seek clearance for media interviews. The Complainant confirmed that this policy applied to everyone, that it was not directed at him personally and that it was not discriminatory.

The Promotion Process:

As regards the interview, the Complainant confirmed that his complaint was about the process in its entirety encompassing: the Respondent pressing ahead with the interview while the Complainant’s grievance was outstanding; the formation of the interview panel; and the Complainant having to request Mr Woodhouse’s recusal. The Complainant outlined that he felt that this affected how the rest of the interview panel saw him. The Complainant stated:

“My complaint isn't about either of the other two candidates who, in terms of ability, I have a lot of respect for. My complaint is about the process in its entirety, from the formation of the interview panel, which Mr. Woodhouse was Chairing, to the interview panel then considering to press ahead with the interviews while my grievance was still outstanding”.

The Car Allocation:

The Complainant confirmed that his car was deemed a benefit in kind and that he paid tax on it. He confirmed that he did not indicate a preference for a car of a different specification. He said that he noticed some months after he was allocated his car, that his colleagues had cars of a higher specification because their cars “look different”. The Complainant confirmed that he did not make enquiries concerning the car prices or if there were tax implications.

Mr. Len McCluskey – Oral Evidence:

Mr. McCluskey was the Respondent’s General Secretary between 2011 and 2021. He outlined that the Respondent is the largest trade union in Britain and Ireland and that it has three pillars – industrial, political and international.

He outlined that, against the background of an austerity programme in the RoI, the Respondent decided to have its voice heard in the political arena. He outlined that the Complainant had played a central role in political developments concerning “the right for water [and] the right for change”.

Mr. McCluskey outlined that it is “deeply sad” that a former General Secretary has to give evidence against his own union and that he is here to tell the truth. He denied that he was responsible for selecting the Complainant and appointing him to his position. He stated that he never interfered with any appointments.

He stated that, at one stage, the Respondent considered the creation of a national officer role but decided against it for political reasons.

Mr. McCluskey stated that the Complainant’s role was assessed by HR and that he was upgraded to Grade 10. He outlined that Mr. Pollock was happy to have a senior officer who could deal with “not just the political side of things […] but with everything else, with all the other issues that go with staff and absentees and officer’s issues.” He emailed Mr. Pollock on 1 July 2018 and approved the Complainant’s appointment to the role of Senior Officer. He said that the Irish Executive and the General Executive Council approved the appointment.

Mr. McCluskey stated that Mr. Pollock was better placed to describe the Complainant’s role. He stated that the role involved covering all aspects of the Respondent, whether that was dealing with staff and other officers, industrial relations dispute interventions, as well as the political role.

Mr. McCluskey stated that the Complainant contacted him, while he was out on sick leave. The Complainant asked him about the Dundalk role. Mr. McCluskey told him “fight the cancer, come back and we will welcome you with open arms into that Dundalk role”. He stated that it was implicit that it was the Complainant’s choice to take up the Dundalk role or his old role.

Mr. McCluskey outlined that he knows that there is a dispute concerning the Complainant’s role but he is not involved in it. He stated “you know, circumstances change. I have left two years now, a new General Secretary was elected on a mandate, and she is carrying out the running of our Union as she sees it and with the support of the Executive, so I know there’s a dispute.” Mr. McCluskey further stated “I am not General Secretary anymore and I am not going to make any comment about the current running of the Union, it would be inappropriate of me, that is now the responsibility of Sharon.”

Cross-examination:

Under cross-examination, Mr. McCluskey confirmed that, prior to the Complainant, no one held the role entitled “Senior Officer”. He confirmed that this was an unusual post. He was unsure whether the role was advertised or whether there was an internal competition for it. He did not know who created the job description for the role and that it was not something that he was involved in.

Mr. McCluskey stated that he did not “parachute” the Complainant into his role and that it was done in the correct way. Mr. McCluskey stated that the Complainant was the “obvious individual” for the role.

Mr. McCluskey said that, when he was General Secretary, officers had his trust when dealing with the media, but if they “stepped out of line […] they were spoken to.” Mr. McCluskey did not accept that it was contradictory to suggest that an officer had complete autonomy when dealing with the media, but that they could also be disciplined if they said something that was considered incorrect.

Mr. McCluskey stated that it was in Ms. Graham’s manifesto to do things differently in the political arena. He confirmed that it was valid for her as General Secretary to take a different approach.

Mr. McCluskey stated that it was agreed that the Complainant would have two jobs left open for him – the Dundalk role and his current role – and that this was communicated to Mr. Pollock and to HR. Mr. McCluskey stated that the roles could be kept open for years. He further stated that it was implicit that the Complainant would stay on the same salary. He stated that there was no policy in place which only red-circled the Complainant’s pay for a short number of years. He did not accept that it was the Respondent’s culture to pursue such a policy. He stated that when he was General Secretary, he would keep any person taking on a lower-graded job due to ill-health, on their higher grade.

Recall:

Mr. McCluskey was briefly recalled to give evidence on 27 May 2024:

Mr. McCluskey confirmed that neither the Irish Executive Council nor the General Executive Council voted on the Complainant’s appointment to the role of Senior Officer. Instead, the Irish Executive Council accepted a report provided by the Regional Secretary, Mr. Pollock; and the General Executive Council accepted a report provided by the General Secretary, Mr. McCluskey.

Mr. Richie Browne – Oral Evidence:

Mr. Browne outlined that he has been a full-time union official since 2005. In 2014, he was appointed RCO. In 2022, he took up the position of Secretary of the ESB Group of Unions. During his time as RCO, he worked with the Complainant.

Mr. Browne stated that as RCO, he dealt with the Respondent’s membership – servicing the membership; increasing the membership; and allocating the membership to the Regional Industrial Officers (“RIO”s). He also looked after industrial relations matters and the industrial servicing of the membership through the RIOs.  He stated that he also had responsibility for a number of constitutional committees – he was Secretary to the Dublin Area Activist Committee; Secretary to the Energy and Utilities Industrial Sector Committee; Secretary to the Food and Drink and Agricultural Industrial Sector Committee; Secretary to the Supplementary Disputes Fund; and Secretary to the Standing Orders Committee which agrees the motions and agenda for the Irish Policy Conference.

Mr. Browne stated that while he had responsibility for industrial matters, the Complainant had responsibility for everything else, for example: the “Right2Water” campaign; the occupation of Apollo House; the Repeal the Eight campaign; the marriage equality campaign; and seeking legislative protection for tips in the hospitality sector. Mr. Browne stated that, in conjunction with Ms. Murphy, the Complainant was also involved in the day-to-day running of the office.

Mr. Browne outlined that he and the Complainant did not interact every single day. However, if it was difficult to ascertain whether a matter was industrial in nature or administrative in nature, they would have had a conversation to identify how best to proceed and who had responsibility.

Mr. Browne outlined that when he left the RCO role, it was subsequently advertised and Mr. Fitzgerald was the successful candidate. He then did a handover to Mr. Fitzgerald by way of discussion. He made it clear to Mr. Fitzgerald that he was only a phone call away if he had any queries.

Cross – Examination:

Under cross-examination, Mr. Browne confirmed that prior to his RCO role, he had been the Regional Education Officer for the whole of Ireland. He said that this was a 40-hour per week, full-time, Grade 9 role. Mr. Browne further stated that when the Respondent was formed, he began to do industrial work as well.

Mr. Browne stated that when the question of a national officer was mooted, it was considered controversial by some people.

Mr. Browne confirmed that his own role changed when the Complainant was appointed. For example, he was no longer the on the Executive Council of ICTU.

Mr. Browne stated that as regards the administration of the office, Ms. Murphy would determine whether she needed his involvement in any matters. He confirmed that Ms. Murphy ran the office on a day-to-day basis.

Mr. Browne was referred to Mr. Pollock’s Tasks Email dated August 2018. He confirmed that in the Complainant’s absence or unavailability, he would have dealt with the tasks allocated to the Complainant. Mr. Browne stated that the most important thing was that the tasks were done.

Mr. Bowne confirmed that the Complainant had very little to do with the core industrial role of the Respondent.

Mr. Browne confirmed that the Complainant’s main function concerned political campaigns.

Ms. Janet Murphy – Oral Evidence:

Ms. Murphy outlined that she began working for the Respondent 30 years ago in London. Over time she moved up to the Executive Unit, which was part of the General Secretary’s Department. By 2007 / 2008, she was located in Holborn, London. She then requested a transfer to Dublin which was granted. Ms. Murphy outlined that her role evolved over time and that she worked on a variety of matters. She was appointed a Senior Administrator and she dealt with staff issues and organised the Irish Policy Conference. When Ms. Deirdre Savage left the Respondent, she took over Ms. Savage’s duties.

Ms. Murphy stated that prior to the Complainant’s diagnosis, he would oversee issues with staff; he would also sign off on issues such as invoicing, monies, member complaints and anything of an administrative nature. She stated that she would go to the Complainant “if [she] was dealing with any difficult situations with staff or if [she] needed anything signed off”. She stated that the Complainant was a member of the Executive which met quarterly. He also oversaw the PR and the media in the RoI. Ms. Murphy said that the Complainant had a high profile and that he would meet with government departments and ministers. He would draw up publications on austerity, and other issues. He dealt with all political issues such as the marriage equality campaign and the abortion right campaign. He spearheaded the Respondent’s “Champions Cup”. He dealt with anything that came up regarding Palestine and Justice for Colombia. She said that he was also responsible for implementing the Covid guidelines and in permitting access to the office during Covid. She stated that the Complainant was very busy.

Ms. Murphy stated that upon the Complainant’s return from sick leave in July 2022, his role “wasn’t really much”. He was not at the conference in Malahide and she did not think that he even knew about it. He did not deal with issues such as the first aid room and the bicycles in the office. She said that he now only signs off on a particular invoice or Education and nothing else really. Ms. Murphy stated that she no longer checks the Complainant’s emails to update his diary as he does not receive emails and he does not have meetings or appointments. She said that the Complainant does not do anything. 

Ms. Murphy said that on 24 August 2022, the Complainant had a meeting with Mr. Fitzgerald for about two hours. She said that he seemed shocked afterwards. The Complainant told her that Mr. Fitzgerald had told him that he was not part of the strategy for the region; and that he was not involved in the “Right2Water” campaign anymore.

Ms. Murphy stated that Mr. Fitzgerald was giving the impression that he was taking on the senior role. Ms. Murphy stated that when she was dealing with a staff hybrid-working issue, the Regional Secretary told her that Mr. Fitzgerald was not responsible for the staff in the region.

Ms. Murphy stated that as far as she is aware, there is no change in the RoI as regards the communication policy.  She stated that she did not see a “follow-up directive” about it.

Cross-Examination:

Ms. Murphy confirmed that her role is a Grade 8 role. She confirmed that her role moved on from her early days as a personal assistant to her involvement in implementing the Respondent’s structures.  She also confirmed that she took over Ms. Savage’s role, who had overseen finance and who had also worked on staffing issues. She confirmed that day-to-day staff issues and office management were all within her remit. She also arranged events and conferences.

Ms. Murphy confirmed that she was never told to stop discussing things with the Complainant. She said that no one told her not to bring member complaints to the Complainant. She said that the Respondent did not get many member complaints. She said that she doesn’t know why her day-to-day involvement with the Complainant changed. She said that things went in a different direction. She said that things changed gradually within leadership and a new Regional Secretary was appointed. She said that it was hard to explain. She said it was a “psychological thing”.

Ms. Murphy stated that things changed after Mr. Woodhouse’s speech at the Respondent’s Irish Policy Conference in September 2022 when Mr. Woodhouse referred to the Complainant’s wife’s “Facebook” post.  She said that she became aware of the term “freezing out” after the conference.

Ms. Murphy stated that the Complainant was being “frozen out” as he was not getting any emails. She said that he was not getting any emails or political work and that the PR Officer, Ms. Klemm, was no longer contacting him about press releases. Ms. Murphy could not recall if the Complainant received any email from Ms. Klemm, to indicate that his press releases were not being issued. Ms. Murphy confirmed that she dealt with most of the membership transfer requests and only involved the Complainant in more difficult ones, which arose approximately once per month. Ms. Murphy said that the Complainant was not receiving emails from the Regional Secretary.

In response to questioning, Ms. Murphy could not provide any specific details of the Complainant being “frozen out” between his return in July 2022 and the Respondent’s Irish Policy Conference in September 2022. She said that there may have been an SMT meeting, but she could not remember.

Mr. Junior Coss – Oral Evidence:

Mr. Coss outlined that he has been a Branch Secretary for the ESB Energy Branch for the last six or seven years.

He stated that the Network Technicians Association had a vote of no confidence in two union officers in August 2022. This resulted in Mr. Coss attending the Respondent’s office more frequently. He stated that on 25 August 2022, he met with Mr. Fitzgerald to discuss issues concerning the ESB. He stated that Mr. Fitzgerald then left his chair and went to the whiteboard. He said that Mr. Fitzgerald then spoke about his own role and the strategy for himself going forward. Mr. Coss described a schematic diagram on the whiteboard outlining growth, education, politics and the “Right2Water”. Mr Coss said that Mr. Fitzgerald spoke, inter alia, about growth.

Mr. Coss said that he asked Mr. Fitzgerald about the Complainant. Mr. Coss said that Mr. Fitzgerald replied “as far as [Mr. Fitzgerald] was concerned, [the Complainant] wasn’t part of the strategy going forward and that […] he would be retiring over time.”

Mr. Coss stated that he could not believe that this was true as he saw the Complainant as part of a “stronghold” for the ESB branch. He said that he subsequently emailed the General Secretary. Mr. Coss outlined that he met with Mr. Pollock in February 2023 and asked him why the Complainant could not get involved in ESB matters. Mr. Coss said that Mr. Pollock stated that it had nothing to do with him and that “it is being sanctioned from London”. 

Cross- Examination:

Under cross-examination, Mr. Coss confirmed that he worked with the Complainant for the last 20 years and that he is the Complainant’s friend. He also confirmed that Mr. Browne was the lead officer with responsibility for the ESB before Mr. Fitzgerald became the lead officer with responsibility for the ESB.

Mr. Coss confirmed that following the Network Technicians Association Conference on 17 August 2022, he met with Mr. Fitzgerald on 25 August 2022 in relation to issues which had arisen.

Mr. Coss stated that he did not discuss what he had seen on the whiteboard with anyone.  He then said that he told “individuals that he represent[s]” about the whiteboard, as time went on. He said that he recalled the schematic diagram when it came up in evidence during this Hearing. He said that he did not see the Complainant’s name on the whiteboard. He said that he did not see anyone else’s name on the whiteboard.

Mr. Coss said that Mr. Fitzgerald had told him that the Complainant was not “part of the strategy going forward and he was going to be phased out and he’s going to be retired over time”. He said that he could not believe it.

Mr. Coss also said that Mr. Fitzgerald discussed his own role, industrial matters, growth, political strategy and the “Right2Water”. Mr. Coss confirmed that Mr. Fitzgerald discussed politics and the “Right2Water” campaign with him even though he has no involvement in those issues. 

Mr. Coss stated that during the course of the Hearing, he approached the Complainant’s solicitor and told her that he could give evidence regarding the whiteboard and that was how he was being called as a witness for the Complainant.

Mr. Coss said that he was in contact with the Complainant a few times but that he did not raise the matter of the whiteboard, or the matter of Complainant being phased out, with him.

Mr. Coss said that despite reading the Complainant’s wife’s “Facebook” post and knowing that the Complainant felt that he was being phased out, he never told the Complainant about the meeting with Mr. Fitzgerald and the whiteboard.

Mr. Coss outlined that in 2023, he had discussions with the Complainant about not being involved and so he contacted the General Secretary.

Mr. Coss outlined his belief that the Complainant should be involved in the ESB matters.

Mr. Coss confirmed that he spoke on the motion at the AGM on 22 November 2022 regarding the vote of no confidence in Mr. Fitzgerald and that he urged those present to vote in favour of the vote of no confidence.

Mr. John Douglas – Oral Evidence:

Mr. Douglas outlined his trade union background of 41 years, including his appointment as General Secretary of the Mandate Trade Union. He is now retired. Mr. Douglas outlined that he knew the Complainant well and stated that their campaigning regarding various issues overlapped on many occasions.

Mr. Douglas stated that he knew that the Complainant had cancer. He stated that the Complainant called him after his Return-to-Work meeting and that he was very stressed that he could not return to his previous role.

The Meeting at the Ballymascanlon Hotel on 13 September 2022:

Mr. Douglas said that the Complainant called him in September 2022, to state that he was being “summoned to a meeting” and that it was about his wife’s “Facebook” post. Mr. Douglas accompanied the Complainant, as his representative, to the meeting at the Ballymascanlon Hotel. Mr. Pollock was present as was Mr. Griffiths, who attended via “Zoom”. Mr. Douglas said that when the Complainant was asked about the “Facebook” post, the Complainant told Mr. Pollock and Mr. Griffiths to go through the proper procedures. He outlined that the Complainant spoke about his role, stating that he was sitting at a blank desk and someone else was doing his duties. He recalled that the Complainant recounted the Whiteboard Meeting with Mr. Fitzgerald and stated that the General Secretary had said that the Complainant was not part of the RoI strategy and that he was not to interface with shop stewards. Mr. Douglas stated that Mr. Pollock and Mr. Griffiths both expressed surprise. Mr. Douglas stated that the Complainant made it clear that he was fit to return to work and that he was able, prepared and willing to do his duties.  Mr. Douglas stated that Mr. Pollock indicated that he was not aware that the General Secretary or anyone else had made those comments. Mr. Douglas stated that it was not a confrontational meeting and that Mr. Pollock indicated that he would investigate matters further. 

The London Meeting on 21 September 2022:

Mr. Douglas outlined that shortly afterwards, the Complainant was invited to a meeting at the Respondent’s premises in London and that he attended too.  He outlined that they met with Ms. Cartmail and Ms. Kielim for approximately three hours. He stated that there was a debate as to whether the meeting was on or off the record. Mr. Douglas stated that he and the Complainant were “adamant” that the meeting was on the record and with prejudice. He said that it was a strange conversation and that there was a query about whether the doctor who had certified the Complainant as fit to return to work was the same doctor who had also certified him previously following some mental health matters. Mr. Douglas stated that the Complainant recounted the facts concerning his role and responsibilities. The Complainant recounted the Whiteboard Meeting with Mr. Fitzgerald and stated that the General Secretary had tasked Mr. Fitzgerald with drawing up an RoI “strategic plan” and that the Complainant was not part of it. He also said that the Complainant said that he was not to deal with shop stewards and that was one of the reasons why Education “was taken off him”. Mr. Douglas said that Ms. Cartmail “flatly said there’s no way that Sharon Graham said that, absolutely no way she said that”. He further stated that Ms. Cartmail said that the General Secretary worked on trust and gave great latitude to those who supported her to make decisions and to use her name if required. He said that there was no resolution reached during the meeting. He outlined that it was left that Ms. Cartmail might contact Mr. Pollock. Ms. Cartmail also stated that the Complainant could lodge a formal grievance if he wanted to do so.

Mr. Douglas outlined that a while later, the Complainant called him to say that Mr. Pollock was in contact as he wanted to meet the Complainant without Mr. Douglas present. He said that he and the Complainant discussed a few tactics.

The Grievance Hearing on 8 February 2023:

Mr. Douglas outlined that the Complainant subsequently lodged a grievance and that he represented him at the Grievance Hearing on 8 February 2023. He said that the attendees of the Grievance Hearing were surprised to learn of Mr. Pollock’s letter dated 2 November 2022, which set out the Complainant’s role. Mr. Douglas stated that during the Grievance Hearing, he outlined his view, very strongly, about what he believed had happened to the Complainant. He said that the meeting was humiliating for the Complainant and that there were snide remarks made, suggesting that the Complainant’s role was a “makey-up job between [him] and Len [McCluskey]”. He said that he was horrified by the way in which the Complainant was being treated.

Mr. Douglas outlined that he was struggling for answers regarding what was happening. He said that at the end of the meeting, they were told that they would be contacted within five working days. He said that they never received an outcome.

Mr Douglas outlined that he subsequently received a call from Mr. Hughes, asking for a meeting with him and the Complainant via “Zoom”.

The Meeting via “Zoom”:

Mr. Douglas outlined that during this meeting, Mr. Hughes, the Investigating Officer from the Grievance Hearing, was again in attendance. He said that Mr. Hughes acknowledged the Complainant’s recent application for the Regional Secretary position and stated that there was anxiety in the U.K. about the Complainant applying for that position. Mr. Douglas stated that Mr. Hughes said that the Respondent would prefer if the Complainant didn’t go to the interview and that they could do a deal. Mr. Douglas said that Mr. Hughes was hinting towards an exit package.

The London Meeting on 16 April 2023:

Mr. Douglas outlined that he and the Complainant met with Ms. Kielim and Mr. Hughes in London. He said that he and the Complainant “were left there all day”. He said that it was a strange meeting. He said that the Complainant outlined that he wanted his old job back and that he referenced his recent grievances. Mr. Douglas outlined that the meeting up ended up being about an exit package for the Complainant and that there was a discussion about his death in service benefit, his pension and there was mention of an annuity. Mr. Douglas said that Ms. Kielim and Mr. Hughes committed to putting the terms in writing but they never did so.

Cross- Examination:

Mr. Douglas confirmed that he knew what the Complainant’s role was from his union dealings with him and from representing the Complainant. Mr. Douglas said that he did not work for the Respondent.

Mr. Douglas confirmed that the Executive Committee could steer the union and union officers on policy issues, which can be changed, with the approval of the members. Mr. Douglas further confirmed that if the General Executive of a trade union resolves to move away from political matters and political campaigns, union officers are not entitled to continue with those political matters. 

Mr. Douglas stated that the Complainant initially seemed reasonably happy after his meeting with Mr. Pollock in October 2022. He said that the Complainant had sought four or five roles and that Mr. Pollock felt that he could deliver on them. Mr. Douglas stated that there was a debate about the Complainant’s role title. He stated that the Complainant was not happy when Mr. Pollock indicated that he could only give him two of the roles he sought.

When questioned, Mr. Douglas said that Mr. Fitzgerald had taken the Complainant’s role. He later said that he did not know who had taken the Complainant’s role. Mr Douglas also stated that he did not know that Mr. Browne had a full-time job as Education Officer.

Mr. Douglas stated that the Complainant called him some days after his Return-to-Work meeting to say that he was sitting at a desk with no job to do and that his job had been taken away from him.

Ms. Mandy La Combre – Oral Evidence:

Ms. La Combre outlined that she is the Complainant’s wife.

Ms. La Combre confirmed that she created a “Facebook” post on 11 September 2022 and that there was newspaper coverage as a result. She said that the context for her post was that the Complainant was coming home stating that his role was gone; and that water workers were on “Facebook”  asking where he was when they had not been balloted regarding a TUPE transfer.

Ms. La Combre stated that she decided to let people know that the Complainant was being quiet as he was being side-lined and muted.  She said that no one from the Respondent approached her about the post, even though she was a Branch Chair. She said that it never crossed her mind how the Respondent might feel about her post.

Cross-Examination:

Under cross-examination, Ms. La Combre said that she was happy that the “Facebook” post was out there. She said that the Complainant had been trolled online.

She confirmed that the Complainant was not the ESB representative before he went on sick leave and that he was not in an industrial position or involved in industrial relations before he went on sick leave. She stated that the Complainant would have advised people if they rang him.

She confirmed that someone in the Respondent did take issue with the truth of her “Facebook” post. She confirmed that she did tell Mr. Mick Clifford, the journalist, that the Complainant had suggested a move to Dundalk.

The Respondent provided detailed written and oral submissions.

Preliminary Matters:

The Complainant’s Complaints:

The Respondent submitted that the Complainant originally submitted three penalisation claims under the Protected Disclosures Act 2014, the Health Act 2007 and the Safety, Health & Welfare at Work Act 2005. The Respondent submitted that the Complainant alleged that he was penalised for his attitude to the Covid protocols under the aforementioned acts. The Respondent submitted that the Complainant alleged that there was a “campaign of intimidation” which went right to the top of the organisation. The Respondent submitted that the Complainant then “abandoned” these complaints and proceeded only with this complaint under the EEA, now alleging that the Respondent’s same conduct (which is denied) amounted to disability discrimination. The Respondent submitted that these are “mutually inconsistent claims”. The Respondent submitted that, at the very least, this “pivot”, fundamentally undermines the Complainant’s case that the Respondent’s conduct was due to his disability.

The Burden of Proof:

The Respondent submitted that the Complainant failed to meet the burden of proof. The Respondent submitted that the claim advanced and pursued by the Complainant has nothing to do with, and is not connected to, his disability. The Respondent submitted that the Complainant failed to tender evidence, as to how he suffered less favourable treatment when compared to other employees who do not have a disability. Moreover, the Respondent submitted that the Complainant did not attempt to prove that any alleged differential in treatment was because of, or substantially because of, his disability.

Comparators:

The Respondent submitted that the Complainant failed to put forward any comparator who does not have the same characteristic. The Respondent submitted that the Complainant only referred to persons who returned to work, following cancer diagnosis. The Respondent submitted that these persons cannot be comparators as they all have the same disability as the Complainant. The Respondent submitted that the only inference which can be drawn from a group of employees all with the same characteristics, only one of whom is treated differently from the others, is that the differential in treatment stems from something other than the protected characteristic.

The Respondent further submitted that the Complainant’s later reference to Ms. Cartmail as a comparator is flawed insofar as the Complainant submitted that she was treated differently because she is “close to the General Secretary”. The Respondent submitted, inter alia, that no such evidence was adduced.

During Closing Submissions on 18 June 2024, the Respondent submitted that the Complainant had put forward Mr. Fitzgerald as a comparator, for the very first time.

Relevant Timeframe:

The Respondent submitted that the Complainant made no application for an extension of time. The Respondent referred to Skelly v. St Paul’s Secondary School, DEC-E2013-180 (the “Skelly Decision”). The Respondent submitted that the correct approach is to determine, first, whether there has been a contravention of the legislation within the six-month cognisable period. If there has been a contravention, then the WRC can consider earlier events as forming part of the claim. If events within the cognisable period do not disclose a breach of the legislation, earlier matters are statute barred.

The Respondent submitted that Mr Pollock’s decision to assign the role of Education (all Ireland) and Legal (RoI) Officer to the Complainant was set out in a letter dated 2 November 2022. The Respondent submitted that as this letter falls outside the cognisable period, it can only be considered by the WRC if:

·             There has been a breach of the EEA between 19 November 2022 and 18 May 2023; and

·             There is a continuum between that breach and the earlier events, including the letter dated 2 November 2022.

Finally, the Respondent submitted that the deterioration in relations, and the meetings and the grievances regarding his duties, all post-dated the creation of his wife’s “Facebook” post on 11 September 2022.

Substantive Matters:

The Complainant’s Appointment and Role:

The Respondent submitted that the Complainant was seconded to the ESB and was re-inserted into the Dublin office as a Grade 10 officer, “in effect politically”, at the instigation of Mr. McCluskey, the (then) General Secretary. The Respondent submitted that Mr. McCluskey confirmed that his decision to recall the Complainant was not separately approved by either the Irish or the main Executive Council of the Respondent. The Respondent submitted that in doing so, Mr. McCluskey exercised his discretion, in the same way as Mr. Pollock did, when he assigned the roles of Education and Legal to the Complainant.

The Respondent submitted that that the “vast majority of [the Complainant’s] energies were focused upon political campaigns.” The Respondent submitted that the Complainant carried out other tasks, but these did not occupy significant amounts of time. The Respondent referred to Mr. Browne’s evidence in which he confirmed under cross-examination that the Complainant’s main function concerned political campaigns. The Respondent further submitted that Ms. Murphy and Ms. Savage primarily managed facilities and staff. The Respondent submitted that the Complainant is no longer managing Covid protocols as the Pandemic has ended.

The Respondent submitted that its “approach and direction […] altered very significantly” following the election of the new General Secretary. In this regard, the Respondent referred to Ms. Cartmail’s evidence (supported by Mr. Pollock’s evidence and Mr. Fitzgerald’s evidence) that there was: a complete move from focusing on political matters to industrial matters; a change in the approach to communications, which had to be centrally approved; an emphasis on industrial work and representation; and a greater focus on Education.

The Respondent submitted that following discussions with Mr. Pollock, the Complainant was assigned the role of Education Officer for the whole of Ireland and Legal Officer for the RoI by letter dated 2 November 2022. The Respondent submitted that this role was at the same level of responsibility as the role he held previously. The Respondent submitted that there was a need for an Education Officer; and there had never previously been a Legal Officer for the RoI. The Respondent submitted that Mr. Pollock identified the need for both. The Respondent submitted that Mr. Pollock’s letter dated 2 November 2022 directed the Complainant to take up that role but he refused to do so.

The Respondent submitted that it was common case that the Complainant was looking for the roles of Education, Legal, Environment and European Affairs. The Respondent submitted that in placing the Complainant in the Education and Legal roles in 2022, the Regional Secretary was doing exactly what Mr. McCluskey as (former) General Secretary did when he placed the Complainant in a political role in 2018. The Respondent submitted that Mr Pollock’s evidence was that the Complainant was initially positive about the roles in October 2022.

The Respondent submitted that the General Secretary had mandated a “root and branch review” of Education and an emphasis on Education. The Respondent further submitted that its transition to a higher level of industrial action and representational work required an expansion of the Education and Legal roles.

The Respondent further submitted that other regions had Education Officers and Legal Officers. The Respondent submitted that the new role of Education and Legal Officer for Ireland was a new and substantial Grade 10 role. The Respondent referred to Mr. Browne’s evidence who had stated that he previously held the Education Officer role which was a full-time role.

Finally, the Respondent submitted that the assignment of duties was within its competence and the margin of discretion of the General Secretary. The roles were substantial and likely to become more substantial. The roles were commensurate with the Complainant’s grade and position. The Respondent submitted that the Complainant ought to have accepted them.

The Dundalk Role and the Return-to-Work Meeting on 22 July 2022:

The Respondent submitted that it is common case that the Complainant requested that the Dundalk Grade 9 Regional Officer role be held open for him. The Respondent submitted that it was not in dispute that: it ceased a recruitment competition to hold the role open for him; that the Complainant was told that he could maintain his salary in that role; and that it was left open to the Complainant to decide when he returned to work whether he would take the Dundalk role. The Respondent submitted that this is all evidence of favourable treatment to the Complainant specifically and expressly because of his disability.

The Respondent submitted that there was no “pressure” placed on the Complainant to go to Dundalk either during the Return-to-Work meeting or otherwise; and that no evidence of any “pressure” was tendered.

The Whiteboard Meeting on 24 August 2022:

The Respondent rejected the Complainant’s framing of the Whiteboard Meeting, the “Organisational Review” and the “strategic plan”. The Respondent further submitted that, even if the WRC accepted the version of events put forward by the Complainant in toto, it would prove that any alleged removal of the Complainant’s duties was “entirely unconnected to his disability”.

The Respondent submitted that Mr. Fitzgerald’s evidence and the documents that he furnished are consistent with his account of getting to grips with his responsibilities as RCO and trying to grow the Respondent’s membership. The Respondent submits that the Complainant’s version of events lacks credibility.

The Respondent submitted that it was common case between Mr. Pollock and Mr. Fitzgerald that there was a conversation about Mr. Fitzgerald and the Complainant discussing their roles together going forward. The Respondent further submits that everybody knew that, under the new General Secretary, there would be a change in direction of the Respondent; and that resources would require a business case to demonstrate industrial benefit. The Respondent further submitted that Mr. Fitzgerald’s discussions regarding the review of Education, Community and related issues are consistent with the Complainant’s subsequent discussions with Mr. Pollock. Finally, the Respondent submitted that Mr. Coss’ evidence regarding the whiteboard lacks credibility.

The “Organisational Review” Document:

The Respondent submitted that the “Organisational Review” document is not the “smoking gun” alleged by the Complainant. The Respondent submitted that “the plan” was to grow membership though industrial organisation and targets for Regional Officers, which was part of the RCO function. The Respondent submitted that it was not a “secret enterprise” and was referred to at the Irish Executive Committee meetings in July and November 2022. The Respondent further submitted that the document sent to Mr. Pollock in December 2022 was in draft form. It was an incomplete document and that it did not refer to the Complainant, to the Deputy Regional Secretary, or to the Regional Secretary. The Respondent submitted that the document referred to many vacant roles, including Education, Legal, Political and Community. Finally, the Respondent submitted that at the time that the document was produced, the Complainant had been appointed to the role of Education and Legal Officer, but was refusing to undertake that role.

The Complainant’s Grievances:

The Respondent submitted that there is no evidence to suggest that the failure to progress the Complainant’s grievances was discriminatory. The Respondent submitted that the grievances were delayed by agreement while the Complainant took annual leave. The Respondent further submitted that following receipt of the grievances, there was a without prejudice meeting to discuss a way forward. The Respondent referred to Ms. Kielim’s evidence that research regarding the Complainant’s requests / figures was required and that the research concluded that the Complainant’s requests were too high. The Respondent submitted that following the meeting, the Complainant issued proceedings.

The Promotion Application Process:

The Respondent submitted that the promotion process for the role of Regional Secretary was properly run in accordance with procedures and that the selection process for the successful candidate was completely unconnected to the Complainant’s disability. The Respondent submitted that the Complainant objected to Mr. Woodhouse being on the interview panel due to his alleged personal animus towards the Complainant. The Respondent submitted that on foot of the objection, Mr. Woodhouse absented himself and Ms. Cartmail conducted the remaining interviews.

Exclusion from Meetings and Conferences and Allocated Car of a Lower Specification:

In its written submissions, the Respondent outlined that at the Respondent’s Conference in Malahide on 19 September 2022, there was a reduced top table to maintain gender balance and that many senior officers were not at the top table. The Respondent submitted that the Complainant was not singled out.

In its written submissions, the Respondent outlined that more senior officers than the Complainant drive more modest cars. Additionally, it was the Respondent’s position that Mr. Fitzgerald replaced his car for the first time in 10 years as he was told that he had to. Finally, the Respondent submitted that as the Complainant’s car renewal was in August 2023, it is outside the cognisable period.

Law Relied Upon:

The Respondent relied upon, inter alia, the EEA; Skelly v. St Paul’s Secondary School, DEC-E2013-180; County Louth VEC v. Equality Tribunal [2016] IESC 40; Board of Management v. Worker, EDA 1726 DEC-2016-056; Ervia v. Deaglan Healy PW/19/55; Daly v. Nano Nagle School [2019] 3 IR 369; and Freeman v. Superquinn DEC-E/202/13.

Oral Evidence:

Mr. Jackie Pollock – Oral Evidence:

Mr. Pollock stated that he started as a trade union official in 1995. He held the position of Regional Secretary from 2018 until he retired in April 2023. That role involved “carrying out the rules, roles, procedures and policies of [the Respondent]”.  He was also Secretary to the Irish Executive Committee and ran the whole of Ireland administratively and industrially and dealt with all day-to-day issues in every department within Ireland. He was answerable to the Chief of Staff, the General Secretary and the Executive Council. He said that first and foremost, they are answerable to their 60,000 members in Ireland.

Mr. Pollock stated that Ms. Graham, the new General Secretary, was elected on policies that she had put to her members and that she wanted to fulfil her manifesto. He stated that from day one, there was a “huge difference” in priorities under the new General Secretary “from a politically motivated machine as a Union to [being] more industrially focused”. He stated that reporting mechanisms and press release mechanisms changed. He said that the Respondent became more industrially-focused with more focus on members, training for representatives and education programmes for representatives.

Mr. Pollock outlined that he met the Complainant 25 years ago at the time of an Irish Locomotives Drivers Association dispute. He stated that after the Complainant’s secondment to the ESB, he returned to the Respondent as an Education Officer. He said that this was a five-day role and that this would depend on how much commitment one put into “the development of shop stewards and the whole health and safety gambit and whatever else, [one] would train representatives to do.”

Mr. Pollock outlined that around August 2017, Mr. McCluskey first raised with him that he would like the Complainant to take up a national officer role which would be more of a political role. Mr. Pollock stated that Mr. McCluskey said that the Complainant “could influence and start a new political party”. He said that Mr. McCluskey thought that the Complainant would have connections following the “Right2Water” campaign which could grow membership. Mr. Pollock said that he told Mr. McCluskey that he already had an RCO in the industrial side and that he did not want “double-jobbing”. Mr. Pollock said that when the role was announced, it was not welcomed, it created disharmony and that some members pursued a collective grievance as a result.

Mr. Pollock said that he told the Complainant and Mr. Browne, the RCO, to decide on the allocation of responsibilities for the RoI and that he then sent his Tasks Email dated August 2018 on the back of their agreement. Mr. Pollock said that he had regular meetings with the Complainant.

Mr. Pollock stated that the Complainant had raised concerns about the financial side of his Education role and that a higher budget was required.  Mr. Pollock said that in the RoI, Ms. Janet Murphy was in charge of staffing and administration. He said that “overall facilities” was his responsibility as Regional Secretary.

Mr. Pollock stated that when the Complainant went on sick leave, there was a senior officer meeting regarding the Complainant’s responsibilities which, in his absence, went to Mr. Thompson and Mr. Browne.

Mr. Pollock stated that “out of the blue”, around October 2021, Mr. McCluskey contacted him about the Complainant taking the Dundalk role. He said that he was surprised. He said that he did not discuss any salary details with the Complainant.

The Return-to-Work Meeting on 22 July 2022 and Subsequent Events:

Mr. Pollock stated that he attended the Complainant’s Return-to-Work meeting via “Zoom”. He said that he thought that the meeting was cordial. He said that as the sick certificate had raised the issue about work-related stress causing cancer, he then raised the point. He later clarified that the sick certificate had been forward to him by Ms. Murphy. He stated that he was aware before the Return-to-Work meeting via a text message that the Complainant was not taking the Dundalk role but that he (Mr. Pollock) wanted to clarify this at the Return-to-Work meeting. He later clarified that he understood that until the Return-to-Work meeting, the Complainant was keeping his options open.

Mr. Pollock outlined that the Complainant had a staggered return to work and then he took a long time off work as he had acquired a lot of holidays.

Mr. Pollock outlined that he was the Complainant’s Line Manager and that he could not remember the Complainant raising any issues with him about his role being taken away. He could not recall the specific point in time when he learned about there being a difficulty from the Complainant’s point of view, but he thought that it was by the time Mr. Fitzgerald started as RCO.

Mr. Pollock outlined that it was a shock to him how events developed between the Complainant and Mr. Woodhouse who he thought were previously very good friends. Mr Pollock stated that he had seen the “Facebook” post. He asked the Complainant if he had any part in it and the Complainant told him to take it up with his wife. Mr. Pollock outlined that, as regards the isolation accusation, he had not isolated the Complainant in any way and the Complainant had not complained to him about any isolation.

Mr. Pollock stated that on 13 September 2022, he met with the Complainant and Mr. Griffiths and discussed the “Facebook” post and the Complainant’s involvement. Mr. Pollock stated that the Complainant said that it was nothing to do with him.

The Education and Legal Officer Role:

Mr. Pollock outlined that he looked at various roles across the Respondent for the Complainant. He said that there was no Legal Officer in the RoI at the time and he thought that the Complainant might like it. 

Mr. Pollock outlined that they had a number of informal meetings to try to resolve issues. He outlined that he met with the Complainant in the Ballymascanlon Hotel in late October 2022. He said that there was a new Education Director under the General Secretary and that there was a lot of change in the Education role for the whole of Ireland – a whole revamp and new exciting developments. He also outlined that there was a Legal role in the RoI. Mr. Pollock said that the Sustainability / Environmental role was an issue as it was under review and that he told the Complainant this. Mr. Pollock stated that the EU Affairs role was “a new ball game” as they had a European Department in London and that was outside of his remit and was not on the table.

Mr. Pollock outlined that the Education and Legal roles were “very important roles, the utmost importance”. He said that “[t]he legal position was a big issue for us […] and the education obviously we could have put a new footprint in Ireland”. Mr. Pollock outlined that at the end of the meeting, the Complainant stated that he would speak with his family and get back to him on Monday. Mr. Pollock stated that he “was crystal clear that [the Complainant] was excited with that role”. Mr. Pollock stated that he then got an email from the Complainant the following Monday “as if that meeting didn’t take place or it was really saying it was […] it was blew [sic] out of the water for talks sake”.

Mr. Pollock referred to his letter to the Complainant dated 2 November 2022. In that letter he referred to the direction of the Respondent becoming more industrial- and membership-focused. He also stated that he had taken everything into consideration regarding a role that would benefit the region and the Complainant. Mr. Pollock stated that the Education role would have been exciting and fulfilling.  Mr. Pollock said that he would be “astounded” if the Education role was only three days per month. He said that the Legal role would also be very substantial and he thought that it would have excited the Complainant as they had discussed it and he thought that he was really interested in it. Mr. Pollock said that those roles were “equal or, if not with the new developments, an improvementonthe role he was carrying out.” Mr. Pollock stated that he did not know why the Complainant rejected the role. He said that the Complainant did not carry out the role. He said that the Complainant’s duties were not allocated to anyone else. He said that the Complainant had proposed four categories – two were accepted (Education and Legal); one was under review (Environment); and one was ruled out (EU Affairs).

Mr. Pollock stated that there were no other forces at play and that no one was directing him from London. He stated that he was always cordial with the Complainant and tried to diffuse things. He further stated that if the Complainant’s position was being dismantled, it would have to be done by him as his Line Manager and that he did not do this. Mr Pollock said that he had no knowledge whatsoever of a Respondent plan going forward which did not involve the Complainant.

Mr. Pollock stated that the water issue was not the “Right2Water” campaign. It was an industrial matter and Mr. Fitzgerald, the RCO was dealing with it. 

Mr. Pollock stated that he never had conversations with Ms. Murphy about redirecting work away from the Complainant.

Mr. Pollock stated that the tasks set out in his Tasks Email dated August 2018 were not the Complainant’s full workload or his core duties.

Mr. Pollock stated that there is an International Department in London which looks after European Affairs as well as Friends of Palestine and Colombia and all issues around the world. He stated that the International Department speaks on behalf of all regions of the Respondent.

Mr. Pollock stated that there was a budget for Education but at that time the Regional Officer said that they had overspent.

Mr. Pollock stated that things changed for everyone under the new General Secretary. He stated that they moved to a complete organising model and focused on membership growth. He said that another office opened in Limerick and the Belfast office was redeveloped. He said that it became more hands-on with members and there was more accountability for officers. He said that authorisation was required for press releases from the Press Office in London. He said that staff were being developed and given more responsibilities. 

Cross – Examination:

Under cross-examination, Mr. Pollock confirmed that the Complainant’s role was a political role. He further stated that, Mr. McCluskey viewed “[the Complainant’s] role as more political and even the enabling of starting a political party”.

The Tasks Email dated August 2018:

Mr. Pollock was taken through, inter alia, the Complainant’s tasks outlined in the Tasks Email dated August 2018. He was also taken through emails from the Complainant involving staffing and facilities matters; an internal complaint; an employee’s OH report; an employee’s contract of employment; and car-parking. Mr. Pollock stated that some of those matters were “one-offs”.  He stated that in some matters, the Complainant was trying to bring “people on board regarding this role and the support staff that he was requiring.” He further stated that the rest of the matters fell into different categories which different heads of departments should be dealing with.

The Dundalk Role and the Return-to-Work Meeting on 22 July 2022:

Mr. Pollock confirmed that he asked Ms. Kielim to attend the Return-to-Work meeting as it was the first that he had done and it was complex for him in that it involved sick certificates and he wanted a note taken.

Mr. Pollock stated that he raised the issue of stress at work because of all that the Complainant was going through.

Mr. Pollock stated that he raised the Dundalk role as he wanted to be clear on the Complainant’s position. He said that he was confused as Mr. McCluskey, the former General Secretary, had been getting involved “and asking someone to move jobs and position”. He further stated that they would have to interview and select someone for the Dundalk role. He stated this was his first opportunity to ask the Complainant. He stated that the Return-to-Work meeting is an opportunity to find out from people if they’re in the right frame of mind, and to clear everything up both medically and as regards their role. He stated that he was not putting pressure on the Complainant.

The Complainant’s Role:

Mr. Pollock stated that there were initial issues when Mr. Fitzgerald came on board regarding who was doing what. Mr. Pollock stated that he told Mr. Fitzgerald and the Complainant to “knock their heads together” and resolve the issues. Mr. Pollock stated that he spoke to the Complainant and to Mr. Fitzgerald separately. He said that he had previously done the exact same thing with the Complainant and Mr. Browne.

Mr. Pollock said that he would have been surprised that the Complainant no longer had any duties. Mr. Pollock said that he was not involved in any plan referenced in a meeting between the Complainant and Mr. Fitzgerald. He stated that he did not know of a plan, moving the Respondent forward, which did not involve the Complainant. 

Mr. Pollock said that he had a number of informal meetings with the Complainant which were not recorded. He said that they talked about a lot of possible scenarios that could happen. He said that the Complainant was reviewing everything. He said that job roles, including Legal and Education came up.

Mr. Pollock stated that Ms. Cartmail told him to run the region and speak to the Complainant.

Mr. Pollock stated that as regards the Ballymascanlon Hotel meeting, the Complainant asked him if he needed to be accompanied and he told him that it would just be the two of them at the meeting.

Mr. Pollock stated that, previously, the Complainant had only held the Education role for the RoI and not the whole of Ireland; and that he had not held the Legal role for the RoI before.

Mr. Pollock stated that things had moved on under the new General Secretary and that “politically we were doing nothing. From the outset of the political role there was nothing happening whatsoever.”

Mr. Pollock further stated that no one was stopping the Complainant from carrying out any of his role. He stated that he never prevented the Complainant from doing any of his work.

Mr Pollock stated that as regards the Complainant’s meeting in London, “it raised concerns [with him] that [the Complainant was] doing nothing and hard-earned members’ money and […] that he’s doing nothing.”

In response to why Mr. Pollock created a new role for the Complainant, Mr. Pollock stated:

“I had an issue with what he was doing. Because it wouldn’t amount to a senior role and we were moving on, the organisation moved on to membership-driven, away from politics. And it went from full cycle to a really industrial movement which it is today, compared to a political movement under the former General Secretary. Things moved on. New general secretaries come in, new ideas and that’s what happened.”

Mr. Pollock stated that he created the title “Senior Officer”. He stated that it was a Grade 10 role and the equivalent of an RCO and a Legal Officer. He stated that the Education role was a Grade 9 role.

Mr. Richard Griffiths – Oral Evidence:

Mr. Griffiths outlined that he is the Head of HR Operations. He outlined that he has a team of ten and he reports to Ms. Kielim. He has worked for the Respondent and legacy unions for 28 years.

Mr. Griffiths outlined that he had two meetings with the Complainant – on 13 September 2022 and on 8 February 2023.

Mr. Griffiths outlined that the meeting on 13 September 2022 was an informal meeting to explore concerns regarding the social media posts and to engage with the Complainant. He stated that the Complainant was accompanied by Mr. Douglas. He said that the Complainant did not wish to discuss the “Facebook” post in any depth and that the Complainant said that it was a matter for his wife. Then the Complainant outlined how he believed his role had been undermined. Mr. Griffiths said that Mr. Pollock seemed surprised by this. Mr. Griffiths outlined that he focused on why the concerns were being raised on social media and were not being brought to the Respondent directly via proper procedures. Mr Griffiths stated there was recognition that there was a grievance element and there was no conclusion. He stated that he gave an outline of the meeting to Ms. Cartmail.

Mr. Griffiths outlined that he gave support to Mr. Hughes, [the Investigating Officer] for the Grievance Hearing on 8 February 2023. He outlined that his function concerned procedure and policy. He was not involved in the grievance matter after that. He stated that a follow-up meeting never occurred as the process was set aside to allow for other discussions.

Cross-Examination:

Mr. Griffiths stated that he did not tell the Complainant specifically to raise a grievance but he suggested that given the processes and procedures in place, it may be best to handle matters in that way. He stated that a grievance can be raised with a Line Manager, which is then raised with a higher Line Manager or HR.

Mr Griffiths said that he provided an outline of the meeting to Ms. Cartmail as Ms. Kielim was on leave at the time.

Mr. Griffiths said that neither he, nor Mr. Pollock, had any knowledge of the “strategic plan” to which the Complainant referred during the meeting on 13 September 2022.

Mr. Griffiths said that he would not be involved in the role being offered to the Complainant outlined in Mr. Pollock’s letter dated 2 November 2022. He said that the HR Director would liaise with Regional Secretaries on such matters.

Mr. Griffiths stated that after the Grievance Hearing on 8 February 2023, conversations moved on and there was a potential for privileged conversations, to which he understood the Complainant had consented.

Mr. Tom Fitzgerald – Oral Evidence:

Mr. Fitzgerald outlined that he was a trade union official in the construction union BATU. He worked in the Respondent’s Organising Department from 2011. He was appointed a Regional Officer in 2013 and he was appointed RCO in June 2022. He stated that he has known the Complainant for approximately 25 years.

Mr. Fitzgerald outlined that around 2018 there was significant opposition to the creation of the role of a national officer as it would be divisive, given Ireland’s history. This role was then “pulled”. He stated that there was further controversy as the perception was that the role was repackaged and given to the Complainant. This resulted in a collective complaint from officers as the appointment had not gone through due process and procedure.

Mr. Fitzgerald outlined that his predecessor, Mr. Browne, dealt with industrial matters while the Complainant dealt with political matters. He said that Mr. Browne was previously his Line Manager and that he would go to him for support and assistance. Mr. Fitzgerald said that while he was a Regional Officer, he engaged with the Complainant, particularly if Mr. Browne was away or was not involved in matters. He stated that he would not have had a conversation with the Complainant per se about construction as that was his “bailiwick”.

Mr. Fitzgerald stated that as Regional Officer, his area of responsibility was construction. He outlined that the branch grew “five- or six- fold” between 2013 and 2020 / 2021, while he was Regional Officer.

Mr. Fitzgerald stated that there was an election for a new General Secretary in 2020 / 2021. He stated that he had worked with Ms. Graham when she was Head / Director of the Organising Department. He stated that the Organising Department was involved in organisation projects within the workplace and improving workers’ positions in the workplace or across the sector. He said that they also looked at density which involved the number of workers in the workplace or in the sector. He distinguished this from regional matters, which more concerned the representation of workers. 

Mr. Fitzgerald stated that he applied for the role of RCO. He said that his pitch was to try and apply lessons learned in the construction sector. He said that the core work of a union is to represent the workers. He said that he learned that he was successful on 7 June 2022. He received a call from the General Secretary and they had a conversation about work going forward. He stated that he tried to press her for some more resources, particularly for the construction sector, and she told him to make a business case. She said that she would speak to the Regional Secretary. He stated that the Complainant was never mentioned during this conversation.

Mr. Fitzgerald stated that on 13 June 2022, he met with Mr. Pollock to discuss work over the next number of months and what needed to be addressed. He said that he had a lot to “get [his] head around”. He said that Mr. Pollock was reassuring and helpful. He said that he asked about the Complainant and that Mr. Pollock told him that the Complainant was going to Dundalk. He said that there wasn’t a lot of discussion about it.

Mr. Fitzgerald stated that when the Complainant returned to work on 22 July 2022, he was operating on the basis that the Complainant was going to Dundalk as a Regional Officer. He knew that the Dundalk role had not been filled. He knew that the Complainant had been through a lot and under a lot of stress. He believed that this would be part of the analysis in coming months.

Mr. Fitzgerald stated that, as he had been on annual leave, he did not see the Complainant until the Network Technician Association Conference on 17 August 2022. Mr. Fitzgerald was the new officer with responsibility for the ESB and he said that he was surprised to see the Complainant there. Mr. Fitzgerald said that there had been some difficulties in the ESB branch and that some of his own actions in July and August 2022 were considered controversial.

Mr. Fitzgerald stated that, in the meantime, he had spoken to Mr. Pollock and he understood that the Complainant was not happy about Dundalk or his role in Dublin at that stage. Mr. Pollock told him to talk to the Complainant. After the abovementioned conference, Mr. Fitzgerald called the Complainant to arrange a meeting.

The Whiteboard Meeting on 24 August 2022:

Mr. Fitzgerald said that the meeting was about an hour and a half long. He said that the Complainant told him what he had been through and about his family bereavements. Mr. Fitzgerald said that he had had surgery himself the previous year and that his mother had also passed away. He said that they had a “heart to heart” discussion.

Mr. Fitzgerald said that the Complainant asked him what he saw coming out of the conversation. Mr. Fitzgerald stated that it was an exploratory discussion. Mr. Fitzgerald said that he understood that the Complainant did not want to go to Dundalk. He said that the Complainant said that he wanted to talk about his role going forward. Mr. Fitzgerald stated that he understood that it was a “collegial discussion”. He said that they specifically made the point that they were not taking notes. He said that they were both at the same grade and talking about where the organisation would go. He said that the Complainant stated that he saw a gap in the areas of Education, Community and Legal. He said that the Complainant also discussed a possible nomination to the Labour Court. He said that “everything was on the table”.

Mr. Fitzgerald stated that he told the Complainant that he had sat down with officers and that there was a focus on developing density while not putting officers under unnecessary pressure.  He said that they looked at “new turf” – organising new membership and looking at non-union labour and considering the basis for organising it. He said that the Complainant asked him about this and so he went to the whiteboard and began to sketch it out. Mr. Fitzgerald stated that he only became aware of the fact that the Complainant had taken two photos of the whiteboard, during the course of these proceedings. He stated that at the end of the meeting, the Complainant had asked to take one photo. He said that he was perplexed as to why he was taking the photo. As regards the second photo, he said that it had been taken by the Complainant without his knowledge or consent.

Mr. Fitzgerald said that the schematic diagram on the whiteboard was a collaborative process outlining his and the Complainant’s thoughts regarding, inter alia, how to advance the Respondent. He described the schematic diagram and explained the abbreviations used. He referred to the industrial component alongside which he referred to the construction, energy, finance, transport and enterprise sectors. He referred to the political component, alongside which he referred to collective bargaining, the 2007 Ryanair decision, the homelessness issue and the water campaign. He referred to membership growth, turf and a possible merger. He referred to the internal environment and the external environment. He said that the schematic diagram also referred to organisers in training, RIOs and resources. He said that they spoke about how “if we wanted to get extra resources in the context of the new General Secretary, you had to be able to make a case.” He said that when the Complainant raised Education, Community and Legal, they were then also included in the schematic diagram. He said that the schematic diagram was like a “PESTLE” or “SWOT” analysis.

Mr. Fitzgerald stated that he “absolutely” did not say to the Complainant that he was not part of a plan.  He said that the General Secretary never told him to exclude the Complainant from a plan. He said that it was “not credible” that he would tell the Complainant that he was excluding him and that he would draw the plan on the whiteboard. He also said that it was “not credible” that the following day he would tell Mr. Coss, a close confidant of the Complainant, about how “[the Complainant was] going to be squeezed out”. Mr. Fitzgerald said that he was shocked by a lot of the Complainant’s assertions regarding what he (Mr. Fitzgerald) had said and what his plans were. He said that he was “not involved in a strategic plan to get rid of [the Complainant] in concert with the General Secretary or anything like that. And the idea of it is preposterous on a load of levels.” Mr. Fitzgerald said that the Complainant had always been helpful and supportive to him. He said that he would not treat the Complainant in the way he has been accused. Mr. Fitzgerald said that his own father had died of throat cancer. He said that he did not accept that against the background of the personal conversation that they had just had about family bereavements and cancer, that he would then tell the Complainant “this is how we’re going to do you in”. Mr. Fitzgerald said that he has tried to do right and let this process unfold, but the allegations are disrespectful and absurd.

Mr. Fitzgerald stated that he never said that he was taking over the “Right2Water” campaign and that he would never do that. He said that he would never even know where to start with it. He said that there was no discussion about the tasks in Mr. Pollock’s Tasks Email dated August 2018. He said that during the meeting, the Complainant was making the point about how helpful he could be to Mr. Fitzgerald. He said that it was a good meeting and that they both left in good form.

Mr. Fitzgerald stated that he never had the conversation on 25 August 2022, with Mr. Coss as alleged. He said that he knew that the Complainant and Mr. Coss are very close.

Mr. Fitzgerald outlined that on 1 September 2022, he received an email from the Complainant asking why the meeting had taken place. The Complainant also stated that he had researched Community and Environment functions which were very interesting and that he needed an evaluation of his political role and the Labour Court issue. Mr. Fitzgerald referred to his email response dated 2 September 2022 in which he told the Complainant that the meeting had taken place as Mr. Pollock asked them to meet and identify what options he would be happier with than the Dundalk / allocation route. He stated that later that morning, he passed the Complainant’s office. He said that the Complainant was agitated and that the Complainant said that he was concerned that “people in the organisation [were] working to get him out, to push him out”.  Mr. Fitzgerald said that he was shocked. The Complainant told Mr. Fitzgerald that he had concerns that Mr. Fitzgerald was being used. He said that it was a brief meeting, but that the Complainant’s mind had clearly changed since 24 August 2022.

Mr. Fitzgerald said that he was disappointed when he learned about the “Facebook” post. He said that things “were starting to click” that there was a big problem and he referred to the Complainant taking a photo of the whiteboard; and to the Complainant’s follow-up email dated 1 September 2022.

Mr. Fitzgerald said that he was not involved in the invitations to the Irish Policy Conference and that he was not seated at the top table.

Mr. Fitzgerald said that he understood from Mr. Pollock that discussions were ongoing with the Complainant about his role.

Mr. Fitzgerald stated that he did not take up a Legal, Education, or Political role.

Mr. Fitzgerald stated that he did not take up the “Right2Water” campaign. He said that he was only involved in the industrial element regarding water workers.

The Tasks Email dated August 2018:

Mr. Fitzgerald was referred to Mr. Pollock’s Tasks Email dated August 2018. Mr Fitzgerald said that they are all pretty straightforward tasks and he addressed each of them as follows:

•          There were two signed authorisations for industrial action ballots this year and this task would take ten or fifteen minutes.

•          Member complaints take time and can be more cumbersome, however, he has none at the moment and had only one last year.

•          There were 10 or 15 member transfer requests in a year and Ms. Murphy looks after them for the most part.

•          Requests for authorisation for hotel overnights arise on a regular basis and they are dealt with briefly.

•          He said that he did not deal with personal issues such as sick leave for support staff and officers unless it required replacements.

•          He said that he only did one Return-to-Work meeting and it took about an hour.

•          Press releases are compiled by the PR person and he would be required to read it for accuracy. He said that sometimes there can be some back and forth.

•          He said that he doesn’t deal with major issues in District Offices.

Mr. Fitzgerald stated the Complainant never discussed these tasks with him. He said that the first he heard about them was in the context of these proceedings. He further stated that if the Complainant had spoken to him about the tasks, there is none of them, aside from the authorisations for industrial action ballots that he would want to do, as he is responsible for industrial matters.

Mr. Fitzgerald said that he was aware of the Complainant’s position that his role and duties were being removed in September 2022. He said that there was little interaction between them and that the Complainant took a lot of annual leave in December 2022 and January 2023.

Mr. Fitzgerald referred to an email dated 15 February 2023 in which the Complainant accused him, inter alia, of inserting himself into recent correspondence with colleagues regarding the press officer concerns; bicycles in stairwells; the use of the first aid room; and legal issues regarding industrial action. Mr. Fitzgerald outlined that he responded in full, denying the Complainant’s allegations.

Meeting with the General Secretary on 2 May 2023:

Mr. Fitzgerald said that he attended the meeting with the General Secretary in the Belfast office on 2 May 2023. He said that she was meeting with the reps and officers. He said that there was an interesting discussion, touching on developments in Northern Ireland and in Britain. He said that he took the opportunity to ask about the cost-of-living crisis and the resultant strike waves in Northern Ireland and Britain. He said that he posed the question about why the same did not happen in Ireland. He said that there is a different terrain in Ireland and that it was an opportunity to press for resources on behalf of workers in Ireland.

Mr. Fitzgerald referred to the Complainant’s email dated 5 May 2023 in which he accused Mr. Fitzgerald of assuming his contracted role and giving a report on the Complainant’s political duties at the meeting with the General Secretary on 2 May 2023. Mr Fitzgerald said that he replied on 9 May 2023, outlining what he had said at the meeting. He said that the Complainant was seeking to police his commentary and that the Complainant who was also in attendance, chose not to speak despite having ample opportunity.

The “Organisational Review”:

Mr. Fitzgerald referred to a workshop on 8 and 9 December 2022 during which he discussed the Respondent’s density and membership. Mr. Fitzgerald also referred to his email to Mr. Pollock dated 20 December 2022 to which he attached the “draft organisational review and preliminary growth targets document.” He said that the purpose of the document was to show that he was getting a handle on the internal and external environments. He also wanted to set out a “lead in” for targets. He said that his work on this had commenced with his meeting with the Regional Secretary in June 2022 and continued over the following months, encompassing communications with officers.

Car Allocation:

Mr. Fitzgerald stated that he had little input regarding what car he wanted, aside from that he required lumber support. He was told that he had to replace his old car as it was ten years old.

Cross-Examination:

Under cross-examination, Mr. Fitzgerald denied that he felt untouchable due to his association with the General Secretary, Ms. Graham.

It was put to Mr. Fitzgerald that the Whiteboard Meeting on 24 August 2022 was not a collaborative discussion and that he had set out his own role within the Respondent on the schematic diagram. Mr. Fitzgerald stated that he stood over his evidence-in-chief, given the previous day.

Mr. Fitzgerald said that he dealt with industrial matters; and that by and large, the Complainant dealt with political matters. He also said that he would not argue with Mr. Browne’s evidence and that he was not live to everything that the Complainant did.

It was put to Mr. Fitzgerald that the Complainant did a considerable amount more work outside of his political role and that he engaged in detail with six to eight officers, including Mr. Fitzgerald. To this end, Mr. Fitzgerald was referred to, inter alia, construction-related emails concerning the Duffy Report, the Irish Executive Council and a finance matter. Mr. Fitzgerald stated that any time he had an issue or problem, he could talk to the Complainant. He stated that on a day-to-day basis, the construction sector was his area of work.

Mr. Fitzgerald said that he met with Mr. Pollock on 13 June 2022 and that he raised points regarding the next number of months and about getting his “head around” areas of work that he was not familiar with. He said that he was RCO and that he had to coordinate the work of the Regional Officers.

Mr. Fitzgerald stated that initially he understood from Mr. Pollock that the Complainant was going to Dundalk as a Regional Officer. Then he understood that the Complainant was staying in Dublin as a Regional Officer. And then Mr. Pollock told him “all that, all that Dublin, it’s off the table, can you just have a conversation, put your heads together”. He understood from this that the Complainant was not taking a Regional Officer role. He said that he reached this understanding at some point between 13 June and 17 August 2022. He stated that his understanding had made no difference as to how he had been operating as there had been a Regional Officer temporarily filling the role in Dundalk, in an acting-up arrangement.

Mr. Fitzgerald stated that he was not involved in creating a plan or strategy for the RoI. He said that he was required to prepare an organisational review and draft growth targets. He said that in contrast, a plan would have responsibilities, monitoring processes and timelines.

Mr. Fitzgerald was referred to emails between him and the General Secretary dated 12 and 13 July 2022, entitled “RoI Plan”. Mr. Fitzgerald denied that he was asked to draw up a strategy by the General Secretary. He said that any plans that he was involved with concerned growth and that he had his first meeting with officers about this on 30 June 2022. He said that he was “looking at the organisation as a whole but with an orientation towards industrial”. 

It was put to Mr. Fitzgerald that he was shaping a plan and that he presented a plan by the end of 2022 and that the Complainant only found out about it when the relevant emails were disclosed in the course of these proceedings in April 2024. Mr. Fitzgerald denied that it was a covert plan. He stated that the organisational chart was attached to his email to the Regional Secretary, Mr. Pollock on 20 December 2022. He said that it was also copied on to Ms. Murphy.  He said that it was discussed during the Irish Executive Committee meeting in October 2022. He said that it was referred to in meetings at which the Complainant was in attendance.

Mr. Fitzgerald was referred to the “Organisational Review”. It was put to him that the Complainant was not mentioned in it. He said that he and the Complainant were of the same grade. He said that he had not named the Complainant as it would be “controversial” for him as a Grade 10, to be seen as telling the Complainant, another Grade 10 what his role was. He said that he was focussing on the work of the RIOs.

Mr. Fitzgerald stated that his name was against the entry “Keep Water Public” as “at that time, the trade dispute we spoke about in the water section was going on”. He said that his name was against the entry “cost of living” as he received an email directly from an activist looking for resources for that event.

Re-Examination:

Mr. Fitzgerald confirmed that he discussed the strategy for growth at the Irish Executive Committee meetings on 25 July 2022; and on 17 October 2022, when the Complainant was in attendance. Mr. Fitzgerald confirmed that the “Organisational Review” does not name anyone beside the entries for Legal Officer, Education Officer, Industrial Research Officer or Political Officer. He confirmed that the Regional Secretary and the Deputy Regional Secretary are also not named in the document. He said they were not included as his focus was on the Regional Officer work. Mr. Fitzgerald stated that he knew that the Complainant had lodged a grievance regarding his role and that there were discussions.

Ms. Gail Cartmail – Oral Evidence:

Ms. Cartmail outlined that she was appointed to the Health Visitors Association in 1990, having been a workplace representative for many years. In 1993 she became Regional Officer, later she held the National Officer Equality and Diversity role and later again she became the Head of Health. Ms. Cartmail stated that in 2011 she became Assistant General Secretary to Mr. McCluskey who was the Respondent’s General Secretary at that time. She stated that he changed her role to include seven additional sectors, which resulted in her having the largest industrial portfolio, membership-wise. In 2022, she was on sick leave and prior to her return, Ms. Graham, the new General Secretary, asked her to take on the role of Chief of Staff which is the Executive Head of Operations. She retired in 2023. 

Ms. Cartmail referred to Rule 15.4 of the Respondent’s Rule Book. She said that changing someone’s duties does not amount to a change of their terms and conditions which necessitated Executive Council approval. She said that this would render the Respondent unmanageable.  She said that the Respondent had 1,300 employees and 350 Regional Officers. She said that the Executive Council’s approval would be required for changes related to terms and conditions such as pay. She said that if a person changed grade, that would be subject to appointment to a different role.

The Respondent’s Change of Direction / Emphasis:

Ms. Cartmail outlined that a General Secretary is elected democratically on the basis of their manifesto and that always brings change. She stated that in her experience, a reorganisation of duties would absolutely happen. She said that departments would have to realign themselves in the direction of the manifesto.

Ms. Cartmail outlined that during her campaign, Ms. Graham placed a very strong emphasis on “changing the political tail wagging the industrial dog”. She said that Mr. McCluskey had previously put a huge emphasis on political work. Instead, Ms. Graham focused on politics being derived from members’ needs, and that members would drive the political agenda. She stated that Mr. Fitzgerald’s evidence was correct in that if an officer required resources, they had to make a business case that served the Respondent’s industrial purpose.

Ms. Cartmail said that the change of emphasis from politics meant that there was an “area of discomfort”. She gave the example that it was not a foregone conclusion that Labour candidates in a council election received the Respondent’s support. Those same candidates had to sign a pledge that their own employees / workers would be well-treated. She said that under Mr. McCluskey, the focus had been on the Labour Party.

Ms. Cartmail outlined that another area of focus in Ms. Graham’s manifesto was Education. She wanted to equip workplace representatives with knowledge regarding bargaining and collective action, so that they could build confidence in their workplace to participate in industrial action. She said that there was an acting Director of Education who reviewed all educational material and that it was a “massive job”.  She also stated that there were Legal Officers in other regions, but not in the RoI.

The Lead-Up to and the London Meeting on 21 September 2022:

Ms. Cartmail stated that she knew about the “Facebook” post and the resultant media coverage which was a reputational matter. She said that Mr. Griffiths told her about his meeting with the Complainant and Mr. Douglas on 13 September 2022. She said that she wanted to understand from the Complainant where he was coming from, as no grievance had been instigated. She emailed the Complainant on 14 September 2022 and invited him to a meeting. She said that she had not previously worked alongside the Complainant and she wanted to understand the issues. She outlined that she met with the Complainant and Mr. Douglas on 21 September 2022 and that he spoke about his concerns. She asked him why this was being played out in the public domain. She denied that she ever told the Complainant that Ms. Graham values loyalty and gives wide discretion to those officers loyal to her, to use her name.

Ms. Cartmail outlined that she thought that the best thing to do was to refer the matter back into the hands of Mr. Pollock, the Regional Secretary. She then asked Mr. Pollock, the Regional Secretary, to meet with the Complainant to resolve matters amicably. 

The Complainant’s Role:

Ms. Cartmail stated that Regional Secretaries have to form a judgement on resource allocation for the Respondent and this will change from time to time. She said Regional Secretaries have quite a lot of leeway as to how this is managed. She said that they may need to reallocate resources or redeploy people into different roles. She said that Regional Secretaries have the power to assign roles and duties to officers and to change duties.

Ms. Cartmail stated that she did not understand how the Complainant said that he was demoted. She said that the Education and Legal roles are very full roles. She said that the education of workplace representatives was: very prominent; live and dynamic; and involved a range of materials to be cascaded across the Respondent. She said that the Legal role involved more formal and complex work. She said that they were a combined role of Grade 9 (Education) and Grade 10 (Legal). She confirmed that this was consistent throughout the organisation. She said that Respondent employees are subject to direction and that Regional Secretaries have the best view on what the sectoral demands are. 

Ms. Cartmail said that she had had to take sick leave due to serious illness and she found that the Respondent was very compassionate and treated her very well and supported her. She said that she was afforded reasonable adjustments including assistance and flexible hours as well as the Employee Assistance Programme. She said that the Respondent “was bending over backwards to accommodate [her] disability.”

She said that the Complainant’s discussions regarding his own ill-health resonated with her. She said that given her own experience of ill-health, “the idea that [she] would personally or in fact be a part of a conspiracy to collude against a colleague for reasons of their cancer, quite frankly [she found] offensive.”

Ms. Cartmail stated that she had no knowledge of any direction from the General Secretary that the Complainant be pushed out or forced out.

Cross-Examination:

Under cross-examination, Ms. Cartmail confirmed that a manifesto does not replace a Respondent’s rule or function under the Respondent’s rules.

Ms. Cartmail stated that the General Secretary is the General Secretary for the entire Respondent. She said that the General Secretary’s delegated powers affect the whole of the Respondent’s membership and that Ireland is not exempt from that.

Ms. Cartmail stated that it is not necessary to carry out a job evaluation for existing roles. She said that the Legal and Education roles had been evaluated at Grade 10 and Grade 9 and combining them would make them a Grade 10.

It was put to Ms. Cartmail that the Complainant’s evidence was that the Education role took one day per month. Ms. Cartmail said that it was “inexplicable” that an Education Officer’s role for the whole of Ireland could take one day per month. She said that it is a big job, a very important job.

It was put to Ms. Cartmail that there are differences in the regions and that an Education Officer in Ireland is dealing with different circumstances – for example there is no partnership agreement with colleges in Ireland; and there is no statutory basis for releasing employees to undertake training courses in Ireland. Ms. Cartmail accepted that there are differences between the regions and that there are complexities. She said that there was no union learning funding available in England. She said that she did not accept that just because there is poor infrastructure to support the education of workplace representatives, people should just not be attended to. She said that where there isn’t a framework, the job is more complex and demanding and requires more agility.

Ms. Cartmail said that if a case had been made for additional resources for Education, that would have got a warm reception.

Ms. Cartmail denied that there was no political emphasis in the Respondent. She said that the industrial will drive the political. She stated that the Respondent is affiliated with the British Labour Party and pays the requisite affiliation fees. 

Ms. Cartmail said that she asked the Complainant why he had not raised a grievance, but that she did not advise him to raise a grievance.

Ms. Cartmail said that the Respondent deals compassionately with colleagues with cancer and they have a generous sick pay scheme which affords full pay for a whole year. 

Ms. Cartmail denied that she had said that the General Secretary worked on trust and gave latitude to those who supported her. She said that Ms. Graham absolutely opposes “nepotism” and when she stood for election, Ms. Graham said that she would “clean up” the Respondent.

Ms. Barbara Kielim – Oral Evidence:

Ms. Kielim stated that she joined the Respondent’s Legal Department in December 2011 and that she is the Director of HR, Training and Development since 2015. Ms. Kielim outlined that she now reports to Ms. Carpenter, who is Ms. Cartmail’s replacement.

Communication with the Complainant when on Sick Leave:

Ms. Kielim said that she first had a telephone call with the Complainant when he was on sick leave on 16 February 2022. She said that she called him after he took issue with the letter sent to him confirming his elected demotion in December 2021. She said that he objected to his pay only being protected for three years. Ms Kielim said that she apologised for the error and for any anxiety caused. She said that she told him that if he wanted to go to Dundalk, he would go as a Regional Officer on Grade 10 pay. She said that she discussed his recovery and she emailed him afterwards and asked if he wanted counselling.

The Return-to-Work Meeting on 22 July 2022:

Ms. Kielim said that she does not usually get involved in Return-to-Work meetings. However, she attended the Complainant’s Return-to-Work meeting on 22 July 2022 due to the length of his absence; due to the disagreement about his pay in Dundalk; and as the Regional Secretary asked her. In advance of the meeting, she received the OH Report and the Complainant’s most recent sick certificate. She thought that it was a good meeting. She said that they asked the Complainant if he wanted to take up the Dundalk role and he said that he did not as he had gained his strength back. Ms. Kielim stated that they were not going to force the issue. She said that the Dundalk role was offered to the Complainant to accommodate his own request and was seen in many ways as a reasonable adjustment. She said that they considered the recommendations in the OH Report. A phased return was agreed. As the OH doctor had raised it, she asked the Complainant about driving and he said that he was fine with it. She said that the Complainant made amendments to the meeting notes which were not overly controversial.

The Complainant’s Role:

Ms. Kielim said that she and Ms. Cartmail met with the Complainant in September 2022. She said that they were not clear on what the issues were. She said that they wanted to find out how they could assist in moving things forward following the “Facebook” post. She said that there was a tussle as they tried to explain that the Respondent had changed and that they were all fitting in with those changes. She said that the meeting lasted two hours and it was not hostile.

Ms. Kielim said that she had very little interaction with the Regional Secretary, Mr. Pollock, as regards offering roles to the Complainant. She said that there is a hierarchy under the Regional Secretary. She said that the Regional Secretary can move allocations around to officers. She said that this is completely the preserve of the Regional Secretary. She said that HR would get involved if it concerned fundamental terms and conditions, payroll or pensions. HR would get involved if there was a promotion or a demotion so as to understand the contractual change. 

The Complainant’s Grievances:

Ms. Kielim was asked why the Complainant’s three grievances dated 11 November 2022, 28 March 2023 and 1 April 2023 were not progressed. Ms. Kielim said that the first grievance dated 11 November 2022 progressed to a Grievance Hearing on 8 February 2023 with Mr. Hughes. Ms. Kielim stated that they then entered into without prejudice discussions. She said that there were a number of discussions. She said that she was at the meeting on 16 April 2023 which was without prejudice. She said that the Complainant then lodged his WRC complaint in May 2023.

Change within the Respondent:

Ms. Kielim outlined that there were a number of structural changes within the Respondent following the election of Ms. Graham as General Secretary. She said that all media and campaign communications had to go through central office; the same applied to invitations to speak at political events; and there were changes concerning the regional membership units.

Cross-Examination:

Ms. Kielim stated that the OH assessment would have been predicated on the role that the Complainant held at the point when the referral was made.

Ms. Kielim stated that during the Return-to-Work meeting, she had to ascertain whether the Complainant still wanted to go Dundalk, as per his request. She said that they were prepared to put those things in place for him. Ms. Kielim denied that the Complainant was being put under pressure to go to Dundalk during the Return-to-Work meeting.

Ms Kielim was referred to the meeting on 16 April 2023 in London. She said that discussions became very complicated as they veered into pension and tax territory. She said that they had to take tax advice on what the Complainant was seeking. She said that there were further discussions around his pension. She said that they were without prejudice discussions. She confirmed that there was no further discussion and that after the WRC complaint was filed, the next correspondence was dated 16 August 2023.

Re-Examination:

Under re-examination, Ms. Kielim confirmed that there was no ambiguity in her mind that the conversations were without prejudice.

Ms. Kielim stated that she and Mr. Hughes did some research into the Complainant’s requests and came to the conclusion that the Respondent could not progress them.

The Law:

Legislation: Employment Equality Act 1998-2015, as amended (the “EEA”):

Discrimination:

Sections 6 and 8 prohibit employers from discriminating against employees on the basis of disability. For the purposes of the complaint before me, the most relevant parts are:

“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,

[…]

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

[…]

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

[…]

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee […].”

Reasonable Accommodation:

Section 16 of the EEA addresses the extent of the employer’s obligation to provide reasonable accommodation to an employee. Section 16(3) provides:

“(a)For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable of reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of— (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer’s business, and (iii) the possibility of obtaining public funding or other assistance.”

Section 16(4) addresses what are appropriate measures:

“‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

Harassment:

Harassment is defined under Section 14A(7) of the EEA as:

“(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The test is a subjective one and the intention of the perpetrator of the harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. Therefore, the conduct should be viewed from the perspective of the victim. Moreover, these provisions must also be read in conjunction with section 15 of the EEA which fixes an employer with vicarious liability under the EEA for the wrongful acts of an employee committed in the course of that employee’s employment.

Victimisation:

Victimisation is defined in section 74(2) of the EEA as:

“dismissal or other adverse treatment of an employee by his or her employer” because the employee, inter alia, made a complaint to their employer about possible discrimination; or took proceedings under the EEA; or opposed by lawful means an act which is unlawful under the EEA.

Burden of Proof:

Section 85A of the EEA provides for the allocation of the probative burden between a complainant and a respondent 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.”

In Southern Health Board v. Mitchell [2001] ELR 201 (the “Mitchell Case”), the Labour Court 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 Melbury Developments Limited v. Valpeters [2010] 21 ELR 64 (the “Melbury Developments Case”), the Labour Court found that:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

What constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of the Respondent, then the inference or presumption is quickly raised and it falls on the Respondent to show that there was no breach of the principle of equal treatment.

Relevant Timeframe:

In County Cork VEC v. Hurley, EDA 1124 (the “Hurley Case”), the Labour Court found that while a claim must be brought within six months of the most recent occurrence of discrimination or other contravention alleged, earlier events may form part of a claim if a continuum is established. The Hurley Case was relied on in the Skelly Decision.

Findings and Conclusions:

It was common case that the Complainant has a disability within the meaning of the EEA and therefore enjoys the protections of the EEA.

Discrimination Allegations:

1.           Allegation: The Complainant’sRole was Fundamentally Changed; his Political Role was Reallocated; and his Tasks were Removed:

The Complainant submitted that since returning from sick leave, his role has fundamentally changed and he no longer has a full-time role, insofar as he is not fully engaged. The Complainant submitted that this is evidence from which it may be presumed that discrimination has occurred.

In order to fully investigate and address the Complainant’s discrimination allegations, it is necessary to firstly establish the relevant facts concerning the Complainant’s appointment and role as well as the relevant developments within the Respondent.

The Complainant’s Appointment and Role:

In around August 2018, the Complainant was appointed to the Grade 10 role of “Senior Officer”. While his title was “Senior Officer”, there was another Grade 10 role – a Regional Coordinating Officer (the “RCO”). Both of the Grade 10s reported to the Grade 12 Regional Secretary. In his evidence, the Complainant confirmed that his own role “clearly wasn’t senior to everybody else.”

The Complainant’s appointment to Senior Officer, a new role at that time, came about following discussions between Mr. McCluskey, the (then) General Secretary and Mr. Pollock, the Regional Secretary. Mr. McCluskey confirmed that the Complainant’s appointment was not voted on by the Irish Executive Council or by the General Executive Council. Instead, the Irish Executive Council accepted a report provided by Mr. Pollock; and the General Executive Council accepted a report provided by Mr. McCluskey.

It was clear from the evidence adduced that the Complainant’s role concerned primarily political matters / campaigns. In this regard, I note the following:

·             In his evidence, the Complainant stated that as Senior Officer, he continued his political role and discussed, inter alia, the Respondent’s political platform, the “Right2Water” and the “Right2Change” campaigns.

·             Mr. McCluskey outlined that the Complainant’s role of Senior Officer was created against the background of an austerity programme in the RoI, when the Respondent decided to have its voice heard in the political arena. I note that while Mr. McCluskey stated that the Complainant also dealt with other matters, he said that Mr. Pollock was better placed to describe the Complainant’s role.

·             Mr. Pollock, the Regional Secretary and the Complainant’s Line Manager, stated that when the Complainant’s role was created, Mr. McCluskey had more of a political role in mind and said that the Complainant “could influence and start a new political party”. Mr. Pollock also stated that at the time, he was mindful that he already had an RCO for industrial matters and that he did not want “double-jobbing”. Under cross-examination Mr. Pollock stated that the Complainant’s role was a political role.

·             Mr. Browne, the former RCO and the Complainant’s witness, stated that while he had responsibility for industrial matters, the Complainant had responsibility for everything else. He said that the best way to explain that was by giving examples. Notably those examples were all political campaigns, namely: the “Right2Water” campaign; the occupation of Apollo House; the Repeal the Eight campaign; the marriage equality campaign; and seeking legislative protection for tips in the hospitality sector. Under cross-examination, Mr. Browne confirmed that the Complainant had little to do with the Respondent’s core industrial role and that the Complainant’s main function concerned political campaigns.

·             Ms. Murphy, a Grade 8 Senior Administrator and the Complainant’s witness, also outlined how the Complainant had a high profile and that he would meet with government departments and ministers. She said that he dealt with all political issues such as the marriage equality campaign and the abortion right campaign. She outlined that he spearheaded the Respondent’s “Champions Cup” and that he dealt with anything that came up regarding Palestine and Justice for Colombia.

On the evidence before me, I note that it was common case that the Complainant also held the Education role.

I note that the Complainant assisted in industrial matters, however, this appeared to be more of an ad hoc nature, requiring limited time overall. For example, it was not in dispute that the Complainant sometimes assisted or supported other Regional Officers in their areas of responsibility. Mr. Fitzgerald confirmed under cross-examination that any time he had an issue or problem in industrial matters, his area of responsibility, he could talk to the Complainant. However, the fact that industrial matters fell within the Grade 10 RCO’s remit was outlined in detail in Mr. Fitzgerald’s evidence and corroborated by Mr. Pollock and Mr. Browne, as outlined above. I note also that Ms. La Combre, the Complainant’s wife and a former Respondent Branch Chair, stated under cross-examination that before the Complainant went on sick leave, he was not in an industrial position or involved in industrial relations. She stated that the Complainant would have advised people if they rang him.

I note that the Complainant handled additional matters, however, these also appeared to be more of an ad hoc nature requiring limited time overall. In this regard, I note the following:

·             Ms. Murphy, a Grade 8 Senior Administrator, outlined in her evidence that she dealt with all financial and staffing issues. Ms. Murphy stated that she would go to the Complainant “if [she] was dealing with any difficult situations with staff or if [she] needed anything signed off”.  Mr. Browne also confirmed that Ms. Murphy ran the office on a day-to-day basis.

·             In terms of facilities, I note that the Complainant provided evidence of staff bringing various issues to him regarding, inter alia, bicycles and first aid rooms. However, I also note that Mr. Pollock stated that, as Regional Secretary, he was responsible for “overall facilities”.  

·             I note the Complainant’s evidence that he managed the day-to-day affairs of the office during the Covid-19 Pandemic. In this regard, he provided details concerning the alleged resistance to his rigorous approach and his handling of employee applications to attend the office. However, I also note the Respondent’s submission that the Complainant is no longer managing Covid protocols as the Pandemic has ended.

Finally, I note that the Complainant placed significant emphasis on Mr. Pollock’s Tasks Email dated August 2018, which is addressed in detail below.

Events between July 2021 and July 2022:

It was common case that the Complainant was diagnosed with cancer and that he was on sick leave for approximately one year from July 2021 until July 2022.

It was clear from the evidence adduced that the Respondent’s emphasis / direction changed, following the election of Ms. Graham as General Secretary in August 2021. In this regard, I note the following:

·             Ms. Cartmail, former Respondent Chief of Staff / Executive Head of Operations, outlined that following Ms. Graham’s election, there was a complete move from focusing on political matters to industrial matters. She stated that Ms. Graham placed a strong emphasis on “changing the political tail wagging the industrial dog”. She further stated that there was a greater emphasis on industrial work and representation; and a greater focus on Education. Both Ms. Cartmail and Mr. Fitzgerald spoke about how, when applying for resources, they now have to make a business case that serves the Respondent’s industrial purpose.

·             Mr. Pollock stated that under the new General Secretary “politically we were doing nothing. From the outset of the political role there was nothing happening whatsoever.” He also stated that things changed for everyone under the new General Secretary. He stated that they moved to a complete organising model and focused on membership growth.

·             Ms. Kielim, the Respondent’s Director of HR Training and Development, outlined that there were a number of structural changes within the Respondent following the election of Ms. Graham. She said that all media and campaign communications had to go through central office; the same applied to invitations to speak at political events; and there were changes concerning the regional membership units.

·             Finally, I also note that under cross-examination, the Complainant confirmed that he knew that there might be a change of emphasis, following the election of Ms. Graham as General Secretary.

The Complainant’s Appointment as Education and Legal Officer:

It was common case that the Complainant and Mr. Pollock, his Line Manager and the Regional Secretary, engaged in discussions concerning the Complainant’s role, following his return to work. Under cross-examination, Mr. Pollock stated that he sought to create a new role for the Complainant as he was concerned that the Complainant’s role no longer amounted to a senior role due to the Respondent’s focus moving to industrial matters. In her evidence, Ms. Cartmail stated that Regional Secretaries have to form a judgement on resource allocation and these will change from time to time. She said that Regional Secretaries have quite a lot of leeway as to how this is managed. She said that Regional Secretaries may need to reallocate resources or redeploy people into different roles and that they have the power to assign roles and duties to officers and to change duties. Similarly, Ms. Kielim outlined in her evidence that the Regional Secretary can move allocations around to officers. She said that this is completely the preserve of the Regional Secretary.

The Complainant and Mr. Pollock met in the Ballymascanlon Hotel in October 2022. The Complainant outlined that he brought a one-page document along with him, entitled “Draft Job Description” and “Officer for Education, Legal, Environment and EU Affairs”. The Complainant outlined that he had drafted this document which set out his proposed duties. The Complainant was subsequently allocated two of the roles which he had sought – Education (Ireland) and Legal (RoI). Ms. Cartmail stated that while Education was a Grade 9 role, Legal was a Grade 10 role and the combined role was deemed a Grade 10 role. This appointment was confirmed in a letter from Mr. Pollock to the Complainant dated 2 November 2022.

Mr. Pollock outlined that before making the Complainant’s appointment as Education and Legal Officer, he looked at various roles across the Respondent for the Complainant and that he also considered the needs of the region. He stated that he thought that the Education role would be exciting and fulfilling. He stated that he would be “astounded” if the Education role was only three days per month. He stated that there was no Legal Officer in the RoI at the time. He said that the Legal role would also be very substantial. Mr. Pollock said that those roles were “equal or, if not with the new developments, an improvement on the role he was carrying out.” I note also that under cross-examination, Mr. Browne, the Complainant’s witness, confirmed that prior to holding his RCO role, he had been the Education Officer for the whole of Ireland which was a 40-hour per week, full-time role. I note that he also indicated that when the Respondent was formed, he began to do industrial work as well. Ms. Cartmail also outlined that the General Secretary’s manifesto had focused on Education. She said that the General Secretary wanted to equip workplace representatives with knowledge regarding bargaining and collective action, so that they could build confidence in their workplace to participate in industrial action. She said that the education of workplace representatives was: very prominent; live and dynamic; and encompassed a range of materials to be cascaded across the Respondent. She said that the Legal role involved more formal and complex work. Ms. Cartmail stated that she did not understand how the Complainant said that he was demoted. She said that the Education and Legal roles are very full roles.

I note that it was not unusual for a person’s role to be changed when working for the Respondent, particularly following the election of a new General Secretary and / or a change of direction / emphasis. For example:

·             The background to the Complainant’s appointment as Senior Officer by the former General Secretary Mr. McCluskey, is detailed above.  

·             Mr. Browne, the Complainant’s witness, confirmed under cross-examination that his role changed when the Complainant was appointed – for example, he was no longer on the Executive Council of the ICTU.

·             Ms. Cartmail outlined how when Mr. McCluskey was elected to the position of General Secretary, he changed her role to include seven additional sectors. Additionally, prior to Ms. Cartmail’s return from sick leave in 2022, Ms. Graham, the new General Secretary asked her to take on the role of Executive Head of Operations.

Having carefully considered all of the evidence, I am satisfied that following the election of the new General Secretary, the Respondent changed its emphasis / direction from political matters to industrial matters. This change was implemented across the Respondent and was unconnected to the Complainant or his disability. This change had a significant impact on the Complainant’s Senior Officer role, given that his role concerned primarily political matters / campaigns, as outlined above. I am satisfied, on the evidence before me, that the Regional Secretary reacted to developments within the Respondent and acted fully within his powers in appointing the Complainant the Education (all Ireland) and Legal (RoI) Officer. This is a full-time Grade 10 role, commensurate with the Complainant’s grade and position. Moreover, it cannot be overlooked that Mr. Pollock had consulted with the Complainant before making the appointment.

The Alleged Reallocation of the Complainant’s Political Role:

The Complainant submitted that Mr. Fitzgerald now oversees the Respondent’s political platform; the “Right2Change” campaign; the policy campaign; and all of the Respondent’s political campaigns, which remain unchanged and in place. By way of support for this allegation, the Complainant specifically referred to his evidence on 28 February 2024 concerning the General Secretary’s visit to Belfast on 2 May 2023. At this meeting, the General Secretary gave a presentation. Both the Complainant and Mr. Fitzgerald were in attendance. The Complainant submitted that at the end of the meeting, Mr. Fitzgerald gave a “political report” as if it were his (Mr. Fitzgerald’s) role.

In his uncontroverted evidence, Mr. Fitzgerald outlined that during the discussion piece following the General Secretary’s presentation, he (Mr. Fitzgerald) made comments as to why the strike wave in Northern Ireland and Britain in response to the cost-of-living crisis, had not happened in the RoI. Mr. Fitzgerald referred to his email to the Complainant dated 9 May 2023, which corroborates this account.

Having carefully considered all of the evidence, I am satisfied that the Complainant’s political role was not reallocated to Mr. Fitzgerald. In this regard, I note that the 2 May 2023 event, upon which the Complainant now places significant reliance in his Final Written Submissions, was not raised with Mr. Fitzgerald during cross-examination. It is not clear how, on the corroborated evidence before me, Mr. Fitzgerald’s commentary could be understood as giving a “political report” of such importance during that event as to be indicative of him being allocated the Complainant’s political role. Moreover, it is not clear how Mr. Fitzgerald’s commentary after the presentation is evidence that he now oversees the Respondent’s political platform; the “Right2Change” campaign; the policy campaign; and all of the Respondent’s political campaigns.

Finally, the Complainant’s allegations concerning the reallocation of his political role to Mr. Fitzgerald by way of the “strategic plan” and / or the Organisational Review are addressed below.

The Alleged Removal of Tasks:

The Complainant also submitted that his tasks were removed. The Complainant placed significant emphasis on Mr. Pollock’s Tasks Email dated August 2018. This email set out a number of tasks which were assigned to the Complainant.

I note that the preponderance of evidence was that these were more minor tasks which did not take much time. In his evidence, Mr. Pollock stated that some of those tasks were “one-offs”. He further stated that many of the tasks fell into different categories which different heads of departments dealt with. He confirmed that the tasks were neither the Complainant’s core duties nor his full workload. In his evidence, Mr. Fitzgerald went through each of the tasks, outlining their approximate frequency and time required. For example, there was only one membership complaint last year. Further, there were 10 to 15 member transfer requests in a year, most of which were dealt with by Ms. Murphy. Mr. Browne confirmed that, when he was the RCO, in the Complainant’s absence or unavailability, he would have dealt with the tasks allocated to the Complainant. Mr. Browne stated that the most important thing was that the tasks were done.

I also note that one task concerned “PR & Media”. As outlined above, the Respondent’s policy regarding the handling of media requests was revised under the new General Secretary. This was addressed in Mr. Pollock’s evidence, who outlined that authorisation was required for press releases from the Press Office in London. Ms. Kielim also outlined that all media and campaign communications had to go through Central Office, in London. Under cross-examination, Ms. Murphy could not recall if the Complainant received any email from Ms. Klemm, the PR Officer, to indicate that the Complainant’s press releases were not being issued. Under cross-examination, the Complainant accepted that every member of staff was required to abide by the policy that they must seek clearance for media interviews. The Complainant confirmed that this policy applied to everyone, that it was not directed at him personally and that it was not discriminatory.

Finally, I note that under cross-examination, Ms. Murphy confirmed that she was never told to stop discussing things with the Complainant. She said that she did not know why her day-to-day involvement with the Complainant changed and said that it was hard to explain. Similarly, Mr. Pollock, the Complainant’s Line Manager, stated that he never prevented the Complainant from doing any of his work.

Having carefully considered all of the evidence, I am satisfied that the tasks outlined in the Tasks Email dated August 2018, encompassed many “one-off” tasks requiring limited time overall. The tasks were of an ad hoc nature and additional to the Complainant’s primarily political role. Moreover, I am satisfied, that the Complainant’s tasks were not removed from him as alleged.

Conclusion:

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence in alleging that the Respondent discriminated against him by fundamentally changing his role; reallocating his political role; and removing his tasks. Moreover, the Complainant has not shown that he was treated less favourably because of his disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

2.           Allegation: The Complainant was Pressured to Accept the Dundalk Role:

The Dundalk Role:

In his evidence, the Complainant outlined that in November 2021, after his treatment, he called Mr. McCluskey and asked him if it would be possible to keep the Grade 9 Dundalk role open for him. It was not in dispute that: the Respondent ceased a recruitment competition to hold the Dundalk role open for him; the Complainant was told that he could maintain his Grade 10 salary in that Grade 9 role; and that it was left open to the Complainant to decide when he returned to work whether he would take the Dundalk role. In particular, I note that under cross-examination, the Complainant confirmed that Ms. Kielim called him on 16 February 2022. He stated that Ms. Kielim told him that his current Grade 10 pay and pension would be maintained for the Grade 9 Dundalk role. The Complainant stated that they agreed to “discuss it when [he got] back and [would] see how he felt then”.

The Return-to-Work Meeting on 22 July 2022:

The Complainant alleged that during the Return-to-Work meeting on 22 July 2022, he was placed under pressure to take the Dundalk role. The Complainant confirmed that prior to the Return-to-Work meeting, he had not told HR that he was not accepting the Dundalk role. In the circumstances, Ms. Kielim stated under cross-examination that she had to ascertain whether the Complainant still wanted to go Dundalk, as per his request. Mr. Pollock stated that he was aware before the Return-to-Work meeting via a text message that the Complainant was not taking the Dundalk role but that he wanted to clarify this. Mr. Pollock stated that he was confused as Mr. McCluskey, the former General Secretary, had been getting involved “and asking someone to move jobs and position”. He stated this was his first opportunity to ask the Complainant. He stated that the Return-to-Work meeting is an opportunity to find out from people if they’re in the right frame of mind, and to clear everything up both medically and as regards their role. He stated that he was not putting pressure on the Complainant.

Mr. Pollock also stated that as the Complainant’s sick certificate had raised the issue about work-related stress causing cancer, he raised it at the Return-to-Work meeting. Ms. Kielim outlined that during the Return-to-Work meeting, they considered the recommendations in the OH Report and a phased return was agreed.

Having carefully considered all of the evidence, I do not accept that the Complainant was placed under pressure to accept the Dundalk role. It is clear from the evidence that the Complainant had sought the Dundalk role and that the Respondent accommodated him in keeping both the Dundalk role and his own role open for him until he confirmed which role he was taking. At the Return-to-Work meeting, the Complainant confirmed to Ms. Kielim, the Respondent’s Director of HR Training and Development, for the very first time, that he was not taking the Dundalk role. It is clear that during the same meeting, the Respondent was properly fulfilling its obligations in terms of ascertaining the Complainant’s needs and identifying any reasonable accommodations required.

Conclusion:

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence in alleging that the Respondent discriminated against him by pressuring him to accept the Dundalk role. Moreover, the Complainant has not shown that he was treated less favourably because of his disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

3.           Allegation: There was a “Strategic Plan” which Excluded the Complainant:

The Whiteboard Meeting on 24 August 2022:

The Complainant submitted that Mr. Fitzgerald was operating on the basis that the Complainant was taking up the Dundalk role, and later that he was taking up a Grade 9 Regional Officer role in Dublin. However, I note that under cross-examination, Mr. Fitzgerald confirmed that by 17 August 2022, he knew that the Complainant was returning to his previous role. While it is regrettable that there was a misunderstanding, I note that between the Complainant’s return to work on 22 July 2022 and the 17 August 2022, Mr. Fitzgerald held this view for under four weeks. I also note that Mr. Fitzgerald outlined that his misunderstanding made no difference in real terms as there had been a Regional Officer temporarily filling the Dundalk role, in an acting-up arrangement.

The Complainant submitted that during the Whiteboard Meeting on 24 August 2022, Mr. Fitzgerald told him of the Respondent’s “strategic plan” which excluded him. There is a straight conflict of evidence in relation to what was said between Mr. Fitzgerald and the Complainant. It is common case that, for some time, they initially discussed recent bereavements and the Complainant’s health. However, at that point, their versions of events diverge. The Complainant stated that Mr. Fitzgerald outlined a plan for the Respondent which excluded him. However, Mr. Fitzgerald stated that they had an exploratory discussion regarding, inter alia, how to advance the Respondent and membership growth.

In his evidence-in-chief, the Complainant submitted that Mr. Fitzgerald stated that he had been asked by the General Secretary to draw up a strategy for the RoI which excluded the Complainant. The Complainant then stated that Mr. Fitzgerald drew the “strategic plan” in the form of a schematic diagram on the whiteboard. The Complainant stated that he was “reeling” with this information and that it was “devastating news”. This version of events changes under cross-examination when the Complainant stated that it was his “honestly held belief”, that Mr. Fitzgerald used his discretion to force him out. Under cross-examination, the Complainant also accepted that the “strategic plan” could not fully operate in the way he had described the schematic diagram in his evidence. The Complainant also confirmed that, during the meeting, he expressed an interest in being nominated to the Labour Court and that he also discussed the areas of sustainability and the environment. Finally, and for completeness, I note that Mr. Coss, a friend and colleague of the Complainant, stated that Mr. Fitzgerald also told him of this plan to exclude or retire the Complainant. However, under cross-examination Mr. Coss stated that, despite being aware of the Complainant’s allegation that he was being excluded, he did not think of relaying this information to the Complainant and his legal team until during the Hearing. I note also that Mr. Coss had previously spoken publicly in favour of a vote of no confidence in Mr. Fitzgerald.

In contrast, Mr. Fitzgerald wholly denied the Complainant’s version of events.  He said that the General Secretary never told him to exclude the Complainant from a “strategic plan”. He said that he and the Complainant discussed how the Respondent was moving forward. He said that the schematic diagram on the whiteboard was a collaborative process and that it was like a “PESTLE” or “SWOT” analysis. He said that it was “not credible” that he would tell the Complainant that he was excluding him and that he would then draw the plan on the whiteboard. He also said that it was “not credible” that, the following day, he would tell Mr. Coss, a close confidant of the Complainant, about how “[the Complainant was] going to be squeezed out”. Mr. Fitzgerald said that the Complainant had always been helpful and supportive to him.

Having carefully considered all of the evidence, I am satisfied that there was no “strategic plan” excluding the Complainant. There is a straight conflict of evidence in relation to what was said during the Whiteboard Meeting between Mr. Fitzgerald and the Complainant, however, I prefer Mr. Fitzgerald’s version of events. In this regard, I note the following:

·             I am mindful of the clear shift in the Complainant’s evidence under cross-examination – from stating that Mr. Fitzgerald acted under a specific request / direction from the General Secretary to exclude him, to stating that Mr. Fitzgerald used his own discretion. I note also that under cross-examination, the Complainant accepted that the “strategic plan” could not fully operate in the way he had described the schematic diagram in his evidence. I am also mindful of the photographic evidence of the schematic diagram on the whiteboard, which outlines the Respondent’s various areas of operation, in general terms. I also note that no one was identified on the whiteboard.

·             I note that, during the Whiteboard Meeting, the Complainant and Mr. Fitzgerald discussed the areas of sustainability and the environment as well as the Complainant’s possible nomination to the Labour Court. This is corroborated by the Complainant’s follow-up email dated 1 September 2022. In that email, he states:

“I have actually spent a considerable time researching and exploring the Community and Environment functions which are both very interesting. Given our Regions attitude to Environment to date and the approach taken by our only EC Rep to Community I’m not sure how they alone are commensurate with my Senior Officer role and status but they are certainly crucial functions in my opinion. I need an evaluation of my Political and / or Policy role and also the Labour Court issue”.

·             I note that the same email makes no mention of the “devasting news”, that the Complainant was being excluded and / or pushed out either at the General Secretary’s specific request / direction and / or by Mr. Fitzgerald making use of his own discretion. Instead, the Complainant thanks Mr. Fitzgerald for his efforts, stating “your personal efforts are greatly and personally appreciated.”

·             I note that both Mr. Pollock and Ms. Cartmail confirmed in their evidence that there was no plan excluding the Complainant. I also note Ms. Cartmail’s evidence that given her own previous ill-health experience “the idea that [she] would personally or in fact be a part of a conspiracy to collude against a colleague for reasons of their cancer, quite frankly [she found] offensive.” She also denied any knowledge of any direction from the General Secretary that the Complainant be pushed out or forced out. 

·             Finally, I do not find it plausible that after Mr. Fitzgerald and the Complainant spent some time discussing deeply personal matters, Mr. Fitzgerald would then tell the Complainant, a long-time colleague, that he was being excluded; that he would then map out this plan on a whiteboard; and that he would later tell the Complainant’s friend and colleague, Mr. Coss of that same plan.

Conclusion:

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence in alleging that the Respondent discriminated against him by creating a “strategic plan” which excluded him. Moreover, the Complainant has not shown that he was treated less favourably because of his disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

4.           Allegation: The Complainant was not part of the “Organisational Review”:

The Complainant submitted that he was not named in Mr. Fitzgerald’s “Organisational Review” and that Mr. Fitzgerald had put his own name against the entries “Keep Water Public” and “Cost of Living”. The Complainant submitted that this is evidence from which it may be presumed that discrimination has occurred. Mr. Fitzgerald stated that the purpose of the “Organisational Review” was to show that he was getting a handle on the internal and external environments. He also wanted to set out a “lead-in” for targets. He said that his work on this had commenced with his meeting with Mr. Pollock, the Regional Secretary, in June 2022 and continued over months, encompassing communications with officers.

I note that the “Organisational Review” is appended to an email from Mr. Fitzgerald to Mr. Pollock dated 20 December 2022. The full title of the document, referred to in both the subject line and the body of the email is “Organisational Review and Preliminary Growth Targets Document”. In the same email, Mr. Fitzgerald states: “advancing targeted retention in the RoI will be key”. He also states: “I have asked ROs [Regional Officers] to come back to me by the 10th of January with a view to fixing on the selected targets for growth and the shaping of action plans each thereafter”. It is clear from this email alone that the “Organisational Review” concerns growth and Regional Officer targets. It follows that this falls within the domain of Mr. Fitzgerald, the Regional Coordinating Officer (the “RCO”).

I note that Mr. Fitzgerald’s evidence was that the strategy for growth was discussed at the Irish Executive Committee meeting on 25 July 2022. He stated that it was also discussed at the Irish Executive Committee meeting on 17 October 2022, when the Complainant was in attendance. The minutes of those same meetings were opened in evidence and corroborate Mr. Fitzgerald’s evidence.

I note that the “Organisational Review” document does not name anyone, including Mr. Fitzgerald, against the entries for Legal Officer, Education Officer, Industrial Research Officer or Political Officer. I note that by December 2022, the Complainant had already lodged a grievance concerning his appointment as Education and Legal Officer. Mr. Fitzgerald stated that he did not name the Complainant in the “Organisational Review” as it would be “controversial” for him, a Grade 10, to be seen as telling the Complainant, another Grade 10 what his role was. Mr. Fitzgerald confirmed that other senior officials, such as the Regional Secretary and the Deputy Regional Secretary, are also not named in the “Organisational Review”. Mr. Fitzgerald stated that his own name was against the “Keep Water Public” entry because “at that time, the trade dispute we spoke about in the water section was going on”. In his evidence, Mr. Fitzgerald also stated that he was only involved in the industrial element regarding water workers. I note also that Mr. Pollock, the Complainant’s and Mr. Fitzgerald’s Line Manager, stated that the water issue was not the “Right2Water” campaign. Mr. Pollock stated that it was an industrial matter and that Mr. Fitzgerald was dealing with it.  Mr. Fitzgerald said that his name was against the “Cost of Living” entry as he received an email directly from an activist looking for resources for that event. I find these explanations wholly credible.

Having carefully considered all of the evidence, I am satisfied that the “Organisational Review” was a widely discussed document which fell within the remit of Mr. Fitzgerald, as RCO. The explanation, provided by Mr. Fitzgerald as to why the Complainant is not named in the “Organisational Review” is wholly credible. Similarly, the explanations provided by Mr. Fitzgerald as to why his name is against the Keep Water Public” and “Cost of Living” entries are wholly credible and in part, at least, corroborated by Mr. Pollock’s evidence.

Conclusion:

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence in alleging that the Respondent discriminated against him by Mr. Fitzgerald omitting him from the “Organisational Review” document and by Mr. Fitzgerald putting his own name against the entries “Keep Water Public” and “Cost of Living”. Moreover, the Complainant has not shown that he was treated less favourably because of his disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

5.           Allegation: The Complainant’s Two Grievances were not Progressed:

The Complainant submitted that he raised two grievances which were not progressed, which is evidence from which it may be inferred that discrimination has occurred. The Respondent submitted that there is no evidence to suggest that the failure to progress the Complainant’s grievances was discriminatory.

The Complainant’s evidence was that it was the Respondent’s policy to investigate a grievance within five to seven days. The Complainant outlined that his first grievance was dated 11 November 2022 and concerned the removal of his contractual duties and role. The Complainant outlined that his second grievance was dated 28 March 2023 and concerned the promotion process for Regional Secretary.  The Complainant submitted that neither grievance was concluded and that no outcome was received. The Respondent submitted that the first grievance process was delayed by agreement while the Complainant took annual leave. The Respondent further submitted that in the period following receipt of the grievances, there were without prejudice discussions.

The Complainant’s evidence was that he had accrued annual leave and that he took this annual leave over a period of six to seven weeks. He stated that it was common case that his grievance could not progress until he had taken his annual leave. The Complainant outlined that the Grievance Hearing took place on 8 February 2023 at the Grand Hotel Malahide and that Mr. Hughes was the Investigating Officer. The Complainant outlined that Mr. Hughes subsequently contacted Mr. Douglas, approximately one week before the Regional Secretary interview (held on 28 February 2023), to explore whether the terms of the Complainant’s exit from the Respondent could be agreed. Mr. Douglas gave evidence of a later meeting in London on 16 April 2023 which was attended by: himself, the Complainant, Ms. Kielim and Mr. Hughes. Mr. Douglas said that an exit package for the Complainant was discussed and that issues including death in service benefit, his pension and an annuity were ventilated. Mr. Douglas said that Ms. Kielim and Mr. Hughes committed to putting terms in writing but they never did so. The Complainant filed his WRC Complaint Form on 18 May 2023.

Ms. Kielim outlined that a number of without prejudice discussions had taken place with the Complainant. Under cross-examination, she outlined that the Respondent had to seek tax advice regarding the terms that the Complainant sought. Under re-examination, Ms. Kielim confirmed that she and Mr. Hughes did some research into the Complainant’s requests and came to the conclusion that the Respondent could not progress them.

Having carefully considered all of the evidence, I note that it is common case that the Complainant’s grievance was initially delayed until he returned from annual leave in February 2023. The question therefore concerns the alleged delay between 8 February 2023 and 18 May 2023 – the time period between the Grievance Hearing and the filing of the WRC Complaint Form. It is clear that discussions were taking place between the Parties with a view to securing the Complainant a potential exit settlement. Against such a background, it would be highly unusual to proceed with a person’s grievance. In the circumstances, the reason for not progressing the Complainant’s grievances is clear and is wholly unconnected to his disability.

Conclusion:

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence in alleging that the Respondent discriminated against him by failing to progress his two grievances. Moreover, the Complainant has not shown that he was treated less favourably because of his disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

6.           Allegation: The Complainant was Excluded from Meetings and Conferences and Allocated a Car of a Lower Specification:

The Complainant alleged that in failing to invite him to the Irish Executive Committee meeting which took place on Monday 25 July 2022, the Respondent discriminated against him. The Complainant had his OH assessment on 15 July 2022 and his Return-to-Work meeting on Friday 22 July 2022. Under cross-examination, the Complainant accepted that he had not yet returned to work when the invitations for the Irish Executive Committee meeting were issued. However, under cross-examination, he further stated that he could have been told during the Return-to-Work meeting on Friday 22 July 2022 about the Irish Executive Committee meeting which was taking place on Monday 25 July 2022.

The Complainant took issue with not being seated at the top table of the Respondent’s Irish Policy Conference in Malahide on 19 September 2022. I note Mr. Fitzgerald’s evidence that he, also a Grade 10, was not seated at the top table.

The Complainant took issue with not being invited to a meeting with the General Secretary on 3 May 2023 in Dublin. Under cross-examination the Complainant stated that he was not surprised to learn that Mr. Fitzgerald was also not invited to that same meeting. It was put to the Complainant, that if Mr. Fitzgerald was also not invited then it was not a discriminatory act in not inviting the Complainant. The Complainant maintained that nevertheless, he (the Complainant), should have been invited.

The Complainant took issue with his car allocation. He stated that other officers had cars of a higher specification and that this was further evidence of discrimination against him. Under cross-examination, the Complainant confirmed that he did not make enquiries concerning the car prices or tax implications. He stated that the cars “look different”.

Having carefully considered all of the evidence, I do not see how any of these matters amount to discrimination. Moreover, these matters are wholly unconnected to the Complainant’s disability.

Conclusion:

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions in alleging that the Respondent discriminated against him by excluding him from meetings and conferences and by allocating him a car of a lower specification.  Moreover, the Complainant has not shown that he was treated less favourably because of his disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

Moreover, as the WRC Complaint Form was filed on 18 May 2023 and insofar as the car renewal was dated August 2023, this particular allegation also falls outside the cognisable period.

Further Complaint Elements Outlined in the WRC Complaint Form:

In his WRC Complaint Form, the Complainant indicated that the Respondent treated him unlawfully in discriminating against him as regards “Getting a job” and “Conditions of employment”. I have addressed these allegations, in full, above.

In his WRC Complaint Form, the Complainant also indicated that the Respondent treated him unlawfully in discriminating against him as regards:

·             Promotion;

·             A failure to provide “reasonable accommodation”;

·             Harassment;

·             Victimisation; and

·             “Other”.

The Promotion Application Process:

In his WRC Complaint Form, the Complainant indicated that the Respondent discriminated against him as regards a promotion. In his evidence, the Complainant takes issue with the promotion application process concerning the role of Regional Secretary. Under cross-examination, the Complainant confirmed that his complaint was solely about the process. This encompassed: the Respondent pressing ahead with the interview while the Complainant’s grievance was outstanding; the formation of the interview panel; and the Complainant having to request Mr Woodhouse’s recusal. The Respondent submitted that the promotion process was properly run, in accordance with procedures and that the selection process for the successful candidate was wholly unconnected to the Complainant’s disability.

Having carefully considered all of the evidence, it is clear that the Complainant has not shown how the promotion application process was discriminatory or how the Respondent’s alleged treatment was connected to his disability.

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence in alleging that the promotion process was discriminatory. Moreover, the Complainant has not shown that he was treated less favourably because of his disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

Failure to Provide Reasonable Accommodation:

In his WRC Complaint Form, the Complainant indicated that the Respondent discriminated against him in failing to provide him with reasonable accommodation. Under cross-examination, the Complainant confirmed that he received his OH Report on 15 July 2022 and that he returned to work on 22 July 2022. He confirmed that pursuant to the staggered return recommended in the OH Report, he worked 50% for weeks one and two and 75% for weeks three and four. Moreover, it was Ms. Kielim’s evidence that in complying with the Complainant’s request regarding the Dundalk role, this was also seen in many ways as a reasonable adjustment.

Having carefully considered all of the evidence, it is clear that the Respondent fulfilled its duty to reasonably accommodate the Complainant’s disability under the EEA. The Respondent complied in full with the recommendations in the Complainant’s OH Report. The Complainant provided no evidence as to how he was not provided with reasonable accommodations.

In applying the test outlined above in the Mitchell Case and the Melbury Developments Case, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence in alleging that the Respondent discriminated against him in failing to provide him with reasonable accommodation. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

Harassment:

In his WRC Complaint Form, the Complainant indicated that the Respondent discriminated against him in harassing him. The Complainant provided no evidence as to how he was harassed on the ground of disability. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination including harassment, in relation to him, pursuant to section 85A of the EEA.

Victimisation:

In his WRC Complaint Form, the Complainant indicated that the Respondent discriminated against him in victimising him. The Complainant provided no evidence of adverse treatment as a reaction to, inter alia, him making a discrimination complaint. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination including victimisation in relation to him, pursuant to section 85A of the EEA.

Other:

In his WRC Complaint Form, the Complainant indicated that the Respondent discriminated against him as regards “Other”. As outlined above, the Complainant’s allegations have been addressed in full. For completeness, I note that the Complainant provided no evidence as to how he was discriminated against as regards “Other”. Therefore, the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA.

Final Conclusion:

The Complainant submitted his WRC Complaint Form on 18 May 2023 and so the cognisable period runs from 19 November 2022 until 18 May 2023. The Complainant did not seek an extension of time. Pursuant to the Labour Court decision in the Hurley Case, while a claim must be brought within six months of the most recent occurrence of discrimination or other contravention alleged, earlier events may form part of a claim if a continuum is established.

I note that some of the allegations concerned events which occurred during the cognisable period, for example:

•          The “Organisational Review” document was prepared and presented in December 2022.

•          The first Grievance Hearing took place on 8 February 2023 (concerning the removal of the Complainant’s his contractual duties and role); while the second grievance was submitted on 28 March 2023 (concerning the promotion process for Regional Secretary).

•          The Promotion Process for the Regional Secretary position took place in February 2023.

·             The Complainant’s allegation that the reallocation of his political role was evidenced by Mr. Fitzgerald’s commentary following the General Secretary’s presentation on 2 May 2023.

I also note that the above allegations were interwoven with earlier allegations and events; and that some allegations were undated. As a result, it was difficult to ascertain when exactly some of the allegations crystallised, for example:

·             In his Final Written Submissions, the Complainant links submissions regarding the alleged “strategic plan” excluding him and his allegations regarding the “Organisational Review” document; and

·             The allegations concerning the removal of the Complainant’s tasks and the allegations concerning the reallocation of the Complainant’s political role were undated.

Therefore, in order to fully investigate the complaint, I have considered and addressed all of the allegations and evidence before me, as outlined above.

To conclude, for the reasons set out above, I find that during the cognisable period from 19 November 2022 until 18 May 2023, the Complainant was not discriminated against on the ground of disability, in any way as alleged. I find that the Respondent did not treat the Complainant unlawfully by discriminating against him as regards:

•             Getting a job;

•             A promotion;

•             His conditions of employment;

•             A failure provide “reasonable accommodation”;

•             Harassment;

•             Victimisation; and

•             “Other”.

Finally, I also find that as there was no contravention of the EEA during the cognisable period, any events earlier than 19 November 2022 are statute barred.

CA-00056727-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998:

For the reasons outlined above, I find that the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA, in any way as alleged. Therefore, I find that the Complainant was not discriminated against on the ground of disability and this element of the complaint is not well founded.

For the reasons outlined above, I find that the Complainant has not established facts from which it may be presumed that there has been discrimination in relation to him, pursuant to section 85A of the EEA, concerning the Respondent’s alleged failure to provide reasonable accommodation. Therefore, I find that the Complainant was not discriminated against on the ground of disability and this element of the complaint is not well founded.

For the reasons outlined above, I find that the Complainant has not established facts from which it may be presumed that there has been discrimination including harassment, in relation to him, pursuant to section 85A of the EEA. Therefore, I find that the Complainant was not harassed and this element of the complaint is not well founded.

For the reasons outlined above, I find that the Complainant has not established facts from which it may be presumed that there has been discrimination including victimisation, in relation to him, pursuant to section 85A of the EEA. Therefore, I find that the Complainant was not victimised and this element of the complaint is not well founded.

CA-00056727-002 – Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act 2014:

As noted above, this complaint was withdrawn.

CA-00056727-003 – Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act 2007:

As noted above, this complaint was withdrawn.

CA-00056727-004 – Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act 2005:

As noted above, this complaint was withdrawn.

Employment Equality Acts 1998-2015, Discrimination, Disability.