A postal clerk who was offended by a joke about a Gilbert O’Sullivan song on the radio being “her vintage” has won €1,000 for ageist discrimination.
Although the Workplace Relations Commission rejected a series of employment rights complaints brought by the part-time postal clerk against an unidentified government agency, it upheld a single complaint of discrimination on age grounds under the Employment Equality Act over the incident.
She had accused her employer of discriminatory harassment and victimisation, along with failing to provide her with reasonable accommodation for her disability.
The worker’s barrister, Frank Drumm BL, instructed by Collier Law, said his client’s supervisor had already “set a tone which was discriminatory” at work on a date in 2020 by making jokes about her age in the workplace, which he said was met by laughing from other staff.
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The tribunal was told a Gilbert O’Sullivan song then came on the radio, and the supervisor said: “This is more [name of complainant]’s vintage,” a remark confirmed to the tribunal by the supervisor in evidence.
The decision, published by the WRC on Wednesday and anonymised on medical grounds, does not identify the song at the centre of the dispute.
The supervisor said he was “mortified” when the complainant said she had been “hurt and offended” by his “light-hearted” Gilbert O’Sullivan joke.
He said it had not been “malicious” and apologised, he told the WRC.
The tribunal was told the Gilbert O’Sullivan incident was in the context of another alleged incident involving her supervisor, about which she had lodged a formal grievance, and her later dealings with her employer on the matter which were also subject to rights claims.
She had claimed in the grievance that on 5 June 2020 the supervisor gave her chair a “resounding whack” and “grunted aggressively” at her the words: “Serve the customer.”
The complainant said that the next day she was in work after what she termed an “assault”, she was reprimanded for “slacking” by a manager and that the supervisor ignored what she had to say about the nature of the incident.
The employer’s case was that the complaint made by the worker was that her chair had been hit with such force that she “was nearly locked out of the chair” – and that the branch manager who had investigated the matter took the view that her claim was not backed up by CCTV.
Mr Drumm said the employer had breached its own dignity at work policy in investigating the July grievance by failing to appoint an investigator, take witness statements, set out terms of reference or allow the complainant to view the CCTV.
The complainant said the halving of her sick pay after she lodged equality complaints were lodged with the WRC were an act of penalisation for taking the claim.
In her decision, adjudicating officer Davnet O’Driscoll noted that the complainant was “close to retirement” at the time of the Gilbert O’Sullivan incident and ruled that it amounted to harassment on age grounds by the supervisor.
“I award her €1,000 for the effects of discrimination. There is no evidence of victimisation,” Ms O’Driscoll wrote, upholding one complaint under the Employment Equality Act 1998.
The adjudicator wrote that the complainant had not made out a case for discrimination on disability grounds in relation to any alleged failure to provide reasonable accommodation, Ms O’Driscoll added.
Although it would have been “preferable” for the employer to investigate the grievance “in the usual way”, Ms O’Driscoll wrote, she noted that there had been an offer of a “conciliatory conversation” which had not been taken up by the complainant.
Noting further that “consideration of co-operation” was part of the employer’s attendance management policy for workers on sick pay, Ms O’Driscoll concluded that she was “not satisfied” that reducing the worker’s pay had been penalisation under the Safety, Health and Welfare at Work Act 2005, as claimed.
She dismissed further complaints under the Payment of Wages Act, and the Terms of Employment (Information) Act.