DEC-E2015-156

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-156

PARTIES

Olumide Smith

-v-

E Manage IT Limited t/a iQuate

(Represented by IBEC)

File reference: EE/2014/355

Date of issue: December 2015

HEADNOTES: Employment Equality Acts Sections 6 (2) (a) as amended by section 4 the Employment Equality Act 2004 Conditions of Employment - discriminatory dismissal – Race -victimization

1 DISPUTE

1.1 This dispute concerns a claim by Mr Smiththat he was discriminated against by his employer on the grounds of race and civil status contrary to section 6 (2) of the Employment Equality Acts.

1.2 The complainant referred his claim to the Director of the Equality Tribunal on July 7th 2014 under the Employment Equality Acts. On 2nd September 2015, in accordance with his powers under section 75 of the Acts on September 15th the Director delegated the case to me, Pat Brady, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on September 22nd 2015.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015

2 PRELIMINARY MATTERS

2.1 Two of the incidents in the complaint fell outside the six-month window for making a claim under the Acts. The claimant sought an extension of time in correspondence with the Tribunal and this is dealt with as a preliminary issue below

3 COMPLAINANTS' SUBMISSION

3.1 The complainant started work for the respondent on December 2nd 2013 and entered a six-month probationary period. His employment terminated on June 12th 2014.

3.2 The complainant made a total of nine complaints as follows, some of which have been grouped for convenience, the numbers refer to the enumeration in the complainant’s Statement of Case.

3.2.1 In his opening statement the complainant said he had been subjected to unequal and unfair treatment contrary to natural justice on grounds of his race. He said his initial contract was ‘null and void’ and the company refused to respond to a s76 request. His January performance review indicated that his performance was satisfactory and the situation changed when he drew attention to mistakes being made by his manager. This led to that manager being prejudiced against him and after the first performance review the situation deteriorated. He says that BO’B instituted a secret disciplinary process against him

3.2.2 On his first day of employment the induction was ‘incomplete, defective and discriminatory (1). He was not given access codes and says that this represented discrimination on the grounds of his race

3.2.3 There were defects in the Contract of Employment which represented discrimination (2). This involved a misspelling of the company’s name on the contract.

3.2.4 The respondent failed to provide any formal training or product information (3) Again its failure to do so was attributed to racial discrimination against the complainant.

3.2.5 A performance management meeting was actually a disciplinary meeting under another guise which resulted in the termination of his probation (Allegations 4, 8 and 9) Regarding allegation 4 the complainant was asked to re-test a number of defects which had been previously identified. He observed that the defects were still present. The discriminatory act was two fold. Even though he had done the job to the best of his ability his manager BO’B undermined him by becoming angry and annoyed which culminated in what the company described as a disciplinary meeting eventually leading to the termination of his probation.

3.2.6 There were also some miscellaneous incidents, involving unacceptable or strong language. (Two complaints, Allegations 5 and 7). The complainant gave evidence of various comments which were made to him which he said were racially motivated. He also complained about being harassed by BOB, being criticised over a late application for annual leave (which was granted) and a complaint about his work.

3.2.7 Unfair pressure being applied in relation to the completion of certain tasks compared to another named co-worker (Allegation 6). In this case the complainant was given one day to complete three tasks which an Irish colleague was given three days to complete a single task

3.2.8 The complainant described the meeting on May 12th as a disciplinary meeting which was convened under the ‘guise’ of a performance review meeting and it had resulted in him being given a warning despite not being put on notice that such an outcome was possible

4 RESPONDENT'S SUBMISSION

4.1 The respondent submitted that the complainant was a fully trained QA operative expected to operate at a high level in its testing programmes. It noted that the complainant had not submitted any comparators (except in relation to one of its allegations, and that the comparator was a junior and inexperienced member of staff. It also submitted that allegations 1 and 8 were out of time in that they were over six months before the date of submission of the claim to the Tribunal.

4.2 It stated that it was clear from January 2014 that the complainant was not meeting the standards required by the company and that he was over focussed on detail and work was not being completed to the company’s satisfaction or as required. As the probation neared its conclusion there had been no improvement and that the probation terminated without appointment following the observation of fair procedure.

4.3 Regarding the specific allegations the company says regarding the access codes (point 3.2.2 above) that access codes were given out on the basis of need and was not part of any induction process. A co-worker referred to in the complainant’s submission had been with the company for ten years. While the complainant did not have the access codes for a short while this had nothing to do with his race.

4.4 Regarding point 3.2.3 above the error in the Contract of Employment was in all contracts and no claim of discrimination arises.

4.5 Regarding point 3.2.4 the respondent says that the training referred to by the complainant had not been developed at the material time, and that by the time it had the complainant had moved beyond the need for it.

4.6 BOB, the complainant’s manager and the company QA Manager gave evidence on the role of a QA Engineer. He said it was to ensure that the software product meets certain standards in relation to performance, documentation etc. This requires the engineer to have a capacity for clear, and concise and effective communication skills that will enable the development team to address the problem. It involves preparing test plans and executing them. He said there were occasions when the complainant did not handle defects appropriately and he took issue with the complainant’s version of events, saying that it was for him as the manager to make the call on how a matter was to be processed.

4.7 There were differences with the complainant in how various matters should be handled but in the event of such differences it was ultimately a decision for the management of the company to make the decision.

4.8 Fin relation to specific allegations relating to language that may have been used the respondent said in some cases it had been taken out of context, in some others it was denied. In all cases the respondent said there was no racial motivation to any of the comments or actions. BOB said the company had a multi-racial workforce and did not practise discrimination. It was difficult to find suitably qualified software engineers and the company recruited them from many nationalities.

4.9 Regarding the specific allegation at 3.2.7 above BOB said the difference in the time allocated to the respondent and the Irish co-worker was fully accounted for by their respective levels of experience and training. The Irish co-worker had only been with the company for three weeks at the time while the complainant had been there for five months and was a junior employee. BOB said he regarded the tasks as well within the competence of the complainant but even when they were not completed within the one day BOB did not make any issue out of this

4.10 Regarding the complaints at 3.2.6 above (5, 7 in the original statement of complaint) the respondent explained the context in which the various remarks were made and asserted that one remark (related to a snake) was not made. Some of the comments arose from explaining t the complainant the need for simpler and more concise reporting. A question to which the complainant regarding his country of origin was made on the day he joined the company by a co-worker.

4.11 Regarding the final meeting on May 12th this was a follow up meeting to that held on April 11th at which the complainant had been put on notice that an improvement was required if he wished to get through his probation and the respondent said it was held at the complainant’s request. However he refused to engage with BOB at the meeting and took detailed notes which he read back to BOB. BOB’s comments about the complainant arose specifically from this behaviour at the meeting.

4.12 Finally the complainant alleges that the basis for BOB’s animus against him was because he did not want to employee him in the first place and had a preference for another candidate.

5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

Preliminary Matter.

5.1 I find no reasonable cause to extend the time limits in relation to those matters falling outside the six-month time limit and those incidents occurring before January 2nd 2014 are outside the scope of the determination. They do not form part of any sequence of behaviour bringing them within the time limits and no reasonable cause was made out to extend the time limits or as to why the complaint was not made within the six month period.

5.2 In respect of other matters I have to decide if the complainant was treated in a discriminatory manner in the course of his employment, and whether it was terminated arising from less favourable treatment on the grounds of his race. 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.

5.3 The complainant, with the exception of one of his complaints offered no evidence of less favourable treatment based on any named comparator. In respect of the TF comparator I reject his claim as the respondent justified the difference in treatment on credible, substantive grounds not related to race.

5.4 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

5.5 This argument that mere membership of a protected class and specific treatment is sufficient for a

complainant to meet his or burden of proof in terms of section 85A has been rejected by the Labour Court in Valpeters v. Melbury Developments Limited [2010] 21 E.L.R 64 at p. 68.

Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit…All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.

5.6 In the absence of prima facie evidence (of ‘sufficient significance’) of less favourable treatment he failed to do so. The complainant’s case was based on a series of assertions that if he was the subject of adverse treatment and, given the fact that his race was different to the other employees then this had to be racial discrimination. On the basis of the principles set out in Valpeters this is insufficient to shift the probative burden. He failed at two levels both in respect of less favourable treatment and making out a good case that the complained of actions were racially motivated. Even had the burden of proof passed to the respondent it would have discharged that onus quite easily.

5.7 Disputes between an employee and the company involving technical or professional differences of opinion is ultimately a matter for the management to resolve, or decide upon. The existence of a disagreement in itself will not, in the absence of some evidence that it breached the Acts, ground a claim for racial discrimination simply because one of the protagonists is a member of a protected class.

5.8 I find that there was ongoing dissatisfaction with the complainant’s performance of which he was on good notice. There was a very large number of petty complaints by the complainant (e.g. related to the spelling error in the contract of employment, the access codes, the training, the fact that he did not have a chair when he started, the annual leave application, (which was in fact granted) some of the alleged comments made etc and I dismiss those that remained within the time limits on the basis that no evidence of racial motivation was visible. The complainant’s attempt to bulk up these often very insignificant incidents into an ongoing, racially motivated campaign against him was not supported by any evidence of the sort required by the Acts and on occasion appeared vexatious.

5.9 I find that the recruitment and induction process was the same for the complainant as it was for other employees, and while strictly speaking out of time, insofar as it was alleged that this began a process of prejudiced behaviour against the complainant by BOB (on the basis that he had preferred another candidate) it is without merit.

5.10 In respect of that alleged bias by BOB arising from the appointment process he gave evidence that the complainant was, in fact offered the position only after a preferred candidate declined the offer of the job, but that he (BOB) was a party to the decision to appoint the complainant and was in a position to veto the offer had he been so disposed. The complainant’s case that BOB was prejudiced against him from the outset is contradicted by this evidence which I accept.

5.11 In respect of the performance issues which lie at the heart of the matter the complainant referred to an April 11th email from BOB to a superior in the company (JW) which he said represented the basis of the ‘disguised’ disciplinary meeting. That email is clearly totally concerned with the complainant’s performance and he relies on the use of the word ‘warning’ in respect of his future performance to ground his case that this was a disciplinary warning. I do not accept this. It is clear from the context, and from the complainant’s subsequent email communications that the context was performance improvement rather than disciplinary and the word was used in its general meaning as placing the complainant on notice as to his future performance. Therefore he should have been in no doubt that his performance was under scrutiny, as would be normal in a probationary period, and that the company was not satisfied with it from an early stage.

5.12 The complainant really based his case that on the simple but legally unsound basis that any adverse treatment of him had to be racially motivated as he was of different racial origin, and simply because he met the definition of a protected class without the need to establish a comparator (with one exception) against whom the discrimination could be assessed. It is not sufficient that the complainant be treated differently, or even adversely, but he must establish that he has been less favourably treated than a person of a different racial background and that the reason for that was his race. The complainant in this case did not shift the burden of proof to the respondent on this latter point.

5. DECISION

5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:

· The complainant has failed to establish facts from which it may be inferred that his treatment by the Respondent was on grounds of his race and hence discriminatory.

· The termination of the complainant’s employment was not discriminatory on the race grounds but resulted from his failure to meet the respondent’s requirements in the course of the probationary period and to respond to injunctions to improve his performance.

· No claim of victimisation arises as the employee had left the company before the complaint was lodged with the Tribunal

5.2 Accordingly I dismiss the claim.

__________________

Pat Brady

Equality Officer

December 2015