EDA2125

1. Appeal Of Adjudication Officer Decision No(S) ADJ-00022718, CA- 00029577-003

BACKGROUND:

2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 28th September 2020. A Labour Court hearing took place on 30th July 2021. The following is the Court's Determination:


DETERMINATION :

This matter comes before the Court as an appeal by Ms Violeta Cucovic (the Complainant) against a decision of an Adjudication Officer of the Workplace Relations Commission in her complaint against Centric Health Primary Care Ltd Centric Health Ltd (the Respondent) under the Employment Equality Act, 1998 (the Act). The Complainant contended that she had been discriminated against on grounds of her gender, civil status, religion, age and race. The Adjudication Officer did not decide in favour of the worker.

The Court went to significant lengths at its hearing to explain to both parties the nature of its jurisdiction in relation to this appeal. The Claimant objected strenuously to the Court’s efforts to explain the nature of the jurisdiction of the Court and made several accusations impugning the integrity of the members of the Court personally.

The Claimant did not co-operate with the Court in its efforts to structure the hearing in a manner whereby both parties would have a full opportunity to understand the case being made by the other party and to have the opportunity to set out their own case. The Court, as a result of the behaviour of the Claimant at the hearing, failed to achieve a clear understanding as to how the issues being raised by the Claimant including in relation to alleged behaviours of staff of the Respondent and various other actors constituted discrimination within the meaning of the Act.

The Complainant however made a range of allegations at the hearing of the Court impugning the honesty and integrity of various named individuals in the employment of the Respondent, in Irish political life and indeed of the Court itself and its members both present at the hearing and not present at the hearing.

The burden of proof

Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section 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.”

• “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”.

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Discussion and conclusions

In her written submission to the Court the Complainant made allegations of dishonesty against a variety of named employees of the Respondent. The Respondent rejected all such allegations but submitted, without prejudice, that even if the allegations of the Complainant were true they could not be held to amount to behaviour which constitutes discrimination within the meaning of the Act on any of the protected grounds.

The Court notes that no submission has been made by the Complainant which detailed treatment of her that she said was different from the treatment of a named comparator of a different gender, civil status, religion, age or race. Neither did she contend that she was treated less favourably on the grounds of gender, civil status, religion, age or race than a hypothetical comparator would have been treated.

The Complainant did not co-operate with the Court’s efforts at its hearing to provide her with an opportunity to make an oral submission or to tender evidence which could support or supplement her written submission which was provided to the Court in advance of the hearing. As a result of her behaviour at the hearing, the Court was left with no basis outside of her written submission to consider her complaint of unlawful discrimination.

The Court, based on the written submission of the Appellant, can find no basis to conclude that the Appellant was treated less favourably by the Respondent than a person of a different gender, civil status, religion, age or race was or would have been treated. In those circumstances, the Court concludes that the Complainant has not established facts from which an inference of discrimination could reasonably be drawn and consequently concludes that she has failed to discharge the burden of proof resting upon her in accordance with the Act at Section 85A.

Decision

The Court finds that no prima facie case of unlawful discrimination on the ground of gender, civil status, religion, age or race has been made out by the Complainant. The appeal, therefore, cannot succeed and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
EMcN	______________________
6th August 2021	Chairman