EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-013
File reference: et-154224-ee-15
Date of issue: 17th of April, 2018
This dispute involves a claim by a complainant that he was discriminated against and harassed by his employer in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 and that he was subjected to victimisation contrary to Section 74(2).
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 2nd of March, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 7th of July, 2017 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 11th of January, 2018. The respondent did not attend the hearing.
2.3 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.
3. Summary of complainant’s case
3.1 The complainant submits that
he was employed by respondent as a driver from November, 2007 to February, 2017,
he was harassed and discriminated against by the respondent but does not state on what grounds,
he was victimised by the respondent.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant was employed by them in the role of a Heavy Vehicle Specialist from November 2007,
the complainant has not indicated any ground under which he is claiming he has been subjected to harassment and or discrimination.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against and or harassed the complainant in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. I must also make a decision on whether the respondent victimised the complainant contrary to Section 74 (2) of the Act. 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 at the Hearing.
5.2 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. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)…..” Section 6(2) of the Acts defines the discriminatory grounds.
5.4 The complainant submitted a complaint to the Equality Tribunal on 2nd of March 2015. The complaint alleged that the complainant had been discriminated against by the respondent and harassed. The complaint form does not specify the ground on which the claim is being taken. The complaint form also states that the complainant was victimised by the respondent.
5.2 Following receipt of the complaint form the Tribunal wrote to the complainant on a number of occasions seeking clarification in respect of his claim. The complainant in his response to the Tribunal did not provide any information in respect of a ground under which discrimination and or harassment was being claimed. Thus the claims of discrimination and harassment cannot proceed as a ground has not been specified and this aspect of the complaint must fail.
5.3 The victimisation aspect of the claim proceeded to be dealt with at the hearing. The complainant provided a submission in respect of his claim.
6.1 The complainant has submitted that he was victimised by the respondent.
Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“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 complaint of discrimination made by the employee to the employer………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
6.2 In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
6.3 The complainant advised the hearing that he had been out on sick leave since November 2014 and had not returned to work. The complainant stated that prior to going on sick leave he had felt bullied at work and he felt as though others were treated more favourably. The complainant stated that he had raised this with his manager but that nothing had been done about it. The complainant at the hearing did not provide any specific details in respect of dates and times when these issues had been raised with his manager and was unable to specify or adduce any evidence regarding whether he had alleged that this treatment was due to any of the protected grounds. The complainant at the hearing stated that he had felt victimised by the respondent.
6.4 The complainant submitted his complaint to the Tribunal on 2nd of March 2015. The complainant advised the hearing that he had been out on sick leave from November 2014 and that he had resigned his position with the respondent on the 14th of February, 2017 without returning to work, the complainant told the hearing that he had in his resignation letter stated that he had found a different job and that is why he wanted to leave. The complainant at the hearing was unable to provide any evidence of adverse treatment following a protected act and which could be linked to or which took place in reaction to a protected act.
6.5 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to this matter.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2015.
17th of April, 2018