Complainant

Respondent

Parties

Amanda  Ball

Peninsula Business Services (Ireland) Ltd

Representatives

Amand Ball

Peter Murphy McInnes Dunne Murphy/Rosemary Mallon BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00058379-001

18/08/2023

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

CA-00058379-002

18/08/2023

The Complainant in her complaint form details her complaint as follows:

And in her written submission as follows:

CA-00058379-002 (“Fifth Claim”) (dated 18 August 2023): That the Claimant was victimised after 7 November 2022 (within the meaning of Section 74 of the 1998 Act) for having initiated in the WRC the claims of CA-00053579-001, CA-00053579-002, CA-00053579-003 against the Respondent, in respect of which she seeks adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998. The Claimant accepts that this claim entails only that victimisation which she suffered between 19 February 2023-18 August 2023

44. The Claimant was asked by James Potts, Legal Services Director of Peninsula UK, to provide details and particulars of her complaint of victimisation and bullying by 9 June 2023. The Claimant, however, was ultimately of the view that the matters she was complaining of needed to be addressed by the WRC and/or Labour Court. She indicated in an email to James Potts on 5 May 2023 that: “These issues have dragged on for far too long and it has been made clear to me in how these issues have been dealt with in the past, that a fair and reasonable approach or resolution will simply not occur with an internal process. Ultimately, I think that these matters will be decided upon by the WRC and/or The Labour Court etc.”

 45. An independent barrister was ultimately engaged to address the Claimant’s complaint. That process remains ongoing. Sean Ormonde & Co. Amanda Ball and Peninsula Business Services Ireland Ltd.

 46. The Claimant will provide further details of the adverse treatment which she instructs she suffered between 19 February 2023-18 August 2023 at the hearing of this action.

The Respondent stated that the 5th Claim lacks sufficient particularity, and the Complainant can’t maintain such a claim without proving primary facts that must show the detriment alleged in this case penalisation was linked to making a statutory claim under the Act. The nature of the penalisation is not clearly described and another key constituent that shows a connection between making the complaint and the vague alleged detriment is not even mentioned. The claim should be dismissed as misconceived.

In looking at this complaint it is important to view the other claims and their chronology relating to penalization:

CA-00053579-002 (“Second Claim”) (dated 7 November 2022): That the Claimant was penalised for having made a health and safety complaint on or about 10 February 2022, contrary to section 27 of the Safety, Health & Welfare at Work Act, 2005 (the “2005 Act”). The Claimant is seeking adjudication in relation to same by the Workplace Relations Commission pursuant to section 28 of the 2005 Act.

 CA-00053579-003 (“Third Claim”) (dated 7 November 2022): That the Claimant was victimised (within the meaning of section 74 of the 1998 Act) for having notified the Respondent on 1 September 2022 of her intention to commence legal proceedings, in respect of which she seeks adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 Sean Ormonde & Co. Amanda Ball and Peninsula Business Services Ireland Ltd. iv. v.

 CA-00058378-001 (“Fourth Claim”) (dated 18 August 2023): This claim is hereby withdrawn and is not being pursued at the hearing of this action.

 CA-00058379-002 (“Fifth Claim”) (dated 18 August 2023): That the Claimant was victimised after 7 November 2022 (within the meaning of Section 74 of the 1998 Act) for having initiated in the WRC the claims of CA-00053579-001, CA-00053579-002, CA-00053579-003 against the Respondent, in respect of which she seeks adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998. The Claimant accepts that this claim entails only that victimisation which she suffered between 19 February 2023-18 August 2023 5. The Claimant initiated the first three of the above claims by way of claim form dated 7 November 2022. It is accepted that the cognisable period in respect of the Claimant’s first three claims runs from 8 May 2022 – 7 November 2022. 6. The Claimant initiated the latter two claims of the above claims by way of claim form dated 18 August 2023. It is accepted that the cognisable period in respect of the Claimant’s latter two claims runs from 19 February 2023 – 18 August 2023.

At section 74 the Act defines victimisation as:

“victimisation” shall be construed in accordance with subsection (2).

(2) 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) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The three components of victimisation were set out by the Labour Court in Barrett -v- Department of Defence EDA 1017:

·       the claimant must have taken action of a type referred to in the Acts – for example, making a complaint of discrimination to the employer;

·       the claimant must be subjected to adverse treatment by his/her employer; and

·       the adverse treatment must be in reaction to the protected act having been taken by the claimant.

This complaint was lodged on the 18th of August 2023 and is limited to a period from the 19th of February 2023 to the 18th of August 2023. The complaint captures what the Complainant sees as ongoing discrimination including. The Complainant referred to difficult conversations with a manager that she recorded that she perceived as bullying and intimidation.

The Respondent stated no case had been made out to ground a claim under the Act alleging discrimination.

The detail provided at the hearing raised matters of perceived bullying and intimidation. Those allegations were not supported by any corroboration or evidence where it would be possible to assess the allegations and to determine if they were linked to making complaints. The Complainant carries the initial burden to prove facts that on the balance of probabilities show detriment because of bringing employment rights-based claims to the WRC under the Act. The Complainant has not made out a case where facts can be said to have been proven on the balance of probabilities that tend to give rise to an inference of victimisation. That does not mean she must prove on the balance of probabilities that victimisation occurred, but she must establish facts in contrast to assertions or statements that on the balance of probabilities occurred and that could raise an inference of victimisation. Those facts should also show a link or cause between the alleged detriment and the victimisation that is claimed to have occurred. That has not occurred in this case and that means the Complainant has not made out a prima facie case and therefore the claim fails. The written submission and complaint form lack sufficient particularity, and the oral evidence did not meet that requirement either, where facts are established that could have been tested and cross examined at the hearing. The evidence given at the hearing could not ground a claim for victimisation.

I find that the Complainant was not victimised and not discriminated against as no prima facie case has been made out. The complaint is not well founded.

Prima Facie