Cases
Iarnrod Eireann -v- Mannion
[2010] IEHC 326
Hedigan J.
11. Fairness of procedures
The list of cases cited to me does indeed establish that parties before administrative tribunals are entitled to fair procedures. This is well established law and needs no further elaboration. None of these cases, however, refer to circumstances similar to those that exist here. The Irish case law shows that the fairness of procedures inevitably varies according to the nature of those proceedings. In determining cases of alleged discrimination, it is well recognised that special evidential difficulties may arise from the very nature of discrimination itself. This is often hidden or unrecognised by the party alleged to discriminate. In King v. Great Britain China Centre [1992] ICR 516 at 528 – 529, Neill L.J. stated as follows:-
“(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw … from an evasive or equivocal reply to a questionnaire.”
This statement of the law was approved by the House of Lords in Glasgow City Council v. Zafar [1998] 2 All ER 953 where Browne-Wilkinson L.J. stated at p. 958 that complaints of racial discrimination:-
“… present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them.”
Both of these decisions were cited with approval by Quirke J. in Davis v. DIT (Unreported, High Court, 23rd June, 2000). I also gratefully adopt the rationale of these two decisions.
12. Inferences are a legitimate part of any decision making process. There are undoubtedly limits. However, to show on judicial review that inferences made were a violation of a party’s right to fair procedures it would be necessary for the party so alleging to show those inferences were not properly made. To do this, the applicant would have to show by some evidence that the inference made was clearly wrong and was an essential part of the ultimate decision made. Neither element has been shown here. In the first place the inference obviously drawn was that the documentation in question did not support the applicant’s case. In the light of the fact that the documentation has never been produced even at this hearing when it was central to the application, demonstrates beyond doubt in my view that such an inference was correct. As to the second part of the above, it is clear on any reading of the decision that the inference was but a small part of the reasoning behind the decision that the applicant discriminated against the notice party in relation to her conditions of employment. By no stretch of the imagination could it be regarded as essential.
13. It must be noted that the applicant in these proceedings, including during the hearing when questioned about it, has studiously avoided any reference to the contents of the documentation in question. This silence is impossible to justify. If the documentation is of no evidential valueor does not exist then the Equality Officer and this Court should have been told so. If the documentation does exist but is unfavourable to the applicant, then the applicant is concealing evidence from both the Equality Officer and this Court. If the applicant as stated in the replying affidavit of Geraldine Finucane considers it would be too much trouble to comply with their agreement to produce, then this is a manifest disrespect to the Equality Officer who is exercising functions with which she is charged by the Oireachtas. It is also manifestly disrespectful to this Court. Any one of the above scenario constitutes conduct by the applicant so unacceptable that I cannot conceive of any Court exercising its discretion in judicial review in their favour even were it persuaded that the application had any merit. In my view however, for the reasons outlined above, this application is devoid of merit either in law or on the facts.
The application is refused.”
Statutory Instruments 2015 S.I. No. 463/2015 –
Industrial Relations Act 1990
Code of Practice on Victimisation (Declaration) Order 2015.
S.I. No. 463/2015 – Industrial Relations Act 1990 (Code of Practice on Victimisation) (Declaration) Order 2015.
View SI
Amendments
Open PDF
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 30th October, 2015.
WHEREAS the Workplace Relations Commission has prepared under subsection (1) of section 42 of the Industrial Relations Act 1990 (No. 19 of 1990), a draft code of practice on victimisation arising from an employees membership or activity on behalf of a trade union or a manager discharging his or her managerial functions, or other employees;
AND WHEREAS the Workplace Relations Commission has complied with subsection (2) of that section and has submitted the draft code of practice to the Minister for Jobs, Enterprise and Innovation;
NOW THEREFORE, I, Gerald Nash, Minister of State at the Department of Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by subsection (3) of that section, the Labour (Transfer of Departmental Administration and Ministerial Functions) Order 1993 ( S.I. No. 18 of 1993 ), the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order 1997 ( S.I. No. 305 of 1997 ) and the Jobs, Enterprise and Innovation (Delegation of Ministerial Functions) Order 2015 ( S.I. No. 426 of 2015 ), hereby order as follows:
1. This Order may be cited as the Industrial Relations Act 1990 (Code of Practice on Victimisation) (Declaration) Order 2015.
2. It is hereby declared that the code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act 1990 (No. 19 of 1990).
3. The Industrial Relations Act 1990 (Code of Practice on Victimisation) (Declaration) Order 2004 ( S.I. No. 139 of 2004 ) is revoked.
SCHEDULE
Code of Practice on Victimisation
1. INTRODUCTION
1. Section 42 of the Industrial Relations Act, 1990 provides for the preparation of draft Codes of Practice by the Workplace Relations Commission for submission to the Minister, and for the making, by him/her of an order declaring that a draft Code of Practice received by him/her under section 42 and scheduled to the order shall be a Code of Practice for the purposes of the said Act.
2. A High Level Group on Trade Union Recognition established in 2000, involving the Departments of the Taoiseach, Finance and Enterprise, Trade and Employment, the Irish Congress of Trade Unions (ICTU), the Irish Business and Employers Confederation (Ibec) and IDA-Ireland, considered proposals submitted by the ICTU on the Recognition of Unions and the Right to Bargain and took account of European developments and the detailed position of Ibec on the impact of the ICTU proposals. As a result of these deliberations a set of procedures were put in place in the Code of Practice on Voluntary Dispute Resolution ( S.I. No. 145 of 2000 ) and the Industrial Relations (Amendment) Act 2001 .
3. In April 2003 the Minister for Enterprise, Trade and Employment requested the Commission under section 42 (1) of the Industrial Relations Act 1990 to prepare an updated draft Code of Practice on Victimisation to provide for the further development of employee representation, and measures setting out the different types of practice which would constitute victimisation arising from an employee’s membership or activity on behalf of a trade union or a manager discharging his or her managerial functions, or other employees. These measures were put in place in the Code of Practice on Victimisation (Declaration) Order ( S.I. No. 139 of 2004 ).
4. In 2015, the Minister of State at the Department of Jobs, Enterprise and Innovation, in accordance with section 42(6) of the Industrial Relations Act 1990 , after consulting with the Workplace Relations Commission further amended the Code to make explicit that any adverse effect arising from an employee refusing an inducement (financial or otherwise) designed specifically to have the employee forego collective representation by a trade union is a form of victimisation under the Code.
5. The major objective of the Code is the setting out of the different types of practice which would constitute victimisation arising from an employee’s membership or activity on behalf of a trade union or a manager discharging his or her managerial functions, or other employees.
2. PURPOSE
1. The purpose of this Code of Practice is to outline, for the guidance of employers, employees and trade unions, the different types of practice which would constitute victimisation.
2. Victimisation in the context of this Code of Practice refers to victimisation arising from an employees membership or non-membership, activity or non-activity on behalf of a trade union, or a manager discharging his or her managerial functions, or any other employee in situations where negotiating arrangements are not in place and where collective bargaining fails to take place (and where the procedures under the Code of Practice on Voluntary Dispute Resolution have been invoked or steps have been taken to invoke such procedures).
3. DEFINITIONS
1. For the purposes of this Code, victimisation is defined in general terms as any adverse or unfavourable treatment that cannot be justified on objective grounds (objective grounds do not include membership of, or activity on behalf of, a trade union) in the context referred to at Clause 2 above. It shall not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Act 1977 to 2015, where there is a separate recourse available. For the avoidance of doubt, “employee” in this Code includes any person in the employment concerned, the duties of whom consist of or include managing the business or activity to which the employment relates.
For the purposes of this Code none of the following—
a) the employer,
b) an employee, or
c) a trade union,
shall victimise an employee or (as the case may be) another employee in the employment concerned on account of—
i. the employee being or not being a member of a trade union, or
ii. the employee engaging or not engaging in any activities on behalf of a trade union, or
iii. the employee exercising his/her managerial duties, where applicable, to which the employment relates on behalf of the employer.
2. Examples of unfair or adverse treatment (whether acts of commission or omission) that cannot be justified on objective grounds may in the above contexts include an employee suffering any unfavourable change in his/her conditions of employment or acts that adversely affect the interest of the employee (including any adverse effect arising from the employee refusing an inducement (financial or otherwise) designed specifically to have the employee forego collective representation by a trade union); action detrimental to the interest of an employee not wishing to engage in trade union activity, or the impeding of a manager in the discharge of his/her managerial functions.
4. AVOIDANCE
1. Where there is a dispute in an employment where collective bargaining fails to take place and where negotiating arrangements are not in place, no person, be they union representative, individual employee or manager, should be victimised or suffer disadvantage as a consequence of their legitimate actions or affiliation arising from that dispute. The positions and views of all concerned should be respected and all parties should commit themselves to resolve issues in dispute expeditiously and without personal rancour.
5. PROCEDURE FOR ADDRESSING COMPLAINTS OF VICIMISATION
1. A procedure for addressing complaints of victimisation is set out in the Industrial Relations (Miscellaneous Provisions) Act 2004 . Section 9 of the Act provides that a complaint may be presented to the Workplace Relations Commission.
GIVEN under my hand
28 October 2015.
GERALD NASH,
Minister of State at the Department of Jobs, Enterprise and Innovation.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
The effect of this Order is to declare that the draft Code of Practice set out in the Schedule to this Order is a Code of Practice for the purposes of the Industrial Relations Act 1990 .
Important Notice!
This website is provided for informational purposes only. See the Disclaimer and the Terms of Use in the footer. It is a fundamental condition of the use of this website that no liability is accepted for any loss or damage caused by reason of any error, omission, or misstatement in its contents.
Public Sector Materials; Statutes and Cases in italics are reproduced as public sector material. See the Legal Materials link in the footer.