Ms. Nkone Sarah Sepuru(Represented by the Irish Nurses Organisation) v Mount Carmel Hospital(Represented by IBEC)
1. DISPUTE
1.1 The dispute concerns a claim by the Irish Nurses Organisation on behalf of Ms. Nkone Sarah Sepuru, that she was discriminated against and harassed by Mount Carmel Hospital in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act ultimately leading to the termination of her contract of employment. She also alleges that she was victimised within the meaning of Section 74(2) of the 1998 Act.
1.2 The Union, on behalf of the complainant, referred this claim to the Director of Equality Investigations on 7th October, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 14th February, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 25th March, 2004. Additional information was received from the respondent with the final correspondence received on 8th April, 2004.
2. SUMMARY OF THE CLAIMANT'S SUBMISSION
2.1 The complainant commenced employment with the respondent organisation as a Theatre Nurse on 9th July, 2001. She had been recruited from South Africa on a two year fixed term contract. Her initial experience in the respondent organisation was uneventful. However on 17th April, 2002 the Theatre Superintendent met the complainant and asked her to outline her strengths and weaknesses. As a result of this conversation the complainant states that the Theatre Superintendent agreed to provide her with a mentor to allow her to gain experience in the area of laparoscopy. However, according to the complainant no mentor was provided. The complainant states that on 21st May, 2002 she was informed that she was summoned to meet with the Matron the following day. According to the complainant she was given no indication as to the nature of the meeting and she was not informed of her right to representation. On 22nd May, 2002 the complainant met with the Matron and was informed of management's decision to terminate her contract. Despite registering with a Nursing Agency and applying for jobs in Theatre Departments in other hospitals the complainant says that she has been unable to access alternative employment. According to the complainant she was successful at interview and passed medical examinations but her applications appeared to "hit a brick wall" at that stage. It is the complainant's contention that she has been discriminated against by the respondent on the basis of her race. She alleges that the only factor which differentiated her from the majority of her colleagues was her colour and ethnic origin. It is also her view that she has extensive experience and expertise in Theatre Nursing.
2.2 According to the complainant the respondent has claimed that a number of doctors and nurses made complaints about her nursing practice over a period of time. The complainant states that she has no idea as to who made complaints about her or indeed the nature of these complaints. The Union, on behalf of the complainant, met with the respondent on 25th September, 2002 and it was then that the complainant says she heard for the first time about many of these complaints which were offered as reasons for her dismissal. The complainant notes that none of these complaints are in writing with the exception of one from a patient on 7th March, 2002 which does not identify the nurse involved and the complainant rejects the allegation that she was the nurse involved or that if it was her the allegation is without foundation. The complainant also denies that she was spoken to on many occasions by the respondent regarding concerns with her performance.
2.3 The complainant notes that the respondent, in its response to ODEI4 form, states that she was moved out of the main Theatre to improve her performance. The complainant denies this and states that the move was part of internal rotation.
2.4 In relation to representation at the meeting between the complainant and the Matron at which the complainant was informed that her contract was being terminated the Union, on behalf of the complainant, states that the respondent failed to observe its own "Terms and Conditions of Employment for Nursing Staff" and failed to act in accordance with the principles of natural justice.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent denies that it treated the complainant in a discriminatory manner on the grounds of race.
3.2 According to the respondent it employs staff in clinical/nursing areas from at least 7 different national backgrounds. These include 4 South Africans, 3 Filippinos, 3 Bahrainis, 2 Austrians, 2 Germans, 1 Spaniard and 1 Scot. In the non-clinical areas it employs staff from Latvia, Russia and China. The respondent states that it has endeavoured to make non-nationals as welcome as possible and to this end it set up a Cultural Committee in 2001 to help all members of staff understand and appreciate the diverse cultures working in the hospital and to allow non-nationals an opportunity to present their cultures to Irish staff.
3.3 According to the respondent the complainant commenced employment on 9th July, 2001. A number of non-nationals were recruited at the same time, including those from South Africa and they remain in the respondent's employment. The respondent states that the complainant's performance was adequate up to Christmas 2001 but on her return from her Christmas break in South Africa her performance and attitude deteriorated. According to the respondent the complainant was spoken to informally on a number of occasions by the Theatre Manager in this regard as a number of complaints from nurses and consultants had been received about her unreliability and general performance. It is the respondent's contention that the complainant was made aware of the concerns which included disappearing at times without informing colleagues, chewing gum in front of patients and her failure to perform in circulating cases. According to the respondent the Theatre Manager followed her normal policy as regards informal chats with nurses over issues in regard to performance. She hoped that by highlighting the issues informally they would be acted upon without the necessity of taking them to a more serious level.
3.4 The respondent states that the complainant's performance had not improved by April, 2002 and consequently the Theatre Manager along with a colleague spoke with the complainant on 17th April, 2002 about performance related issues including:
- Her failure to improve her performance despite previous discussions;
- Her disappearance from Theatre for longer than her rostered breaks or without informing colleagues;
- Her failure to stop chewing gum in front of patients and the unprofessional image this created;
- The complaint from a patient about her treatment by the complainant (this issue was raised with the complainant in March upon receipt of the complaint);
- Complaints from consultants about her disappearance.
According to the respondent the complainant's strengths and weaknesses were discussed and following her express wish to gain experience in laparosopic work it was decided to move her to Theatre 2 to afford her the opportunity of gaining that experience. The respondent hoped that by facilitating this move to allow her gain new experience her performance would improve. The respondent states that the complainant was told that her performance would be reviewed one month later and that her future with the respondent would depend on the issues raised being resolved.
3.5 The respondent says that, by May, 2002 it was clear that the complainant's attitude and performance had not improved. Furthermore colleagues expressed concern about working on-call with the complainant. According to the respondent the Theatre Manager undertook a review of the complainant's performance on 16th May, 2002 and on 22nd May, 2002 the complainant met with the Matron and her contract was terminated. As a gesture of goodwill the respondent agreed to pay for a return trip home for the complainant and facilitated her with extra annual leave. The respondent told her that she would be provided with a statement of employment.
3.6 The respondent states that the complainant was treated in the same way as Irish nurses in that when complaints were raised against her she was informed and allowed the opportunity to respond both informally on many occasions and then formally. While the complainant was not offered representation at the formal meetings this was due to the practice in the respondent organisation that those with less than one year's service were not automatically offered nor were entitled to same. The respondent notes that while this is erroneous it is not discriminatory. Had the complainant asked for representation it would have been provided to her and the respondent states that Irish nurses were treated in the same way. In this regard the respondent lists (by name) five Irish nurses who had their contracts terminated in a similar manner to the complainant and who were not represented at meetings about their performance or at the meeting terminating their contracts. According to the respondent formal meetings are now minuted and staff are offered representation but this was not the practice in the past or at the time the complainant was with the respondent organisation.
3.7 The respondent denies the complainant's allegation that she was victimisedpost-termination of her employment. According to the respondent the complainant was told that she would be provided with a statement of employment and that this position did not change when the equality claim was made in October, 2002. The respondent states that it has completed any agency requests truthfully.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision in this claim is whether or not the respondent discriminated against, harassed and victimised the complainant on grounds of race. In making my decision in this claim I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant had returned to South Africa and was not present at the hearing of her claim. She was represented by the Union. This caused difficulty for the respondent and the Equality Officer as the complainant was not present to answer questions relating to her allegations or give direct evidence in the claim. By failing to attend for the hearing in this claim it could be argued that this was sufficient for the complainant to have failed to establish a prima facie claim of discriminatory treatment, harassment and victimisation under the Employment Equality Act, 1998. As the complainant had returned to South Africa and would not be in a position financially to attend a hearing in this claim I proceeded on the basis of the evidence from the Union and the respondent.
4.3 The complainant has argued that she was discriminated against, harassed and victimised by the respondent on the grounds of race. I note that there were four other South Africans employed by the respondent. At the hearing of this claim the respondent stated that the four other South Africans were recruited at the same time as the complainant and that three of the four were of the same colour and ethnic origin as the complainant. If the respondent was discriminating against and harassing the complainant on the grounds of race one would expect that it would discriminate and harass others of the same colour and/or ethnic origin as the complainant.
4.4 Having said that I note that, at the hearing of this claim, the respondent confirmed that five Irish nurses had been treated in a similar manner to the complainant and ultimately dismissed for poor performance. According to the respondent the Irish nurses were informally told about their performance and then when their performance failed to improve they were called to a meeting with the matron and told that their employment was being terminated. These Irish nurses, like the complainant, were not notified in writing that their performance was poor. It is the respondent's submission that this was the standard procedure for all nurses who were in their first year of employment with the respondent. The Union was unable to dispute this information.
4.5 In conclusion I am satisfied that the respondent did not treat the complainant less favourably on the grounds of race than others of a different colour and/or ethnic origin to her.
4.6 The Union, on behalf of the complainant, has further argued that the respondent victimised the complainant when it militated against her getting employment in another hospital. According to the respondent it gave the complainant a statement of employment upon her termination and it completed truthfully agency requests in relation her. I am satisfied that there was an onus on the respondent to complete agency requests truthfully. The fact that the complainant was unable to get employment elsewhere does not mean that the respondent victimised her within the meaning of Section 74(2) of the Employment Equality Act, 1998.
4.7 The failure of the respondent to document performance issues, keep written records of disciplinary meetings and ensure that staff automatically had representation at disciplinary meetings leaves it in a vulnerable position when allegations are made against it. I note that the respondent has put in place formal procedures when dealing with performance issues for all staff irrespective of their length of service.
5. DECISION
5.1 In view of the foregoing I find that Mount Carmel Hospital did not discriminate against or harass Ms. Nkone Sarah Sepuru on the grounds of race in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. I further find that the respondent did not victimise the complainant in terms of Section 74(2) of the 1998 Act.
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Gerardine Coyle
Equality Officer
28th April, 2004