SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Appeal under Section 83 of the Employment Equality Act, 1998, Dec-E2006-043
2. The worker appealed the Equality Officer's Decision to the Labour Court on the 13th October, 2006, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on 3rd April, 2007.
A worker (the Complainant) claimed to have been discriminated against by SIPTU (the Respondent) on the ground of his disability contrary to Section 13 of the Employment Equality Act, 1998 (the Act). The claim was considered by an Equality Officer of the Equality Tribunal who found against the Complainant as he had failed to establish aprima faciecase of discrimination. It is against that decision that the Complainant appealed to this Court.
By letter dated 9th March 2007 the Complainant applied to the Court to have the hearing of the appeal heard in public. The Court responded by letter dated 16th March 2007.Section 83 of the Employment Equality Act, 1998 provides at Subsection 2, as follows:
- “The Labour Court shall hear an appeal under this Section in private unless at the request of one of the parties, it determines to hold the appeal or so much of it as it does not consider should be treated as confidential, in public”.
From its careful examination of all the documentation surrounding this case and the Complainant’s letter seeking a public hearing the Court has come to the view that there are no special circumstances relating to the case which would necessitate a public hearing.
The Court’s position was outlined to the Complainant at the outset of the hearing. He did not dispute the Court’s view and accepted its decision on the matter.Nature of the Complaint
At the commencement of the hearing the Court asked the Complainant to clarify the acts or events on which he relied as constituting unlawful discrimination under the Act.
The Complainant told the Court that his complaint relates to SIPTU’s alleged inaction regarding his applications for membership of the Union on 14th July and 19th August 2002 (application to join AGEMOU, a sister Union of SIPTU); 30th September 2002 (he sought to rejoin SIPTU by withdrawing his earlier resignation from the Union); 12th August 2003 (when he visited the Vice President of SIPTU in Liberty Hall and claimed that he had completed an Application Form in Liberty Hall on that day) and his most recent application in early October 2004 (to join the Cavan Branch of SIPTU). He submitted that SIPTU’s rejections of his applications were on the ground of his disability and therefore discriminatory under the terms of the Act. The Complainant told the Court that he suffers from arthritis.
The Complainant stated that he resigned from the Union on 28th October 2001 by letter of that date and that he had subsequently instructed his then employer, the former Northern Area Health Board (St. Mary’s Hospital, Phoneix Park), on 29th October 2001 by a further letter of that date to cease deduction of his Union dues which his then employer proceeded to do with effect from 8th November 2001.
The Complainant further submitted that he had resigned form the Union for a second time on 19th August 2002 by a further letter of that date.
He also claimed that SIPTU refused to address his request for a change of Union Representative made on 14th July 2002 and the General President refused to deal with his formal complaint dated 4th December 2003.
Furthermore, the Complainant made allegations against a number of named Union Officials and other individuals claiming that they had behaved in a discriminatory manner towards him on the ground of his disability. He claimed that named SIPTU representatives refused to represent him when he had difficulties with his former employer in March and April 2002. He also claimed that he had been excluded from an investigation carried out by the General President of SIPTU into his allegations and had not received a copy of the results of those findings.
The Complainant’s Case
In October 2001 the Complainant made a complaint to SIPTU that he had been forced to resign his membership as he claimed the Union was not interested in representing him and that he had been subjected to ridicule by union members and officials who passed remarks about his disability during the period between February and December 2001.
On 14th July 2002 he requested a different Union representative or an alternative union to represent him; this request was not responded to.
On 19th August 2002 he sought permission from SIPTU to receive guidance from another union in connection with his difficulties with his employer at the time. He claimed that he did not receive a reply.
On 30th September and 25th October 2002 he wrote to the then Vice President of SIPTU, seeking to withdraw his resignation and to have his membership reinstated.
He claimed that the Union failed to respond to his application of 12th August 2003 requesting Union membership.
He claimed that the official in charge of the Union’s Bullying Response Unit refused to deal with his written complaint on 16th September 2003.
At a meeting arranged in 2003 (the date of this meeting was confirmed at the hearing as 12th August 2003) with the Union’s then Regional Secretary for Dublin in his office, the Complainant maintained that he filled in an Application Form and was never informed of its acceptance afterwards.
On 4th December 2003, he made an allegation of bullying against the Secretary of the Health Services Branch of SIPTU. On 28th July 2004 he made similar allegations against the President of the Health Services Branch of the Union on the basis that his request for membership was not responded to and his claim that he had been discriminated against on the ground of his disability. The Complainant stated that he had written to the President of the Branch on two occasions seeking to re-enter membership of the Union. In this letter he notified the Respondent that he was classified as an invalid by the Dept of Social and Family Affairs and considered by the “Medical Fraternity” as disabled. The letter states:
- ““had I not been retired on the grounds of disablement and had I being employed in my full health"? You would have, I believe strived, to address my complaint in the appropriate manner” …..“I know you were fully aware of my disability. I believe that you discriminated against me on the grounds of disability”.
The Complainant stated that in April 2004, the official in charge of the Union’s Bullying Response Unit, made an arrangement to meet him in Lucan to discuss his grievances but failed to turn up. The Complainant maintained that this official was aware of “the severe disposition” he was in due to his disability and claimed that his failure to deal with his complaints was discriminatory under the Acts.
The Complainant received a letter from the Vice President of the Union dated 12th August 2004. He claimed that the content and composition of this letter was “offensive, discriminating and threatening” and subjected him to an “unprofessional and ill informed attack” in writing. In his response letter dated 16th August 2004 the Complainant stated that he found the tone of the letter intimidatory and threatening and he decided to refer a claim of discrimination under the Employment Equality Act, 1998.
The Complainant contended that the President of the Union carried out an investigation into the complaints made by him but refused to furnish him with the results.
In early October 2004 when he sought membership of the Cavan Branch of the Union, following his securing employment in that region, he claimed that it introduced conditions for membership that did not apply to other applicants.
The Respondent’s Case
SIPTU rejected the claim that it had refused the Complainant membership of the Union and had discriminated against him on the disability ground. It stated that he had been a member for over 20 years until he resigned from his employment with the former Northern Area Health Board (in St. Mary’s Hospital, Phoneix Park) in March 2003. He ceased subscriptions to the Union in November 2001 and according to SIPTU’s official records his membership of the Dublin Health Services Branch of the Union ceased on 19th August 2002. During his period of employment at St. Mary’s Hospital he was active in the Union on behalf of his colleagues and served on the Section and Branch Committees for the Hospital.
In 2001 he alleged that he had been the victim of bullying and harassment and brought the matter to the attention of hospital management. He was unhappy with the representation he received from SIPTU and following a series of complaints he withdrew his membership of the Union on 28th October 2001 and ceased paying Union dues with effect from 8th November 2001 (his resignation from the Union did not become final until 19th August 2002). Subsequently, he sought to rejoin the Union so as to pursue his complaints against staff of the Hospital and the Union. However, he never completed an Application Form.
In March 2003 he resigned from his employment with the former Northern Area Health Board on terms later agreed in October 2003 and subsequently sought to claim unfair dismissal.
In mid-August 2003, the Complainant visited the offices of the Vice President of the Union, who advised him to complete an Application Form and to progress it in accordance with the Rules of the Union. At that time, he was supplied with both an Application Form and a copy of the Rules of the Union, however, he did not act on this advice. Nevertheless the Complainant pursued a series of complaints against the staff of the Dublin Health Services Branch of SIPTU which were examined and rejected.
The Union submitted to the Court that he did not raise the matter of his disability at any stage.
On 17th February 2004 the General President of the Union wrote to him stating that he had carried out an investigation into his complaints and found that as he had resigned from his post at St. Mary’s Hospital along with his membership of the Union “some time ago” it had no further role to play in the matter and considered the matter closed.
When the Complainant gained employment in the Cavan area in 2004 he applied for membership of the Cavan Branch of SIPTU. He advised the local Branch Secretary of the history regarding his complaints concerning the staff of the Dublin Health Services Branch of the Union and his disputes with Head Office. In the light of this background, the Branch sought advice from the Vice President of the Union, who responded:
- “His application should be considered on its merits and in the context of the Branch’s capacity to service his occupational circumstances. Any dispute he has with the Officers of the Union or with the Dublin Health Services Branch are separate matters and should not influence your deliberations. It is also important to note that [he] has not been the subject of any action under Rule 14 and accordingly is not debarred from holding membership of the Union where his employment circumstances is compatible with it. In short he should be treated like any member of the public who makes application for membership of the union”.
In October 2004 he was accepted into membership. However, he rejected the offer of membership by letter dated 22nd November 2004.
The trade union SIPTU, while not the employer in this case, is covered by the Act, by virtue of section 13:
A body which -
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
Section 6(1)(g) of the Act provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability.
It is not disputed that the Complainant’s illness constituted a disability as that term is defined by section 2 of the Act.
Burden of Proof
The Labour Court has held in the past that in cases of discrimination the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. If that burden is discharged the probative burden of establishing that the principle of equal treatment was not infringed in relation to the Complainant shifts to the Respondent.
The onus is therefore on the Complainant to prove, on the balance of probabilities, that the Respondent treated him less favourably than another person without a disability or with a different disability would be treated.
Documentation was submitted to the Court by the Complainant prior to the hearing. This documentation comprised mostly correspondence between the parties and a list of named Trade Union officials and others. The Labour Court’s procedures require written submissions from both parties prior to the hearing outlining the background and details of the claim. As the Complainant had not submitted information in the required format prior to the hearing, the Court requested it on 2nd April 2007, the day prior to the hearing and he supplied further documentation to the Court on the day of the hearing.
Jurisdiction of the Court
At the outset of the hearing, the Court clarified the procedures for the parties and explained that in order for the Court to have jurisdiction to hear the case under the Acts, it was firstly necessary to examine allegations of discrimination which fall within the timeframe provided under section 77(5) before proceeding to deal with other allegations. As his complaint under the Act was registered with the Equality Tribunal on 24th August 2004, the relevant timeframe was the period between 24th February and 24th August 2004.
Findings of the Court
The Court having carefully considered both the written and oral submissions of the parties and the sworn evidence given to the Court by the Complainant and the Vice President of the Respondent, the Court has made the following findings:
There is no dispute between the parties that the Complainant’s membership of the Union ceased in 2001/2002 and that he subsequently sought to rejoin the Union.
The Union stated to the Court that it was unaware of the precise nature of his disability. The Court notes that in his letter to the official in charge of the Union’s Bullying Response Unit dated 28th July 2004 the Complainant informed the Union that he was “classified as an invalid”; that he wished to rejoin the Union and that the President of the Health Services Branch had discriminated against him on the grounds of his disability. He states that he was “isolated and vulnerable”.
In his Claim Form to the Equality Tribunal, the Complainant specifies"the mos recent occurence of discrimination"occurred on 12th August 2004. On that date the Vice President of SIPTU wrote to him in response to his letters to the official in charge of the Union’s Bullying Response Unit and to the General President of SIPTU. The Complainant explained to the Court that he considered this letter to be discriminatory toward him; he found it offensive and threatening.
The Court hereby quotes the full contents of that letter:
12th August 2004
I refer to your letter of 28th July to[the official in charge of the Bullying Unit]and your letter to the General President of SIPTU.
You have already received a note from[the General President]advising you that you resigned your membership of SIPTU and that the matter was now closed. This continues to be the case.
Your letter to[the official in charge of the Bullying Unit]contains errors that I wish to correct.
For the record I wish to remind you that I met you in my office[Confirmed at Court hearing as 12th August 2003]and advised you how to go about applying for membership of the Union. I advised you that you could appeal any branch decision to the NEC through the General Secretary. In light of this it is surprising that you have now ignored this advice and reverted to attacking[the President of the Health Services Branch]and[the Secretary of the Health Services Branch]. If you wish to progress an application for membership you should proceed in the manner set out in the rule book as explained to you when I met you.
You allege that[President of the Health Service Branch]has discriminated against you on the grounds that you are disabled. I totally refute this. Indeed the only time you have raised disability in your dealings with the Union is in your current letter.
You are now advised that we will vigorously defend the union and its activists and staff against this unfounded and unjust allegation either directly with you or in any Court to which the matter is referred.
The position as far as the Union is concerned is that you resigned your employment in St. Mary’s Hospital and you are now no longer a member of the Union. If you wish to join the procedure has been set out to you by me and you are invited to follow it as set out in the rulebook.
Finally I am advised that you indicated that another person, known to you, intends taking a case against the union on Race grounds.
Again for the record I wish to advise you that we totally reject this allegation and will defend the union and its activists and staff against it in whatever court it is referred to.
I trust this clarifies the matter. It is not our intention to enter into a long exchange of correspondence on this issue.
Having examined the contents of the letter and based on the witness testimony given at the hearing, the Court is satisfied that at a meeting held on 12th August 2003, the Vice President made it clear that if he wished to rejoin the Union then he should abide by the normal procedures and complete an Application Form. The Vice President told the Court that he ensured that the relevant Application Form and a copy of the Rule Book were supplied to him, however, he did not complete the Form on this occasion nor at any time since he resigned from the Union. No evidence was produced before the Court to show that the Application Form had been completed.
The procedures for joining the Union were outlined for the Court as follows:
- A person is required to complete an Application Form which is then sent to the Authorised Officer or Branch Committee for approval and the person is then accepted into membership or otherwise as the case may be. If the application is refused, the person may appeal that decision to the National Executive Committee of the Union. The procedures are no different for persons who have previously resigned from the Union.
In his witness testimony the Complainant told the Court that he had difficulty in recalling whether he filled in an Application Form at the time of the meeting in mid August 2003 with the Vice President. By contrast, the Vice President was clear in his testimony that he had instructed his secretary to supply the Complainant with the necessary Application Form and Rule Book of the Union and he advised the Complainant to complete it. Furthermore, the Union stated that the completion of an Application Form is taken very seriously and is now a strict requirement since the findings by the Supreme Court in theNolan Transportcase.
The Court questioned the Complainant concerning his assertion that there was a causal connection between the alleged discrimination and his disability. He could not provide any evidence to show that there was any connection/link. The Union’s witness submitted to the Court that the Union does not discriminate against people with disabilities, it does not seek details of disabilities in its Application Form and that it had between 200,000 and 250,000 members, many of whom have disabilities.
The Complainant states in the letter dated 28th July 2004 to the official in charge of the Union’s Bullying Response Unit that it appears that the President of SIPTU Health Services Branch was unwilling to respond to his request for membership and that that official had discriminated against him on the ground of his disability. However, the Court is satisfied that the Complainant made no application to the President of SIPTU Health Services Branch to join the Union at that time.
The General President of the Union advised the Complainant in his letter dated 17th February 2004 that:
- “ I am satisfied that you resigned your post in St. Mary’s Hospital and your membership of the Branch some time ago. I am also satisfied that you took this action of your own violation.
The Union has no further role to play in this matter and as you are no longer a member, I will have no further contact with you regarding this issue.
I now consider the matter closed and am advising all members of staff accordingly.”
In a letter to the Equality Officer, dated 3rd May 2006, SIPTU explained that the Complainant applied to join the Cavan Branch of the Union when he secured employment in that area in October 2004. He was accepted into membership but rejected the offer. Furthermore, SIPTU explained that the Complainant had never been employed by the Union.
It is clear to the Court that while the Complainant and the Respondent have had a number of difficulties and clashes over the years, however, the Court is satisfied that the Union did not apply different rules to the Complainant nor treat him less favourably than others due to his disability.
Having examined the facts of this case, the Court finds that:
- there is nothing in the contents of the 12th August 2004 letter which gives rise to any inference of discrimination on the ground of the Complainant’s disability; on the contrary, the letter clearly refers to attempts made by the Union to assist him in his application to join the Union;
- there is a direct conflict of evidence in relation to the question of whether an Application Form was completed in August 2003. The Court is satisfied that there is no evidence to show that the Complainant completed the form, nor is there evidence to show that he was refused membership at that time or at a later time;
- the Complainant’s contention that his disability was linked with the failure of the Respondent to accept him into membership or to provide him with appropriate representation has not been made out;
- there are no grounds to substantiate an allegation of discrimination during the six-month timeframe specified above.
Based on these conclusions the Court concurs with the Equality Officer's findings that the Complainant has failed to establish aprima faciecase of discrimination on the disability ground in terms of section 6(2)(g) and contrary to Section 13 of the Employment Equality Act, 1998 in relation to membership of the Union and therefore it was not necessary for the Court to hear witness testimony from any other nominated witnesses.
The Court finds that the Complainant was not discriminated against within the meaning of the Employment Equality Acts, 1998 and 2004 and the complaint herein is dismissedand the Decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
21st May 2007______________________
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.