The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-098
(Represented by Carley & Connellan Solicitors)
Dublin City Council
(Represented by John P. Kehoe B.L. instructed by Legal Department, Dublin City Council)
File reference: EE/2010/890
Date of issue: 16 August 2013
HEADNOTES: Employment Equality Acts - Sections 6, 8 and 16 - Age & Race - Promotion - Training - Harassment - Victimisation - Time Limits
1.1 This dispute concerns a claim by Mr Albert Murtagh that he was discriminated against by Dublin City Council on the grounds of age and race contrary to section 6 (2) of the Employment Equality Acts in relation to promotion and training in terms of sections 8 of the Acts, that he was harassed in accordance with section 14A of the Acts and that that he was victimised in accordance with section 74 (2) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 30 November 2010 under the Employment Equality Acts. On 21 January 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 26 March 2013.
2. COMPLAINANT'S WRITTEN SUBMISSION
2.1 The complainant started working for the respondent in on 4 June 2007 as a General Operative driver in the Public Lights section. Three others were recruited at the same time. For the following 12 months he submits that he was bullied by his foreman (Mr A). He was asked to carry out menial tasks in the depot, such as washing floors and cleaning toilets much more often than the other three recruited at the same time. There were other occasions when the complainant submits he was bullied by Mr A. These included an occasion when he pointed out defects in the driver's seat and seatbelt and Mr A told him in the presence of co-workers that he 'could go back to his wheelbarrow' if he wanted. Also, on 23 April 2008 he slipped on oil and cracked 3 ribs, he got a note form the doctor regarding light duties which Mr A threw in the bin.
2.2 In June 2009 he injured his leg while working in the depot and on 12 June he became aware that it was infected so he went to the doctor. Whilst waiting to see the doctor he got three calls from the stand-in Transport Manager Mr B (under instruction from the Inspector, Mr C) saying he was needed on a job. He was certified unfit to work but was told to go to the transport office and was then asked where he had been.
2.3 In or around August/September 2008 the respondent advertised for a charge-hand ganger. The complainant submits that he put in a request to another inspector (Mr D) to be put forward for interview. Mr D refused to take the letter on three occasions and said he had been told that the complainant was not suitable. One of those who started at the same time as the complainant was allowed to apply even though he only had a B driving licence and the advert stated a C licence was required.
2.4 On 25 September 2008 the complainant wrote a 'near miss' report regarding a health & safety issue about an electrician (Mr E). On 27 September he was told by a group of co-workers that Mr E had been stopped pay and he was a 'rat'. Mr E was issued with a verbal warning over the incident reported by the complainant. The complainant was told he would not have to work with Mr E anymore but for 18 months Mr C continually asked him to work with Mr E. When this happened again in May 2010 the complainant refused and he was put to work with another electrician. On his return he was asked to see senior electrician inspector (Mr F) who told him that Mr C had asked him to get him to drive Mr E. In a disciplinary meeting on 24 May 2010 with Mr F the complainant referred to the 'near miss' report but Mr F said he had no recollection of the report. The complainant submits he was victimised as a result of making the 'near miss' report.
2.5 In May 2010 an anonymous letter was sent to head office and this resulted in the complainant being ostracised by co-workers and threats were made against the sender of the anonymous letter. Another anonymous letter was posted in the drivers' room and some of his co-workers said that anyone who informed on a fellow worker was a 'rat'. Two days later he was approached by a co-worker and told to back off and leave Mr C alone. The complainant submits he had nothing to do with the anonymous letters and was not working for the respondent at the time of some of the incidents referred to in the letters. The complainant found the situation difficult and went to his doctor who certified him as unfit to work due to work related stress.
2.6 The complainant submits that he suffered this discriminatory behaviour because he is comparatively older than some of his co-workers and was perceived to be English because of his distinctive English accent.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent submits that the complainant's submissions have not established a prima facie case of discrimination on the cited grounds and therefore there is no need for them to rebut the claims made by the complainant. They contend that the complainant has not adduced any primary facts of sufficient significance to raise a presumption of discrimination. Furthermore, they submit that he has given no evidence on the grounds of age and/or race.
3.2 The respondent further denies all the allegations of discrimination. The respondent also submits that they have an appropriate complaints procedure which the complainant did not use.
3.3 The respondent submits the complainant could have used their internal complaints procedure. He had not exhausted internal procedures and therefore this complaint is not properly before the Equality Tribunal.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was discriminated against in relation to promotion and training, if he was harassed and victimised on the grounds of age and race. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 Section 85A (1) of the Employment Equality Acts states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. In this case the complainant has given evidence of a number of incidents which he contends amount to discrimination and occurred because of his age and race.
4.3 The claim in relation to promotion relates to the complainant's contention that he was not allowed to submit an application for a promotion opportunity in August/September 2008 and that the manager (Mr D) who refused his application said he had been told the complainant was not suitable. He further contends that the three people who started with him were subsequently promoted, whilst he was never promoted. He claims this was because of his age, as all three were at least ten years younger than he is. Mr D did not give evidence at the hearing. Mr A stated that he was unaware of the complainant's claim that he was not allowed to apply for a position until he made this claim to the Equality Tribunal. The respondent did confirm that the three who started at the same time as the complainant were subsequently promoted. They also stated that they were not aware that the complainant had applied for any of the subsequent positions.
4.4 As this claim was made on 30 November 2010 I must consider is that of time limits. Section 77 (5) (a) of the Employment Equality Acts, 1998 - 2007 states:
"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 occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence."
It is possible to refer to a number of events in the same claim of which only the most recent is within the six month time frame where it can be shown that the events create a chain of related events. This period may be extended to twelve months if there is reasonable cause for a delay in submitting a claim.
4.5 The initial competition referred to by the complainant was in August/September 2008 and he refers to the three other people who started at the same time being promoted subsequently. The respondent has no record of the complainant applying for subsequent promotion competitions. Furthermore, the complainant gave no evidence of when these competitions took place or whether he did apply. Accordingly I can find no link between the competition in 2008 and any subsequent event in relation to promotion. I therefore conclude that the allegations in respect of the promotion competition in August/September 2008 occurred at least two years before this claim was made and are therefore out of time.
4.5 The complainant adduced no evidence in relation to his claim in relation to training. I therefore find that he has failed to establish a prima facie claim of discrimination in relation to training.
4.6 The complainant alleges he was harassed and harassment is defined by section 14A (7) of the Acts which states:
"references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ....
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".
4.10 The complainant's contention is that he was harassed, firstly by his foreman (Mr A) in relation to the allocation of tasks in the yard after he started working for the respondent in June 2007 for a period of one year, secondly after he submitted a near miss report about Mr E in September 2008 and thirdly after the respondent received an anonymous letter in May 2010.
4.11 As this claim was made on 30 November 2010 I must consider is that of time limits. From the complainant's own evidence I can find no link between the alleged actions of Mr A to any further incidents. I therefore conclude that the allegations in respect of the allocation of tasks in the yard from June 2007 to June 2008 occurred at least two years before this claim was made and are therefore out of time.
4.12 The complainant also alleges he was harassed after he made a near miss report in September 2008 and he recounted a number of incidents up to a disciplinary meeting on 24 May 2010. Later incidents have regard to an anonymous letter but from the evidence presented I can find no link between these events. I therefore consider that the allegations of harassment arising from the near miss report are outside of the six month time limit and no reason to extend the time limit was given. I therefore conclude that these allegations are out of time.
4.13 The complainant related that he was ostracised by fellow workers when an anonymous letter was sent to the respondent in May 2010. The complainant alleges that a further anonymous letter was posted on a notice board in the driver's room and this led to further hostility and harassment which he found stressful and led to absence from work. Section 6(1) of the Employment Equality Acts provides that 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).....". In this claim the ground is age and race, however I can find nothing in the evidence adduced to link any of the incidents to either of the grounds. Accordingly, I conclude that the complainant has failed to establish a prima facie case of discrimination in relation to harassment.
4.14 Section 74 (2) of the Employment Equality Acts states: "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 or the Equal Status Act 2000 or 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 such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."
The complainant made a complainant to the respondent in June 2010 in which he referred to his accent and that his treatment was related to his imputed race. However, the complainant adduced no evidence of adverse treatment subsequent to the submission of this complaint. I therefore conclude that the complainant is unable to establish a prima facie case of victimisation.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of discrimination on the basis of the age and race ground in relation to:
- harassment and
and the complaint fails.
16 August 2013