ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008582
Parties:
| Complainant | Respondent |
Anonymised Parties | A Chef | A Café /Service Station. |
Representatives | Self-Represented | HR Manager |
Complaint(s):
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-00011223-001 | 09/05/2017 |
Date of Adjudication Hearing: 30/01/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
Complaint under the Employment Equality Act, 1998 of Discrimination on Grounds of Gender. |
1: Summary of Complainant’s Case:
The Complainant made an Oral submission. The Complainant (a male) asserted that he had been accused of what was in effect Sexual Harassment of a fellow female staff member. He was never made aware of these issues until he accidentally discovered them. The lady in question never made a formal complaint. A Company investigation took place in response to a complaint he submitted on the 27th March 2017. On the same date, he had submitted his resignation. As no formal complaint was ever made by the Lady in question the Respondent did not take matters any further in relation to a Sexual harassment complaint. However, the entire situation and that incidents surrounding the Complainant at a Christmas Party were being investigated by Management had become widely known in the local community. His good name had been rubbished. What could only be described as a letter of reprimand was issued by the Respondent to the Complainant on the 2nd May 2017. As things stand the Complainant’s Good Name and Character have been seriously maligned without any opportunity for him to clear his name. He was seeking that steps be taken to clear his name. He had been discriminated against in the entire process because he was a Male. |
2: Summary of Respondent’s Case:
The Respondent opened by pointing out that the basic requirement for a Discrimination claim is that the Complainant establish a prima facie inference of discrimination -in this case of Gender Discrimination. The Respondent maintained that this clearly had not happened. The background to the case was that the Complainant had resigned on the 26th of March 2017. In a follow, up meeting with a Manager, Ms XA, he had made as series of allegations regarding matters concerning the Staff Christmas party and in particular why a female colleague had been asked about his behaviour towards her. He maintained that the process of asking the female colleague had resulted in his being slandered and defamed. The Respondent investigated the issue, despite the fact that the Complainant was no longer an employee and found that any a case of Sexual Harassment against the Complainant was not possible. The lady in question did not wish to make a formal complaint and there was insufficient other corroborative evidence. A letter had been issued to the Complainant regarding the Christmas party. However, in no way was the issue or any other actions taken by the Respondents discriminatory on the grounds of Gender as claimed. The lady in question had signed a confidentiality argument post the interview by Management. if the matters were now in the general local community this was something the Respondent could do nothing about. |
3: Findings and Conclusions:
3:1 The Law In a case of Discrimination under the Employment Equality Act, 1998 Section 85(a) – the Burden of Proof section applies. Burden of proof.
85A.—(1) 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. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the F153 [Director General of the Workplace Relations Commission]under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary. (4) In this section ‘discrimination’includes— (a) indirect discrimination, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9applies of a provision which, by virtue of that section, is null and void. (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.
This section has been the subject of numerous references to the Labour Court and indeed the Higher Courts.
The now well accepted legal position is that a discrimination claim has to be based on substantial facts and not on assumptions or assertions. The Complainant must establish that an inference of discrimination exists.
3:2 Consideration of the evidence presented. In the case in hand there was no prima facie evidence presented to ground an inference of discrimination.
The Complainant was highly aggrieved that the matters regarding the Christmas Party and the investigation of alleged misbehaviour had, allegedly, become widely known in the local community. The Respondent had at all times emphasised the need for confidentiality and required the lady in question to sign a formal confidentiality agreement. They could do no more as regards confidentiality.
There was no formal complaint of Sexual Harassment against the Complainant. He had chosen to resign his employment before making his complaint against the Respondent. They had investigated his complaints and communicated their findings to the Complainant by letter of the 2nd May 2017.
Quite clearly the Gender (Male) of the Complainant was not an issue. It would be a major assumption to maintain that a female member of staff would be treated differently in a similar situation. Accordingly, and in summary I find that a prima facie case of discrimination on the Gender ground was not established and the claim is dismissed. |
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.
Act | Complaint/Dispute Reference No. | Summary Decision /Refer to Section 3 above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011223-001 | Claim is dismissed. no prima facie case of Gender discrimination has been established |
Dated: 13th April 2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
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