INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008
DEPARTMENT OF DEFENCE
(REPRESENTED BY ROSEMARY MALLON B.L. AS INSTRUCTED BY CHIEF STATE SOLICITORS OFFICE)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Appeal under Section 83 Of The Employment Equality Acts, 1998 To 2007.
2. Both parties appealed the Equality Officer's decision to the Labour Court; the Department on the 25th July, 2010, and the worker on the 6th August, 2010. A Labour Court hearing took place on the 14th September, 2010. The following is the Court's determination:
This is an appeal by the Department of Defence and a cross appeal by Mr Tom Barrett against the decision of the Equality Tribunal in a claim of victimisation taken by Mr Barrett under the Employment Equality Acts 1998 to 2008 (the Acts). The parties are referred to in this Determination, as they were at first instance, using the designation prescribed by s.77(4) of the Acts. Hence, the Department of Defence is referred to as the Respondent and Mr Barrett is referred to as the Complainant.
The Complainant contends that he was subjected to adverse treatment in the form of being denied meaningful work, and in being subjected to an unfair disciplinary process, for having made complaints of unlawful discrimination on grounds of religion under the Acts. The Equality Tribunal upheld the Complainant’s complaint. The Equality Officer awarded the Complainant compensation in the amount of €40,000 and made ancillary orders. The Respondent appealed against the whole of the Equality Officer’s decision. The Complainant appealed against the quantum of compensation awarded by the Equality Tribunal.
On 18th August, 2005, the Complainant referred a complaint of discrimination on grounds of religion, and a complaint of victimisation, to the Equality Tribunal pursuant to s.77(1) of the Acts.
By a decision dated 19th October, 2007, the Director of the Equality Tribunal, pursuant to her powers under s.77A of the Acts, dismissed the complaint of discrimination on grounds of religion as misconceived in law. The Director further directed that the claim of victimisation should proceed to a full investigation. The Directors decision was in the following terms: -
- “ I find that the complainant has not stated a case for less favourable treatment on grounds of having a different religion from another or of having no religion pursuant to Sections 6(1) and 6(2) of the Acts, and that therefore the Tribunal has no jurisdiction to investigate the incidents that form the bulk of his complaint.
Accordingly, I dismiss the complaint as misconceived under s.77A of eh Employment Equality Acts 1998-2007.
I do find, however, that the complainant states a valid case for victimisation pursuant to s.74(2)(a) of the Acts in relation to the allegation of not being given meaningful work that corresponds to his grade and experience following the lodging of the above complaint.
I therefore delegate this part of the complaint back to the Equality Officer for investigation and decision”
Position of the parties
The Respondent denies that the Complainant was subjected to adverse treatment as alleged or at all. Without prejudice to its contention in that regard the Respondent claims that the alleged adverse treatment of which the Complainant complains commenced before he referred his complaint of discrimination to the Equality Tribunal and could not be regarded as a reaction to that complaint. The Respondent further contends that in so far as the Equality Officer considered occurrences which predated the reference to the Equality Tribunal of the complaint of discrimination, he acted outside the scope of the enquiry authorised by the Director in her decision of 19th October 2007 and therefore without jurisdiction. It was submitted that this Court is similarly circumscribed in this appeal.
The Respondent accepts that the Complainant made complaints of bullying in or about 2003. It submitted, however, that these complaints could not be construed as complaints of discrimination within the statutory meaning. It was further submitted that any adverse treatment of the Complainant (which was denied) that may have flowed from the complaints of bullying could not, as a matter of law, ground a claim of victimisation.
With regard to the alleged adverse treatment of which the Complainant complains, namely the alleged failure of the Respondent to provided him with meaningful work, it is the Respondent position that the situation giving rise to these claims is entirely of the Complainant’s own making.
The Complainant contends that he was isolated and victimised because he complained of being discriminated against, and by refusing to accept what he described as ‘harassment, bullying, victimisation, scapegoating and white walling’. He said that this arose because of his refusal to discriminate against others through showing favouritism to a small cadre of departmental staff as against all others.
The Complainant told the Court that he is a humanist and that the adverse treatment of which he complained arose from his beliefs, his ethics, morals and principles which are derived from his humanistic belief system.
The Complainant contends that the award made by the Equality Officer is inadequate and ought to be increased.
Conclusions of the Court
The Court first considered if the Complainant’s claim of victimisation is sustainable having regard to the provisions of the Acts. Section 74(2) of the Acts defines victimisation as follows: -
- “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
- (a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
- (c) an employee having represented or otherwise supported a complainant,
- (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
- (e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,
- (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
- (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -
1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.
What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above).
The victimisation complained of
In identifying a protected act for the purpose of advancing his claim of victimisation the Complainant contends that he made a complaint of discrimination on grounds of religion at various dates which were set out in writing in a memorandum to his Manager dated 11th January, 2003. When asked by the Court to particularise the nature of the complaint the Complainant stated that he has objected to the saying of Mass on the Departments premises. He also stated that he objected to the making of a presentation to an Army Chaplin on the occasion of his appointment as a Bishop.
In the Court’s view those complaints cannot be classified as ones of discrimination under the Acts, so as to come within the ambit of s.74(2)(a) -( acomplaint of discrimination made by the employee to the employer)
Discrimination is defined at s.6(1) of the Acts as follows: -
- 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
In order to come within this definition the conduct complained of must involve the process or manner of treating the Complainant which is less favourable than the process or manner in which some other person, not having the protected characteristic, is was or would be treated.
Furthermore, the complaints relied upon cannot come within the ambit of paragraph (f) of subsection (2) - (an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment)-since what was complained of was not unlawful under the Acts.
It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts.
In the instant case the Complainant complained about the Department facilitating the celebration of a Mass for those who wished to attend it. The Complainant was not expected to have any involvement in organising the Mass nor did it affect him in any way whatsoever. Moreover, his objection to the provision of facilities for this purpose were not based on any alleged discrimination against him. Rather, he expressly stated that his objections were grounded in his belief that the Respondent was acting contrary to a constitutions imperative in endowing a particular religion. The Complainant further complained that public funds were made available to make a presentation to a Chaplin. Again this had no affect whatsoever on the Complainant and cannot relate to his treatment by the Respondent.
In the Court’s view, even by imputing the most expansive meaning possible to the subsection, the complaints made by the Complainant could not come within the intendment of s.74(2) of the Acts. Accordingly, the conduct of which the Complainant complains, even if it were a reaction to those complaints, (and the Court makes no such finding) could not amount to victimisation within the statutory meaning.
Finally, the Court notes that in the course of the hearing the Complainant contended that in or about 2006 responsibility for the taking of minutes at meetings relating to a particular project was withdrawn from him. He claimed that this was a reaction to his complaint of discrimination made to the Equality Tribunal in August 2005. He claimed that this was further victimisation.
The complaint of victimisation was made concurrent with the claim of discrimination, which was lodged with the Equality Tribunal on 17th August, 2005. The Court cannot see how an event which allegedly occurred some 12 months later could be encompassed by that claim. Moreover, the Complainant did not adduce any evidence on which slightest connection between this occurrence and the initiation of his claim under the Acts could be inferred.
Having so decided it is unnecessary for the Court to consider in detail the submissions made on behalf of the Respondent concerning the effect of the Decision of the Director under s.77A of the on the jurisdiction of the Equality Officer and this Court on appeal. Suffice it to say that the jurisdiction of the Equality Tribunal to investigate a complaint alleging a contravention of the Acts is founded upon the making of a valid complaint and not on a preliminary decision of the tribunal deeming it receivable. That proposition is supported by the decision inAer Lingus v The Labour Court, (Unreported, High Court, 26th February 1988, Carroll J), (Unreported Supreme Court, 20th March 1990). Moreover, it is clear that in advancing a claim under the Acts a complainant is not limited to what is contained in the originating form. This is clear from the recent decision of the High Court inCounty Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J).
However, in light of the primary finding of the Court in relations to the sustainability of the victimisation claim it is unnecessary to deal with this matter further.
For all of the reasons referred to above the Court is satisfied that the within complaint of victimisation is unsustainable in law. According the appeal is allowed. In these circumstances the cross-appeal does not arise for consideration. The decision of the Equality Tribunal is set aside and substituted with a determination that the Complainant was not subjected to victimisation within the meaning of the Acts.
Signed on behalf of the Labour Court
30th September, 2010______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.