Complainant

Respondent

Anonymised Parties

A Complainant

A Local Authority

Representatives

Patricia Kiely Sean Ormonde & Co. Solicitors

Keith Irvine Local Government Management Agency (LGMA)

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-00056765-001

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00056765-002

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00056765-003

19/05/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

This decision is being anonymised due to the existence of a hidden disability on the part of the complainant.

The complainant was employed by the respondent as a general operative.  The complainant gave his evidence under affirmation.

As a preliminary matter the respondent submitted that the three complaints were made outside time limits provided for legislation.  The complaints were submitted 19 May 2023 to the workplace relations Commission, however the incident upon which all three complaints are based took place on 19 October 2022.  The respondent states that the legislation provides for a six-month time frame within which to take a complaint under the legislation. Although the respondent acknowledged that the time frame may be extended, it submitted that no extension was sought by the complainant and therefore the matters are out of time.

An additional preliminary matter raised by the respondent is that all three complaints relate to the same matter and the complainant cannot succeed for the same set of facts under three separate pieces of legislation.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that he was employed as a general operative. He submitted that there was an atmosphere of animosity towards him, particularly from one colleague. He submitted that he was patronised, bullied, isolated and bossed around. He submitted that he was subjected to continuous poor treatment. He stated that this was on the basis of his heritage having been born in England and on other occasions he was called a ‘Jackeen’ because he had worked in Dublin.  He submitted that there were ongoing difficulties with his work colleagues from 2018. He outlined series events that he classed as harassment and bullying, and he lodged a formal complaint under the grievance procedure in 2019. He was told to put his complaint in writing.  He then went on sick leave but noted that when he returned to work, he was ignored by everyone further isolating him. Matters appeared to have been resolved on an informal basis but there continued to be an intolerable atmosphere and he took a written complaint in September 2019. It was submitted that the recommendations arising from the resolution of that complaint were not implemented by the respondent.

The complainant submitted that matters then came to a head on 5 October 2022 when he was purposely struck from behind by a moving council van belonging to the respondent. He stated that this was being driven by the colleague that he had previous difficulties with. He took photographic evidence of a red mark on his right side, and he lodged a complaint to personnel to be dealt with as a violence and aggression complaint. The complainant attended his GP and was certified as unfit for work due to work related stress.

The complaint was investigated in November 2022 and the complainant submitted that it took an unnecessarily and agonisingly long time and his mental health continued to decline. He wrote to the respondent in February indicating that the investigation was taking too long. The complainant submitted that an investigation report was compiled and provided on 15 February. It was noted that the investigator chose to disregard a list of 17 incidents raised with him as he indicated that his brief was only to look at the incident of five October 2022.

The complainant submitted that his union was in touch with the respondent indicating that he was not satisfied with how the investigation was carried out, about the delay in concluding the investigation, and to indicate that all complaints were not dealt with. The complainant submitted that the investigation process was shambolic. The complainant submitted that although it was found that his colleague was driving the truck and that the truck made contact with the complainant, the investigation report also concluded that the complainant was contributory to the accident because he did not pay attention.

The complainant submitted that essentially a finding of contributory negligence was made against him in the situation in which he was hit from behind by a moving truck.  The complainant submitted that this finding constitutes penalisation and victimisation against the complainant for raising a complaint against his colleague.

CA-00056765-001 Employment Equality

The complainant submitted that there is an onus on him to discharge the burden of proof. He submitted that he was subjected to discrimination number a number of grounds namely race, family status and disability although the family status ground was withdrawn at hearing.

In written submissions the complainant submitted that he was diagnosed with depression and anxiety and was receiving treatment from his GP.  The complainant submitted that the respondent was at all times aware of his disability given that he was forthcoming about it since the bullying and harassment began.  The complainant submitted that the respondent’s awareness of his disability can be proven from numerous correspondence including medical certificates and evaluations. The complainant submitted that the relationship between him and the respondent changed significantly when he disclosed his illness and raised complaints about harassment.

The complainant submitted that the nature of his illness is clearly such as would fall within the definition of a disability. He submitted that the seriousness of the illness has never been disputed or put at issue by the respondent and it was submitted that by their acquiescence they have accepted that he has a disability and is directly affected by it. The complainant submitted that the connection between the discriminatory ground and the alleged discriminatory acts is not to be established by way of motive or intention but rather from objective facts that infer discrimination. 

The complainant submitted that the respondent intentionally failed to provide any guidance within its own policies. He submitted that he was on sick leave multiple times due to work related stress and was treated without any care or consideration when he returned to work. The complainant submitted that as a result he was discriminated against based on disability in that he was victimised penalised and essentially ostracised from employment. It was submitted that there is clear evidence as to amount to a prima facie case of discrimination and that the burden of proof shifts to the respondent.

The complainant submitted that he was not afforded reasonable accommodation and that the employer did not make adequate inquiries in accordance with the principle established in Humphries v Westwood Fitness Club [2004] E.L.R. 296.

In relation to the issue of harassment, the complainant submitted that he was subjected to continuous verbal harassment over the course of a number of years and this included demeaning and derogatory comments, attacks on the complainant’s mental health and on his disability.

CA-00056765-002 Safety, Health & Welfare at Work

As regards penalisation under the Act, the complainant stated that he suffered penalisation at the hands of the respondent due to the finding of contributory negligence against him when he was struck by a moving vehicle through no fault of his own.

CA-00056765-003 Protected Disclosure

Concerning penalisation under the Protected Disclosures act, the complainant contended that a wrong is being committed against him under the legislation.

Witness testimony - summary of relevant evidence:

The complainant outlined how he started work with the respondent and was ultimately assigned to work out of the New Ross premises. He outlined how one of his colleagues took exception in that he considered that he had taken his job.

The witness was asked to outline what had happened in the six months prior to taking his complaint and he noted that he was out of work during period. He noted that he was never contacted by Occupational Health or anyone to check on his welfare. He stated that when he was found partially responsible for the accident, he couldn't understand how he was responsible. He stated that he had no other dealings with the investigator.

He stated that he spoke with his Union representative who indicated to the respondent that they were not happy with the outcome. He also noted that he was not aware of a protective disclosure policy with the respondent. He noted if there were any issues, he reported it to his line manager.

In his evidence he outlined series of incidents that had taken place going back to early 2019. He said that he raised issues with his supervisor but might as well not have done.

As a preliminary matter the respondent submitted that the three complaints were made outside time limits provided for legislation.  The complaints were submitted 19 May 2023 to the Workplace Relations Commission, however the incident upon which all three complaints are based took place on 19 October 2022.  The respondent states that the legislation provides for a six-month time frame within which to take a complaint under the legislation. Although the respondent acknowledged that the time frame may be extended, it submitted that no extension was sought by the complainant and therefore these matters are out of time.

An additional preliminary matter raised by the respondent is that all three complaints relate to the same matter and the complainant cannot succeed for the same set of facts under three separate pieces of legislation.

The respondent submitted that there was a workplace incident and that an investigation was conducted. The investigation was provided to the complainant and his union in draft form, but the final report never issued as the respondent received an objection to it from the union. When the Human Resources section engaged with him regarding his complaint, he then withdrew it.

CA-00056765-001 Employment Equality

The respondent submitted that although it was not suggesting that depression would fall outside the definition of disability contained in the Act, it was not notified of the existence of a disability until after these proceedings had begun, and in October/November 2023 it received a medical certificate.  It was also noted that no reasonable accommodation was sought by the complainant.

The respondent submitted that the complaint indicates discrimination against him on 8 different grounds i.e.: Family Status, Disability, Race, Victimisation, Failure to provide reasonable accommodation, Conditions of employment, Harassing him, and Other. The respondent submitted that the complainant has provided no detail in relation to any of these discriminatory acts within his complaint form and stated that full detail would be provided by way of written submissions.

The respondent submitted that in his complaint form, the complainant states that he brought ongoing bullying and harassment to the attention of his employer in 2019 under the Dignity at Work policy.  The respondent submitted that on 25 September 2019, the HR manager responded to the complainant in relation to his complaint dated 17th September 2019 and informed him that the issues were to be dealt with by the section line manager in accordance with the grievance policy. The complainant was on sick leave from 7 August 2019 and on 10 December 2019, the respondent received confirmation from their Occupational Health practitioner that he was fit to return to work on 16 December 2019. The respondent engaged with the complainant in relation to his return to work and his outstanding complaint, but he decided to withdraw his complaint.  Accordingly, no further action was taken by the respondent at that point.

The respondent submitted that when he reported the incident of 5th October 2022, it was investigated it in accordance with the violence/aggression in the workplace procedure.  An incident form was completed by the Health and Safety Officer after she spoke with the complainant and following receipt of his email. In accordance with serious incidents, she referred it to the County Secretary for investigation. The County Secretary met with the complainant, the driver of the vehicle, and spoke with the relevant managers of the section and then produced his findings. There was no finding that the incident which occurred was an aggressive act.

The respondent submitted that a draft report was shared with the complainant and the complainant submitted a response via his union representative on 8 March 2023 that he rejected the report in its totality and that it was in effect penalising the complainant.

The respondent submitted that while it was accepted that an incident occurred, the allegation that this was a deliberate action on the part of the driver was not upheld.

CA-00056765-002 Safety, Health & Welfare at Work

The respondent submitted that the complaint taken by the complainant is that he was penalised by his employer for making a complaint under the Act.  The respondent submitted that in order to succeed in a claim under section 27 of the Act, a complainant must demonstrate something that brings him within section 27(3), of having suffered a detriment within the meaning of section and must demonstrate a causal connection between these matters.  He has not done so.

The respondent submitted that the complainant made a complaint which was investigated appropriately in accordance with its procedure for Violence and Aggression in the workplace. The complaint was not upheld however the investigator held that there was “some contributing negligence on (the complainant’s) part by walking ahead of the oncoming vehicle with his back to it, after opening the gate”.

There has been no act of penalisation. If it accepted that this is a Protected Act it becomes therefore a matter for the WRC to determine whether or not the complainant suffered a detriment as a result of penalisation within the meaning of Section 27.

The respondent noted that although the complainant had exhausted his sick leave entitlement, the complainant has continued to receive full pay since he left the workplace on 5 October 2022.

CA-00056765-003 Protected Disclosure

The respondent has a Protected Disclosure policy in place with a designated officer in place who has responsibility for the receipt of and subsequent addressing of matters raised under the Protected Disclosure Act.  The respondent submitted that it was not able to confirm whether or not the complainant has made a protected disclosure in accordance with its policy, noting that the complainant would have received a formal acknowledgement of making a protected disclosure and confirmation of the actions being taken in relation to his protected disclosure in accordance with the policy.

The respondent submitted however that notwithstanding the foregoing, it is of the view that the complaint as made by the complainant is exempt under the Act specifically Section 5(5)(a) which states:

“A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.”

The respondent submitted that the complaint raised by the complainant was dealt with appropriately, but it does not accept that the complaint as made constitutes a valid disclosure for the purposes of the Protected Disclosure Act.  However, notwithstanding this, the respondent submitted that the complainant must show that there was a detriment and that the penalisation or detriment being complained of must have been imposed as a direct result of having made a disclosure.

Preliminary matters:

Timeframe:

In his written submissions the complainant relates to series of discriminatory acts going back a number of years, as far as 2019.  He also provided oral evidence in support of this contention.  He submitted his complaints to the WRC on 19 May 2023.  The respondent submitted that the complainant is out of time to pursue the complaints in that they do not fall within the six months outlined in legislation and furthermore, the complainant never sought an extension of the period for consideration of complaints, as provided for under the legislation.

The complainant was legally represented and did not seek to extend the cognisable period under the Workplace Relations Act nor under the Employment Equality Act.  Therefore, in the first instance, the complainant must establish that he was less favourably treated, or victimised, for having taken a previous equality complaint, within the six-month period prior to lodgement of this complaint. He must also prove that he was penalised under the Safety, Health and Welfare at Work Act or the Protected Disclosures Act within six months of lodging his complaint also.  The cognisable period runs from 20 November 2022 to 19 May 2023.

Given that the complainant was not in work for more than six months prior to taking his complaint, he must prove that he was less favourably treated by the respondent in relation to each of the complaints during this period in order to succeed.

Scope of the Employment Equality complaint:

The complainant withdrew his complaint based on family status at the start of the hearing.  Therefore, the remaining complaints relate to race and disability. The complainant outlined an altercation that took place in early October 2022.  He outlined that the matter was being investigated thereafter. The complainant must therefore establish less favourable treatment on the basis of a disability or on the basis of his race in that six-month period. In the alternative, he has to establish that he was victimised during that period for having taken an equality related complaint prior to that.

In relation to is allegation of having a disability, he states that because he was out on sick leave prior to the incident that the respondent could have imputed the disability on him. The respondent in turn submitted that they were only made aware, by medical certificate, of the existence of a disability in October 2023, after the six-month period for the consideration of this complaint.  Although the complainant has submitted medical certificates dated prior to October 2023, none of them indicate a diagnosis of a disability of the type put forward by the complainant, rather they simply note symptoms. This suggestion on the part of the respondent regarding the medical certificate that outlined the diagnosis was not contested.

Multiple complaints on the same set of facts:

The respondent submitted that it appears that the complainant is seeking remedy for the same alleged infringements under the Employment Equality Act, the Safety, Health and Welfare at Work Act 2005 and the Protected Disclosures Act in relation to matters which arise from precisely the same set of circumstances, given the complaint form received. The respondent requested the Adjudicator to clarify this at the opening of the hearing of this case.

The Adjudicator clarified at the opening of the hearing that he would only be awarding redress, should it arise, under one Act in respect of the same set of facts.

Substantive issues:

CA-00056765-001 Employment Equality

The complainant made a complaint under the Employment Equality Act. He was not in the workplace for the six months prior to taking a complaint to the WRC.  Therefore, his complaint can only amount to a contention that in the consideration, and investigation of the incident of 5 October 2022, he was treated less favourably on the basis of his race, on the basis of a disability, and/or he was victimised for having raised a prior equality complaint.   He sought no reasonable accommodation and the case of Westwood cited by his representative relates to a situation where someone was let go, and accordingly is of limited relevance to this complaint.  In the instant case, the respondent has continued to pay the complaint his full salary, notwithstanding that his sick leave has run out.

The complainant suggested that that the results of the investigation came about due to less favourable treatment on the basis of his race or disability and/or that he was victimised for having taken a previous complaint of discrimination under the Act.  I am satisfied that the respondent was not in receipt of a medical diagnosis of his disability until after the investigative process came to an end.  However, he has provided no factual basis, nor no documentary proof that the decision of the investigation was taken on the basis of his race, on the basis of a disability, and/or that he was victimised for having raised prior equality complaint.

In the case of Melbury Developments Limited v Val Peters [2010] ELR64 the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Section 85A of the Act states as follows:

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.

In his written submissions and oral evidence, the complainant has related how a named colleague treated him in a less favourable manner on a repeated basis.  He has not made out any compliant regarding the investigator or the investigation that ties the investigation officer of the process into either of the discriminatory grounds put forward.  No allegation was made that the person investigating the incident discriminated against the complainant on the basis of disability or race.

Having regard to the written and oral submissions presented to me in relation to the Employment Equality complaint I find that all that has been presented is mere speculation.  The complainant has not established facts from which it may be inferred that he was discriminated against in relation to the investigation of his complaint of 5 October 2022.  Accordingly, I find that complainant was not treated in a discriminatory fashion nor victimised contrary to the Acts.

Although not clearly enunciated, it appears that the complainant is seeking to establish a continuum of discrimination.  In order to consider any continuum of discrimination the complainant must first prove discrimination in the cognisable 6-month period and then seek to prove a link between that discrimination and any previous acts.

As there is no evidence establishing discrimination from the six months prior to the complaint having been lodged, I am precluded from looking beyond that period.

CA-00056765-002 Safety, Health & Welfare at Work

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

Having regard to the complaint made by the complainant that he was penalised under the Safety, Health and Welfare at Work Act, no evidence has been produced from which facts could be inferred that the complainant has either made a complaint under the Act, or that the investigation was an act of penalisation for having made such a complaint.  Accordingly, I am not satisfied that the complainant has established that he made a complaint under that Act, nor has he established facts from which penalisation may be inferred for having made a complaint under the Act. Therefore, I find that the complaint is not well founded.

CA-00056765-003 Protected Disclosure

The respondent submitted it is of the view that the complaint as made by the complainant is exempt under the Act specifically Section 5(5)(a) which states:

“A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.”

The respondent submitted that the complaint raised by the complainant was dealt with appropriately, but it does not accept that the complaint as made constitutes a valid disclosure for the purposes of the Protected Disclosure Act. 

Having regard to the complaint made by the complainant on 5 October 2022 and to Section 5(5) of the Act as outlined above, I am not satisfied that a protected disclosure has been made. The subsequent investigation was somewhat inconclusive and considered that both parties had made a contribution towards the accident. Having considered this matter I'm satisfied that this does not amount to penalisation under the Protected Disclosures Act.  Therefore, I find that the complaint is not well founded

CA-00056765-001 Employment Equality

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint was not discriminated against within the cognisable period of six months under the Act.

CA-00056765-002 Safety, Health & Welfare at Work

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

CA-00056765-003 Protected Disclosure

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

Employment Equality Act – cognisable period not extended – complainant not discriminated against – Safety, Health & Welfare at Work – not well founded – Protected disclosure – interpersonal grievance – not well founded