Equality Officer’s Decision No: DEC-E/2014/052
Parties
Kulasza
(Represented by Ms. Joanna Kwiatkowska)
And
California White Services Ltd
(Represented by McNulty, Boylan and Partners - Solicitors)
File No: EE/2010/422
Date of issue: 18 July, 2014
Headnotes: Employment Equality Acts 1998- 2008 – sections 6, 8 14A and 74 –– discriminatory treatment – harassment – dismissal – victimisation - race
1. DISPUTE
This dispute involves a claim by Ms. Emilia Kulasza, who is a Polish national, that she (i) was discriminated against by the respondent in respect of her conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (ii) was harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (iii) was dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (iv) was dismissed by the respondent in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008, (v) was vicitimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (vi) performs “like work” in terms of section 7 of the Employment Equality Acts, 1998-2008 with a named comparator and is entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a Dental Nurse from January, 2008 - March, 2010 when she contends she was dismissed in circumstances amounting to discrimination on grounds of race (Polish nationality), or in the alternative in circumstances amounting to victimisation, contrary to the Acts. She further contends that during her period of employment she was subjected to harassment and was treated less favourably on grounds of her Polish nationality and that she was victimised by the respondent contrary to the Acts.Finally, she submits that she performs “like work” with a named comparator in terms of section 7 of the Acts and is entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 31 May, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 20 November, 2012 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 7 December, 2012 and 7 March, 2013. At the Hearing on 7 December, 2012 the complainant’s representative withdrew her client’s claim for equal pay. She further advised that the alleged unlawful treatment of her client commenced in May, 2009. In light of the Labour Court Determination in Hurley v Cork VEC[1] I decided, having given the parties the opportunity to comment, that my investigation would focus, in the first instance, on the alleged acts of discrimination and victimisation which occurred between 1 December, 2009 and 31 May, 2010 – the six month period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts. If I considered any of the alleged incidents within this period to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident(s) within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incidents within the six months preceding the referral of the complaint not to be well founded the earlier alleged incidents would be statute barred. A number of issues arose at the Hearings which required further clarification and gave rise to further correspondence between the Equality Officer and the parties.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Polish national, commenced employment with the respondent as a Dental Nurse in January, 2008. She states that there are two Dentists in the practice – Dr. A and Dr. B (who are husband and wife). She adds that at the outset of her employment there was another dental nurse (Ms. X) employed in the practice. The complainant states that this dental nurse worked solely with Dr. A whilst she (the complainant) worked with both Dr. A and Dr. B as necessary. The complainant states that Ms. X left the practice in May, 2009 and at this stage her work doubled as she was now required to perform the tasks previously performed by Ms. X in addition to her own. She adds that she was required to perform a range of tasks which she asserts were excessive although in the course of the Hearing she confirmed that the tasks involved were ones which a dental nurse might be required to perform in the course of her ordinary working day. The complainant states however, that she was required to do these duties without any assistance and submits that this amounts to discrimination of her. She states that she raised this issue with Dr. A shortly after Ms. X left work in May, 2009 and he informed her that there would be a replacement within 2/3 weeks but he later resiled from this and informed her there would be no replacement for Ms. X. The complainant adds that she raised the matter with him in July. 2009, when he refused again and then in October/November, 2009 when the reply was the same. The complainant states that she stopped raising the matter with Dr. A after that. The complainant states that Ms. Y was employed as a Dental Nurse in early December, 2009. She adds that Ms. Y (who is Irish) was assigned to work for Dr. B. She adds that her role continued as before, assisting Dr. A (although she no longer assisted Dr. B) and that the volume of work she was required to perform remained excessive until the end of her employment. She contends that Ms. Y did not have the same volume of work as her or perform the same range of complex tasks (in assisting Dr. B) and submits that this amounts to discrimination of her on grounds of race (Polish nationality) contrary to the Acts. The complainant confirmed (in the course of the Hearing) that this is the only alleged act of less favourable treatment covered by the complaint.
3.2 The complainant states that she was harassed by Dr. A on grounds of race contrary to the Acts on numerous occasions during her employment from May, 2009 onward, many in front of patients and she gave details of three specific incidents which she asserts occurred during the six months immediately before the referral of her complaint to the Tribunal. She states that the first such incident took place on 15 January, 2010 when a problem arose with a water distiller as a result of which the electricity tripped. The complainant adds that Dr. A shouted at her and instructed her to clean it up and she responded that she hadn’t created the problem. She adds that she did as she was instructed and when she attempted to speak with Dr. A shortly thereafter he told her to “shut up”. The second incident the complainant advances as harassment is alleged to have taken place on 22 February, 2010 (which she states is also the last date of discrimination). She states that on that date Dr. A berated her for incorrectly operating the suction in the course of treating a patient – telling her that she must do better with the suction. She adds that she felt embarrassed by this as he was talking to her as if she did not know what she was doing. Finally, the complainant states that regularly during this period Dr. A instructed her not to look at the patient when she was sitting in the chair beside the patient assisting Dr. A treat him/her, adding that she was admonished if she did so. In the course of the Hearing the complainant stated that she was not aware the respondent had a Dignity at Work Policy.
3.3 The complainant states that after the incident on 22 February, 2010 she was extremely upset and attended her doctor who certified her as unfit for until 8 March, 2010 due to work stress. She adds that she resumed work on that date and spoke with Dr. A, who asked her why she felt stressed and she outlined her concerns to him. She adds that Dr. A asked her to put her issues in writing and she quickly handwrote some of the issues and handed the document to him. She states that she later furnished a more comprehensive typed document with more fulsome details of her issues to Dr. A entitled “Attitude to me (an examples [sic] of bullying and discrimination) . The complainant asserts that in the course of their discussion on 8 March, 2010 Dr. A informed her that things were not going to change, that she should go home and he was giving her two weeks’ notice. The complainant states that she was subsequently contacted by Dr. A and they met on 12 March, 2010. She adds that she was looking for a solution to her situation as she wanted to remain in employment for financial reasons but this did not materialise. The complainant states that she still retained the hope Dr. A would change his mind and she telephoned him on 15 March, 2010 to again discuss the prospect of returning to work. She adds that he advised her he would arrange a further meeting however, this did not happen and she received a letter from the respondent (dated 19 March, 2010) shortly thereafter which enclosed her P45, her amended P60 for the previous year (the complainant had raised an error of address on the original document on 15 March, 2010), payment of what the respondent believed was monies outstanding to her and proposed three dates to discuss the issues she had previously raised in her typed document entitled “Attitude to me (an examples (sic!) of bullying and discrimination). The complainant states that there was a shortfall in the monies she received and she wrote to the respondent on 24 March, 2010 highlighting this and asking that he rectify the matter. She adds that Mr. A telephoned her and advised the matter would be rectified but when this did not happen she wrote to him reminding him of same on 20 April, 2010 wherein she also declined his invitation to attend a meeting as outlined in his letter of 19 March, 2010. In the course of the Hearing the complainant stated that she declined the meeting offered because she had received her P45 and the employment relationship between them had ended.
3.4 It is submitted on behalf of the complainant that the respondent terminated her employment on 8 March, 2010 and that this amounts to discriminatory dismissal on grounds of race contrary to the Acts. It is further submitted that this is supported by the advertisement placed by the respondent seeking a replacement for her which was arranged on 8 March, 2010 and was commenced on the relevant website the following day. In the alternative it is submitted on behalf of the complainant that the termination of her employment amounts to victimisation of her contrary to section 74(2) of the Acts. In this regard it is submitted that the complainant’s allegations on 8 March, 2010 that Dr. A had subjected her to discrimination is the “protected act” required under that provision. Finally, it is submitted on behalf of the complainant that the first act of victimisation covered by her complaint was the incident with the water distiller on 15 January, 2010. No other alleged act of victimisation was advanced to the Tribunal.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions in their entirety. It states that the complainant was employed as a Dental Nurse from January, 2008 until 8 March, 2010 when she resigned, although her employment did not cease until 19 March, 2010. The respondent states that Ms. X resigned from employment in May, 2009 and whilst it was initially thought she might be replaced, it was later decided not to do so. The respondent adds that both Dr. A and Dr. B (who are husband and wife and owners of the practice) each preferred to work with a single dental nurse and that this was generally the situation. It adds that since the complainant left its employment both Dentists have been assisted by one dental nurse each. The respondent accepts (i) the complainant was anxious after Ms. X left and (ii) that assisting Dr. A was more complex as he performed the more intricate procedures, but adds she never informed Dr. A or Dr. B at that time that the work was excessive. The respondent states that in order to address the complainant’s concerns she was given the option of assisting Dr. B and she refused this offer. The respondent emphatically rejects the complainant’s assertions and states that it was extremely generous to her, facilitating her in ways not afforded other staff. In this regard it states that (i) she was given Friday afternoons off from shortly after Ms. X left until the cessation of her employment without loss of pay, (ii) she was given time off work in December, 2009 to attend her daughter’s Christmas play and (iii) was granted annual leave before Christmas, 2009 (from 21 December) at a time when the practice was open and other staff were required to work.
4.2 The respondent introduced Ms. Y as a witness at the second Hearing. Ms. Y stated that she had previously been employed by the respondent and resumed work for it on a part-time basis in December, 2009. She stated that she had assisted Dr. A during her initial period of employment and had resumed that role when the complainant left. She stated that she did not consider the level of work she was required to do as excessive, rather it was tasks she would expect of have to do as a dental nurse and confirmed that it was the general practice for each dentist to have only one dental nurse assisting – this continued to be the practice after the complainant left the respondent’s employment. The witness added that Dr. A was very precise in his instruction when treating a patient and his tone may be sharp, but she did not consider it to be abusive in any way. She further stated that the work involved in assisting Dr. A was different to Dr. B as the procedures performed by the former tended to be more complex and took longer to complete, but the nature of the role discharged in assisting both was the same. She added that contrary to the complainant’s assertion she (Ms. Y) was able to perform all of the functions the complainant did.
4.3 The respondent (Dr. A) rejects the complainant’s assertion that he harassed her on the basis of her Polish nationality or at all. He (Dr. A) recalls the incident with the water distiller in January, 2010. He states that he was in the surgery when the power went off and he went to see what had happened. He adds that it was clear the device had tripped the power and as the complainant was present he asked her to rectify matters, in particular by turning the machine off. He states that the complainant told him she had done nothing and effectively refused to follow his request. He adds that an argument developed and voices were raised for twenty-thirty seconds and the complainant became upset. Dr. A accepts that in exasperation he may have told the complainant to “shut up” but rejects the assertion that this amounts to harassment on grounds of race. The respondent (Dr. A) states that he has his own requirements as regards suction in terms of when it is applied and how someone assisting him holds the suction device. He adds that he had to correct the complainant on a number of occasions in respect of her performance on suction and she resented this correction. In the course of the Hearing Dr. A stated that he was demanding of his assistants and accepted that on occasion he may have raised his voice to the complainant if her performance was not up to standard but rejected it amounted to harassment on grounds of race contrary to the Acts. The respondent (Dr. A) rejects the complainant’s assertion that he told her not to look at patients adding that it would be impossible for her to assist him in those circumstances. The respondent states that it had a Bullying/Dignity at Work Policy and the complainant never invoked it at any time.
4.4 The respondent introduced Ms. Z as a witness at the second Hearing. Ms. Z stated that she was a Dental Technician who worked with the respondent at the time the complainant was employed by it – she left the employment in June, 2010. The witness stated that her workstation was located in Dr. A’s surgery about six feet away from the main treatment area. She added that she could therefore hear the interaction between the complainant and Dr. A. She further stated that whilst Dr. A’s tone could be sharp on occasion – she confirmed she had heard Dr. A correct the complainant about holding the suction device on a number of occasions - she never heard him use what she considered to be abusive or racial language toward her. She added that in her opinion the complainant was not treated any differently to other staff. The witness stated that she had spoken with the complainant on 8 March, 2010 and confirmed that the complainant was upset that day. Ms. Z added that the complainant advised her that she (the complainant) had sought advice from Citizen’s Advice because she felt trapped. The witness added that she never mentioned this conversation with the respondent.
4.5 The respondent rejects the complainant’s assertion that she was dismissed and states that she resigned on 8 March, 2010. The respondent (Dr. A) states that the complainant was absent from work from 22 February, 2010 until 8 March, 2010 due to stress, as certified by her General Practitioner. He adds that when she resumed work on 8 March, 2010 he asked her what was wrong and she related a number of issues to him. He adds that he asked her to put these issues and any other issues she was concerned about in writing and the matter could be addressed fully. Dr. A states that the complainant wrote down a number of issues and handed them to him and then told him she had no choice but to resign. The respondent (Dr. A) states that she appeared quite stressed at this time but in his view she was adamant she wished to leave the respondent’s employment. He adds that he was anxious not to add to this stress but was aware that the complainant’s departure would create staffing difficulties for him so he advised her he would require her to work her notice. Dr. A adds that the complainant left the surgery and the premises by lunchtime and did not return to work. The respondent (Dr. A) states that he contacted the complainant by telephone the following day and a meeting was arranged for 12 March, 2010. This meeting was attended by the complainant, Dr. A and Ms. C (the respondent’s receptionist, as notetaker). Dr. A states that during this meeting the issue of Christmas bonus and working conditions were discussed. Dr. A states that nothing which occurred at this meeting led him to believe that the complainant was seeking to return to work. He adds that the opposite was the case as the complainant spoke of looking for a new job, there was a discussion about her P45 and he wished her well for the future. Dr. A accepts that there was a further telephone conversation between him and the complainant but states that there was nothing in this conversation to lead him to believe that the complainant wished to revoke her resignation and resume work. He further accepts that he agreed to have a further meeting with the complainant to discuss the concerns raised by her and he offered her a number of dates for such a meeting in his letter of 19 March, 2010 (when her outstanding salary and other documentation was furnished to her) but she declined the offer. Dr. A further states that there was further correspondence between the respondent and the complainant about incorrect details on her P60 and an error in calculating her outstanding monies but these matters were subsequently resolved.
4.6 The respondent introduced Ms. C as a witness at the second Hearing. She stated that at the time she worked as a Receptionist for the respondent and attended the meeting between Dr. A and the complainant on 12 March, 2010 in the capacity of notetaker. A copy of the contemporaneous notes she prepared were furnished to the Tribunal. Ms. C stated that the meeting last approximately 30 minutes and she characterised it as a discussion rather than anything else. She added that the complainant appeared stressed and the issue of Christmas bonus and working conditions, including the issue of a replacement for Ms. X, were discussed, although on this latter point it was noted that the complainant had refused offers of help from Dr. B on several occasions. The witness stated that it was clear to her that the complainant had left the employment of her own volition and issues around her P45 and seeking work elsewhere were mentioned during the meeting. Ms. C further stated that the complainant clearly saw her future elsewhere and the prospect of continuing work for the respondent was not mentioned. She added that Dr. A was polite during the meeting and wished the complainant well for the future.
4.7 Dr. B attended the second Hearing and gave evidence on her role in advertising the complainant’s vacancy, her experience of the complainant during her employment with the respondent and her interaction with the complainant on 8 March, 2010. She stated that the complainant was competent and professional but she needed reassurance of same on a constant basis. She added that Dr. A’s manner might be considered direct but it did not amount to racial harassment. The witness stated that on the morning of 8 March, 2010 the complainant came to her and told her she was leaving the respondent’s employment and the complainant left the premises shortly thereafter. She added that the complainant mentioned issues around how she used suction and that Dr. A always seemed to be correcting her on this matter. The witness stated that it appeared the complainant saw this as an affront to her skills instead of viewing it as an instruction from the dentist she was assisting. The witness stated that the loss of the complainant was a matter of some urgency for the practice and having briefly discussed the matter with Dr. A she commenced the process of seeking a replacement for her. She adds that later that day (1.55pm) she contacted Irish News and Media to arrange the placement of an advertisement for the vacancy on a website organised by company. A copy of the e-mails and website entry were furnished to the Tribunal. The witness added that the advertisement first appeared on that website on 9 March, 2010. She rejected the complainant’s assertion that she was dismissed by the respondent on 8 March, 2010 and stated that she had resigned earlier that day.
4.8 The witness (Dr. B) also gave evidence that she was present at the water distiller incident in January, 2010. She stated that the electricity had gone off that day and Dr. A asked the complainant several times to turn the machine off and the complainant responded that she had not done anything. The witness added that Dr. A eventually got frustrated with the complainant and told her to “shut up”. The witness stated that whilst this was not the ideal approach she did not believe the actions of Dr. A had anything to do with the complainant’s nationality and he made no comment which could be construed as such. The witness added that she was aware the complainant was unhappy that Ms. X had not been replaced and stated that she (Dr. B) had offered the complainant assistance on several occasions and the offer was refused. She added that it was common practice that both she and Dr. A each work with a single assistant and that was the process followed after Ms. X left and continued to be the process. She therefore rejected the complainant’s assertion that she was treated less favourably on grounds of race contrary to the Acts.
4.9 The respondent’s legal representative states that it is the uncontroverted evidence of Dr. A, Dr. B and Ms. Y that the level of work required of the role in assisting Dr. A was not excessive. The representative adds that the evidence adduced indicates that the role had generally been performed by a single dental nurse and this clearly demonstrates that the complainant was not treated any differently than others in terms of her conditions of employment. It is submitted therefore that the complainant has failed to discharge the initial probative burden required of her on this element of her complaint. The representative adds that she has also failed to discharge a similar burden in respect of her complaint of harassment. He submits that had Dr. A continuously been harassing the complainant as alleged Ms. Z, whose workstation was in close proximity to the treatment area, would surely have witnessed such behaviour and she did not do so. He states it is accepted that Dr. A could give direction in a crisp or stern manner but submits this falls short of harassment on grounds of race contrary to the Acts. He further submits that the evidence adduced by the respondent (dr. A and Dr. B) clearly points to the complainant resigning her position on 8 March, 2010 and notes that this proposition is corroborated by Ms. C who attended the meeting on 12 March, 2010. Nothing that occurred subsequently changed this position. Finally, he submits that the allegation of victimisation cannot succeed as the “protected act” required under section 74(2) of the Acts, confirmed by the complainant in evidence as occurring on 8 March, 2010, postdates the only act of victimisation advanced by the complainant - the water distiller incident on 15 January, 2010.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant in respect of her conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (ii) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (iv) dismissed the complainant in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (v) vicitimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 -2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
5.3 The first issue raised by the complainant is her contention that she was treated less favourably in terms of her conditions of employment. She contends that she was assigned an excessive workload when Ms. X left the respondent’s employment in comparison to other employees, in particular Ms. C. It is common case that the complainant assisted by Dr. A and Dr. B at the beginning of her employment, that this former role was is support of Ms. X and that this arrangement continued until May, 2009 when Ms. X left the respondent’s employment. It is clear therefore that the complainant was not as busy as one might expect if she were performing those tasks herself. It is also common case that the complainant was expected to perform these tasks herself after Ms. X’s departure and I accept her contention that in effect it appeared her workload had significantly increased in the circumstances. However, it is noteworthy that she accepts the tasks were ones which she would have expected to perform as a dental nurse and were nothing out of the ordinary. I also note the uncontroverted evidence of Dr. A, Dr. B and Ms. Y that it had previously been the normal practice to have only one dental nurse assisting a dentist and this practice continued after the complainant ceased employment with the respondent. I am satisfied that the respondent’s decision not to recruit a replacement for Ms. X was a decision it was entitled to make in the discharge of the normal management of the practice and whist the decision increased the volume and nature of tasks performed by the complainant, she has failed to establish any facts to support her assertion that it was influenced in any way whatsoever by her Polish nationality. In addition, I note that during this period the respondent (i) gave the complainant Friday afternoons off without loss of pay, (ii) gave her time off work in December, 2009 to attend her daughter’s Christmas play and (iii) granted her annual leave before Christmas, 2009 (from 21 December) at a time when the practice was open and other staff were required to work. Such treatment is inconsistent with an allegation she was being discriminated against. In light of the foregoingI find that the complainant has failed to establish a prima facie case of less favourable treatment on grounds of race contrary to the Acts and this element of her complaint fails.
5.4 The complainant also alleges that the respondent harassed her on grounds of nationality and provides details of three specific examples of this behaviour – (i) an incident on 15 January, 2010 when a problem arose with a water distiller, (ii) an incident on 22 February, 2010 when she alleges Dr. A berated her for incorrectly operating the suction in the course of treating a patient and (iii) a general assertion that Dr. A regularly instructed her not to look at the patient when she was sitting in the chair beside the patient assisting Dr. A and that she was admonished if she did so. The respondent (Dr. A) states that he got frustrated with the complainant as regards the incident involving the water distiller because she argued with him when he instructed her to rectify the matter and switch off the device and accepts that he told her to shut up. He adds that this comment was borne out of exasperation with the complainant. The respondent’s version of events on that day was corroborated (independently) by Dr. B in the course of the Hearing. Dr. A states that he is demanding of his assistants, that he has his own requirements as regards when suction is applied and how the person assisting him holds the suction device. He accepts that he had to correct the complainant on a number of occasions in respect of her performance on suction further accepts that in doing so he may have raised his voice to the complainant if her performance was not up to standard he required. He adds that the complainant resented this correction – a point which was corroborated by Dr. B and he rejects the assertion that his behaviour amounted to harassment on grounds of race contrary to the Acts.
5.5 Ms. Z as gave evidence at the Hearing in respect of her experience of Dr. A’s behaviour towards the complainant. Ms. Z was employed as a Dental Technician by the respondent at the relevant and her workstation was located in Dr. A’s surgery about six feet away from the main treatment area. She added that she could therefore hear the interaction between the complainant and Dr. A and whilst Dr. A’s tone could be sharp on occasion and she had heard him correct the complainant about holding the suction device on a number of occasions, she never heard him use what she considered to be abusive or racial language toward her. I found Ms. Z to be a credible and truthful witness who gave her evidence in a clear and frank manner and I accept her evidence in its entirety. I further note that her description of Dr. A’s general tone and manner whist treating a patient is consistent with the advanced by Dr. A himself as well as the evidence adduced on that issue by both Dr. B and Ms. C, the latter who worked with him both before and after the complainant. The final aspect of the harassment element of the complainant’s complaint concerns an assertion that Dr. A instructed her not to look at a patient when she was sitting beside the patient assisting him treat that patient and that she was admonished if she did so. The respondent (Dr. A) rejects the complainant’s assertion that he told her not to look at patients adding that it would be impossible for her to assist him in those circumstances.
5.6 Section 14A of the Employment Equality Acts, 1998-2008 defines harassment as any form of unwanted conduct related to, inter alia, the ground of race which “has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person….”. Applying this provision to the instant case the complainant must establish, as a fact, on the basis of credible evidence, that the behaviour complained of in respect of Dr. A was influenced by her Polish nationality. Having carefully considered the evidence adduced by both parties I am not satisfied that the complainant has discharged the probative burden required of her. As regards the water distiller incident I am satisfied that his conduct was premised on frustration with the complainant for arguing with him and whilst his behaviour was brusque and rude and was clearly intimidating and humiliating to the complainant, it was not linked to her Polish nationality. It is clear from the evidence adduced that Dr. A has certain high standards as regards the performance of those assisting him and he is prone to directing staff in a terse and stern manner. It is accepted that he behaved in such a manner towards the complainant on occasion. However, no evidence was adduced by her which would enable me conclude this treatment amounts to harassment of her on grounds of race (Polish nationality). Indeed, Ms. Z gave direct evidence that whilst she heard Dr. A correct the complainant, he did not use any racially derogatory language in doing so. The third aspect of the complainant’s allegations of harassment relate to an assertion that Dr. A instructed her not too look at patients when she was sitting on the chair assisting him treat those patients and that she was admonished by him if she did so. The complainant was unable to provide specific details of any particular incident. Ms. Z, whose workstation was located about six feet away from the treatment area where Dr. a and the complainant worked heard no such instruction or chastisement. Given the proximity of Ms. Z to the complainant’s work area I am satisfied that had some behaviour occurred she would have overheard it. I find the point my by the respondent to be very persuasive that it would have been difficult for the complainant to properly undertake her role if she could not look at the patient and therefore at what she was doing. In light of my comments in this and the preceding two paragraphs I find that the complainant has failed to establish a prima facie case that she was harassed by the respondent on grounds of race contrary to section 14A of the Acts and this element of her complaint cannot therefore succeed.
5.7 The complainant contends that she was dismissed by the respondent in circumstances amounting to (i) discrimination on grounds of race and (ii) victimisation contrary to the Acts. The respondent rejects the assertion that it dismissed the complainant and states that she resigned from her employment on 8 March, 2010. In A School v A Worker[2] the Labour Court held “ that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative.” and I propose to adopt that Court’s approach in the instant case, if necessary. However, the first matter which must be determined is whether or not the complainant was dismissed. In general, it is established law that a resignation is a unilateral act which, if expressed in unambiguous terms, brings a contract of employment to an end. It is Dr. A’s evidence that when he spoke with the complainant on the morning of 8 March, 2010 on her return from sick leave due to stress, she set out in broad terms a number of work related concerns she had and informed him that given the situation she was resigning. Dr. B, who gave her evidence independent of Dr. A at the Hearing states that the complainant confirmed to her later that morning that she was leaving the respondent’s employment and that the complainant left the premises shortly thereafter. I note that Dr. B was so sure the complainant had resigned that she immediately set about making arrangements to seek a replacement. I further note that a meeting took place between the complainant and Dr. A on 12 March, 2010 and that this meeting was also attended by Ms. C in the capacity of notetaker. A copy of the contemporaneous notes of this meeting was furnished to me. It is clear from these notes that (i) the issue of the complainant’s employment and in particular the termination of her employment, was discussed in the course of this meeting, this latter issue around the timeframe for issuing of her P45 and outstanding monies. Moreover, the notes also make reference to the complainant having commenced the process of seeking alternative employment by sending her CV to prospective employers. There is however no reference to the complainant seeking to retain her job with the respondent. Ms. Z gave evidence that these were contemporaneous notes of the meeting and their veracity was not challenged by the complainant. She also gave direct evidence of her impression of what happened at the meeting and she stated it was clear to her that the complainant had left the employment of her own volition and that she (the complainant) clearly saw her future elsewhere. This evidence was also not challenged by the complainant. I found Ms. Z to be a truthful and candid witness who gave her evidence in a clear and unambiguous fashion. Having carefully considered the evidence adduced by the parties on this matter I find, on balance, that the complainant resigned from her employment of her own volition. Finally, it should be noted that at the Hearing the complainant’s representative expressly stated that she (the complainant) was not pursuing a complaint of constructive discriminatory/victimisatory dismissal. Consequently, her claims of (i) discriminatory dismissal and (ii) victimisatory dismissal, fail.
5.8 The final element of the complainant’s claim is that she was victimised contrary to section 74(2) of the Acts. In Tom Barrett v Department of Defence[3] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. The complainant states that incident with the water distiller on 15 January, 2010 amounts to victimisation of her contrary to the Acts. Whilst this incident was also advanced in respect of the complainant’s claim of harassment, in accordance with the Labour Court Determination in A School v A Worker[4] (see paragraph 5.7 above) I propose to deal with it as an alternative to that proposition. In the course of the Hearing it was stated on behalf of the complainant that the “protected act” in terms of the test set out in the Barrett[5] case was her complaint of discrimination made to Dr. A on 8 March, 2010. As the alleged incident of victimisation pre-dates the “protected act” it cannot be the case that the alleged victimisation was in reaction to the “protected act” having been taken by the complainant. In the circumstances I find that the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Acts and this element of her complaint cannot therefore succeed.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination in respect of her conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts; (ii) the complainant has failed to establish a prima facie case of harassment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts;
(iii) the complainant has failed to establish a prima facie case that she was dismissed in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts;
(iv) the complainant has failed to establish a prima facie case that she was dismissed in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008;
(v) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and her complaint fails in its entirety.
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Vivian Jackson
Equality Officer
18 July, 2014