The complainant in this case was a retained fire-fighter first employed by the respondent in October 2001 and dismissed in December 2007. On 16th October 2006, he made complaints to the respondent employer that he had been subjected to harassment by work colleagues in the nature of derogatory and offensive verbal comments in relation to his religion. The complainant is a member of the Presbyterian Church. The respondent conducted an investigation into these complaints, informally at first and then in the form of a formal investigation conducted by an external consultant. The consultant furnished her written report to the respondent’s Director of Human Resources on 7th December 2007; some 14 months after the allegations were first made. This report did not uphold the allegations but in passing, it noted that on 22nd September 2006 (some weeks before the alleged harassment), the complainant had disobeyed an order from his Officer in Command at a fire incident and had in effect left active duty without authorisation.
The HR Director reviewed this report at home over the weekend and formed the view that the complainant was therefore guilty of gross misconduct. He then wrote to the complainant on 10th December 2007 informing him that his complaint had not been upheld but also drawing attention to the incident of insubordination and providing details. The letter outlined the serious nature of such misconduct in a command structure operating in emergency situations and concluded by stating that, having considered all the relevant evidence, the HR Director was recommending the termination of his employment to the County Manager.
The letter informed the complainant that he had 10 days to appeal this decision. The complainant declined to do so and was dismissed with effect from 10th December. He then referred complaints to the Equality Tribunal on 30th May 2008 alleging discrimination by way of harassment on grounds of religion and victimisation by way of dismissal. In a decision of 23rd December these complaints were dismissed by the Equality Tribunal.
Initially, the complainant appealed on both counts to the Labour Court but he subsequently dropped the ‘harassment on grounds of religious belief’ aspect of his claim and focused on victimisation. This followed an apparently unsolicited admission from the respondent’s representative that the circumstances in which the dismissal took place disclosed a prima facie case. Thus the respondent conceded that the onus was on it to prove that the dismissal was not an act of victimisation. The HR Director gave direct evidence that in recommending the dismissal of the complainant, he was solely influenced by events at the incident on 22nd September 2006 and what he viewed to be the gravity of the complainant’s misconduct. However, crucially, he accepted that he had not interviewed the complainant in order to get his version of events in relation to the incident.
The Court noted that victimisation occurs where a detriment is imposed on an employee as a reaction to a complaint (or other protected act such as supporting an employee alleging discrimination). In practice, this means that the making of a complaint must be a factor influencing the subsequent adverse treatment of the employee; it does not have to be the only or indeed the principal reason for that decision.
It also emphasised that it must be ‘alert to the possibility of subconscious or unrecognised influence operating on the mind of the decision maker’ so that seemingly honest evidence (such as that given by the HR Director) must, in the absence of corroboration, be approached with caution. It noted that the information in relation to the incident of 22nd September 2006 only came into the respondent’s possession in December 2007. This was by way of a report that was commissioned solely to investigate the alleged misconduct of others in relation to the complainant, but which nonetheless went on to address a complaint of serious misconduct against him.
The Court went on to observe that the decision to dismiss the complainant in these circumstances without affording him any opportunity to address the allegations made in the report was striking and amounted to a denial of the most rudimentary form of fair procedure. However, it noted that the question of procedural fairness was not the central issue to be determined in this case. Rather, it was whether the fact that the complainant had made complaints against colleagues was in any sense an influential or causative factor leading to his dismissal.
The Court stressed that the incident relied upon by the HR Director to justify the dismissal occurred some 15 months before it took place, but no disciplinary process was invoked at the time. Thus, but for the complaints of harassment, it would never have come to the HR Director’s attention as there would have been no investigation. Without an investigation, there would have been no report and without a report, there would have been no dismissal.
Ultimately, in all the circumstances, the Court concluded that the respondent (upon whom the onus lay) had failed to prove as a matter of probability, that the complainant’s dismissal was not a reaction to his complaints of harassment on the religious belief ground. He was awarded €17,000 in compensation for the effects of victimisation.
Labour Court Online:
http://bit.ly/ygOVJ5
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