ADJ-00049895

	Complainant	Respondent
Parties	Thomas Greaney	Galway City Council

Representatives

Jennifer Gibbons, Concannon Solicitors

Keith Irvine Local Government Management Agency (LGMA)

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-00061266-001	29/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00061318-001	31/01/2024

The complainant commenced employment with the respondent in 2019 as a driver for road sweepers with the Respondent.

This complaint was received by the Workplace Relations Commission on 29th January 2024. A second complaint, identical to the first one, was received on 31st January 2024. As both complaints are the same only one decision will be issued.

Introduction

The complainant commenced employment with the respondent in 2019 as a driver for road sweepers with the local authority. The complainant was assigned to work in the City North Westside area in 2021 under the direction of Ganger, Gerry Daly. The complainant was subjected to bullying and harassment by his supervisor. The complainant went on to suffer stress and anxiety as a result of his treatment in the workplace which amounts to a disability within the meaning of the Employment Equality Acts. The complainant made his employer aware of this and there was a failure to reasonably accommodate the complainant in the workplace, in breach of the Acts.

Factual background

The complainant commenced work with the respondent on 1st September 2019. His role was as a driver on a road truck sweeper. The complainant’s fortnightly gross pay is €2,655.59 and net pay is €1,717.97. He works a 39-hour week. The complainant was a good worker who got on well with his colleagues. On 11th January 2021, the complainant was assigned to work in City North Westside area as a Driver Plant Operator B where he would work under the direction of Ganger, Gerry Daly. Some two days later, on the 13th January 2021, Mr. Daly made a complaint to Michael Costello (Foreperson) that the complainant was not doing what he was asked to do. This began a series of complaints made by Mr. Daly in relation to the complainant. The complainant was bullied and victimised by Mr. Daly throughout the course of his work. The complainant was unable to properly fulfil his role as he did not receive proper instruction from Mr. Daly. The complainant was undermined in the workplace and began to suffer from stress and anxiety as a result. The complainant had never suffered from these conditions before.

The complainant lodged a written complaint pursuant to the respondent’s Grievance and Disciplinary Procedure on 22nd March 2021.

The complainant’s complaint essentially describes a pattern of bullying and victimisation which was suffered by the complainant since he was assigned to work under Mr. Daly. He describes, for example, being asked to carry out tasks which were improper and unsafe to do. As an example, Mr. Daly asked the complainant to remove bicycles from a particular area as he said an email had been received directly from City Hall to him in relation to them. It transpired that that no email was received. The complainant believed that that these bicycles were Christmas presents belonging to children in the area and if he removed them he would have been putting himself at risk by causing a conflict.

The complainant further describes a pattern of complaints made by Mr. Daly about him which were without substance. The relationship between the complainant and Mr. Daly broke down to such an extent that the complainant was no longer receiving proper instruction on tasks he was to carry out in the workplace.

· The complaint was investigated by Michael Tuohy, Executive Engineer, and he issued a recommendation on 10th June 2021. He found two of the grievances to be substantiated and nine of them to be unsubstantiated. He stated that there is “evidence of a complete breakdown in communication and trust and I recommend that an independent Mediator is appointed to try to resolve this issue with the two staff members concerned.”

· Mr. Daly was on sick leave for the period 10th June 2021 until 4th February 2022 and during this time the complainant worked as Acting Ganger.

· The complaint was investigated by an investigator, Frank Kelly (of Relationship-Management) and a report was compiled. Mr. Kelly interviewed the complainant, Mr. Daly and a number of other witnesses including Michael Costello (Foreperson), Jimmy O’Connor (Waste Operations Supervisor) and Damien Redington (Acting Senior Executive Engineer).

· Mr. Kelly, the investigator, upheld the complainant’s complaints on the basis of the evidence received by him. In relation to one aspect of the complainant’s complaint, Mr. Kelly found: “The most significant point in relation to this episode is the fact that within two days of Thomas Greaney’s introduction to Westside his manager (Ganger) was making complaints about him”. In relation to the complaint that Mr. Daly once deliberately and incorrectly asked the complainant to pick up children’s bicycles from an estate, Mr. Kelly found the following: “…it is my strong view that it was not an appropriate dictate by Gerry Daly to send a relatively new Operative into a very difficult environment on his own which could have turned into a case of a potential backlash for him. As Ganger it was Gerry Daly’s specific responsibility to ensure the health and safety of his staff member and given the previous conflict in such circumstances which is outlined in the Account of Jimmy O’Connor, he should have briefed Thomas Greaney on the potential difficulties he could be facing. Gerry Daly’s withholding of the relevant information in this instance was in my view a neglect of duty”. Other such findings are made regarding Mr. Daly’s treatment of the complainant in the report as exhibited.

· The complainant was furnished with a copy of this report with a cover letter from Orla McCarthy, Senior Staff Officer, Human Resources, dated 21st February 2023. The complainant was informed that Michael Buckly, Senior Executive Officer, Human Resources had been nominated as the official to receive the report from the investigation. The complainant, after having participated in the investigation which was completed some 19 months after the initial complaint was made, was invited to make written submissions to Mr. Buckley if he so wished in relation to the report. This letter is exhibited at Appendix 6.

· The complainant replied by way of letter dated 28th February 2023 wherein he described his relief at having his complaint upheld by the investigator. He said that the time that Mr. Daly had been his Ganger was “unbelievably difficult and stressful for me and I am happy to have this period behind me and for the investigation to be completed.” He further said: “I look forward to a speedy and firm determination on what happens next”.

· Further correspondence took place whereby the complainant wrote to Mr. Buckley again on 27th March 2023 asking for an update on the investigation and what actions were going to be taken by Galway City Council. A reply was received from Ms. McCarthy on 28th March 2023 wherein she stated that “Mr. Buckley nominated official, will be in contact with you in due course following completion of the review.”

· The complainant suffered ongoing stress during this period as he did not know what was going to happen. The complainant had begun to attend at his General Practitioner, Dr. Val Costello, at The Health Centre, Headford, Co. Galway during this period. In a report dated 10th May 2023, Dr. Costello stated that the complainant had presented to him on a number of occasions showing signs of stress and anxiety. He further stated that “he finds it very difficult to concentrate on his job as road sweeper because of the stress.” The doctor said that he will be keeping him under regular review and prescribed Escitalopram for his anxiety. Dr. Costello stated, “His anxiety is arising from a work situation and I would appreciate if this could be sorted promptly for the benefit of Mr. Greaney’s mental health”. This letter was submitted to the respondent.

· As there was no resolution to the situation, Mr. Greaney sought legal advice and correspondence was sent by his solicitor, Ms. Jennifer Gibbons of Concannon Solicitors, on 12th June 2023. Ms. Gibbons indicated that the complainant was told Mr. Buckley was now on sick leave and he did not know who was dealing with the matter. She stated that the complaint was upheld yet the complainant still met Mr. Daly from time to time and his behaviour remained intimidating and of a bullying nature. She set out the effect this was having on the complainant’s health and confirmed that a letter had been sent from the complainant’s General Practitioner.

· A response was received from Ms. McCarthy of the respondent dated 12th June 2023 wherein she outlined that another staff member was reviewing the matter with a view to progressing resolution. She apologised for the delay. On 13th July 2023 Ms. McCarthy sent a further letter to the complainant advising that Brian Barrett, Acting Director of Services, has been nominated as the official to receive the report in relation to the investigation. It was further stated that he would “undertake a full review of the Report and will make appropriate recommendations to this office, if any, based on the established facts.”

· On 9th November 2023, a letter was sent by Attracta Lyons, A/Senior Executive Officer, Human Resources to the complainant. In it she stated: “I wish to confirm that the independent official, Mr. Brian Barrett, A/Director of Services, has made his recommendations in respect of the aforementioned report and these recommendations are being implemented by Galway City Council. The investigation has now been closed.”. The complainant was not told what these recommendations were. He was not told what actions, if any, were being taken on foot of the report. He was not told what this would mean for this future conditions of employment.

· Since the complainant lodged the written complaint, he has had to work with Mr. Daly. He was not moved away from him until the investigation had concluded. The complainant still has contact from Mr. Daly. He encounters him in the workplace and through words or gestures, Mr. Daly continues to intimidate and bully the complainant.

· The respondent was on notice of the fact that the complainant was suffering from health complaints arising out of the work situation. This was outlined in the letter from the General Practitioner dated 10th May 2023 and in the letter from the complainant’s solicitor dated 12th June 2023. There was no effort or no adequate effort made to reasonably accommodate the complainant in the workplace. The complainant was simply told that the investigation had concluded.

· During this time the Complainant would still come across Mr. Daly on a regular daily basis and would see him in the yard, during breaks and around the city and would be subject to him laughing and jeering at him.

The Law.

The complainant brings this claim on the grounds that he was discriminated against on the ground of his disability. The relevant sections of the Employment Equality Acts 1998-2021 are set out below along with case law as an aid to interpret the Acts. In order for the complainant to succeed in his claim, he must demonstrate that he has a disability within the meaning of the Acts and that he received less favourable treatment from his employer because of that disability. Further the complainant contends that there was a failure to reasonably accommodate him.

Disability

Section 2(1) of the Act provides:

‘disability’ means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

The definition of disability under the Acts is broad in nature and has been taken to incorporate a wide range of conditions, both temporary and permanent. The following are examples of some conditions which have been found to constitute disabilities within the meaning of the Acts; anorexia, dyslexia, low BMI, depression and alcoholism. The interpretation of disability within the meaning of the Acts is broader than that given to similar legislation in other jurisdictions and indeed is arguably broader than that required by the Framework Directive. As the complainant’s health deteriorated as a consequence of the treatment he was receiving in the workplace, he began to suffer from a disability within the meaning of the Acts. The complainant’s General Practitioner certified that he was suffering from stress and anxiety as a result of happenings in the workplace. The respondent was on notice of this fact.

Discrimination

Section 6 of the Acts defines discrimination in the following way: “discrimination shall be taken to occur where, 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) which exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned......” Section 6(2)(g) of the Employment Equality Acts 1998–2021 prohibits discrimination on the following basis: that one is a person with a disability and the other either is not or is a person with a different disability (‘the disability ground’);.

Section 8(1) of the Employment Equality Act outlaw’s discrimination in relation to:

(i)access to employment;

(ii)conditions of employment;

(iii)training or experience for or in relation to employment;

(iv)promotion or re-grading; or

(v)classification of posts.

In A Government Department v A Worker EDA0612, the Labour Court held that refusal to defer an interview for promotion until the employee was physically able to attend constituted discrimination on grounds of disability. The appropriate comparator was not a person who was unable to attend the interview for any reason (such as a bereavement) and rather was a person who was able to attend the interview. The Court held:

“Further, and for the sake of completeness, the Court is satisfied that such a result reflects the plain intention of the Oireachtas as ascertained from the Act as a whole. In including disability amongst the discriminatory grounds, the Oireachtas clearly intended that persons with a disability would have a right to equal treatment in employment and the opportunity to fullyparticipate in and advance in employment within the limits of their individual capacity. That right can only be vindicated if employers have a concomitant duty to afford employees with a disability an equal opportunity to advance in employment as that afforded to others. That duty could not be fulfilled by offering a disabled employee an opportunity which is illusory in the circumstances of their disability when a reasonable alternative would be of real utility.”

In this case, the complainant can be compared with Kevin Joyce, who is also a driver on a road truck sweeper and worked alongside the complainant under the direction of Mr Daly.The comparator was able to fulfil his role, was given instructions from his Ganger, was not subject to vexatious complaints and was not bullied in the workplace. It became clear that the complainant was suffering from a recognised condition as a result of his treatment in the workplace. The respondent had a duty to enable the complainant to have equal working conditions to those of his colleagues who were not suffering from such a recognised condition or disability.

Reasonable accommodation

Section 16 of the Act contains detailed provisions regarding the burden on employers to provide “reasonable accommodation” to persons with disabilities. Section 16(3)(a) provides:

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

Section 16(4) defines ‘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.

The Supreme Court in Nano Nagle School v Daly [2019] IESC 63 decided the following concerning the interpretation of Section 16 of the Act, at paragraph 84:

“Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

The Supreme Court made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures where needed in a particular case to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.

Section 16(4) defines appropriate measures. Appropriate measures are not just physical changes but may include changes in work practices. Each individual case must be assessed by the employer to establish what appropriate measures are required. An employer’s response to assessing what appropriate measures are required is described in Employment Law (Regan 2017) at paragraph 17.277 as follows:

“It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the employee entering into an interactive dialogue with the employer, to search for the right kind of accommodation needed in the overall circumstances of the case. It is a proactive obligation placed on employers.”

It is submitted that the respondent in this case has clearly failed in providing reasonable accommodation to the complainant as a person suffering from a disability within the meaning of the Acts. The concept was not even explored with the complainant, despite the respondent being on notice in relation to his condition. The complainant had to continue to work with the person who had carried out the bullying and intimidation in the workplace. Even when that person was no longer assigned to work with the complainant, the complainant still had dealings with him and came across him. The offending behaviour continued, making the complainant’s workplace conditions intolerable and exacerbating his stress and anxiety. The respondent did not deal adequately with the outcome of the investigation and the failure to reasonably accommodate the complainant is ongoing. Rather than attempting to reasonably accommodate the complainant, the respondent simply stated that the investigation was over and no further information was given.

Burden of proof

Section 85A of the Employment Equality Act provides: “(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.” Thus, in an employment equality claim the complainant must only establish a prima facie case of discrimination, being facts from which discrimination may be inferred.

It is submitted that the complainant has established that he suffers from a disability within the meaning of the Acts. It is further submitted that the investigation commissioned by the respondent and carried out by Frank Kelly establishes that bullying of the complainant took place. The documentary evidence from Galway City Council following on from the investigation report establishes a prima facie case of discrimination. There is no evidence in the documentary evidence that any action was taken. No information is given to the complainant regarding the consequences of the complaint. No assurances are given regarding the future. It is submitted on this basis that the burden transfers to the respondent to demonstrate that discrimination did not occur.

Oral evidence.

In the oral evidence provided by Mr Jimmy O’Connor (Operations Supervisor – Waste Collection) we were told that he (Mr O’Connor) had known Thomas Greaney since 2019 and that he would say Thomas was an excellent worker. Mr O’Connor was aware that Mr Daly was making a number of complaints about Thomas Greaney and no one else had made any complaint about Mr. Greaney.

Mr O’Connor was aware that the Council would not separate the two employees and that this decision had come from the Council’s HR Department.

Mr O’Connor had petitioned Mr Tuohy to separate the two of them (Gerry Daly and Thomas Greaney) and was informed that he could not separate them until after the investigation.

Michael Costello (Driver, Ganger, Foreman working with Galway City Council since 2001). Mr Costello told the hearing that Gerry Daly had come to him quite quickly regarding Thomas Greaney and that Mr Daly had told him that he should report these complaints up the line. Mr Costello was aware that Mr Daly had made similar complaints in relation to other employees.

Conclusion

The complainant was subject to bullying and harassment by his manager or Ganger in the workplace. On raising a complaint, it was ultimately referred to an external investigator. Some 19 months after the formal complaint was made, the investigator delivered his report, upholding the complainant’s complaints. Following on from that, the complainant waited for several months to find out if any action would be taken. The complainant suffered from stress and anxiety during this period. His condition amounted to a disability within the meaning of the Acts. The complainant was never given information regarding actions to be taken on foot of the investigation, continued to meet the person the subject of the complaint in the workplace and continued to suffer. No reasonable accommodation was made by the respondent despite being on notice of the complainant’s condition.

If the Adjudication Officer finds with the complainant in respect of his claims regarding the Employment Equality Acts 1998-2021 it is requested that appropriate directions be mad and that an appropriate award of compensation is made pursuant to the Acts.

The complainant reserves the right to adduce such further or better evidence and/or such further or better submissions as may be necessary prior to, and at the hearing of the within action.

1. The complainant commenced employment with Galway City Council as a permanent Driver/Plant Operator B in the Environment Section on 9th September 2019. Assignments in this role are based on operational requirements and subject to change over time. On 11th January 2021, the complainant was transferred to litter picking in the Westside area, reporting to a General Services Supervisor (GSS).

2. On 22nd March 2021, the complainant submitted a grievance to HR about his GSS. This was assigned to Executive Engineer Michael Tuohy to investigate in accordance with the Council’s Grievance policy.

3. On 11th June 2021, at the conclusion of this investigation, the internal report was circulated to the complainant and mediation was recommended in an effort to resolve matters.

4. On 16th July 2021, the complainant emailed HR refusing the offer of mediation and requested a formal independent investigation.

5. An independent external investigator was appointed on 11th March 2022 and meetings took place through April.

6. In May 2022 the complainant was reassigned to a different work crew in the Environment Department working as a Driver Litter Sweeper.

7. On 27th September 2022 the external investigator held a follow up meeting with the claimant. The final investigation report was received by HR on 27 January 2023 and the investigator upheld the complaint.

8. In February 2023, the Senior Executive Officer in HR was appointed to review the report.

9. On 10th May 2023 HR received a letter from the complainant’s GP. HR contacted the complainant as he was not on sick leave and asked him if he needed to take some time off and advised him of the EAP programme. Details of the EAP programme were issued to him on 12th May 2023.

10. On 12th June 2023 a letter was received from the complainant’s solicitor referring to the grievance which was ongoing.

11. On 12th July 2023, the investigation report was re-assigned to Brian Barrett, Acting Director of Service and he issued his decision, this was received by HR on 12th October 2023.

12. On 9th November 2023 a letter issued to the complainant and his solicitor confirming that the recommendations of Mr Barrett were being implemented and that the matter was considered closed.

13. A complaint was submitted to the WRC on 31st January 2024.

CA-00056765-001

1. The complainant alleges in his complaint form that the Council has discriminated against him on 2 grounds i.e.:

i. Disability

ii. Failure to provide reasonable accommodation

2. The complainant has provided no detail in relation to any of these discriminatory acts within his complaint form and states that full detail will be provided by way of written submissions. As the latest complaint was submitted to the WRC on 31st January 2024, the cognisable period of the complaint is from 1st August 2023 to 31st January 2024. The Council reserves the right to respond to any claims which should arise.

3. Section 8 (1) of the Act provides that:

“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 or prospective employee …”

4. The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001) provides that where, in any proceedings, facts are established by, or on behalf of, a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary. The first requirement, therefore, is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him or her. This burden of proof is now also applicable under Irish Law to all grounds of discrimination under section 85 A of the Employment Equality Act 1998 (as amended). In other words, if an employee is alleging direct or indirect discrimination on the grounds for e.g. gender, marital status, family status or age then the burden of proof remains the same as if he or she were making a claim specifically for gender discrimination.

5. The Council submits, therefore, that in this case it is for the claimant to establish a prima facie case of discrimination. Only when that prima face case has been established does the burden of proof fall to the Council to submit a defence.

6. The definition of discrimination in terms of the treatment of individuals necessarily requires a comparison between two persons. In terms of differences of treatment between two persons, the person with whom an employee may compare him or herself (the comparator) under the 1998 Act is someone who:

(i) is;

(ii) has been; or

(iii) would be treated differently.

7. It is submitted that it is for the complainant in the instant case to prove, on the balance of probabilities, the primary facts on which he is relying in seeking to raise the presumption of unlawful discrimination. The “primary facts” criteria to establish prima facie discrimination were defined by the Equality Tribunal in the case of Minaguchi v. Winesport Lakeshore Restaurant, DEC-E2002-202:

“It appears to me that the three key elements which need to be established by a complainant in order to show that a prima facie case exists are:

that he/she is covered by the relevant discriminatory ground(s);

that he/she has been subject to specific treatment; and

that this treatment is less favourable than the way someone who is not covered by the discriminatory is, has been or would be treated”.

8. The Council would also refer to Melbury V Valpeters EDA/0917 where it was stated;

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

9. The Council would raise a number of points in relation to the complaint as submitted, the first of which relates to the key elements required to establish that a prima facie case exists. The requirement is “that he/she has been subject to specific treatment”. Here, the Council would contend that the claimant has not established what if any specific treatment he has been subject to. The claimant has never raised any issues related to disability or sought any specific “reasonable accommodations” in relation to any disability during the cognisable period.

10. The next requirement is “that this treatment is less favourable than the way someone who is not covered by the discriminatory is, has been or would be treated”. The Council would raise issue with this point, where in the first instance the Council are not aware of how or when the claimant was discriminated against. In the second instance no comparator is identified.

11. The Council would assert that the claimant must identify a comparator within the Council where the claimant has been treated differently and where they do not hold the equality status of the claimant, per each category complained of.

12. The Council would refer to Catriona Hughes v National College of Ireland, ADJ-00014991 where the claimant of that case failed to establish a prima face case where they attempted to cherry pick a comparator. The Council would see that the claimant in this case may attempt to do the same, however the Council would assert that a relevant comparator can only be an employee of the Council who held a position similar to the claimant. To this end the Council would see that no such employee has been identified by the claimant to sustain a complaint under the Equality Act.

13. The Council would also raise the point that, in accordance with the Act section 77 (5), “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence”. The WRC Complaint in relation to this case was submitted on 31st January 2024, therefore the alleged discrimination can only have occurred between 1st August 2023 and 31st January 2024. This complaint has been referred under the Employment Equality Act, however nothing has been identified or alleged in this regard and the claimant had not engaged directly with the Council in relation to these matters.

14. Section 16 of the Act places an obligation on employers to provide appropriate measures to assist an employee with a disability to undertake their role. In this case it is a matter of fact that the Complainant has not been on certified sick leave for the duration of the period encompassed by the claim. In such circumstances where the Complainant was working, and no reasonable accommodation was sought by him, the claim that he was denied reasonable accommodation cannot be sustained.

15. Based on all of the above the Council would contend that the claimant has not established any prima facie case of discrimination during the 6-month period prior to the complaint being submitted to the WRC, nor have they provided any details of where the claimant has been discriminated against with regard to the identified grounds, compared to that of a relevant comparator (without the identified ground). It is on this basis that the Council would assert that the burden cannot shift to the Council and the case should be dismissed.

16. On 22nd March 2021, the complainant raised a grievance in relation to his line manager and their interactions. The council addressed this under its Grievance policy and Michael Tuohy was assigned to it. The outcome was a recommendation of mediation which was rejected by the complainant on 16th July 2021. He then sought a formal investigation which in place by March 2022 and an investigation report was received in January 2023 which upheld the complainant’s complaint. The Council reviewed the report and a decision was issued to each party separately.

17. When the Council received a notification from the complainant’s GP in May 2023 that the complainant was suffering from stress due to the ongoing investigation, HR contacted the complainant and asked him if he required sick leave and advised him of the services of the EAP. On 9th November 2023, the complainant was notified that the Council was implementing the recommendations of Mr Barrett and that they considered the matter now closed.

18. The complaint form states that the complainant raised a grievance and that it was fully investigated with findings in favour of the complainant. It states that the complainant was under stress and that no action was taken as a result of the findings, that nothing has changed and that he is still subject to the same bullying and harassment. It was clear that the working relationship between the complainant and his former supervisor had broken down; the complainant was moved to a different role and no longer reported to the person complained of since May 2022. The person complained of had been absent from work since June 2021 and the complainant was “acting up” in his role until that employee returned to the workplace in February 2022. Additionally, after the initial informal investigation and in an effort to try to restore positive working relationships between all parties concerned, the Council offered mediation however this was rejected by the complainant in July 2021. A formal investigation was then put in place in March 2022 which concluded in January 2023. A final decision issued to the complainant in November 2023. No application for reasonable accommodation was received by the Council nor has any complaint of bullying or harassment been received since the complainant’s original complaint in March 2021.

Conclusion

· The Council is not aware of any discriminatory acts and reserves the right to respond once further details are provided.

· The Council would ask the adjudicator to dismiss the current complaints based on the grounds provided above and find in favour of the respondent.

I note that the Complainant has submitted two complaint forms, the first form was received by the Workplace Relations Commission on 29th January 2024 and the second complaint form was received two days later on 31st January 2024.

On close examination of both forms it becomes clear that they are identical. We are dealing with one complaint. The complaint is as follows:

“I say the Respondent treated me unlawfully by discriminating against me in failing to give me ‘reasonable accommodation’ for a disability.

Comprehensive written submissions were presented by both parties.

The representative for the Respondent has raised the issue of the cognisable period when he states as follows:

As the latest complaint was submitted to the WRC on 31st January 2024, the cognisable period of the complaint is from 1st August 2023 to 31st January 2024.

In Employment Equality Law (Marguerite Bolger, Claire Bruton and Cliona Kimber – Round Hall – 2012) at page 758 / 759 – section 16-46 through to 16 – 48) the issue of continuing discrimination and time limits is addressed and reads as follows:

16-46. In situations of alleged continuing discrimination over a period of time, s.77 (6A) of the Employment Equality Acts allows for the referral of such discrimination provided that the claim is submitted within six months of the point in which discrimination ended. This section, which was inserted by the Equality Act 2004, provides welcome clarification on the issue of the precise jurisdiction of the Tribunal when dealing with discrimination over a lengthy period and in excess of a period of six months from the date of the referral of the complaint to the Tribunal. The subsection operates independently of the more general six-month time limit contained in s.77 (5).

16-47. The Labour Court has determined the two subsections within s.77 deal with different forms of continuing discrimination, s.77(5) of the Employment Equality Acts deals with a situation in which there are a series of separate acts or omissions on the part of the employer which, while not forming part of regime, rule, practice or principle are sufficiently connected so as to constitute a continuum of discrimination. Effectively this deals with a situation whereby there are separate manifestations of the same disposition to discriminate. In order for a claimant to succeed in demonstrating a continuum or chain of discrimination, it is necessary to demonstrate that there were acts of discrimination within a period of six months prior to the lodgement of the proceedings with the Tribunal which were sufficiently linked to the other alleged acts of discrimination. On the other hand, s.77 (6A) was found to pertain to a single act extending over a period of time and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant. Whilst the difference between the two time periods within s.77 are very technical in nature, the decision of the Labour Court is correct having regard to s.77(6A) which prescribes that only one act may occur over a lengthy period of time such that if the manifestation would amount to a different act of discrimination. The situation where an employee is subjected to various forms of discrimination on the same protected ground, such as failure to achieve promotion followed by the lowering of hours of employment, with the earlier act falling outside of the six-month time period within the legislation, would fall to be considered under s.77(5) of the Employment Equality Acts as a potential continuum of discrimination.

16-48. The issue of the last occurrence of the discriminatory act for continuing acts has been the subject of consideration by the Tribunal and Labour Court. It is quite frequently the case that the employee was subjected to discriminatory treatment over a lengthy period of time involving a series of events and time periods outside of the six-month time period prescribed by the Employment Equality Acts, and the issue then arises as to whether the claim or part of their claim is statute-barred, being referred outside of the time period prescribed in s.77 of the Acts. The Labour Court takes a pragmatic approach to these so-called “chain of discrimination” claims and has held that if the, “…. Two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the court may take into consideration previous occasions in which the complainant was allegedly discriminated against in the same ground”. (Dept of Health and Children v Gillen [2005] E.L.R.141.)

In the instant case the Complainant lodged a written grievance with the Respondent on 21st March 2021. This grievance contained nine complaints. This grievance was given to Mr Michael Tuohy, Executive Engineer with the Respondent for investigation. The investigation was completed by 11th June 2021 and a copy of the proposed outcome was issued to the complainant. It is important at this point to comment on this outcome. The third paragraph of the letter (dated 11th June 2021) sent to the complainant with the report states:

“In accordance with the City Council’s Policy in relation to Grievance & Disciplinary, I am hereby recommending a Mediation process as a means of resolving the current issues. However, the decision to proceed on this basis requires the agreement of all parties involved. Mediation is an alternative method of resolving such issues, seeking to arrive at a solution through an agreement between the parties, rather than through an investigation and decision”.

The final sentence on the first page of this letter clearly states:

“Please note there is no obligation on either party to agree to a mediation process”.

By email dated 16th July 2021 and sent by the complainant to the respondent the complainant states:

“Hi Martha, Thomas Greaney here I’m emailing you in relation to the case with Gerry Daly I do NOT want mediation I want a full investigation into this case thank you Thomas Greaney date 16/07/2021”

Following this email to the Council an independent investigator was appointed on 11th March 2022, some seven and a half months after the request from Mr Greaney.

On 27th September 2022 the external investigator held a follow up meeting with the claimant. The final investigation report was received by HR on 27 January 2023 and the investigator upheld the complaint.

In February 2023, the Senior Executive Officer in HR was appointed to review the report.

On 12th July 2023, the investigation report was re-assigned to Brian Barrett, Acting Director of Service and he issued his decision, this was received by HR on 12th October 2023.

On 9th November 2023 a letter issued to the complainant and his solicitor confirming that the recommendations of Mr Barrett were being implemented and that the matter was considered closed.

A duration of 2 years and 8 months to conduct an investigation to finality is far too long.

The Complainant was seeking a reasonable accommodation for a disability caused by the treatment he was receiving from his Ganger. Such reasonable accommodation could have been something as simple as separating the Complainant from his Ganger by re-assigning him to work elsewhere in the Council area. This did not happen.

The respondent was on notice of the fact that the claimant was suffering from health complaints arising out of the work situation. This was outlined in the letter from the General Practitioner dated 10th May 2023 and in the letter from the claimant’s solicitor dated 12th June 2023. There was no effort or no adequate effort made to reasonably accommodate the claimant in the workplace. The claimant was simply told that the investigation had concluded.

In coming to a conclusion, I find that the complaint is well found. This is one of the worst cases of bullying I have seen and in relation to the management of the complaint I find that matters have been managed poorly by the Respondent. I now order the Respondent to pay compensation to the Complainant in the amount of €25,000. Such compensation should be paid within 42 days from the date of this decision.

	Complainant	Respondent
Parties	Thomas Greaney	Galway City Council

	Complainant	Respondent
Anonymised Parties

Representatives

Jennifer Gibbons, Concannon Solicitors

Keith Irvine Local Government Management Agency (LGMA)

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-00061266-001	29/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00061318-001	31/01/2024