Case Number: DEC-E2016-046. Workplace Relations Commission
| Judgment Date | 01 March 2016 |
| Court | Workplace Relations Commission |
| Docket Number | DEC-E2016-046 |
| Parties | Ms. Theresa Dwyer -v- Civil and Public Services Union |
HEADNOTES: Employment Equality Acts Sections 6, 8, Gender Discrimination and Victimisation.
1: BackgroundThis dispute concerns a claim by Ms Theresa Dwyer that she was
(1) Discriminated against in a promotion process on the grounds of gender by Employer CPSU contrary to the Employment Equality Acts.
(2) Victimised by Employer CPSU on foot of making a claim under the Employment Equality Acts in relation to ground one above.
In relation to the first ground above the Complainant referred a claim to the Director of the Equality Tribunal on the 1st May 2013, under the Employment Equality Acts. On the 10th November 2014 the Complainant referred a claim to the Director in relation to Victimisation - the second ground above.
On the 8th October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated both cases to me, Michael McEntee, an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. As both claims are very closely associated it was decided and agreed to by the parties to associate both claims in a single investigation.
Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to an initial hearing on the 16th October 2015. Following this hearing an exchange of correspondence /information followed between the parties. A resumed hearing was held on the 1st February 2016.
1:2: Volume of Evidence
Both the Complainant and the Respondent submitted a very considerable volume of written and oral evidence and it is accordingly only possible to restate the key points of the arguments and supporting evidence – all of which has been considered carefully by myself.
2: Summary of the Complainant’s SubmissionA) Gender discrimination in relation to a Promotion process
2:1 The Complainant is a Trade Union official employed by the Respondent since August 2001.
Specific issues referred to in her case were the following points that she maintained were instances where she was discriminated against on the grounds of gender.
Ø She did not receive a fair process, on the grounds of her gender, in the selection process for Deputy General Secretary of the Union.
Ø A discussion among senior Union personnel had taken place in Luxembourg in July 2012. The Complainant had overheard most of the discussions –the import of which gave the Complainant severe unease regarding the fairness and gender proofing of future internal recruitment processes in the Union.
Ø The Complainant and her Trade Union SIPTU, on her behalf, engaged in lengthy discussions with the Union which ultimately ended at the Union Executive Committee, in relation to the handling of Union procedures or “Ballot” for the selection of the Interview Board for the Assistant General Secretary position in question here. Legal advice was considered by the Union. The outcome was such that the Complainant could not have absolute confidence in the process eventually arrived at but, notwithstanding, agreed to participate in the interview process.
Ø The General Secretary was a member of the interview Board albeit in a “Non-Voting” capacity – in view of the fallout from the discussions referred to above his presence at the Board was far from desirable from the Complainant’s point of view.
Ø The Interview process was advertised as being Competency Based. The Complainant did not feel it satisfied the accepted norms for a Competency based Interview and was certainly open to question on grounds of Gender discrimination.
Ø The Scoring System used was not transparent or logical and was open to challenge by Authorities expert in interviewing and the avoidance of gender discrimination in selection procedures. Detailed probability evidence was presented in support of the illogicality argument.
B) Victimisation
Following the lodging of the Discrimination complaint in May 2013 a pattern of Victimisation emerged against the Complainant.
Specifically
Ø In October 2014 her work allocation within the Union was altered to her detriment, effectively she was assigned to what would be perceived as more “junior” portfolios.
Ø A pattern of Social Exclusion developed against her: specific incidents referred to were social events surrounding the Annual Delegate Conference of 2013, Christmas events of 2013 and a staff drinks night in July 2014.
Ø Work related interference was allowed by the General Secretary – the Complainant was challenged publically at Executive meetings by other officers despite the matter under discussion being part of her job area and recognised brief. The handling of the matters at the Executive meetings was inappropriate and completely unfair on all grounds especially gender. The behaviours outlined were very undermining of her Union Official position and professional reputation.
Ø The handling of the selection process for the second ICTU Executive Committee nomination in 2013 was embarrassing and belittling for her. The discussion of her merits /demerits was clearly open to a negative gender interpretation.
Ø The Complainant’s work as the Union Equality officer has not received due recognition from the General Secretary specifically her efforts on the Garda Equal Pay claim and her efforts on the Union Equality policy and the Union e Magazine.
Ø As part of the discriminatory process the Complainant has been deprived of adequate clerical support for long periods of time, effectively making her work load more onerous than that of colleagues.
Ø The Complainant’s achievement on election as Chairperson of the ICTU Women’s Committee in September 2014 was not publically recognised or the subject of any appropriate congratulations to her by the General Secretary.
Ø In general the General Secretary is dismissive in relation to answering phone calls from the Complaint and usually ignores /declines to answer emails from her.
3: Summary of the Respondent’s Submission.A) Discrimination Claim
3:1:
Ø The Interview Process for the Assistant General Secretary position was fair and transparent and completely free of any discriminatory gender bias.
Ø The Composition of the Interview Board was altered to accommodate concerns raised by SIPTU on the Complainant’s behalf.
Ø The Interview Board had in addition to Union Executive nominees had three most eminent independent HR practitioners – one of whom, in addition, has considerable Trade Union Officer experience. The gender balance was also appropriate – two of the external Independents were female, as was one of the Union nominees.
Ø All members of the Interview Board had received Equality and Interviewing Skills training. The Union has a very active and public Equality profile and the members of the Board would have been well aware of this.
Ø The “Competencies” referred to in the Interview and Selection process were appropriate to the position and not in any way prejudicial against the Complaint from a work experience or any gender issues.
Ø The results of the selection process were stated – another female candidate received higher marks that the Complainant.
Ø The Union took all reasonable practical steps to ensure that the selection process was non-discriminatory especially from a gender point of view.
Ø A very considerable amount of documentation in relation to the Interview Process and feedback/notes etc. has been provided to the Complainant and her advisors.
Ø Notwithstanding this and all of the above the Complainant has failed to demonstrate facts from which it can be inferred that she has suffered discrimination in relation to her gender.
B) Victimisation Claim
Ø Reallocation of duties and briefs was a normal part of any Trade Union fulltime Officials employment. The changes were fully explained to the Complainant and all other Union full time staff. There was no diminution in the Complainant’s overall levels of responsibility.
Ø The allegation of Social exclusion was rebutted. Many of the incidents referred to by the Complainant were organised by staff privately and not under the auspices of the Union officially. There was no discernible pattern of deliberate social exclusion.
Ø Social differences may exist with other colleagues but this does not equate to victimisation.
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