FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : GGL SECURITY IRE (REPRESENTED BY HELIX HR) - AND - KELLEY LEE DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of an Adjudication Officer's Decision ADJ-00004180.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of an Adjudication Officer's Decision No. ADJ-00004180. The matter was appealed to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing was held on 14th March, 2018. The following is the Determination of the Court:
DETERMINATION:
This matter comes before the Court as an appeal by the Respondent at first instance, GGL Security Ireland (the Respondent) against a decision of an Adjudication Officer upon a complaint made by Ms Kelley Lee (the Complainant) under the Employment Equality Acts, 1998 to 2015 (the Act). The Complainant had complained that the Respondent had discriminated against her on grounds of disability contrary to the Act.
The Adjudication Officer upheld the complaint and awarded the Complainant the sum of €7,500 in compensation.
Background
The Complainant commenced employment with the Respondent in September 2007. She worked as a security official on the GGL contract in Limerick Racecourse. That employment involved working on approximately 12 to 15 days during the calendar year.
The Complainant has not worked for the Respondent since October 2015. The Complainant was offered employment at Limerick Racecourse by the Respondent at Christmas 2015 but she was unable to take up that offer of employment due to illness. The Respondent has not operated at Limerick Race Course since April 2016 due to loss of contract.
Summary Position of the Complainant
The Complainant submitted that she suffered from a bi-polar condition and submitted that this was a disability within the meaning of the Act.
She submitted that, over the years of her employment, she had informally advised various members of the management of the Respondent of her disability. She submitted that she was involved in work to promote awareness of conditions such as hers and was very open in that regard as a result. She submitted that she had suffered no negative response from the Respondent as a result of her sharing of information as regards her condition with managers on an informal basis.
The Complainant stated that she had a conversation with a manager of the client company, Mr CO’R, during the Summer of 2015 during which she informally made Mr CO’R aware of her condition in response to a query as regards her wearing of the ‘Green Ribbon’ symbol on a lanyard she wore at work.
The Complainant submitted that she was working at Limerick Racecourse in October 2015 and had engaged with the client’s accountant, Mr PO’C, as regards a matter relating to the break arrangements of staff whom she supervised and issues related to smoking. She submitted that she made a complaint to the Respondent as regards Mr PO’C after this incident.
The Complainant submitted that she had met the Respondent’s area manager, Mr GD, on 4thNovember 2015 at a location near her home. She submitted that, at that meeting, Mr GD advised her that she would no longer be working as a supervisor at Limerick Racecourse.
The Complainant submitted that she was contacted by the Respondent in December 2015 offering her employment during the Christmas race meeting but that she had been unable to take up that offer due to illness unrelated to her disability.
The Complainant submitted that she did not hear from the Respondent after Christmas 2015 until she received a letter in April 2016 stating that the Respondent had tried to contact her on numerous occasions by e-mail, call and text. She submitted that this assertion as regards attempts to contact her was untrue.
She submitted that the act which she believed to constitute discrimination within the meaning of the Act was her demotion from her position as Supervisor by MR GD at a meeting convened in Clonmel on 4thNovember 2015. She submitted that she believed that the reason for her demotion must have been her conversation with Mr CO’R some months earlier where she had explained her reasons for wearing a ‘Green Ribbon’ on her lanyard and her own experience of her bi-polar condition.
Summary position of the Respondent.
The Respondent submitted that it was unaware of the Appellant’s contended for disability until she initiated a complaint to the Workplace Relations Commission. The Respondent submitted that the Appellant had made no mention of her contended for disability on her original application form for employment and that neither did she make the Respondent aware, either formally or informally, of such a disability.
The Respondent submitted that the Appellant was not employed as a Supervisor but that she was regularly asked to act as a Supervisor on behalf of the Respondent at Limerick Racecourse.
The Respondent submitted that the client company at the racecourse had, in October 2015, raised a complaint as regards the Appellant’s work as a Supervisor at a Race Meeting that month. That complaint had centred on the Client’s dissatisfaction with her supervision of break and smoking arrangements for security staff at the meeting.
The Respondent submitted that, following receipt of this complaint, the area manager, MR GD, arranged to meet with the Appellant on 4thNovember 2015. The area manager advised the Appellant of the compliant and advised her that the client company did not have confidence in her functioning as a Supervisor. The Respondent submitted that the Appellant was advised at that meeting that she would not be requested to act as a Supervisor while that situation remained.
Testimony on behalf of the Respondent
Mr GM gave evidence on behalf of the Respondent. Mr GM stated that following Christmas 2015 he made many efforts to contact the Appellant by phone and text in order to understand her availability for employment. He said that he received no response from the Appellant.
Mr GM stated that the Respondent lost the contract in Limerick Racecourse in April 2016 as a result of a tendering process and had had no employment on the site since that date.
Discussion and conclusions.
The initial burden of proof in a claim of discrimination contrary to the Act rests on the Complainant. Section 85A(1) of the Employment Equality Act 1998 provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:
- “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 first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
- “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
The Court understands that the Appellant in the within case believes that her alleged demotion on 4thNovember 2015 arose from a conversation she had had with a client manager, Mr CO’R, during the Summer of 2015. Following that conversation the Appellant had been called to work by the Respondent and asked to act as a supervisor at a race meeting in October 2015. At that race meeting an engagement took place between the Appellant and an accountant of the client. That engagement resulted in a complaint from the Client company as regards the Appellant’s performance on the job at that race meeting. It also resulted in a complaint from the Appellant as regards her interaction with the client’s accountant at the meeting.
The Court is of the view that the Complainant in the within appeal has failed to make a connection between her conversation during the Summer of 2015 and the communication to her in November of that year as regards the client’s confidence in her as a supervisor. The Appellant believes that the events must be connected but has failed to establish facts from which that conclusion could be drawn. The Appellant has failed to address the Respondent’s contention that the meeting in November 2015 arose from interactions at a race meeting in October 2015 and that events at the November meeting was connected only with interactions which occurred at the October race meeting.
The Court finds that the Complainant has not made out a prima facie case of discrimination on the disability ground ground arising from the Respondent’s communication to her in November 2015 that she would not be requested to act as a Supervisor again.
Determination
The Court determines that the Respondent did not discriminate against the Appellant on the disability ground. Accordingly, the appeal succeeds and the decision of the Adjudication Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
1st May 2018______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.