Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

Self-Represented

Dajana Sinik IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice and Terms of Employment Act 1973

CA-00055280-001

25/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00055280-003

25/02/2023

The Complainant was not represented and made his own case. He relied on the narrative as outlined in the WRC Complaint Form. I also heard from the Complainant’s roommate. The evidence adduced by the Complainant and his roommate was challenged as appropriate by the Respondent’s Representative.

Where it became necessary, I explained how the adjudication process operated with particular emphasis on the application of the relevant statutory provision alleged to have been breached and on the burden of proof which had to be attained by the Complainant.

At the commencement of the hearing the complaint confirmed that after he referred the within complaint to the WRC he was paid his notice and that he was withdrawing his complaint under reference CA–00055280 – 001.

In response to questions from the Adjudication Officer the Complainant confirmed that he was not pursuing a complaint of discriminatory dismissal and that his complaint was not a complaint of harassment. He alleged that he was subjected to discriminatory treatment by his Manager on the grounds of his age. He stated that he commenced employment with the Respondent on the 19th October 2022 as a Customer Assistance Representative and that his employment ended on the 17th February 2023. His difficulties commenced when he was moved to a new location in January 2023. After one month it became evident that he was being subjected to age discrimination by his new Manager. He stated that the Manager would try to annoy him and would say rude things to him.

Under cross-examination the Complainant stated that the Manager would tell him that he should return to school and that he made a lot of mistakes. He stated that she would pick on him for being a beginner and he believed that he would have been treated differently if he was older. He stated that there was a young Irish female worker of a similar age to him and the Manager would regularly say that this worker was a horrible worker. The Complainant accepted that he received a contract of employment and a copy of the Employee Handbook which included a number of Dignity and Respect policies and that he did not invoke any of the policies.

The Respondent was represented by IBEC at the hearing.  The Respondent provided me with a written submission on the 11th December 2023 together with a comprehensive booklet of documentation and Authorities. No objection was raised in relation to any of the documentary evidence relied upon by the Respondent in the course of making its case. I have additionally heard from witnesses for the Respondent. The Respondent’s witnesses were cross-examined by the Complainant.

The Respondent denied that the Complainant was discriminated against on the age ground and submitted that he failed to produce any evidence that such discrimination occurred. The Respondent submitted that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submitted that the Complainant failed to discharge this burden of proof and, consequently, the claim cannot succeed.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

CA–00055280 - 001: Minimum Notice and Terms of Employment Act 1973

This complaint was withdrawn at the hearing.

CA–00055280 - 003: Employment Equality Act 1998 (as amended)

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

The Burden of Proof

Section 85A of the 1998 Act provides 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.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the 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 where 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.”

In Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 / DEC-E2002-020 the “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

that she/he is covered by the relevant discriminatory ground(s)

that she/he has been subjected to specific treatment and

that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Labour Court has also consistently stated that:

“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”: Kieran McCarthy v. Cork City Council EDA082

The Complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn. If the Complainant establishes a prima facia case of discrimination, the burden of proof shifts to the Respondent to rebut the prima facie case. This will require cogent evidence. In accordance with case law cited above to succeed in a complaint of discrimination the Complainant must establish that he comes within one of the discriminatory grounds, namely the age ground, that he was subjected to specific treatment and that the treatment was less favourable than someone not covered by the discriminatory ground.

The Complainant stated in evidence that he believed that his Manager was rude to him and tried to annoy him because he was a “beginner”. When asked to confirm what he meant by beginner he stated that he was new to Ireland and he was young. In response to questions from the Adjudication Officer the Complainant stated that a young, female, Irish worker of a similar age to him was spoken to in the same manner as he was by the Manager.

Taking into consideration the case law referred to above and having regard to the evidence presented at the hearing I find that the Complainant has not demonstrated sufficient facts and there was no relevant evidence presented by him from which it may be inferred on the balance of probabilities that the Respondent discriminated against him on the age ground. Consequently, I find that the complaint is not well-founded.

CA–00055280 - 001: Minimum Notice and Terms of Employment Act 1973

This complaint was withdrawn at the hearing.

CA-00055289 – 003: Employment Equality Act 1998 (as amended)

For the reasons set out above I find that the within complaint is not well-founded.