Courts

Brendan Ogle ‘written out’ of Unite’s plans after cancer diagnosis, WRC hears

Trade union denies Ogle was given diminished role after returning from sick leave

Mr Ogle's health improved in early 2022. Photograph: Eric Luke / The Irish Times

Stephen Bourke
Tue Feb 27 2024 - 16:43

Trade unionist Brendan Ogle found his job “decimated” when he tried to get back to work at Unite’s Irish office after surviving cancer, his lawyer has claimed.

The union official claims he was discriminated against in breach of the Employment Equality Act 1998 by the UK-headquartered trade union, which has over a million members in Ireland and the UK.

Mr Ogle was giving evidence on Tuesday at the start of three days of hearings into his statutory complaint before the Workplace Relations Commission (WRC). The case may run for up to eight days – with an ongoing prospect that the tribunal might issue a witness summons for its general secretary, Sharon Graham.

Mr Ogle says he was told Ms Graham made a “directive” that he be written out of Unite’s plans for Ireland.

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His statutory complaints are all denied by Unite, where he remains an employee.

Mr Ogle said the events of 2020 were “borderline traumatic” for him. He said his sister died from cancer in February 2020, while his mother died six weeks later after contracting Covid-19 very early in the outbreak in Ireland.

He said he and his wife were “very unwell” when they contracted Covid-19 in April 2021 and that he initially attributed swollen glands in his jaw to the virus – but was then diagnosed with cancer that summer.

He went for surgery in July that year and started chemotherapy and radiotherapy in August.

“They told me the cancer was very aggressive; the prognosis wasn’t good. The good news was that they felt I was strong otherwise and they could apply therefore the strongest chemotherapy they had [and] highest level of radiation and the maximum number of sessions,” he said.

“They throw everything at you until you can’t take any more – until I literally and physically collapsed,” he said.

He said he had lost four and a half stone during his treatment and lived off fluids for six months. He was at his “very weakest” when he phoned the trade union’s general secretary Len McCluskey in November 2021 and asked him to hold a regional officer job open for him in Dundalk, he said.

He said Mr McCluskey told him he would be “red-ringed” in the Dundalk role, preserving his pay and conditions at his existing grade rather than one below.

“I didn’t think I’d be here, is the truth of it, and my oncology team weren’t that confident I would be either,” he said. He said he looked for the Dundalk role as he felt that if he came back, it would be in a diminished capacity.

However, Mr Ogle said that a different offer was made to him in writing, limiting the preservation of his pay to three years, and that he turned it down for this reason.

His condition turned around early in 2022, he said, and he sought to go back to work, receiving a “very, very positive” occupational health report with “minimal adjustments”.

However, he said he was “shocked” by the formal nature of his return-to-work interview with his line manager Jackie Pollock and the union’s head of HR Barbara Kielim, during which he was quizzed about whether he was on medication and about his ability to do the job.

Mr Pollock, he said, had questioned him about a reference in the “doctor’s notes” that he should “avoid stress at work” in case that brought on a “relapse of cancer”.

“It doesn’t mention stress at all,” Mr Ogle said of the occupational health report.

Mr Ogle said the officials were under the impression he had accepted the Dundalk job.

Having returned to work in Dublin, he said a new senior appointee in the Irish office, Tom Fitzgerald, told him at one point he felt he had been “undermined” by Mr Ogle’s presence at an event.

The following week, Mr Ogle said he met Mr Fitzgerald to be told that the union’s general secretary Sharon Graham had asked for a new strategy for Ireland.

“He said I wasn’t to be in it, and Sharon had made a decision that I wasn’t to be in it,” he said.

Mr Fitzgerald then said Mr Ogle’s prior duties, including his political role, his communications role, involvement with ICTU and the Right2Change campaign were being “issued” to different people, Mr Ogle.

“A directive was issued that I wasn’t to be involved with any of them,” he said.

Mr Ogle’s barrister, Mary-Paula Guinness, said her client had a role as senior officer for the Republic of Ireland, with a wide range of duties before he fell ill. “[He] will give evidence that on his return from cancer his role and responsibilities have been literally decimated, the role completely changed,” she said.

The tribunal noted that Mr Ogle had withdrawn three complaints of penalisation in breach of the Protected Disclosures Act 2014, leaving only his complaint of discrimination under the Employment Equality Act 1998.

Senior counsel Mark Harty, for the trade union, said: “The respondent’s case is that Mr Ogle came here with four different complaints, and he’s dropped three of them ... He cannot now shoehorn penalisation from protected disclosures into now being a complaint of discrimination.

“In relation to the test for discrimination he falls at almost every hurdle. He has not established he was discriminated against; he has not established any comparator. It is entirely artificial, the claim that he’s made. At all times the union took all possible steps to accommodate him in returning to work. Those steps were rebuffed and rejected at all times – that is how we end up here today,” Mr Harty said.

Earlier, the union’s former general secretary Len McCluskey said that it was the culture in his time in the trade union to “do the right thing for the individual”, and that it was “implicit” in his conversation with Mr Ogle that both roles would be open to him on his existing terms.

“As a good employer we had a duty of care to one of our employees who was asking could we keep the position open for him,” he said.

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