EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-156
(Represented by SIPTU)
Hazelwood Service Station
(Represented by IBEC)
File reference: EE/2014/452
Date of issue: 9 December 2016
This dispute involves a claim by Mr Jason Collier (hereafter “the complainant”) that he was discriminatorily dismissed, by the respondent on grounds of civil status and sexual orientation in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts. The complainant also claims that he was subjected to harassment contrary to section 14A of the Acts and victimisation contrary to section 74 of the Acts.
1.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 20 August 2014. In accordance with his powers under the Acts the Director General of the Workplace Relations Commission delegated the complaint to me – Shay Henry, an Adjudication Officer/Equality Officer on 19th July 2016, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Employment Equality Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 12 October, 2016. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. SUMMARY OF COMPLAINANT’S CASE
2.1 The complainant commenced employment with the respondent company on 23rd September 2013 and remained there until being made redundant in July 2014. The complainant claims that this termination amounts to discriminatory dismissal and that he had experienced discrimination during the course of his employment and prior to his dismissal. The complainant was initially employed on the morning shift starting at 7.30 a.m. and finishing at 4.00 a.m. Monday to Friday. He availed of a lift to work from his supervisor, Mr Karl Logosz who lived close to him. The complainant did not have any conversations with his employer or colleagues regarding his sexual orientation prior to January 2014. On the first week of January he was travelling to work with his supervisor and his upcoming stag and wedding was discussed. The complainant mentioned his partner by name – John – and was queried by the supervisor who stated ‘so you are gay’? The complainant confirmed that he was gay and no further comment or conversation took place.
2.2 Subsequent to this incident the complainant’s conditions of employment changed. He was given extra onerous chores. In addition, his shift was changed from mornings to evenings without notice or reason given. As a consequence of this change in shift he no longer received a lift from his supervisor. After the conversation with his supervisor the complainant’s colleagues were aware of his sexual orientation and his plans to marry his partner. The complainant had not discussed this with his colleagues and they had evidently become aware from another source.
The complainant was harassed in the following ways;
The Manager became very nasty to him, bullied him and was rude to him on a daily basis;
She would not speak to him, ignored him daily, and isolated him from the group;
She made him do work that was not in his contract e.g. weeding outside the garage;
The work he did was never good enough for her;
He was moved to the evening shift and a new member of staff employed on days with the assistant manager as he would not work with the complainant as he was gay;
In the evening shift he was given a list of jobs which sometimes had more than 20 tasks;
The managers gave him dirty looks on a daily basis and also laughed at him behind his back;
Due the bullying and discrimination the complainant’s health suffered, resulting in hospitalisation, and he suffered from depression;
The Manager and Assistant Manager always tried to find fault with his work in a degrading way on the shop floor in a verbally abusive way;
He was made lift heavy objects including bags of coal that he was unable to lift due to health problems.
2.3 The more onerous duties affected the complainant’s health and he was admitted to hospital in February 2014 with a swelling in his leg. On his return to work he was requested to engage in lifting bags of coal and bottles of gas which he found difficult due to his recent hospitalization. He notified the respondent but was informed that he was lifting these before. In addition, he was required to engage in additional duties such as weeding the forecourt. He had to sign off a daily sheet with duties assigned to him.
2.4 In March 2014 the respondent employed a new member of staff who worked full time on the morning shift. The complainant noticed a significant discrepancy between his work load and that of the new employee and notified his supervisor accordingly but no action was taken.
2.5 The complainant had applied for leave from 25th June to 15th July 2014 during which time he was to be married. On 13th July he checked his roster and saw that he was rostered to work the following week. On 14th July he spoke by phone with the shop owner Ms Grainne Davey and was informed that he would be let go due to poor business. About two hours later he was provided with a letter of termination and an outstanding pay cheque. He queried if Andre would also be let go and was informed ‘not yet’. The letter provided a termination date of 14th July, two days before his due date of return.
2.6 The complainant submits that after disclosing the fact that he was gay and to be married he was bullied at work. He was given more onerous tasks and subjected to criticism in relation to his work. He was subjected to dirty looks and being laughed at behind his back. As a result of this harassment his health suffered.
2.7 The complainant was dismissed from his employment during the period in which he was married. This termination was of a summary nature having been decided in his absence. The respondent had employed a temporary worker 6 months after the complainant who appears not to have been considered for redundancy.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent denies that the complainant was subjected to any discriminatory treatment either directly or indirectly. The complainant commenced work with the respondent on 23rd September 2013 as a Sales/Deli Assistant, and was issued with a contract of employment at that time and a copy of the respondent’s handbook which included a Company Grievance Procedure and Bullying and Harassment policy. At interview he was informed that there was a member of staff on maternity leave and that while she was off his shifts would alternate on an ongoing basis from mornings one week to evenings the following week on rotation with another member of staff. This rotating arrangement started on the complainant’s third week of employment. He was informed that his shift would change to all evenings when the other employee returned from maternity leave.
3.2 The respondent and other members of staff were fully aware of the complainant’s sexual orientation from the first day as he had openly told staff.
A month into the complainant’s employment the employee on maternity leave confirmed she would be returning to work on 23rd December 2013 and the respondent informed the complainant that he would be changed to the evening shift as previously agreed. He began working on the evening shift only, from 30th December. During his time on the day shift the Assistant Manager gave the complainant a lift to work as they lived close to one another. When the complainant’s shift changed to all evenings this was no longer possible.
3.3 The employee who had been on maternity leave went on sick leave. The complainant continued to work on the evening shift due to uncertainty as to the duration of the period of sick leave. The General Manger covered her hours until such time as the position could be filled. On 10th March a new employee was contracted on a specified purpose contract to replace the staff member on sick leave. This employee remained in the position until 13th August 2015 until he resigned. The employee on sick leave had not returned at that time. On 14th July 2014 the complainant was informed that his employment was being terminated due to a slow down in business.
3.4 The respondent denies the discrimination claimed. The General Manager had at all times a good working relationship with the complainant and no details as to alleged nasty behaviour have been provided. No issues were raised at any stage under the respondent’s procedures. The General Manager spoke with the complainant on a daily basis and knew in some detail about his wedding arrangements. The General Manager and other members of her family were invited to the wedding reception.
All employees’ duties are as provided in the respondent’s daily/weekly schedule and also the respondent’s Deep Cleaning Schedule. These general duties apply to all and include weeding outside the shop. The complainant’s duties were the same as any other employee on the evening shift and are set out in the documentation referred to above. The complainant never raised an issue about lifting bags of coal. After being on sick leave he was certified as being fit to return. On one occasion when he brought a hot water bottle with him the General Manager informed him that if he required time off for medical reasons she would be happy to allow him such time. The complainant assured her that he was fit to work. The complainant on the one hand argues that the manager continually found fault with his work and on the other hand states that ‘they never had issues with my work’. The facts are that the complainant was a valued employee until such time as it was no longer viable for the respondent to retain him.
3.5 The complainant has stated that the alleged bullying caused him to suffer ill health. He was off sick on two occasions; On the first occasion because of leg pain and on the second occasion because of abdominal pain.
3.6 The complainant submitted his claim on 27 November 2014. Therefore the complaint must relate to alleged instances of discrimination occurring on or after 27 May 2014.
4.1 The substantive issues for decision by me are as follows: (i) whether or not the respondent discriminated against the complainant on the grounds of sexual orientation and or civil status, in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts and (ii) whether or not the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts and (iii) whether or not the respondent subjected the complainant to harassment contrary to section 14A of the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made to me by the parties.
4.1.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
4.2.1 The complainant has alleged various incidents of harassment which occurred after the respondent became aware of his sexual orientation. In particular he states that following a discussion with the Assistant Manager in the first week in January, in which he informed the Assistant Manager of his sexual orientation, that he was transferred to the evening shift. In evidence the complainant was uncertain as to when exactly this conversation took place but thought that it was on the Friday of the first week in January. The respondent has given evidence that the rosters would be prepared on the Wednesday i.e. before the conversation with the Assistant Manager took place. The respondent has provided evidence that the complainant was replacing a member of staff on maternity leave who would normally work the day shift, and that this person had indicated that she would be returning to work on 23rd December. As a consequence the complainant was changed to the evening shift. The respondent has further given evidence that the complainant had previously been informed that this change would take place when the female employee returned from maternity leave. I note also that the complainant’s contract provides for shift work.
4.2.2 The complainant has alleged that the duties he was assigned were more onerous than those assigned to other employees. Duties for all staff varied depending on the tasks required to be performed in each shift and there is no evidence that the complainant was singled out in this regard. The duties are outlined in various documents, including one entitled Deep Cleaning Schedule, which specifically included weeding.
The complainant has not provided any specific instances in support of his general allegations of rudeness on the part of the Manager. Neither has he provided any specifics in relation to alleged continuous fault finding. The respondent on the other hand has submitted evidence of a systematic approach to managing performance of the varied tasks which applied to all employees. I note also that the respondent has various procedures in place to deal with any grievances employees may have in this regard and that the complainant did not seek to use these procedures.
4.2.3 Having regard to the evidence adduced, I am satisfied that the complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment contrary to Section 14A of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.
4.3 DISCRIMINATORY DISMISSAL
4.3.1. The complainant was dismissed without prior notice while on leave related to his marriage to another man. Before getting married and taking the associated leave, he had not been given any indication that his position might not be tenable on economic grounds. I therefore conclude that the facts support a prima facie case of discriminatory dismissal and the burden of proof shifts to the respondent.
4.3.2 The respondent contends that both managers and staff were aware from an early stage of the complainant’s employment of his sexual orientation. According to the complainant the respondent only became aware in January 2014. The respondent has stated that the sole reason for ending the complainant’s employment was due to a downturn in business and, in support of this contention, point out that he was not replaced. The respondent in evidence stated that, while they were aware before his wedding that he would have to be let go, they did not want to upset him at that point in time. I found the respondent’s evidence persuasive in this regard.
4.3.3 The complainant has stated that another member of staff – Mr A - who started after him should have been selected to be made redundant and there is nothing in law to prevent this. Mr A was on a specific purpose contract replacing a member of staff on sick leave – Ms B. In redundancy situations it is the post which is being abolished and, as a consequence, the post holder is dismissed. Mr A was in fact temporarily occupying the post held substantively by Ms B which was not being abolished. It is therefore reasonable that Mr A who was effectively occupying Ms B’s post until she returned, would not be selected for redundancy. I accept that the dismissal was based on the objective grounds of economic performance and conclude therefore that the complainant was not dismissed on the grounds of sexual orientation or civil status.
4.4.1 The next element of the claim that I must decide relates to the complainant’s claim that he was subjected to victimisation contrary to the Employment Equality Acts. “Victimisation” is defined at section 74(2) of the Acts as "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 is 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 Acts 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".
4.4.2 The Labour Court has held in the case of the Department of Foreign Affairs –v- Patricia Cullen that “This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimisation within the statutory meaning”. Therefore, in order for the complainant to establish that he was victimised he has to establish that the adverse treatment he alleges occurred was a reaction to any one of the matters specified from (a) to (g) of section 74(2) of the Acts cited above. The complainant has not advanced any such evidence in this instance and therefore I conclude that he was not victimised within the meaning of the Act.
5.1. I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
the complainant has failed to establish a prima facie case of harassment contrary to Section 14A of the Employment Equality Acts and
the complainant was not dismissed contrary to Section 8(6) of the Acts and
the complainant was not victimised contrary to Section 74) of the Acts.