Waterford City and County Council (Represented by LGMA) v A Worker (Represented by Services Industrial Professional Technical Union)

• Jurisdiction: Ireland
• Judgment Date: 05 January 2018
• Judgment citation (vLex): [2018] 1 JIEC 0503
• Date: 05 January 2018
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.EDA181 ADJ-00002519 CA-00003499-001
• Court: Labour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

ADE/17/21

DETERMINATION NO.EDA181

ADJ-00002519 CA-00003499-001

PARTIES:

Waterford City and County Council (Represented by LGMA)

and

A Worker (Represented by Services Industrial Professional Technical Union)

DIVISION:

Chairman: Ms O'Donnell

Employer Member: Mr Marie

Worker Member: Ms Treacy

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011

SUBJECT:

1 1. Appeal of Adjudication Officer's Decision ADJ-00002519

BACKGROUND:

2 2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2015. A Labour Court hearing took place on 29th November, 2017. The following is the Determination of the Court:

DETERMINATION:

3 This is an appeal by the Complainant against an Adjudication Officer's Decision ADJ-00002519 in a complaint of harassment and victimisation pursuant to the Employment Equality Acts 1998–2015 (the Act) brought against her employer Waterford City and County Council (hereafter the Respondent). The Adjudication Officer found that the complaints were not well founded and that the claim failed.

Background

4 The Complainant is in employment with the Respondent for a number of years. She previously brought proceedings under the Act against the Respondent in which she claimed to have suffered discrimination on grounds of her gender. She also claimed to have suffered harassment and victimisation by the Respondent. An Adjudication Officer, at first instance, found that the Complainant had been discriminated against as alleged and she received an award of compensation. The complaints of harassment and victimisation were not upheld at first instance. It is against the dismissal of those claims that the Complainant now appeals. There is no cross-appeal by the Respondent against the finding of discrimination.

5 The Complainant works in a service that is provided by the Respondent on a 24-hour basis over seven days. The issues giving rise to the complaints of harassment and victimisation arose against the background of a move to a new premises in which the Complainant was to be relocated. The Complainant was dissatisfied with the facilities that were made available to her as compared to other staff in the new premises. Discussions were had with the Complainant and her Union representative and the other staff members in relation to redesigning the facilities to ensure that all staff were facilitated appropriately. Agreement was reached between the Respondent and the Complainant's Union by which she was placed on paid leave pending the resolution of the facilities issues.

6 It is the Complainant's case that this led to incidents of harassment. She also contends that in consequence of having taken a claim of discrimination she was subjected to victimisation by the Respondent in terms of not pro-actively facilitating her return to work.

Complainant's case

7 The Complainant told the Court in evidence that there were a number of incidents which she believed constituted harassment. She accepted that details of some of these incidents were not provided to the Respondent. On that account, she was not relying on those occurrences in advancing her claims. However, there were two incidents that were of a more general nature which she believed constituted harassment as defined by the Act.

8 One incident related to the posting of a notification on the notice board in the workplace and the second issue was the failure of the Respondent to implement the recommendations of an equality report that it had commissioned.

9 The Complainant told the Court that she had visited her workplace while on paid leave and had seen a notice on the notice board setting out two options in relation to the proposed changes to the facilities. The Complainant understood from the notice that a meeting had taken place for the purpose of ascertaining the views of employees on the proposed changes in the facilities in question. However, she was not informed of the meeting or asked for her view. She told the Court that she regarded this omission as a form of harassment. In her evidence the Complainant accepted the source of the notice was not clear.

10 The second incident upon which the Complainant placed reliance was in relation to an equality report that the Respondent had commissioned. The Complainant told the Court that in her opinion the respondent was not actively seeking to implement the recommendation of the report. In particular, the Complainant referred to the fact that a recommended review had not been carried out and that a protocol recommended in the report had not been formally issued until a number of months after she returned to work. This, according to the Complainant, also constituted harassment.

11 In the course of her evidence, the Complainant told the Court that she believed that the Respondent's failure to actively facilitate her return to work from paid leave constituted an act of victimisation. This, the Complainant believed, was because she lodged a complaint of gender discrimination with the WRC on 8 ^th October 2015.

12 In essence, the Complainant's case is that the Respondent continued her period of paid leave, which was intended to be of short duration, from mid-September 2015 to 10 ^th April 2016.

13 According to the Complainant she had not been informed by the Respondent of the extension of her paid leave on a number of occasions on which it had been continued. While there was no issue in relation to her receiving her pay for the period she did not feel it appropriate that either she or her Union had to contact the Respondent...