ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008405
Parties:
| Complainant | Respondent |
Anonymised Parties | A temporary clerical officer | A government department |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011442-001 | 19/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011442-002 | 19/05/2017 |
Date of Adjudication Hearing: 22/11/2017
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969, these complaints were assigned to me by the Director General. I conducted a hearing on November 22nd 2017 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant attended the hearing without representation and was not accompanied. For the respondent, in addition to their counsel, a solicitor from the Chief State Solicitor’s Office and three senior members of the HR team attended.
Background:
The complainant worked as a clerical officer from August 2nd 2016 until January 27th 2017. He was employed on a temporary fixed-term contract and his employment ended on the expiry of the fixed-term. Around two months before his contract was due to expire, the complainant’s manager initiated a disciplinary investigation into his conduct and he attended two disciplinary meetings. In the end, no sanctions were issued. In seeking to discipline him, and in considering the termination of his employment before the expiry of the fixed-term, the complainant argues that his former employer discriminated against him on the grounds of disability. In this respect, he has brought a complaint under section 77 of the Employment Equality Act 1998. He also claims that the disciplinary investigation was not in accordance with fair procedures and the principles of natural justice. This is the basis of a complaint under section 13 of the Industrial Relations Act 1969. These complaints were submitted to the WRC on May 19th 2017. On October 31st, the complainant sent a letter requesting submission of a new complaint under the Protection of Employees (Fixed-term Work) Act 2003. This relates to his employer’s consideration of his dismissal in the context of his status as a fixed-term worker and the manner in which the disciplinary procedure was used to investigate his conduct. Section 41(8) of the Workplace Relations Act 2015 provides that: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than six months after such expiration) as the case may be, if he or she is satisfied that the failure to present the case or refer the dispute within that period was due to reasonable cause.” In defence of his late submission of this complaint, the complainant said, “I was not aware of the implications at the time of submission.” The complainant is a member of a trade union and, at the time of the issues complained of, he was represented by his trade union. On the basis that professional advice was available to him, lack of awareness of the law does not justify the late submission of a complaint. For this reason, I have decided not to accept this late complaint under the Protection of Employees (Fixed-term Work) Act 2003. |
CA-00011442-001
Complaint under Section 77 of the Employment Equality Act 1998
Summary of Complainant’s Case:
The Complaint of Discrimination In his submission to the WRC, the complainant states: “I believe I was discriminated against under the Employment Equality Acts 1998 - 2015 by my former employer, (name of the respondent) whose HR Division sought to dismiss me in November / December 2016, partly on the grounds that I had taken two days of stress-related sick leave, which were necessary in light of a long-term health condition I have, as being unable to avoid and recover from stress would have likely had an aggravating effect on this condition. “Due to medical confidentiality, I would prefer not to have to go into the medical condition in detail, but I would be able to obtain medical testimony that I do have a long-term health condition which required the two days' sick leave.” A letter from the complainant’s doctor dated July 27th 2017 was submitted with his complaint. The letter states: “(Name) is receiving treatment for a medical condition, the symptoms of which are exacerbated by stress.” Chronology of Events in the Workplace On November 21st, the complainant was transferred from the section he had worked in since he joined the department to a section he described as “widely known for its issues.” He was absent from work on November 24th and 25th 2016. An e mail dated November 24th from his manager to another member of staff confirmed that he phoned his manager and said that he was taking “today and maybe tomorrow as stress leave.” A medical certificate dated November 30th states that the complainant was “unfit for work from 24/11/16 until 25/11/16 due to stress related illness.” On his return from sick leave, the complainant filled in an on-line “Resumption of Work Form,” confirming the dates of his absence and the fact that he was on self-certified sick leave. He selected the code “UND” which stands for “undisclosed,” to explain the reason for his absence. On November 28th 2016, the complainant received an invitation by e mail to attend a meeting the following day with the respondent’s head of strategic HR. The e mail opens as follows: “Dear Mr X, I am writing to you in relation to your employment in this Department. As a result of a number of issues being reported to Human Resources, (name of HR manager) is considering terminating your contract.” Further on, the e mail sets out the reasons why the respondent reached this consideration: “You did not perform the tasks assigned to you by your line manager; You behaved in an unacceptable and inappropriate manner in your interaction with your line manager; You were unwilling to take direction from your line manager or respond to reasonable supervision in relation to grade-appropriate tasks assigned to you; You persisted in using earphones to listen to music at your desk despite being asked to cease this practice on a number of occasions by your line manager; You absented yourself from the workplace citing stress.” Having received advice from his union representative, the meeting scheduled for November 29th was postponed until December 1st. The note of the meeting shows that there was a discussion about the application of the new Civil Service Disciplinary Code to employees on fixed-term contracts. The note also states that the manager “wishes to use the meeting to give (the complainant) a chance to respond now. A full investigation would take us to the end of the contract.” The meeting concluded with an agreement to adjourn to clarify how the disciplinary code applies to fixed-term contracts. After he left the department in January 2017, the complainant submitted a request under the Freedom of Information Act and was provided with a draft letter dated November 30th 2016 from the head of strategic HR. This letter, which was not sent, refers to “serious concerns regarding your suitability for the role of clerical officer in the Civil Service” and sets out the list of reasons given in the e mail of November 28th. The letter concludes with the issuing of two weeks’ notice of the termination of the complainant’s employment, effective from December 13th 2016. The complainant’s employment was not terminated on that date because his contract was due to terminate on January 27th 2017 and the managers dealing with this matter decided that, by the time the disciplinary process would have concluded, the contract would have come to an end. Arguments in Support of the Complaint of Discrimination The complainant argues that as he phoned his manager on the first day of absence and submitted a medical certificate from his doctor explaining the reason why; and, as he completed the “Resumption of Work Form,” he complied with the Circular on Absence Management issued by the Department of Public Expenditure and Reform (DPER). In his submission, he states: “The letter from my GP confirms that I have a health condition that can be exacerbated by stress. Please note that for reasons of medical confidentiality, I am not prepared to discuss this in further detail. “HR would have been informed of this, but had no problem adding my stress leave to the charge sheet, without enquiring as to whether there was any further condition that made it essential that I take stress-related leave.” The complainant’s argument is, that by intending to dismiss him on November 30th 2016, and by including in the list of reasons for dismissing him the fact that he was absent for two days due to stress, he has been discriminated against on the grounds of his disability. |
Summary of Respondent’s Case:
The respondent’s position is that the complainant has not disclosed the nature of his medical complaint and the HR managers dealing with his conduct were not aware that he suffered from any medical condition. At the commencement of his employment, he completed a health declaration form in which he confirmed that he had no medical conditions. The respondent argues that the complaint form submitted by the complainant does not identify the manner in which the Employment Equality Act 1998 – 2015 was breached. The form does not allege that he was discriminated against in relation to getting a job, being promoted, the provision of training, victimisation, provision of reasonable accommodation, or in respect of his conditions of employment. Also, he does not allege that he was discriminated against by being dismissed or that he was subject to harassment or sexual harassment. Instead, he has selected “other” in the section of the form under which the basis of a complaint is set out. No further explanation is provided and the complainant has not established the legal basis upon which it is alleged that he was discriminated against. The respondent went on to argue that the complainant did not provide a comparator for the purposes of the 1998 Act and has not identified the less favourable treatment that he has been subjected to, within the meaning of section 6 of the Act. It is the respondent’s position that no discriminatory actions were taken and the department did not seek to dismiss the complainant for any reasons related to his medical condition or because he was absent on stress leave. A disciplinary investigation commenced due to issues arising from the complainant’s conduct but the process did not conclude and no findings were made against him. In these circumstances, the respondent’s position is that the complainant has not established that he was treated in a different manner to someone who does not have a disability and a complaint under the 1998 Act cannot be established. |
Findings and Conclusions:
Relevant Law Section 8 of the Employment Equality Act 1998 prohibits discrimination in the workplace in respect of access to employment, conditions of employment, training, promotion, re-grading or classification of posts. It is accepted that the requirement to not discriminate by restricting “access to employment” includes the requirement to not dismiss an employee because they belong to one of the nine grounds set out in section 6 of the Act. This section provides that: “(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2)…..one person is treated less favourably than another is, has been or would be treated. (2) As between any two persons, the discriminatory grounds …. are – (g) that one is a person with a disability and the other is not or is a person with a different disability…” Findings In discrimination cases, complainants may have little or no direct evidence of discrimination. Recognising this difficulty, EU legislation has adopted a burden of proof which requires a complainant to set out the facts from which it may be presumed that discrimination has taken place, known as “prima facie” evidence. Section 85A of the Employment Equality Act 1998 – 2015 transposes into Irish law Article 19(1) of the EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (the Recast Directive). Subsection 1 of section 85A 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.” The complainant alleges that he has been discriminated against on the grounds of his disability. He has not said what disability he suffers from and, on commencement of his employment, he stated that he had no medical conditions. In his submission, he states that “The letter from my GP confirms that I have a health condition that can be exacerbated by stress. “HR would have been informed of this, but had no problem adding my stress leave to the charge sheet, without enquiring as to whether there was any further condition that made it essential that I take stress-related leave.” The complainant was absent was absent from work on November 24th and 25th 2016. He submitted a medical cert on November 30th in which his doctor stated that his absence was “due to stress related illness.” This is the entirety of the information available to the respondent about his medical condition. It is not reasonable therefore to argue that, when he was invited to a disciplinary meeting on November 28th, the employer was on notice of his medical condition. In November 2016, consideration was given to terminating the complainant’s employment for four reasons related to his conduct and for one reason related to the fact that he was absent for two days due to stress. The complainant has failed to establish any connection between his absence due to stress and discriminatory treatment by his former employer. The questions that must be answered to establish this complaint are: 1. What is the discriminatory action? 2. What is the disability being discriminated against? 3. Who is the person or persons who do not have this disability who can be cited as comparators and who have not been discriminated against in the way the complainant alleges he has been discriminated against? None of these questions have been answered. From the evidence presented at the hearing, the complainant’s dismissal was contemplated due to conduct that raised concerns about his suitability for the role. One element of this concern was the fact that he went absent due to stress three days after he was transferred to a section of the department which, he claims was “widely known for its issues.” Conclusion It is my view that, the statement, “You absented yourself from the workplace citing stress” in the letter of November 28th and the consideration by the HR manager to dismiss the complainant as set out in her unsent letter of November 30th, are not facts from which it may be presumed that discrimination has taken place. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complainant has not met the burden of proof which demonstrates the basic facts from which it may be presumed that discrimination has taken place. Therefore, this complaint fails. |
CA-00011442-002
Complaint under Section 13, Industrial Relations Act 1969
Summary of Complainant’s Case:
The complainant alleges that, in the way the department sought to apply the disciplinary code to him, fair procedures and the principles of natural justice were not followed. On November 21st 2016, due to an increased workload in a section of the department, the complainant was moved to the busier section. He said that he was accustomed to listening to the radio while doing “backroom clerical work” and that he was reprimanded for doing so by the manager in the section. He said that he asked this manager “who was behind this policy” and that she became angry and left the room. He said that when she returned, they had an argument about the issue. On November 28th, the complainant received an e mail inviting him to a meeting with the head of strategic HR, referred to in the previous section under the hearing of the complaint of discrimination. For ease of reference, I will repeat the list of issues referred to in the e mail: “You did not perform the tasks assigned to you by your line manager; You behaved in an unacceptable and inappropriate manner in your interaction with your line manager; You were unwilling to take direction from your line manager or respond to reasonable supervision in relation to grade-appropriate tasks assigned to you; You persisted in using earphones to listen to music at your desk despite being asked to cease this practice on a number of occasions by your line manager; You absented yourself from the workplace citing stress.” Following the intervention of the complainant’s trade union representative, the meeting proposed for November 29th was moved to December 1st. This meeting was adjourned to determine if the Civil Service Disciplinary Code applies to fixed-term workers. When it was established that the Code was indeed relevant to the complainant, a meeting took place on December 13th. Following this meeting, a decision was made not to continue with the disciplinary process as the complainant’s contract was due to end on January 27th 2017. |
Summary of Respondent’s Case:
At the hearing of this complaint, the respondent argued that the complaint falls outside the jurisdiction of the adjudicator under section 13 of the Industrial Relations Act 1969 as the complainant is not a “worker” within the meaning of the Act. The respondent further argues that there is no trade dispute between the parties with the consequence that the jurisdiction contained in section 13 of the 1969 Act cannot be invoked. For the purposes of the 1969 Act, worker is defined by section 23(1) of the Industrial Relations Act 1990 (amended) as: “In the Industrial Relations Act 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under a contract with an employer, whether that contract be for manual labour, clerical work or otherwise, whether it be express or implied, oral or in writing and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour, including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include – (a) a person who is employed by or under the state, (b) a teacher in a secondary school, (c) a teacher in a national school, (d) an officer of a local authority, (e) an officer of a vocational education committee, or (f) an officer of a school attendance committee.” As the complainant was employed by the State as a clerical officer, the respondent argues that he is excluded by virtue of section (a) above. While there is provision under section 23(3)(a) of the 1990 Act for the Minister for Finance to designate certain persons employed by the State as “workers,” temporary clerical officers are not the subject of any such designation. In this regard, reference was made to ADJ 00005851, An Assistant Auditor v a Government Body, as a case where the adjudicator dismissed the complaint as the complainant was employed by the State. |
Findings and Conclusions:
To adjudicate on a complaint under section 13 of the Industrial Relations Act 1969, I must be satisfied that the complainant is a “worker” in accordance with the definition set out at section 23(1) of the Industrial Relations Act 1990. The complainant’s status as a temporary clerical worker means that he was employed by the State and therefore, he must be included in the list of persons not defined as a “worker” in the Act. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
On the basis of the submission made by the respondent, and having considered the provisions of the Industrial Relations Acts, I have decided that I have no jurisdiction to hear this complaint. |
Dated: 09 April 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Discrimination, definition of a worker |