Case Number: ADJ-00030872. Workplace Relations Commission

• Judgment Date: 17 June 2022
• Year: 2022
• Date: 01 June 2022
• Docket Number: ADJ-00030872
• Hearing Date: 09 March 2022
• Court: Workplace Relations Commission
• Respondent: Housing and Sustainable Communities Agency / The Housing Agency

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.

Full cross examination of Witnesses was allowed.

Due to Covid 19 difficulties the publication of the Adjudication finding was delayed.

Background:

The case concerns a complaint of Discrimination on the grounds of Gender and Family Status contrary to the Employment Equality Act,1998. The acts of discrimination alleged were in the areas of Promotion, Training, Victimisation and Harassment. The employment had commenced on the 3rd November 2015 and ended on the 12th February 2021. At the date of the complaint being submitted the rate of pay was €1,796 gross per fortnight for a 37-hour week. The employer was a Government Agency in a primarily technical area related to House Building and Construction. However, as the work involved extensive interaction with the Public as house owners a considerable Administrative Section was required to complement the Technical Section. The Complainant was employed in the Administrative Section.

1: Summary of Complainant’s Case:

The Complainant submitted a detailed written statement supported by extensive Oral Testimony. The Complainant is professionally qualified in Architecture. Due to the recession in the Construction Sector during the early years of the 2010 decade she found it necessary to work in other areas. She joined the Housing Agency in November 2015 as a Clerical Officer Grade 3 but rapidly moved through the ranks to a position of Staff Officer Grade 5 in the Pyrite Department in September 2016. The Pyrite Department was in need of administrative overhaul and the Complainant was most efficient in introducing new systems and practices to remedy administrative defects. It was acknowledged by Senior Management of the Agency that her contribution here had been invaluable. In September 2017 she was sponsored to undertake a Project Manager’s course run by the Institute of Project Management. She completed this course with academic distinction - her final mark being 81%. It was commonly accepted that the Project Manager Course was almost a prerequisite to achieving a Project Manager position in the Public Service. However, there was a perceived shortfall in Complainant’s position at any interview in that she lacked any Site Visits – going physically on to Construction sites to gain hands on experience. She raised this issue at her PMDS -Annual Performance review in January 2018 and later in January 2019. She was assured that this issue would be addressed satisfactorily. This, in her view, never happened in any realistic fashion, in stark contrast to male colleagues who were afforded multiple site visit opportunities. In her view this Site Visit failure was symptomatic of the discriminatory climate that she faced. In May 2018 the Complainant applied for a Project Manager (PM) position and was successfully placed on a twelve-month Panel. In June 2019, the Panel having expired, she applied for another PM position. However, a colleague, a Mr.AD was informed by a Senior Manager that “He was the right man for the job” just three days after the position was advertised. Unsurprisingly, Mr AD was appointed following the interviews. At the interviews the Complainant felt that she had been treated with a lack of professionalism especially by Manager, Mr. JM. Following Mr AD’s appointment other male colleagues were given extensive Site Visit experience which was denied to her. Eventually in December 2019 she was given a Site Visit opportunity but in a sexist manner regarding what clothes she should wear. A key issue was the fact that she was expected to do her ordinary day’s work as well as the site visit. This stipulation was not required of male colleagues. The PM vacancy that rose in December 2019, from the internal departure of a colleague, was filled without any reference to her. It was stated that Mr. JM’s actions during the course of 2019, especially from June onwards, followed a pattern of seeking to reduce the importance of the Complainant’s work. Issues with Audit queries and Payment Approvals were mentioned. E mail traffic was rerouted to make the Complainant’s work routines more difficult. Senior Management recognised that the Complainant had introduced good systems that could be used as a Template in other Sections. The issue of the new Energy Retrofit programme was referenced as an example. However, despite her expertise she was effectively subject to efforts by Mr. JM to re assign her. Inexperienced Male colleagues were given work, formerly done by her, by Mr JM, that they had to revert to her for instructions as to how to complete. In her evidence especially, her Oral Testimony, the Complainant maintained that she was the victim of a “Male culture” in the Office. There could be no issue as to her technical qualifications and her work record, albeit in the Administration side, was exemplary. The Office environment and especially the experiences of a former female colleague Ms. R were of note. Ms. R had gone back to the Parent Department, as it was alleged, she had found the Office “culture” not particularly conducive to women. HR had made inquiries at the time regarding Ms. R’s possible negative Equality experiences in her dealings with Mr.JM. However, the issue had never been pursued as Ms. R had never made a formal complaint and simply left the Agency. The Complainant’s Legal Representative strongly queried the Respondent line up of Management witnesses. It was maintained that the Respondent was effectively handicapping the Complainant’s case in reducing her opportunities to challenge Respondent witnesses especially in the area of Management actions. In final summary the Complainant maintained that, despite an exemplary work record and requisite technical qualifications, she had been subjected to a toxic “Male Only” culture which had denied her training and experience “Site visits” and thereby, as well as a campaign of undermining her in the work routines, had seriously handicapped her from promotions to Project Manager positions. She had effectively been discriminated against by Manager, Mr.JM, for being a female in a toxic “Male culture”. On Equality grounds this equated to Harassment and Victimisation. Her Representative quoted extensive legal precedents that focused on the requirement of a Complainant to establish a good prima facie case as a ground for a discrimination claim. In Oral Testimony the Complainant’s Legal Representative, Mr. Leonard BL, strongly contested with the Respondent Legal Representative, Mr. Mallon BL, the alleged conservative tactical approach of the Respondent in regard to evidence and the calling of witnesses.

2: Summary of Respondent’s Case:

The Respondent gave extensive Oral Testimony and a substantial written submission. Supporting witness evidence was also called in particular from Ms. HC, the HR Department representative. Detailed cross examination of the Complainant also took place. The Respondent Legal Representative made, as his opening key point, that the Employment Equality Act,1998 required, in the first instance, that Complainant establish a sound prima facie basis for her claim of discrimination on the Gender and Family Status grounds. Allegations and assumptions of discrimination were not sufficient – a case had to be grounded on facts of a status sufficient enough to raise an inference of discrimination. Legal precedent, in support, was cited especially the landmark cases of Southern Health Board v Mitchell v [2001] 12 ELR 201 and Cork County Council v McCarthy (EEA 20/2008). The Complainant had successfully applied for the Project Manager (PM) positions in 2018 and 2019. She had been placed on the Panel of successful candidates. The filling of the vacancy in December 2019 was, in keeping with normal procedures, from the Panel. There can be no issues of discrimination in this process. The Respondent called in evidence Ms. HC, the HR...