EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-066
File reference: EE/2011/009
Date of issue: 8 July 2013
HEADNOTES: Employment Equality Acts - Sections 6 & 13 - Gender.
1.1 This dispute concerns a claim by Ms Patricia Corcoran that she was discriminated against by SIPTU on the grounds of gender contrary to section 6 (2) (a) of the Employment Equality Acts in that she was harassed and victimised in relation to her membership of the respondent contrary to section 13 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 12 January 2011 under the Employment Equality Acts. On 7 February 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, on which date my investigation commenced. Written submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceed to a hearing on 13 June 2013.
2. COMPLAINANT'S SUBMISSION
2.1 The complainant submits that she was seriously assaulted in the course of her work in September 1996. She submitted a long series of incidents from then onwards when she considers she was poorly represented by SIPTU. She also submits that from 2000 onwards she was victimised as a result of complains she made to SIPTU that she was not being represented properly.
2.2 The most recent incidents started on 11 August 2010 when she sent an email to a particular official (Ms A) and after a brief exchange of emails she submits that Ms A failed to respond further and again she alleges she was poorly represented by the respondent.
2.3 The complainant submits that this alleged poor treatment by the respondent amounts to discrimination on the grounds of gender. To substantiate her claim she referred to the better treatment of a male colleague in a different union and the representation given to her husband who is in SIPTU.
3. RESPONDENT'S SUBMISSION
3.1 The respondent submits that the complainant has failed to demonstrate that she was treated any differently on the grounds of her gender.
3.2 They further submit that the complainant cannot be victimised under the Employment Equality Acts as that only applies to employers and they are not the complainant's employer.
3.3 In relation to the events from August 2010 onwards Ms A gave evidence that after the exchange of emails she returned the complainant's telephone call and the complainant indicated she did not want the matter pursued.
4. FINDINGS & CONCLUSION
4.1 The first issue 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 a complaint of a number of events 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. In this case the complainant put forward a series of events from 1998 to 2001, then more incidents in 2005 and 2006 and then in August and September 2010. The complainant contends that all the incidents are linked because they deal with issues of representation by the respondent following the assault at work. However, I find that the long gaps, from 2001 to 2005 and then from 2006 to 2010, break any link that may give rise to an inference of a chain of events. The incidents that arose in 2010 whilst related to the initial assault came from fresh queries raised by the complainant at that time. I therefore find that all incidents referred to before August 2010 are out of time.
4.2 The complainant contends she suffered victimization by the respondent arising from complaints she made in how the respondent dealt with previous incidents. However, section 74 (2) of the Acts states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to .... a complaint of discrimination made by the employee to the employer."
The Labour Court in George Dunbar v ASTI, ADE/09/43 Det. No. EDA1128 looked at this section and the definitions of employee and employer in section 2 of the Acts and concluded: "The combined effect of these provisions is that victimisation occurs where an employee is subjected to dismissal or other adverse treatment by his or her employer. A member of a regulatory body is encompassed by the statutory definition of employee. However, subject to s.2(3) (which is not relevant for present purposes) the definition of an employer is confined to a person for whom an employee works (or has worked) on a contract of employment of employment...... On a plain and ordinary meaning of this section it relates only to dismissal or adverse treatment of an employee by his or her employer. The complainant can have no cause of action against the Respondent on this section."
This conclusion also applies in this claim and I therefore have no jurisdiction to investigate a claim of victimisation.
4.3 The complainant contends she was harassed by the respondent in their treatment of her. However, the complainant's allegations in this claim do not fall within the provisions of section 14A and I therefore have no jurisdiction to investigate a claim of harassment.
4.4 Most claims made under the Employment Equality Acts are made against an employer. However, the respondent in this claim is a Trade Union of which the complainant is a member. As such this claim falls under section 13 of the Employment Equality Acts which states: "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,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation."
SIPTU is an organisation of workers and I am therefore investigating whether the complainant was discriminated against on the grounds of her gender in relation to her membership of the respondent. 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.
4.5 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. Section 6(1) of the Employment Equality Acts, 1998 and 2004 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).....".
This claim is made on the grounds on the grounds of gender. The complainant has cited a male comparator in a similar position who was well represented by a different union. However, in her evidence at the hearing the only example she gave was of the comparator's union taking a claim to the Labour Court even though they knew there was no case. This comparator is a member of a different union and therefore the respondent has no part in their representation and accordingly I find that this comparator is unsuitable. She also cited her husband as a comparator, who is also member of the respondent but in a different sector and branch. She claimed that he received a better level of representation but provided no evidence that this related to either his or her gender.
4.6 This claim was made after the complainant sought assistance from the respondent and was dissatisfied when the respondent failed to reply speedily enough to a third email. She then pursued the matter by phone and contends the respondent failed to respond to a phone call. The respondent contends they did respond to the phone call and the complainant asked them not to pursue the matter. The respondent further contends, very vigorously, that they did not treat the complainant in any way differently than they would have a male member.
4.7 I can find no evidence to show that the complainant was treated any differently because of her gender and conclude that the complainant has failed to establish any primary facts upon which a claim of discrimination could be inferred in relation to her membership of SIPTU.
4.8 From the complainant's evidence the incidents in August and September 2010 were the first contact she had with the respondent for four years. I do not understand why she did not make any effort to resolve this matter internally. The respondent gave direct evidence that they have a mechanism to investigate any claims from members. This would clearly have been a more appropriate method to resolve this matter.
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 demonstrate a prima facie case of discrimination in relation to her membership of the respondent, in accordance with section 13 of the Acts.
8 July 2013