Brendan Ogle would still have full role at Unite if not for cancer, barrister argues

Trade union officer Brendan Ogle would still have a full role with Unite the Union if he had not been diagnosed with cancer, his legal representatives have told the Workplace Relations Commission.

Mary-Paula Guinness BL, for Mr Ogle, made a brief submission to the commission on Tuesday morning in which she said that having returned to work with Unite as a senior officer for the Republic of Ireland following his illness, her client found himself in a diminished role with reduced responsibilities.

She said Mr Ogle was discriminated against because of his disability and “had he not got cancer he would still have a full role”.

In response Mark Harty SC, for Unite, said that Mr Ogle had attempted to “shoehorn” the evidence into a claim of disability discrimination. Counsel submitted that roles were available to Mr Ogle when he returned to work but he refused to fulfil them.

Mr Harty asked the adjudicator, Elizabeth Spelman, to pay close attention to the evidence of one union employee who said she was responsible for directing the flow of tasks within the organisation. Her evidence, counsel said, was that at some point she “simply stopped sending work to Brendan Ogle” but she was clear that nobody told her not to send tasks his way.

Mr Ogle claims disability discrimination under the Employment Equality Act 1998. He has accused the trade union of a failure to provide reasonable accommodation, victimisation and harassment following his return to work having had treatment for a “very aggressive” throat cancer.

Tom Fitzgerald, who gave evidence to the tribunal earlier this year, had been promoted to regional co-ordinating officer at Unite’s Dublin office during Mr Ogle’s sick leave, the WRC previously heard. In his evidence to the tribunal, Mr Ogle described a meeting with Mr Fitzgerald on August 22nd, 2022 during which he alleged his colleague told him that the union’s new general secretary Sharon Graham had issued a “directive” that Mr Ogle was not to be included in a new strategy for Ireland.

In his evidence, Mr Fitzgerald said he “absolutely didn’t say that” and that Ms Graham had not issued a directive to exclude Mr Ogle. Mr Fitzgerald described Mr Ogle’s evidence as “not credible” and “illogical”.

At Tuesday’s hearing, Ms Guinness submitted that her client is credible and had been “consistent from the outset” that on his return to work a strategic plan for the union had been put in place that did not include him.

Mr Ogle had been accused during the tribunal of changing his story but Ms Guinness said it was Mr Fitzgerald who was “changing with the wind”. She said Mr Fitzgerald had been “at pains” to downplay Mr Ogle’s role but evidence had been presented showing his “extensive involvement” in the organisation.

“In terms of credibility, Mr Ogle’s evidence is credible, Mr Fitzgerald’s is not,” she said.

Before his illness, Mr Ogle was a senior official but when he came back to work with a disability he found he had a diminished role and responsibility, counsel said. Mr Fitzgerald, who was at the same grade as Mr Ogle but had no disability, had a number of responsibilities including those that were previously carried out by Mr Ogle, she said.

Ms Guinness added: “Had he not got cancer he would still have a full role. Having returned from illness he now has a diminished role and I say that amounts to discrimination.”

Mr Harty said that there is no evidence that Mr Ogle’s role was diminished due to his illness. He said the evidence showed that there was a change in the structure of the Union and on his return to work, Mr Ogle refused to occupy roles that were offered to him.

Mr Harty said the basis of Mr Ogle’s claim had always been that he was “forced out” due to the restructuring of the union but he is now trying to “shoehorn” the evidence into a disability discrimination claim.

Mr Harty said that given the work that the union does, it is important that it maintain its reputation as “an honest broker in these matters”. He said there was evidence that people who returned to work at Unite following illness were treated well.

Ms Spelman said she will reveal “in due course” her decision on the matter, which has been spread over a number of hearings that began in November, 2023.