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Victimisation – Labour Court considers if dismissal a reactive response to complaints made

We are often asked what is meant by victimisation and the case of Monaghan County Council v Roy Mackarel Determination Number ED 1213 from 2012 gives us some answers. Here the Labour Court noted that “the burden of proving the absence of victimisation rests with the Respondent in accordance with Section 85A and can only be discharged if it is to establish on credible evidence that the making of complainants by the Complainant was in no sense beyond the trivial, an influencing or reactive factor in the decision leading to his dismissal”.BackgroundThis case concerned an appeal by Mr Mackerel (“the Complainant”) under Section 83 of the Employment Equality Acts 1998 to 2011 against Monaghan County Council (“the Respondent”). The claim was based on the grounds of his religious belief including religious background.The Complainant was employed by the Respondent as a retained firefighter from October 2001 until his employment was terminated by dismissal on 10th December 2007. The Complainant was a member of the Presbyterian Church and made a complaint that he had been subjected to harassment by work colleagues in the nature of derogatory and offensive verbal comments concerning his religion.An investigation was commenced informally and subsequently an external consultant was appointed and her report was presented to the Director of HR in or around 7th December 2007. The report concluded that the complaints of harassment made by the Complainant were not upheld. It also dealt with an incident in 2006 where it was held that the Complainant had disobeyed an order from his Officer in Command and left duty without authorisation. Based on the findings the Director of HR determined that the Complainant had been guilty of gross misconduct and wrote to the Complainant enclosing the report and recommending that employment be terminated. The Complaint was suspended on full pay and was offered the right to appeal which he did not avail of. The Complainant’s role was terminated with effect from 10th December 2007.The Complainant subsequently lodged a complaint with the Equality Tribunal on 30th May 2008 alleging discrimination by way of harassment on the grounds of religion and victimisation by way of dismissal. All of the Complainant’s complaints were dismissed by decision of the Equality Tribunal dated 23rd December 2011. The Complainant appealed the entire decision to the Labour CourtAt the outset of the Labour Court hearing the Complainant withdrew the claim of harassment and was proceeding only with a claim of victimisation in relation to dismissal.In giving evidence for the Respondent, the Director of HR stated that in recommending the Complainant’s dismissal, he was influenced solely by events regarding the incident of 22nd September 2006 and was in no way influenced by considerations of the Complainant’s religion or the fact that he had made complaints or harassment on the grounds of his religious background.The LawThe Labour Court looked at the definition of victimisation as defined under Section 74(2) of the Equality Acts and Article 11 of Directive 2000/78/EC and noted that both the Act and the Directive provide that victimisation occurs where “a detriment is imposed on a worker “as a reaction to” a complaint or other protected act. The use of the expression “as a reaction to” connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision”.The Court further noted that it was sufficient if the making of the complaint was an operative factor “in the sense of being anything other thana trivial influence, operating in the mind of the decision maker”.The Court stated that it must be alert to the possibility of “subconscious or unrecognised influence by surrounding events operating in the mind of the decision maker” and referred to the case of Nevens, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282].ConclusionThe Labour Court noted that the report concerning allegations of harassment was commissioned to enquire into the alleged misconduct of others in relation to the Complainant and the terms of reference were similarly circumscribed however the report nonetheless went on to deal with a complaint of serious misconduct against the Complainant. It further noted that it was “striking” that the  Complainant was not afforded the opportunity to address the allegations contained in the report or allowed to make representations on his own behalf.The court noted that there was undoubtedly procedural unfairness leading to the Complainant’s dismissal, the report itself did not establish victimisation but noted “the juxtaposition in the report of the conclusions on the complaints made by the Complainant, with those made against him, coupled with the peremptory manner in which the Respondent acted, makes it impossible for the Court to discount the possibility that but for the Complainant’s complaints of harassment he may not have been treated as such”. Interestingly the Court also looked at the “considerable significance” that the incident relied upon to dismiss occurred in 2006 and no disciplinary process was invoked at that time. It further noted that it seemed probable that but for the disclosure of the incident in the report it would not have come to the attention of the Director of Human Resources.The Court concluded that the Respondent failed to prove “as a matter of probability, that the Complainant’s dismissal was not as a reaction…..to his complaints of harassment on grounds of his religious belief or outlook”.The Complainant was awarded €17,000 for victimisation.   

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