The Workplace Relations Commission
Employment Equality Acts 1998 to 2011
DECISION DEC - E2015 - 112
PARTIES
Mr. Tinashe Zakaria
v
Musgrave Ltd. t/a Musgrave Wholesale Partners
(Represented by Mairead McKenna BL, instructed by Arthur Cox Solicitors)
Date of Issue: 29 October 2015 File No. EE/2011/727 & EE2013/190
Keywords
Employment Equality Acts - race – gender – age - working conditions – promotion - access to redundancy - discriminatory dismissal – victimisation – victimisatory dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Tinashe Zakaria (hereafter "the complainant") that he was discriminated against in relation to (i) his working conditions and (ii) his application for redundancy on the grounds of his race, age and gender by Musgrave Ltd. t/a Musgrave Wholesale Partners (hereafter "the respondent"). The complainant also alleges that he was subjected to victimisation and a discriminatory dismissal and/or victimisatory dismissal on the grounds of his race, gender and age by the respondent. The complainant, while on the initial EE1 complaint form highlighted an allegation of discriminatory treatment on grounds of race in relation to an equal pay claim with a named comparator, he withdrew this part of his claim at the hearing.
1.2 The complainant referred a claim of discriminatory treatment in his conditions of employment to the Director of the Equality Tribunal on 30 November 2011 under the Employment Equality Acts. The complainant referred a further complaint on 31 January 2013 of victimisation and discriminatory dismissal and/or victimisatory dismissal under the Acts. On 15 January 2014, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Valerie Murtagh - 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. As required by Section 79(1) of the Acts, and pursuant to the continuation of my functions set out in S. 83 of the Workplace Relations Act 2015, as amended by S. 20(m) of the National Minimum Wage (Low Pay Commission) Act 2015, and as part of my investigation, I proceeded to hearing on 25 September 2014. A further day’s hearing was held on 19 November 2014.
2. Summary of Complainant’s case
2.1 The complainant, who is a Zimbawean national, commenced employment with the respondent on 19 March 2002 as a General Operative. He progressed to Administrative Assistant in October 2004 and Assistant Accountant in July 2006. The position was originally advertised in July 2006 as a temporary Cost Analyst’s position for a six month period. The complainant states that the six month period expired and there was no review carried out regarding his role/performance. The complainant states that the only occasion reviews were carried out was on 9 February 2007. On that day, the Finance Director carried out review interviews with everyone else in the office that is the three Accountants and one Assistant Accountant except for the complainant. Later on that day, the complainant was informed by the Accountant, to whom he was reporting to, that the Finance Director had decided to keep the complainant in the position as an Assistant Management Accountant (Cost Analyst) which the complainant asserts was a clear acknowlgement to him with regard to his knowledge and skills.
Demotion/Access to Lap-top/Stocktaking Issues
2.2 The complainant stated that he was demoted from the Cost Analyst position back to his original role in Accounts Payable. He submits that there was no basis for his demotion and alleges that it was discrimination on grounds of his race. As a background, the complainant states that three or four months before his demotion, the Financial Controller announced they were going to buy laptops for staff in the office to facilitate mobility. The complainant states that laptops were bought for everyone in the office except for the complainant. The complainant submits that a couple of months before his demotion, staff were required to assess branches stock-taking procedures. Staff were requested to confirm their availability to the Financial Controller. The complainant states that he confirmed he was available but the Financial Controller allocated store branches to everyone else except him and he ended up doing a stock-take in the branch where he is located. In relation to the complainant’s demotion, the complainant states that the company has a very comprehensive grievance and disciplinary policy, however none of these procedures were followed when he was being demoted. In this regard, the complainant submits that he was called to attend a short meeting with the Finance Director and the Financial Controller in which he was informed that he was not performing to the standards the company required and that the only options were to leave the company or go back his old job as Administrative Assistant. He states that he was replaced by Mr. C who took over the role of Assistant Accountant. The complainant states that during the 14 months he was working as an Assistant Accountant, there were no complaints made to him about his performance. He states that, in fact, the then Financial Controller informed him that management was happy with his work and as a result, he was to be given increased responsibility. The complainant submits that from speaking to Mr. C who took on the post of Assistant Accountant, he was aware that Mr. C attended college studying business studies but never completed the course. The complainant states that at this time, he had completed the CIMA certificate in Business Accounting which is considered to be of the same value as the Accounting Technician’s course. The complainant also states that one morning about a month before his demotion, he was quite ill with a severe cough. His colleagues with whom he shared the office with, came in from breakfast and informed him that he was going to be sent home. The complainant states a few minutes after his colleagues had returned, the Financial Controller followed and said to him “..get out of here, you’ll infect my staff..”. The complainant alleges that he was discriminated against on grounds of his race in relation to his working conditions.
Promotion/re-grading
2.3 The complainant contends that on 18 June 2008, a position arose to cover a colleague DC. The complainant expressed an interest in the role to the then Financial Controller who immediately reminded him about his demotion in 2007 stating that this previous assignment was not so successful for him. The Financial Controller then proceeded to advise the complainant that he was going to give the role to Ms. D. The complainant is alleging discrimination in relation to access to this position on grounds of gender and race.
Flexi-time allocation
2.4 The complainant states that in November 2008, he was given extra work relating to Oracle Interfaces and he was reporting to two additional supervisors regarding same. He states that this was additional work on top of his normal duties. He was advised by management that he would be doing the work for about two weeks and that it would only take one day per week but that he ended up doing the work for 3 months and it took 2/3 days per week to complete the work. The complainant states that his own work started to fall behind and that his manager put him under a lot of pressure regarding same. The complainant states that there is a policy within the company that if a staff member is given a considerable amount of extra work on top of their normal workload, the staff member concerned gets two flexi hours each week in lieu of same. The complainant states that he was discriminated against as he was never given any flexi hours. The complainant alleges that he was discriminated against in relation to access to flexi-time compared to his colleagues on grounds of race and gender.
Rewards System
2.5 The complainant states that on 7 October 2008, he suggested a system adjustment to the Invoice matching system (DIDOS) that would result in the company increasing its combined margins by almost €160,000 per year without incurring extra costs for both the Northern Ireland and Republic of Ireland divisions. The complainant submits that his suggestion was implemented and the Finance Director promised to include him in the employee recognition programme in line with company policy for recognising employee achievement. The complainant states that following a substantial amount of lobbying on this issue, management added €150 on to his staff account in the cash and carry. However, he was informed that the company has no policy for awarding cash in appreciation of employee achievement. However, the complainant is aware of a female colleague who received €300 for suggesting the company could save €15,000 per year in postage costs if they used A5 envelopes instead of A4 ones. The complainant is alleging that he was discriminated against on grounds of race and gender in relation to the company rewards system for employee achievement.
Work Experience
2.6 The complainant states that on 27 July 2009, he sent an e-mail to the Finance Director requesting work experience relating to his studies. The complainant stated that he met with management regarding same but was advised that he should keep his own work up to date. The complainant states that at that time, he never received any complaints about his work being behind. The complainant states that he also reminded management about the nature of the work which is a constant flow, that you could receive a query at any time which can set you back by a week or two just when you think you have everything under control. The complainant maintains that he was never afforded any work experience and alleges discrimination on grounds of gender and race in relation to access to work experience.
Access to Redundancy
2.7 The complainant is alleging that the redundancy selection process carried out by the respondent was opaque, subjective and open to manipulation in order to achieve a particular result. The complainant states that, had management followed its pre-stated selection criteria and guiding principles, he would have been selected for redundancy. The complainant is alleging that he was discriminated against on grounds of race, age and gender on account of his non-selection for redundancy. The complainant states that on 5 April 2011, management announced redundancies with the intention of reducing headcount by five persons. The complainant states that management advised that (i) a package of 4.5 weeks pay for each year of service (ii) redundancy will be based on a compulsory Last-In First-Out (LIFO) basis but if the affected persons wanted to keep their jobs, they could only do so if there were volunteers willing to take redundancy. The respondent was going to use skill-set as a criteria for selecting volunteers but priority was going to be given to those affected by the LIFO criteria if they wanted to take the redundancy offer. The complainant contends that there was no clarification as to what criteria the respondent was going to use in relation to selecting volunteers. The complainant states that of the five employees affected by the LIFO criteria, four of them accepted the redundancy offer and the fifth position left was going to be filled by a volunteer who was to be selected using the skills-set criteria. There were four volunteers Ms. W, Mr. A, Ms. D and the complainant.
2.8 The complainant states that on 19 April 2011, he was informed that he had not been selected for redundancy and became aware that Ms. W was the person selected. The complainant states that the reasons management gave for his non-selection for redundancy was that he possessed relevant systems and project knowledge and experience which were required by the company. The complainant refutes this assertion. The complainant states that the knowledge/skills reasons he was given are neither necessary nor required for the roles which were being made redundant. The complainant states that in these roles, management usually recruit Leaving Certificate graduates who do not normally possess those skills or knowledge. The complainant states that the majority of his colleagues have Leaving Certificate as their highest qualification. The complainant contends that he should have been the one selected for redundancy because, of all the volunteers, he was the only employee who was previously demoted and the reason he was given was due to his incompetence. He states that this should have led management to conclude that he should be viewed as the most undesirable employee and therefore a target for redundancy not retainment within the company. The complainant alleges that he was discriminated against on grounds of race, age and gender in relation to the selection by the respondent of Ms. W over him for redundancy.
2.9 The complainant submits that the cumulative effect of the discriminatory practices over the years of his employment led him to suffer from harmful stress and anxiety. He states that the employer isolated him by preventing him access to opportunities within the company. The complainant states that the company over worked him by allocating to him work (Trading KPI reports) which was the responsibility of a higher level officer than him i.e. the Commercial Accountant. The complainant states that the discriminatory behaviour by his employer caused him to suffer a great deal of stress and anxiety particularly on 19 April 2011 when he was informed that he was not selected for redundancy. He states that following this he was tormented and stressed by the thought that the discriminatory practices may continue and intensify for the foreseeable future. The complainant states that the cumulative stress he suffered intensified on 19 April 2011 and he immediately went to his GP who prescribed medication and medical certificates were sent in to the company and the complainant was out sick suffering work related stress and anxiety for a period of two months. The respondent booked an appointment for the complainant to see the company doctor. The complainant states that the company doctor then advised the respondent that he had no doubt that the complainant was suffering from work related stress.
Victimisation
2.10 The complainant is alleging that he was subjected to victimisation by his manager Ms. N for lodging complaints of discriminatory treatment, in that, he was penalised in his performance review meeting on 6 March 2012. Ratings are given such as Not Meet Expectations (NME), Mostly Meets Expectations (MME), Meet Expectations (ME) Exceed Expectations (EE) or Significantly Exceed Expectations (SEE/SE) Not Meeting Expectations being lowest and Significantly Exceeding Expectations being the highest rating. The complainant submits that his manager gave him a Mostly Meets Expectations (MME) when his overall rating for 2011 objectives was 91.8 % despite the fact that he usually gets a rating of Meet Expectations (ME) or Exceed Expectation (EE) with the same sort of ratings on previous year’s objectives. The complainant submits that in 2011, his rating was Meets Expectations (ME) and his 2010 objectives rating was 90.33%, in 2010 his rating was ME and his prior year average objective rating was 93.25%, in 2009 his rating was EE and his prior year average was 88%. The complainant examined the trend in previous years reviews and is convinced that his negative review in 2012 had nothing to do with his performance but was influenced by his lodging complaints of alleged discrimination to the Tribunal.
Discriminatory Dismissal/ Victimisatory Dismissal
2.11 The complainant alleges that the respondent dismissed him when he was out on sick leave. He is also alleging that his dismissal by the respondent amounts to victimisation within the meaning of section 74(2) of the Acts. The complainant states that he was further victimised by the respondent by the withholding of his illness benefit entitlements and his sick pay entitlements. The complainant was out sick from 5 July 2012 to 20 August 2012 (circa 32 working days). In a letter dated 20 August 2012, the respondent’s senior financial accountant notified the complainant that the matter of the 2 days sick leave entitlement that the complainant took on 28 and 29 June 2012 was been referred in line with the respondent’s sick pay scheme policy to the disciplinary process. The complainant submits that the respondent’s focus on the two days (28 and 29 June) he was out sick and not the 32 working days which were in dispute was a clear acknowledgement that the respondent had dismissed him. The complainant states that on his return to work on 20 August 2012, he found it very difficult and stressful to work under Ms. N who was increasingly hostile to him. The complainant highlights that in February 2012, the respondent distorted his good performance record in order to give him a poor performance appraisal. He states that poor performance is considered by the respondent as a Minor Misconduct. The complainant states that on 28 June 2012, the respondent refused the complainant sick leave, a situation which put him in a position where if he stayed at work, any resulting poor performance would be on record and if he left work, he would have been considered to have left the premises which the respondent considers to be a major misconduct
2.12 The complainant states that it is clear to him that in the meeting of 20 August 2012, it was the intention of the respondent to overlook the 32 working days which were in dispute and it was the respondent’s intention to overlook the fact that it had unlawfully dismissed him. As a result, it was agreed that the complainant should return to work on the same day. The complainant submits that the fact the respondent’s disciplinary procedure identifies “excessive time away from work” as a misconduct and not abandonment of one’s post clearly exposes the respondent’s intention to victimise and to discriminate against the complainant through dismissal. The complainant contends that abandonment of one’s post is an offence specifically created for the complainant outside the respondent’s disciplinary policy which clearly recognises absenteeism. The complainant submits that the respondent’s intentions here were very clear and were done to discriminate and victimise the complainant contrary to the Acts. The complainant states that in May 2012, his supervisor Ms. N installed a notice board at an awkward position between his desk and a colleague who used to sit behind him. Prior to this, Ms. N’s office walls were used as the notice board before and after he joined the office and this place was not intrusive to anyone’s workspace. The colleague he is referring to at the time had been made redundant. The complainant states that he felt that he was being spied on while he was working. The complainant also submits that on 11 June 2013, his supervisor Ms. N came to his desk shouting that he had not commenced doing Supplier Accounts Reconciliation work and instructed him to start same. As instructed, he states that he reconciled 5.95 percent of his supplier accounts from 11 to midday on 13 June 2012 after which he took annual leave. The complainant also states that Ms. N shouted at him another day in the office saying “Pull it together, everyone else is”.
2.13 The complainant states that on 28 June 2012, as a result of the hostile environment he was subjected to and the stress he was under, he went into Ms. N and informed her that he was stressed and could not concentrate and needed to go home. The complainant states that before he could close the office door and sit down, Ms. N said “If you walk out of here you would be walking out of your job”. The complainant states that he understood this to mean that Ms. N was not going to authorise his request for time off. The complainant states that he needed some space to calm down and avoid saying or doing things that he would regret so he informed Ms. N that he was going home. On his return to work on 2 July, he went straight into Ms. N’s office and asked her what was going to happen after the events of 28 June. Ms. N responded by saying “ that I [the complainant] had walked out of my job and that it is company policy which she had implemented” which the complainant understood to mean that she had dismissed him. She also said that HR would contact him the same day regarding the issue as it was no longer in her hands. On 3 July 2012, Ms. N who had left early the previous day gave the complainant a sick leave form to complete. The complainant states that he thought Ms. N had changed her position and he took the form and completed same. After he submitted the form, Ms. N informed him that he would not be paid for the two days he was out sick. The complainant states that he immediately informed Ms. N that he does not agree and expressed his intention to withdraw the sick leave form. On 4 July, the complainant heard nothing from the HR department along the lines of what Ms. N had stated to him so he wrote a letter dated 4 July explaining what had happened and stating that he was awaiting documentation relating to his termination of employment.
2.14 While the respondent claimed that the complainant had abandoned his employment with the company, the complainant states that this was incorrect and that his absence was due to illness. The complainant submits that he was out sick from 20 August 2012 due to work related stress and a viral infection. The complainant states that while he was out sick he made every effort to comply with the respondent’s sick pay scheme (SPS) policy. On 3 September 2012, the complainant went to the office to submit a medical certificate to the respondent. On arrival, a senior financial accountant Mr. D called him into a meeting in which he was informed that he was in breach of the company’s SPS policy. Mr D said that the SPS required that the complainant should (i) fill in the Illness Benefit Form from the Social Welfare Department instructing them to pay the illness benefit payment into the respondent’s bank account and (ii) provide said completed form to his manager Ms. N who would sign it and it would then be forwarded to HR for stamping.
2.15 The complainant submits that none of the above requirements are stipulated in the SPS policy. The complainant states that when he received his illness benefit entitlements from the Social Welfare Department, he transferred those payments to the respondent’s bank account. The complainant states that on 14 September 2012, the respondent did not pay his sick pay entitlements and also did not refund the illness benefit he had transferred to their bank account. The refunds in relation to the overpayment of illness benefits were made on 6 November 2012 by cheque, two months after he had transferred them into the respondent’s bank account. The complainant states that this insensitive withholding of his illness benefit entitlements and sick pay entitlements by the respondent caused him to suffer financially. The complainant states that the respondent wrongfully withheld his illness benefit entitlements and sick pay entitlements and also introduced inconsistencies and contradictory explanations in the manner in which they applied their SPS policy as a means to further victimise him. The complainant cites case law in relation to Tribunal’s decision in Ms. Ning Ning Zhang v Towner Trading DEC-E2008-001 and the Labour Court decision in Dejay Royale and A Worker (CD/04/606) where it highlights that appropriate disciplinary procedures need to be followed before an employee can be dismissed. The complainant states that the respondent by failing to follow proper disciplinary procedures treated him less favourably than another employee facing similar charges. The complainant reiterates that he was discriminated against on grounds of race gender and age. He submits that his dismissal by the respondent amounted to victimisation within the meaning of section 74(2) of the Employment Equality Acts.
3. Summary of Respondent’s case
3.1 The respondent states that many of the complainant’s allegations date back a number of years and submit that the individual complaints are not sufficiently linked together so as to permit the complainant to argue that his claims are within time by virtue of Section 77(5) of the Acts. The respondent contends that the alleged incidents complained of are not similar and/or related and that they do not create a chain of alleged discriminatory incidents. The respondent maintains that the vast majority of the complainant’s allegations are statute barred and submit that those claims should not be heard. The respondent states that one of the main complaints made by the complainant is the issue that he was not made redundant. The respondent submits that the failure to terminate a person’s employment cannot and does not fall within the scope of the Acts. In particular it is submitted that such a situation cannot and does not fall within the meaning of Sections 6 or 8 of the Acts. Furthermore, if the complainant’s redundancy complaint fails then it is undoubtedly the case that the remainder of his claim is statute barred.
3.2 The respondent refutes the allegation that the complainant was discriminated against on the grounds of race because he was not selected for redundancy. The respondent submits that the background to the redundancies was that over a number of months the respondent conducted a review of the structure within the finance area, the objective of the review was to identify areas of work that could be carried out more efficiently to ensure that the respondent emerged stronger and that the business would grow in the future. The review identified a number of areas where changes could be made. As a result of the review, a decision was made to reduce five administrative roles within Accounts Payable division. The respondent states that this decision was announced to the staff involved. It was also explained to the staff that (a) the selection criteria for the five Accounts Payable administrative roles would be on a Last In First Out basis (b) if there were other employees who would like to be considered for redundancy, the respondent would be happy to talk to them but it reserved the right to refuse applications for redundancy on a voluntary basis if it did not suit the needs of the business.
3.3 The respondent states that there was no guarantee that just because someone applied for voluntary redundancy that they would in fact be made redundant. Subsequent to the announcement, eight employees applied to be considered for voluntary redundancy. These eight employees included the complainant and four of the employees who had been identified as “last in”. This pool of eight employees was subsequently assessed against the criteria established by the Finance Manager, Ms. N and the HR Manager Ms. K. The respondent states the selection criteria was clearly fair, equitable and non-discriminatory. Five of the eight volunteers were selected for redundancy. The complainant received the second highest score and consequently, he was not selected for redundancy. Three of the eight employees who applied for voluntary redundancy were not selected for redundancy and this was due to the fact that they were the top scoring employees. The only exception to this was that the fourth highest scoring employee role was not accepted for voluntary redundancy as the third highest scoring employee outlined to the respondent that she intended to leave the business in nine months in any event. The respondent could not afford to lose the skill and experience of both employees and consequently the third highest scoring employee was in fact made redundant. The respondent maintains that the complainant, in the main, objected to the fact that Ms. W was selected for redundancy instead of him. While it is accepted Ms. W was the longest serving employee who applied for voluntary redundancy; she was the third lowest scoring employee when the selection criteria was applied and consequently she was selected for redundancy for that reason. The respondent maintains that Ms. W’s age and/or race and/or gender did not impact in any way on the decision to select her for redundancy.
Educational Assistance
3.4 The complainant made allegations in relation to the failure of the respondent to provide him with educational assistance. The respondent states that it is accepted that the respondent did make a request for educational assistance in or around 2004. However, the claimant had already commenced his course/studies at that time. For an employee to be granted educational assistance s/he must receive approval for educational assistance prior to commencing the course. As the complainant had already commenced his course of study, the complainant was not granted educational assistance. The complainant alleges that certain persons were assisted by the respondent in relation to their education. In the cases where assistance was granted, the employees requested educational assistance prior to enrolling in the educational course/programme.
Demotion
3.5 The complainant commenced working with the respondent in or around 19 March 2002 as a general operative. He applied for a temporary office junior position in 2004 and commenced a six month temporary role in August 2004. He became a permanent member on the Accounts Payable team on 4 April 2005. One of the respondent’s employees was moved to the Northern Ireland division and based on the complainant’s exam achievements in his CIMA qualifications, he was uplifted into a cost analysis role to provide valuable work experience more relevant to his studies. There was no competition for this role. This role was offered to the complainant on a six month trial which he accepted to support his CIMA studies. The agreement was that Mr. H would direct the complainant’s work, outline his duties and provide mentoring. Unfortunately Mr. H was absent from work for some months due to ill health. The complainant carried out work in relation to the duties which had been handed over to him prior to Mr. H’s absence. In or around April/May 2007, members of the Finance team collectively brought to his supervisor, Ms. C’s attention the fact that they felt the complainant was underperforming. They explained their reluctance to raise the matter earlier because they believed that the complainant appeared to be under pressure in his personal life. It was agreed that Mr. H and Ms. M would take on responsibility for more proactive mentoring of the complainant and that they would direct his workload and be more communicative to him regarding his performance on each individual task. It was also decided that Ms. C would have an informal discussion with the complainant about his performance and his thoughts on his time in the Finance Division with the intention of highlighting specific areas of improvement and giving the complainant an opportunity to respond.
3.6 The respondent contends that during this informal discussion, the complainant inter alia agreed that he could do better. The tone of the discussion was pleasant and non-adversarial. Ms. C explained to the complainant that although he had not performed up to expectations, she did not feel it was fair to judge his performance on the previous six months since the division had not really provided the support that she felt it should have in relation to his development. She suggested to him that if he was in agreement, his probation should be extended for a further six months and that the parties could work together more proactively to bring him to the level of performance that was required. The respondent submits that the complainant agreed with this and Ms. C outlined to the complainant inter alia the reporting structure and how it would operate and that there was a requirement for the complainant to be communicative with Mr. H and Ms. Mc if he had any issues with his work. The respondent maintains that the complainant seemed enthusiastic about what was being suggested. The respondent states that after a number of weeks, it became apparent that the complainant’s performance was not improving, Ms. C spoke with Ms. N and asked her if the need arose would she have the capacity for the complainant to move back into Accounts Payable. Ms. N agreed that should the need arise, the complainant could be redeployed back to Accounts Payable.
3.7 Ms. C had a further meeting with the complainant to discuss his progress. The respondent states that in that meeting, Ms C attempted to impress upon the complainant the issues/concerns with his performance. She also asked him if he had any needs relating to training or supervision to which the complainant replied that he did not require same. The complainant asked if his job was under threat. Ms. C advised him that he would not have an issue with employment and that if the accounts assistant role did not work out for him, the respondent would look at transferring him back to Accounts Payable but that this would not result in any loss of entitlements to him. The respondent states that she assured him that the company would still sponsor his visa and support his education. The respondent states that a number of weeks passed and there was still no improvement in the complainant’s performance. Consequently, Ms. C met with Mr. H and Ms. Mc. It was agreed that the time commitment involved was too great in trying to mentor the complainant when he seemed unwilling. Ms. C spoke with Ms. N and asked when she would be in a position to take the complainant back to Accounts Payable. Ms. N advised that from a logistical point of view, she needed some time. The respondent agreed a course of mentoring under Ms. N’s supervision which was to include a course in telephone communications and communications in general. Ms. C had a final meeting with the complainant. She advised him that it was not really working out and that they wanted him to move back to Accounts Payable if he was okay with that. The respondent states that the complainant agreed. Ms. C tried to coach him to look at it as an opportunity to regroup and get his studies back on track. She explained to him that she had agreed with Ms. N that she would mentor him and that they had agreed an initial training route for him with emphasis on communication skills. Ms. C also told him that she would like to see him eventually taking on the floating role that existed in Accounts Payable so that he could rotate through many positions and he would be in a position to take a supervisor’s role when one next arose. She told him that the supervisor’s role would usually be filled by way of internal competition. Ms. C also told the complainant that in about 12 months or so if an accounts assistant role became available again in the Division, she would expect to see him applying for it and hoped that by then he would have done enough to be successful in that competition.
3.8 The respondent submits that the complainant appears to allege that he was replaced by Mr. C. However, it should be noted that the complainant states the he was demoted in October 2007. Mr. C was employed by the respondent and commenced work on 16 July 2007. The respondent states that it appears from the complainant’s submission that he objects to the fact that a formal disciplinary process was not invoked prior to his transfer back to Accounts Payable. Ms. C specifically did not invoke the disciplinary process as her approach was to try and help and support the complainant in order for him to progress his career. The respondent submits that the conversation that Ms. C had with the complainant when she informed him that he was transferring back to Accounts Payable was an encouraging one where she emphasised his future prospects and possibilities. The complainant also alleges that a month before his demotion he had a cough and that Ms. C, the Financial Controller said to him “get out of here, you will infect my staff”. Ms. C cannot recall precisely the exact conversation but she refutes the words attributed to her by the complainant and submits it does not reflect her usual language. However, the respondent further submits that it is not unusual to suggest to staff that are quite obviously unwell to go home until they feel better.
Access to Laptop
3.9 The respondent submits that only staff required to work remotely at other respondent locations and/or outside normal working hours were provided with laptops. It states that the complainant’s role had no remote working element. Ms. C of the respondent company maintains that the complainant was not the only employee on her team who did not have a laptop. She states for example that the complainant’s two colleagues who are Irish nationals did not have laptops either.
Stocktaking
3.10 The complainant also alleges that a few months before his demotion that the Financial Controller allocated branches for a stock-take to all other staff except him. The respondent states that the Financial Controller in fact sent an e-mail to all finance staff on 17 August 2007 asking them to volunteer if they were available and to indicate which branch they might prefer. There was no overtime available for the stock take and it was not compulsory to participate. Where extensive travel was involved, the respondent undertook to pay one overnight plus dinner and mileage. The respondent states that the complainant did not respond to the e-mail until 5 September by which time all stocktaking roles had been allocated. The respondent submitted documentation to the Tribunal to substantiate the facts regarding this matter.
Promotion
3.11 Ms. S was the Financial Controller for a period of 6 months (9 April 2008– 24 October 2008). During this time, Mr. C a part-qualified accountant had to leave the business for health reasons at very short notice. The Financial Controller looked to provide an opportunity for a member of the Accounts Payable team to step up to this role for a period of 8-10 weeks. At the time, the company was providing educational assistance to Ms. D and she was afforded the opportunity. The respondent states that it cannot comment on how well qualified the complainant was at the time as he did not share how he was progressing with his exams as he did not feel obliged to as the respondent was not funding his study.
Trading key performance indicator reports
3.12 The respondent states that there is full flexibility across the Accounts Payable team to cover roles for annual leave/sick leave or at busy periods. The respondent asserts that carrying out this role facilitated further upskilling of the complainant to support his CIMA qualification. Ms. D commenced training with the complainant in May 2009 initially for holiday cover; this reporting function was a duty only carried out by members of the team who were studying for their financial qualification. This supported the complainant’s CIMA studies. The respondent submits that the only department in the company that applies a flexi-time policy is the Accounts Payable team. This policy applies to all of the Accounts Payable administration team with the exception of supervisors and managers. The policy allows for a maximum of 15 hours to be built up in any one month period. There was a practice on the Accounts payable team that if a role was covered for a full week in addition to your own role, 2 hours flexi time were allocated in recognition of the additional work. This report only takes one day to complete and was incorporated into the complainant’s normal working week without any additional working hours therefore this practice did not apply. This report only took one day to complete and was incorporated into the complainant’s normal duties. He had requested work experience to support his CIMA qualification and this work was allocated to him to fulfil his request. There were other duties reallocated across the Accounts Payable team such as filing of deliveries, management of post etc. The respondent states that the complainant was not allocated these duties at that time. The respondent submits that on no occasion did Ms. D request flexi-time from Ms. N on the complainant’s behalf. At some stage in 2009, the complainant had a discussion with Ms. N in relation to KPI reports. Ms. N’s understanding from the discussion was that the complainant was happy to continue carrying out the role of KPI reporting. The only time that Ms. N was made aware of any concerns that the complainant had about this role was in the meeting held with Ms. N and Ms. K in May 2011 after his non-selection for redundancy. The respondent submits that there was a restructuring of the Accounts Payable team in April 2011. As part of this restructure, some elements of the central billing and Accounts Payable functions were transferred out to the Accountant’s team and credit control functions. The respondent has a dedicated Trading Commercial Accountant on the Accountant’s team and it was more logical that she would now take responsibility for the Trading KPI report as she is ultimately responsible for reporting on the Trading function to the commercial director.
ORACLE Interfaces
3.13 The respondent states that in 2008, there was a systems project being carried out to allow the respondent’s business management system (BCP) “talk to” the Financial management system (Oracle). There was an external contractor hired to complete this work and internal testing was required. It was initially envisaged that the accountant team would work closely with the external contractor to provide the internal testing. However, the team was not in a position to support this testing and Ms. N requested the complainant’s support in completion of this project as he had strong systems knowledge. The complainant had requested additional practical financial and management accounting experience. This work would only have resulted in the equivalent of one days work per week and not a full week’s work so therefore the rules of an additional two hours flexi did not apply. The complainant carried out this testing work for approximately three months. At this stage, Ms. N recognised that the complainant’s own work was falling behind in particular his work on DIDOS. Ms. N discussed this with the claimant and requested him to focus on getting his DIDOS work up to date. The respondent submits that the complainant did tell Ms N at this point that he did not think he could do both roles. As a result, Ms. N spoke to the Financial Controller at that time and confirmed that the complainant would no longer be in a position to support the Oracle Interface project.
Work Experience
3.14 The respondent submits that the complainant did get the same work experience opportunities as his colleagues. It states that he was offered the opportunity of the cost analyst role, when he returned to the Accounts Payable team, he was trained on the Trading KPI Reporting and was also afforded the opportunity to support the Oracle Interface project. The respondent states that as per company policy, it is up to the individual to drive their own career development. The respondent states that it has supported the complainant’s work experience. However, it notes that there was a part-qualified management accountant role advertised in October 2010 and the complainant did not apply for said role. The respondent contends that the complainant has never been refused any work experience and that he was in fact provided with the work experience as a result of conversations with his manager and via the performance review process. In July 2009, the complainant sent an e-mail to the then Financial Director looking for help and advice in gaining the practical experience required to qualify as a chartered accountant. This was during the time that he had taken on responsibility for the Trading KPI reporting. The Financial Director responded confirming that he could not make any promises but that the Financial Controller would speak to him regarding same. The Financial Controller met with the complainant and Ms. N to discuss his request; at the time the respondent’s approach was that the complainant was not up to date with his own work and taking on additional responsibilities was not feasible until he was more up to date with his own duties. The complainant asked the Financial Controller about completing his professional competency diary around areas of Financial Accounting and the Financial Controller confirmed that he would be happy to complete same once he had exposure to these areas. In order to gain that exposure, the complainant would have had to travel to the Ballymun office to work more closely with the Accountants team which the complainant was unwilling to do.
Study Support
3.15 The respondent submits that the complainant used flexi-time and annual leave for his study and exam requirements. As the respondent was not providing education assistance, the terms of the education assistance policy did not apply.
Employee recognition award
3.16 The respondent submits that the complainant recognised that there could be cost savings to the company and in this regard, presented an idea to Ms. N and Ms. C. As a result changes were made and in recognition of this, Mr. C publicly thanked the complainant in the Accounts Payable office for his suggestion and provided the complainant with a €150 recognition award on his company staff account on 8 November 2008. The respondent submits that any suggestion on a need for lobbying for this to be done is rejected by the respondent. Further to the complainants assertions regarding Ms. ED who received a cheque for €500 for a suggestion made. The respondent states that this assumption is incorrect. It states that the general manager in the branch in question launched a competition for the best cost saving initiatives and there were a number of prizes awarded. It states that Ms. ED made a good suggestion and was the winner of the first prize of €300 credit to her cash and carry account. The respondent states that this was not a recognition award but in fact a competition prize. The respondent submits that people are central to the success of the respondent’s business and that it is appropriate that individual and team achievements are recognised that are in line with the attainment of key goals and objectives. The respondent states that generally managers have the discretion to recognise people at local level in some small way. Typically, it might be a restaurant voucher for dinner for two, bottles of wine, etc. The respondent states that the recognition that the complainant received was in keeping with this idea.
Flexi-time
3.17 Further to the complainant’s allegations regarding non-access to additional flexi hours, the respondent submitted flexi-time records to the Tribunal. It shows that one employee was given two hours flexi time for covering for a colleague. The respondent submits that contrary to the complainants assertions, the other colleagues who are Irish nationals named by the complainant did not receive any additional flexi time.
Performance review
3.18 The respondent submits that the reviews carried out in relation to the complainant and any marks/comments relating to same have absolutely nothing to do with his lodging of a complaint of discrimination. The respondent states that it is important to note that any one of the key performance indicators on the Accounts Payable team is the percentage of reconciliations processed. It submits that the challenge in 2011 was that there were five roles made redundant and these reconciliations were re-allocated across members of the team. The respondent maintains that the percentage of reconciliations processed during the complainant’s absence from work which his manager and other members of the team processed remained under his name.
Grievance procedure
3.19 The respondent states that it is important to note that the complainant only raised grievances in relation to these issues within the company after he was not selected for redundancy. The respondent submits that it is interesting to note that during the grievance procedure, there were certain issues that the complainant was not willing to discuss i.e. the position in relation to his exams. Furthermore, the complainant indicated that success for him was to receive a redundancy package.
Discriminatory Dismissal / Victimisatory Dismissal
3.20 The respondent states that during the morning of 28 June 2012, the complainant walked into the respondent’s office in an agitated state. Ms. N, his line manager, was present and she reported that the complainant told her that he could not concentrate and he was going home. She requested that he sit down and discuss what the issues were. He refused and reiterated that he was going home. Ms. N advised the complainant that in effect he was walking off the job and he responded so be it. Ms. N followed the complainant out to the car park as she was concerned that he was so agitated. She attempted to put her hand on his arm and he said “do not touch me” and walked off. Arising out of this conversation, the complainant appeared to allege that he was dismissed. The respondent states that he was not dismissed. It states that he was absolutely not informed that his contract of employment was terminated. The respondent further submits that nothing that was said to the complainant on 28 June 2012 could have been interpreted by him as a dismissal. Ms. N rang the complainant at approximately 3.20 pm that afternoon. She enquired how he was and requested that he come into the office the following morning and that they would discuss his absence and any underlying issue in a calm and professional manner. The complainant said he could not talk at that time. Ms. N asked if he would ring her from his mobile to her desk number and she gave him her number. He agreed that he would call her in ten minutes. Ms. N left the office at 5.25 pm and at that stage, the complainant had not made any further contact with her. On 29 June, Ms. N rang the complainant on various numbers but did not get to speak to him. She left a number of voice messages for him.
3.21 The complainant returned to work on 2 July 2012. The respondent submits that the fact the complainant returned to work on 2 July 2012 clearly indicates that he was aware that his employment was not terminated and was ongoing. Indeed, by letter dated 4 July 2012, the complainant’s own account of 2 July is as follows;“I then came to work on 2 July 2012 on which F told me that she had implemented company policy and that the matter was now being handled by the HR Department and that they would be in contact with me by close of business but since then they have not contacted me. F, however, said that while I am waiting for the HR Department to contact me, I can work as usual.” The respondent states that the complainant had a number of conversations with Ms. N on 2 July 2012. At no stage during any of these conversations did Ms. N indicate to the complainant that he was dismissed. She did however indicate that she was going to contact HR. The complainant attended work on 3 July however, he left work without advance notice at approx. 12.15 pm on an urgent half day. On 3 July, Ms. N requested that the complainant complete a back to work form which he completed with work related stress as the reason for his absence. She advised him that this would be unpaid. The complainant asked why and Ms. N replied that he left without permission on Thursday and she did not hear from him on Friday and as company policy was not followed, the days were unpaid. The complainant indicated that he would revert with a response and he then came back and requested a copy of his back to work form. On 4 July, the complainant also attended work and handed his manager Ms. N a letter which is referred to above at 3.18. He also asked to withdraw his back to work form and he was informed that Ms. N was not in a position to give him the original form. He made various allegations in his letter of 4 July but the letter ended stating.. “This is a very stressful moment for me and my family and I await for documentation relating to the termination of my employment which I hope you will send me as soon as possible so that we can move on with our lives”. The respondent maintains that this final statement in the letter was inexplicable given his return to work on 3 July 2012.
3.22 By letter dated 3 July 2012 Mr. D, Senior Financial Accountant, wrote to the complainant. The letter clearly indicated to the complainant that his employment had not been and was not terminated. The letter states inter alia;
“I wish to confirm in no uncertain terms that your employment has not been terminated by the company nor has any indication been given to you that the Company had any desire or indeed intention to terminate your employment… I was intending to issue you a letter in respect of your absences from work on Thursday and Friday 28 and 29 June. It has been alleged that these absences from work were unexplained and unauthorised. In this regard, I intend to investigate the matter to ascertain the veracity of such allegations. Accordingly you are requested to attend an investigation meeting on 5 July at 9.30 am with myself and Ms. L, HR…The meeting will be governed by the Terms of Reference enclosed. The fact finding investigation may lead to the initiation of the disciplinary process, depending on the findings and in this regard, I have enclosed a copy of the Disciplinary Procedure for information”. The complainant wrote to Mr. D on 5 July 2012. He refused to engage in the investigation meeting on 5 July and indicated that he was no longer bound by the respondent’s policies.
3.23 The respondent submits that Mr. D wrote to the complainant on 6 July stating inter alia;
“I note that you are refusing to participate in the investigation meeting and state that you are no longer bound by Company policies. I wish to reiterate that your employment has not been terminated and in those circumstances, you are bound by Company policies. Accordingly, I propose reconvening the investigation meeting. For the avoidance of doubt, no action has been taken in your absence. You will continue to be paid in the ordinary way. In the event that your absence is found to be unauthorised, your pay may be deducted at the discretion of the Company. Accordingly, this meeting will give you the opportunity to put forward your position in respect of matters which arose on 28 and 29 June after which time a decision will be made in relation to what next steps, if any, are appropriate to be taken in this regard. It is in your interests that you participate in this process. If you choose not to participate, the investigation will have to proceed in your absence. I note your explanation in relation for your reason for leaving work on 28 June and confirm that this can be discussed in greater detail with you in the course of the investigation meeting. Any other issues that you refer to in relation to Ms. N should be dealt with through the Grievance Procedure, a copy of which we enclose. I urge you to review this policy in careful detail. Finally, I would like to expressly reiterate the Company’s offer of assistance to you during what appears to be a difficult time in your life and I encourage you to accept this assistance. Unless you expressly resign from your employment, the Company considers you to be still in employment and will treat you accordingly.” By letter dated 9 July, the complainant indicated that there may have been confusion in relation to his alleged dismissal on 28 June but there was no confusion by virtue of what he alleged Ms. N said to him on 2 July 2012. He further indicated he wanted the documentation requested in his letter on 4 July 2012. The respondent submits that Ms. N did not dismiss the complainant on either 28 June and/or on 2 July 2012. It is further submitted that nothing Ms. N said to the complainant at any time could have been interpreted as a dismissal.
3.24 On 11 July, the complainant attended the investigation meeting into his absence on 28 and 29 June 2012. The complainant indicated inter alia that he would not participate in the meeting. It was repeated to the claimant that his employment had not been terminated and that the meeting was to understand the facts from his point of view as part of the investigatory process. The complainant stated that he would not attend. After a short time, the complainant left the meeting. Mr. D again wrote to the complainant on 17 July 2012 stating;
“I refer to your letter dated 9 July 2012. I would like to once again reiterate that the Company does not intend nor has it terminated your employment. The fact that you have continued to be paid since your letter of 4 July clearly reflects the intention of the Company in this regard. Ms. N reported a matter to HR in relation to your alleged unauthorised absence from work on Thursday 28 and Friday 29 June 2012. Since that time we have attempted to investigate these allegations however no finding, adverse or otherwise has been made. Any reference made by Ms. N to a ‘matter being handled by the HR Department’ related to this process. Please note that on 11 July 2012, we met with a number of your colleagues in relation to this alleged incident and I enclose investigation meeting minutes in respect of those meetings. I would like to once again invite you to participate in this process with a view to finalising matters. I note your insistence that your employment is terminated. I wish to confirm that unless you have resigned from your employment, you remain an employee of the Company. Please be advised that the Company will process your leaving documentation as requested in your letters of 4 July, 5 July and 9 July on the basis that these letters constitute your resignation. If I do not hear from you on or before close of business on Wednesday 18 July to withdraw this resignation, I will issue your P45 directly to you as requested. Please be advised that you will continue to be paid up to an including this day to allow you an opportunity to reconsider your decision to resign from employment. I urge you to consider the matter very carefully and I look forward to hearing from you”. On 17 July 2012, a telephone conversation took place between the complainant and Ms. L (HR). The complainant indicated in the course of that call that he wanted his P45. Ms. L indicated to him that his employment had not been terminated. The respondent contends that as no response was received to the letter of 16 July, Mr. D wrote again to the complainant on 30 July stating inter alia;
“I note that we have not received a response from you in relation to our letter urging you to reconsider your decision to resign from your employment. I would like to extend the deadline for response until close of business Monday 30 July 2012. If I do not hear from you on or before that date to withdraw your resignation, I will issue your P45 directly to you, as requested. Please be advised that the Company will process your leaving documentation as requested in your letters of 9 July on the basis that these letters constitute yourresignation. I would like to once again reiterate that the Company does not intend to nor has it terminated your employment. I urge you to consider the matter very carefully and I look forward to hearing from you. Please be advised that you will continue to be paid up to an including this day to allow you an opportunity to reconsider your decision to resign from your employment.”
3.25 The respondent submits that by letter dated 30 July 2012, the complainant wrote to Mr. D stating;
“I refer to your letters dated 17/07/2012 and 30/07/2012. I would like to make it clear that none of my previous letters to you were resignation letters either implied or intended and so should not be confused as such. If I have not been clear in my previous correspondence to you, I want to make it clear here what transpired. Ms. N fired me and she stated that position not once but twice. Ms. N communicated that position to me in her capacity as my manager through which all previous company instructions were communicated, without the need for interpretation from a Senior Financial Accountant or HR Department. Any documentation which states anything other than the fact that you dismissed me would be unacceptable and very irresponsible on your part and will be considered to be patronising. Again I want to make it clear that I have not resigned and I neither had the intention to do so, but was in fact dismissed. The company never showed any intention to withdraw/change that position but instead behaved in a way which implied that all of this is a figment of my imagination. I will consider reinstatement only under certain conditions which will be necessary for my well-being in the workplace.” The respondent submits that this is an extraordinary letter in circumstances where the complainant was informed on numerous occasions both verbally and in writing that he had not been dismissed. It is submitted that the respondent could not have been any clearer in relation to the complainant’s employment status. By letter dated 2 August 2012, it was reiterated inter alia to the complainant by Mr. D that his employment had not been terminated and consequently reinstatement was irrelevant in the circumstances. The respondent submits that Mr. D again wrote to the complainant on 10 August 2012 stating; “I note your previous correspondence of 4 July, 5 July, 9 July and 20 July and reiterate that the Company has consistently advised you that your employment has not been terminated. The fact that the Company has continued to pay you demonstrates this. In these circumstances the Company does not feel that you have provided adequate reason or explanation for your absence. You have now been absent from your employment since 3 July and I wish to inform you that this absence is unauthorised. The Company is now issuing you a formal direction to return to work immediately. Please note that your salary will be paid up until 20 August and if we do not hear from you by close of business on Wednesday 15 August, the Company will move to the disciplinary process, in line with the Company’s Attendant Policy and your salary payments shall be suspended from 20 August. If you subsequently return to work in accordance with this request, any back payments of salary due to you will be paid in the September payroll. For the avoidance of doubt, the Company considers you to be still in employment and will treat you accordingly”.
3.26 The complainant wrote to Mr. D by letter dated 15 August 2012 stating inter alia; “my understanding of contract law is that when notice of termination of a contract is given, it can only be withdrawn by agreement. I view your refusal to provide me with documentation relating to the termination of my employment as a way of coercing me to accept your withdrawal of termination of my employment. Your behaviour in this situation is very inconsiderate. If you wish to reinstate me, I am open to discuss the conditions on which that will happen. I want to inform you that documentation relating to termination of my employment particularly the P45 enable me to arrange for alternative income for my family and also allow me to renegotiate payment terms with my creditors. Your decision to withhold documentation relating to termination of my employment, particularly my P45 has left me with no choice but to attend work in order to meet my financial obligations. However, this should not be confused with agreeing to your intentions to withdraw your termination of my employment. I also want to inform you that I will not participate in any disciplinary process as I believe that it ought to have been carried out before termination of my employment.” On 17 August, the complainant had a telephone conversation with Mr. D and Ms. K (HR Operations Manager). The respondent submits that it was clear from the content of that conversation that the complainant did not want to return to work. Mr. D suggested a meeting at Location A to discuss the complainant’s request for his P45. On 20 August 2012, Mr. D wrote to the complainant stating;
“I am disappointed that you have once again refused to participate in the investigation process. By refusing to participate, you have chosen not to take the opportunity to respond to the allegations made. Accordingly, I have finalised my report in the absence of your participation. I enclose a copy of the Report and witness statements, for your information. I am satisfied that I have sufficient evidence to make findings of fact on each of the allegations made against you. You will note that I have recommended that the matter be referred to the disciplinary process. I have furnished a copy of the Report to Mr. C, Commercial Controller. Mr. C will consider the recommendations made and decide if he wishes to progress matters as recommended. Mr. C will contact you separately in this regard.” On 20 August, the complainant, Mr. D and Ms. K met at Location A. The outcome of this meeting was that the complainant agreed to return to work. The complainant returned to work at 10.30 am that day. At 12.45 pm he stated that he was not feeling well and he needed to go to the doctor. In the afternoon, he presented a sick certificate indicating that he was unfit for work from 20 August 2012 to 3 September due to ‘work stress and viral infection’.
3.27 By letter dated 27 August 2012 the complainant was requested by the respondent to attend an independent medical assessment by the respondent’s doctor on 31 August 2012. On 29, 30 and 31 of August 2012, the complainant had various telephone conversations with Mr. D. These calls concerned the completion of the social welfare form. On 3 September 2012 the complainant met Mr. D. He provided Mr. D with a further medical certificate which covered the period up to 12 September. Again discussions were held in relation to the social welfare form. The complainant indicated that the process he was being asked to follow regarding the social welfare form was not in the employee handbook and was not being correctly interpreted by Mr. D. The complainant refused to get Mr. D the form to sign off and for HR to stamp. By letter dated 5 September 2012, Ms. H (HR Manager) wrote to the complainant stating;
“I wish to confirm receipt of your medical certificates for the period September 3rd to September 12th 2012. I also note that you were speaking to Mr. D on a few occasions in the last few days in relation to the Company sick pay scheme and specifically in relation to Social Welfare payments. I understand that he has requested that you complete the Social Welfare form in accordance with Company policy and practice, which requires the Company bank details to be inserted in addition to your manager’s signature and a HR stamp. Mr. D had advised me that you had some difficulties with this process and upon reference to earlier records, I note that you would be familiar with this procedure as a sick pay scheme was made to you in June 2011. For your attention, I have attached a copy of the company Sick Pay Scheme policy. Please note that payment for sick absence is dependent upon full compliance with Company policy. Therefore, payment relating to your current certified absence will only be made to you upon provision of a properly completed Social Welfare form. If you have any queries in relation to the above, please do not hesitate to contact me.” The complainant was assessed by the respondent’s doctor on 31 August 2012. A report dated 11 September was provided by the Company doctor. The respondent submits that it was her opinion that the complainant was medically fit for work and medically fit to participate in any meetings in relation to his ongoing work difficulties. In the doctor’s report, she noted that the complainant was willing to meet with HR to try and address and resolve his ongoing work difficulties. The respondent submits that it received this report in mid-September.
3.28 The complainant did not attend work on 12 September 2012. He made no contact with the respondent, its servants or agents on 12 September 2012. The complainant telephoned Ms. N on 13 September and said that he had attended his doctor on 12 September and that he had a medical certificate until 27 September. The respondent states that no medical certificate was received. On 18 September, the complainant telephoned Ms. N for the respondent’s bank details and a social welfare payment was received into the respondent’s bank account for the complainant’s absence. On 25 September, Mr. D wrote to the complainant stating;
“I note that the most current medical certificate we have on file for you confirms your fitness to work on 12 September 2012. On that day, you failed to return to work. Furthermore no contact with your manager was made in line with company policy to advise that you would not be attending, therefore rendering your absence that day as unauthorised. I also noted that the following day on 13 September at 10.05 am, you telephoned your line manager Ms. N and informed her that you had a sick certificate following your attendance at your doctor on 12 September that certifies your sick absence until 27 September 2012. As of today, we have not yet received this medical certificate which you advised Ms. N that you would be posting on 13 September as required under Company policy. I can confirm that a number of social welfare benefit payments have been received into the Company bank account. Please note as per our previous correspondence that payment for sick absence is dependent upon full compliance with Company policy in relation to timely notification of absence, contact with your line manager as appropriate, timely provision of medical certificates and payments of social welfare benefits to the Company, where relevant. Payment under the Company sick pay scheme will be made to you with respect to absence where Company policy has been fully complied with from 20 August to 11 September 2012 inclusive. You will receive a reimbursement of any social welfare monies overpaid to the Company. I have now received the medical report from Medmark following your recent assessment, they have confirmed that you are fit to return to work and fit to participate in workplace meetings connected with your ongoing work difficulties. On this basis, we will expect your return to work on Monday 1 October 2012 in accordance with this medical assessment.” The complainant did not attend work on 1 October and did not make any contact with the respondent, its servants or agents on 1 October, 2012.
3.29 By letter dated 4 October 2012, Mr. D wrote to the complainant stating; “Further to my last letter delivered to you by courier on 25 September, I am extremely disappointed that you failed to return to your work as requested on 1 October. As you are aware, you have been certified fit for work by the Company doctor since the date of your medical assessment on 31 August 2012. Notwithstanding this certification and our express instruction for your return to work, you have failed to do so. I also note that to date, we have not received any medical certificate from you covering your absence since 11 September despite being assured that we would. We are also particularly concerned that you have made no contact with the Company regarding your absence since 27 September. As we have clearly outlined to you on numerous occasions, sick pay is only paid where the Sick Pay Scheme has been complied with in full. Accordingly, you will be paid in the ordinary way from 20 August to 11 September 2012 inclusive. You will also receive a re-imbursement of any social welfare monies overpaid to the Company. You are presently medically fit to work and your current absence is unauthorised. You have failed, refused and/or neglected to return to work despite being fit to do so. If you do not return to work on or before Thursday 11 October, you will be deemed to have abandoned your post and your P45 will be issued accordingly. This is not a decision that the Company wishes to make and on this basis, I urge you to return to work as directed.” The respondent states that on 5 October, the complainant called into the workplace at lunch-time to give Ms. N the key of his locker and to request that he take some of his personal effects. He was asked whether he would be returning on Monday and he indicated that he did not know. Ms. N mentioned that he had not received his last sick certificate and he confirmed that he had not posted it. She requested to know why and he responded that he would take it up with Mr. D. The complainant did not attend work on 11 October and he did not provide any medical certificate declaring that he was unfit to work from 12 September onwards. The respondent submits that in this regard and for the avoidance of all doubt, the medical certificates that the complainant exhibits in his submissions were never provided to the respondent.
3.30 The respondent states that by letter dated 12 October 2012, Mr. D wrote to the complainant stating;
“Further to my last letter dated 4 October, we note with disappointment that you have failed to return to work on 11 October as requested. As you are now considered to have abandoned your position, it is with regret that I enclose your P45. As a final goodwill gesture, you will be paid your statutory notice. If you have any queries in relation to the above, do not hesitate to contact me.”
In summary, the respondent submits that the complainant abandoned his employment. He refused and neglected to engage with the respondent. Although he was declared fit to return to work by an independent doctor at Medmark, he did not return. He did not provide any certificate to the Company to dispute that he was fit to work. He failed to contact the company and explain his intentions. The respondent gave him multiple opportunities to return to work. Due to his failure to attend work coupled with his failure to make any contact and notify the company of his intentions, the Company had no option but to consider that the complainant had abandoned his employment. The respondent states that the complainant has failed to establish any prima facia case and that the complainant’s employment ended because he abandoned it because of his actions and that it had nothing to do with the complainant’s gender, race or age. The respondent states that the complainant has failed to provide any link between the ending of his employment and any of the discriminatory grounds. In this regard, the respondent relies on the Labour Court decision in Reacon Ltd. v Scanlan 085/2008. The respondent refutes the allegation of victimisatory dismissal and submits that there was absolutely no adverse treatment of the complainant by the respondent. In relation to the complainant’s allegations in relation to the sick pay scheme, the respondent submits that there was no element of discrimination or victimisation and that the respondent was following procedure and proper process. The respondent denies that it wrongfully withheld the complainant’s illness benefit and/or sick pay entitlements. In conclusion, the respondent states that the complainant has failed to establish any link between the alleged adverse treatment and the fact he previously instituted proceedings against the respondent. Accordingly, the respondent submits that the complainant has failed to establish a prima facia case. In this regard, the respondent relies on the case of A Female Employee v A Candle Production Company DEC-E2006-035. The respondent further cites the case law in respect of the Labour Court decisions in Department of Defence and Tom Barrett EET081, Southern Health Board v Mitchell [2001] E.L.R. 201 in support of its case.
4. Conclusions of Equality Officer
4.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender, age and race, in terms of section 6(2) (a) (f) and (h) of the Employment Equality Acts and contrary to section 8 of those Acts in relation to his conditions of employment and his application for redundancy (ii) subjected the complainant to victimisation in terms of section 74 of the Acts and (iii) subjected the complainant to discriminatory dismissal and/or victimisatory dismissal. 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.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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". Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man.” Section 6(2)(f) of the Acts defines the discriminatory ground of age “that they are of different ages..”. Section 6(2)(h) of the Acts defines the race ground “as between any 2 persons…that they are of different race, colour, nationality or ethnic or national origins”.
Preliminary Issue – time limits
4.3 Having examined all the documentation and evidence relating to the allegations of discrimination on behalf of the complainant in relation to his working conditions, I find that the only complaint of discriminatory treatment that comes with the specified time limit is the claim in relation to access to redundancy.The complainant has raised issues which occurred some years before the referral of his complaint to the Equality Tribunal. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It can be possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, however, establish that a discriminatory act occurred within the limitation period (see the decisions of the Labour Court in Cork County VEC v. Hurley EDA 24/2011 and County Dublin VEC v. Dodo EDA1327/2013).
4.4 The complainant has made an allegation of discrimination on grounds of race, gender and age in relation to his unsuccessful application for redundancy. Having examined the evidence, I note that the background to the redundancies was a review by the company to examine efficiencies within the organisation so that respondent emerged stronger and that business would grow into the future. I have examined the criteria used within the matrix established by the respondent to assess the suitability of candidates for redundancy in detail and I find that the selection process was fair and equitable. The criteria used in the selection process were objective and transparent. The complainant received the second highest score relating to the criteria used and as a result was not selected for redundancy. The complainant in particular objected to a female Irishcolleague, Ms. W who was selected for redundancy instead of him. However, having examined all the evidence in relation to same, I find that Ms. W’s age, race or gender did not impact in any way on the decision to select her for redundancy. The complainant scored second highest and was not selected for redundancy on the basis of his good Excel skills, his strong systems and project knowledge and his varied experience. Overall, I find that the complainant was not selected for redundancy based on the scores he achieved when the selection criteria was applied to candidates. I find that the complainant has not established a prima facie case of discriminatory treatment as he has not demonstrated a nexus between his race, gender or age and his alleged treatment. The complainant has not provided any evidence to link the alleged treatment to his race, age or gender.
4.5 The complainant also submits that he was victimised by the respondent. In relation to the issue of victimisation, Section 74 (2) states:
…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, …….”
In Tom Barrett v Department of Defence[1] 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. It is clear from the wording of victimisation in the Employment Equality Acts that a complaint of victimisation must relate to a complaint made under the Act and not a general complaint of victimisation. The complainant has made an allegation that he was subjected to victimisation by the respondent, in that, he was given a poor rating in his performance review in 2011. The complainant states that in the previous years, he received a Meets Expectations (ME) rate but in 2011, he received a Mostly Meets Expectations (MME) rate and submits that he was victimised for having issued an earlier complaint of discrimination to the Equality Tribunal. Having examined the documentation relating to the performance review, I note that one of the aims under Objective 2 was that “In excess of 85% to be reconciled and followed up” and his manager had noted that “when reviewing your statistics for reconciling, I noticed that you have gone back to January 2011 and updated the tracker. Going forward this needs to be done on the current month as otherwise the stats we are producing are incorrect, on that basis the average reconciled prior to change is 79%.” The complainant received a slightly lower mark in this objective in comparison with all the other objectives in 2011. However, on a broader level, I would not consider a Mostly Meets Expectations (MME) rate to be a poor rating and would not consider it to be adverse treatment. It is still a satisfactory rating and there is no loss in salary terms or in terms of receiving increments. Therefore, I am satisfied that the complainant has not established a prima facie case on the allegation of victimisation in this regard.
4.6 In relation to the allegations of discriminatory dismissal and/or victimisatory dismissal, I have carefully considered all the documentation and witness testimony relating to same. In the case of A Female Employee v A Candle Production Company DEC-E2006-035, the Equality Officer stated;
“The first issue for consideration…is whether the complainant in the present case has established a prima facia case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act”.
Having examined the evidence, I note that the complainant went into his manager’s office on 28 June 2012 and said he could not concentrate and was going home. She requested him to sit down and discuss any issues he had. The complainant refused and stated he was going home. His manager advised him that in effect he was walking off the job and he responded so be it. His manager followed the complainant to the car park and tried to talk to him but he walked off in an agitated state. Subsequently, the complainant wrote to the respondent and requested his P45 on the basis that Ms. N dismissed him on 28 June 2012. Having heard the testimony of the individuals concerned, I find that the complainant acted harshly and unreasonably on 28 June 2011. He subsequently issued a letter to his employer stating that he was dismissed and requested his termination of employment documentation including his P45. I find these actions lacking in reason and judgement. I also find it lacking in credibility that while the complainant insisted that Ms. N dismissed him on 28 June, he returned to work on 3 July and applied to be paid on the basis of being out on sick leave.
4.7 The complainant was requested to attend an independent medical assessment with Medmark. In her report dated 31 August, the Medmark doctor stated that the complainant was medically fit to attend work and medically fit to participate in any meetings in relation to his ongoing work difficulties. Also in the report, the doctor noted that during discussions with the complainant during the assessment, the complainant confirmed he was willing to meet with HR to try and address and resolve his ongoing work difficulties. On examination of the copious correspondence from the respondent to the complainant, it was made abundantly clear that the complainant was not dismissed and the complainant was given ample opportunity to engage with the respondent to try and resolve matters but the complainant did not so engage. The complainant did not provide any contrary medical report to challenge the report of the Medmark doctor stating he was medically fit for work. The complainant, although had doctors certificates on the day of the hearing to cover the period from 12 September to 28 October 2012, failed to engage with the employer and failed to submit those doctor’s certificates to his employer at the material time. Therefore, I find that the complainant, by refusing to engage with his employer, contributed to the ending of his employment with the respondent. Consequently, in this regard, I find that the complainant has not established a prima facie case in relation to discriminatory dismissal or victimisatory dismissal. In relation to the complainant’s allegation that the respondent wrongfully withheld his illness benefit / sick pay entitlements, I have carefully examined the documentation in detail and I find that any delay in payment of same to the complainant was as a result of the complainant not adhering to correct procedure and process as outlined in the Sick Pay Scheme policy. Therefore, I find that the complainant’s case fails.
5. Decision of the Equality Officer
5.1 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 on that date, pursuant to the continuation of my functions set out in S.83 of the Workplace Relations Act, 2015, as amended by S. 20(m) of the National Minimum Wage (Law Pay Commission) Act 2015.
5.2 Based on all the foregoing, I find, pursuant to section 79(6) of the Acts, that the respondent did not discriminate against the complainant on grounds of gender, age or race and did not victimise the complainant within the meaning of section 74(2) of the Acts. I also find that the complainant was not subjected to either a discriminatory dismissal or a victimisatory dismissal by the respondent.
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Valerie Murtagh
Adjudication Officer
29 October, 2015
[1] EDA1017