Case Number: DEC-S2017-042. Workplace Relations Commission

• Judgment Date: 01 November 2017
• Court: Workplace Relations Commission
• Docket Number: DEC-S2017-042
• Parties: ENOCH BURKE AND NATIONAL UNIVERSITY OF IRELAND GALWAY

EQUAL STATUS ACTS 2000-2004 DECISION NO.: DEC-S2017-042 PARTIES: ENOCH BURKE AND NATIONAL UNIVERSITY OF IRELAND GALWAY (REPRESENTED BY CLIONA KIMBER BL INSTRUCTED BY RONAN DALY JERMYN SOLICITORS) File Reference: et-150782-es-14 Date of Issue: 16 November 2017

HEADNOTES: Equal Status Acts –Religion – Victimisation - Harassment

1.0 DISPUTE

The complainant referred claims to the Director of the Equality Tribunal under the Equal Status Acts on 18^th September 2014, 7^th November 2014 and 9^th January 2015. In accordance with powers under Section 75 of the Acts the Director delegated the complaint to me, Louise Boyle, an Equality Officer, on 12 October 2016 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts.

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.

As required by Section 25(1) and as part of my investigation, I proceeded to hearings on the 28^th October 2016, 8^th December 2016, 3^rd March 2017, 15^th March 2017, 16^th March 2017 and 12^th May 2017.

In this claim the submissions were substantial with copious volume of documentation and oral evidence was heard over six days and, whilst I will not be referring to every letter, incident or event or reference every case law presented, I have taken into account all the submissions including oral, written and visual media, made to me in the course of my investigation as well as the evidence presented at the hearing.

As three siblings of the complainant had similar complaints, their complaints were also heard over the same days for which separate decisions have been issued.

The complainant was mostly represented by his brother Mr Isaac Burke, but assisted by the complainant and his two siblings Ms Kezia Burke and Ms Ammi Burke, referred to above, as well as his mother who was in attendance with the consent of the Respondent.

During the six days of hearing I had cause to interrupt both the complainant and the respondent on a number of occasions. This occurred when I considered their means of adducing evidence as long-winded, laborious or deviated from the questions put to them. This is not unusual in cases and more so where both sides present copious documentation, when many preliminary points are raised, where there are many witnesses in attendance and/or the hearings are spread over many days; all of which applied in this case. While the norm might be for the respondent or complainant to raise their objection and upon my response would allow the case to proceed; the complainant and those assisting him, regularly refused to proceed and sought clarification on a continuous basis to questions that I put to him and to the respondent. On occasion his response to questions put to him was that he had already answered the question and would not repeat his answer. On at least two occasions he seemed to imply that he objected to my objectivity in hearing the case but did not furnish specifics around same nor did he request myself to recuse myself but merely repeated that he did not have an issue with the case proceeding. Such continuous interjections and discussions led to further delays and the need to adjourn on occasions. Part of the role of an Equality Officer, in following fair procedures, is to ensure each claim is heard fully but expeditiously. The two are not mutually exclusive but sometimes require the cooperation of the parties to ensure it happens. On occasion, it was difficult to secure the cooperation of the complainant, however, I am satisfied that he was given ample opportunity to present his claims and such objections and interruptions, did not affect my investigation of his claims.

This dispute concerns claims by Mr Enoch Burke (hereinafter referred to as the Complainant) that he was discriminated against by National University of Ireland Galway (hereinafter referred to as the Respondent) on the grounds of his religion and that the respondent allowed him to be harassed on the grounds of his religion and that the respondent treated him unlawfully by victimising him contrary to the Equal Status Act in relation to what will be referred to, for ease of reference, 5 Categories of complaints and within each of the categories are 11 Items of complaints, which were categorised/itemised as such at the hearing by the complainant and are detailed below:

Category A:

Complaints regarding Posters and that the complainant was discriminated and harassed (Items 1, 3, 9)

Item 1 relates to a complaint that on 30^th October 2013 a student ripped down Life Society posters.

Item 3 relates to a meeting of the University Societies Coordination Group (USCG) on 12^th March 2014 to hear a complaint regarding the ripping down of posters and suppression of free speech.

Item 9 regarding complainant’s posters ripped down at an event on the right to life of children with Down Syndrome held on 15^th October 2014, organised by the Life Society which the complainant is a committee member of.

Category B

Complaints regarding the Student Union same sex marriage referendum and that the complainant was discriminated and harassed (Item 4, 5 & 6)

Item 4 relates to a complaint that on 12^th March 2014, the Christian Union Society information table was vandalised, the Gardaí were called, the information table was shut down and the Head of Security tore Christian Union posters.

Item 5 relates to a complaint that on 12^th March 2014, the complainant was defamed, slandered, bullied, intimidated and harassed by students of NUIG and others both in person and online via social media and other media sites with no action taken by the respondent to curtail it and furthermore that he became unwell both physically and psychologically as a result.

Item 6 relates to a press release released on 12^th March 2014, by the complainant as a committee member of the Christian Union requesting the University to call off the referendum on same-sex marriage.

Category C

Complaints to security regarding harassment and abuse and that the complainant was discriminated against and harassed (Item 2)

Item 2 relates to that on 11^th March 2014, while the complainant was manning an information stand to do with same-sex marriage referendum, he was harassed by students and called security but they did not come.

Category E

Complaints regarding the USCG’s Regulations for Student Societies and that the complainant was discriminated against (Items 7, 8 & 10)

Item 7 relates to a regulation passed by USCG on 5^th September 2014 detailing that societies need to sign up at least 100 members on Societies Day.

Item 8 relates to a regulation passed by USCG on 5^th September 2014 detailing that some societies must be affiliated to an external organisation

Item 10 relates to the 100-member’s regulation on 5^th September 2014 and a claim that it compromises the Christian Union Society and Life Society ethos which the complainant was a member of.

Category F

Complaint regarding the USCG decision to disbar the complainant from active membership of all societies and that the complainant was discriminated and victimised (Item 11).

Item 11 regarding notice of being disbarred from active membership of all societies on 10^th November 2014 and the failure of the complainant’s appeal on 22^nd December 2014.

2.0 PRELIMINARY ISSUES

Several preliminary issues were raised:

2.1 Religion

It was claimed by the respondent that the complainant had failed to show the nature of his religion

2.2 Notification & Time Limits

It was claimed that the respondent had not been notified in writing with regard to some of the complaints and that some of the complaints were out of time.

2.3 Law Applicable to Educational Establishments

This preliminary issue was withdrawn by the respondent.

2.1.1 Religion Religion – Respondent Submission

The respondent details that the complainant has not stated what religion he is other than that he says that he has Christian beliefs. They detail that it is not sufficient to allege a protected ground and treatment complained of and that he must show also that he has been treated differently than a comparator of a different religion or belief and that generalised complaints about freedom of expression, freedom of speech...