EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-112
PARTIES
Damir Stancic
(Appeared in Person)
And
Apple Distribution International
(Represented by the Employee Relations Department)
File reference: ET-155007-ES-15
Date of issue: 27 July 2016
1. Background to the claim
1.1. The case concerns a claim by Mr. Damic Stancic that Apple International discriminated against him on the ground of race and religion, contrary to Section 3(2)(e)(h) of the Equal Status Acts 2000 to 2011, in relation to the manner in which his employment was ended on December 18,2014
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 7 April, 2015. A submission was received from the complainant on 23, October, 2015. A submission was received from the Respondent on 11 December, 2015. On 8 April 2016, in accordance with his powers under S. 25 of the Acts, the Director General of the Workplace Relations commission delegated the case to me, Patsy Doyle, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 13 May, 2016
2 Jurisdictional Issues:
The complainant submitted the ES1 form as mandated under the Act to the respondent on 27 January 2015, which was received by them on January 282015. The complainant lodged his complaint under the Equal Status Acts with the then Equality Tribunal, (now WRC) on 7 April, 2015. On commencement of the hearing, I put to the parties that the issue complained of may well be outside the remit of the Equal Status Act, given that it referred to an employment matter rather than goods and services.
“service” is defined in the Equal Status Acts of 2000- as meaning a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—
(a) access to and the use of any place,
(b) facilities for—
(I) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
Goods means any articles of movable property.
Disposal of Goods and provision of services
Section 5 (1) of the Acts provides that” A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public “
I invited submissions from both parties on this matter. The complainant wanted to have his complaint heard and wished to press ahead with the hearing. The respondent acknowledged that the wrong Act was may have been relied on by the complainant and agreed to answer the case under the Employment Equality Acts instead. On that basis, I proceeded with the hearing. I explained the procedures under the Equality Acts and in particular, the concept of the burden of proof to both parties.
2 Submission on behalf of the Complainant:
2.1The complainant commenced work on an 11-month contract as a Fraud Analyst for French language with the respondent company on September 29 2014. He was hired through a recruitment agency. He submitted that he was a Croatian national and a practicing Muslim. This was his first job in Ireland. He contended that he had been discriminated against on race and religion during the course of his employment and when he was sacked without warning on December 18th 2014. He disputed the reason given for his dismissal as an unsuccessful probation.
2.2 He commenced a two-week period of Induction and training prior to commencement with a team of 10 co-workers, who were mainly French and managed by Ms AB. From the beginning, the complainant understood the level of team support shown to him was low. They refused to assist him as a new employee. The complainant submitted that there was some unease within the team with the Team manager but he also felt that his behaviour of religious expression at work and nonattendance at the Christmas Party on religious grounds were held against him by the team. He felt this in particular when he prayed on his break rather than smoke with his colleagues.
The complainant participated in a performance review and heard his manager tell him that “so far very satisfied by my performance at work”. In addition, he learned that some of his colleagues on the team disliked his style of communication. There was no direction given towards a targeted improvement and the complainant carried on with his work. He undertook to “try to work with them”. He was requested to support the Russian component of the service in addition to the French part and he was happy to help.
A month later, December 18, 2014, the complainant presented for his second performance review with his manager. On this occasion, there was a Human Resource presence at the meeting, Ms BC. The complainant learned that he was to be dismissed
“As a result of ongoing concerns with your performance, a discussion was had with you on November 19th, with a follow up email on 23 November to try and highlight these performance issues and work with you to get to an acceptable standard………. Having reviewed your time in Apple since these conversations I feel that there has not been the required change to your performance level. As a result of this, I am informing you that you have not successfully passed your probation “
2.3 The complainant contended that the reason given for his dismissal was false. He appealed the decision on December 22nd to the Manager who had communicated his dismissal. He submitted that he had not been on notice that the company was considering his dismissal “There was never any coaching, training or any warning on related “issues” prior to informing me of the termination of employment. He submitted that he had been discriminated on nationality and religion. He did not get an answer to this appeal.
2.4 The complainant submitted an ES1 on 27 January 2015. The company responded on 16 February.
The company denied discrimination and told the complainant that he was dismissed due to a reduction on headcount based on a matrix assessment:
Performance
Attendance
Attitude
Language skills
The complainant was informed that his scores against these objective criteria resulted in him being impacted by the headcount reduction requirement. The letter reminded the complainant that the company employed 80 different nationalities and that the complainant had been accommodated to practice his religion whilst at work and in particular on Fridays.
2.5 The complainant was in contact with the company by email from February through to March. He contested the rationale given by the company which he contended deviated between
1 Interpersonal Relationships
2 Headcount Reduction
Performance against metrics
As the reason for dismissal.
The complainant was very aggrieved at these varied reasons and contended that these actions were discriminatory. He stated that he had felt a high level of animosity directed towards him by his team members which caused him to feel isolated. The complainant submitted that the company had hired a French colleague a week before him and he had not been terminated.
2.6 The Independent Workers Union had written to the company on behalf of the complainant on 19 March 2015 seeking confirmation from the company that the reason for the complainant’s departure was headcount reduction in the interests of sensitivity while the complainant was seeking work. The company responded directly to the complainant stating that “Apple does not comment on the performance of any former worker”. The company reaffirmed that the reason for dismissal was “the sole reason for determining that you had not passed probation was due to your performance against the key metrics outlined below “.
2.7 On cross examination, the complainant accepted that the company had made provision for his religion during the course of his work by being allowed an extended break by half an hour on Fridays and he was permitted to pray anywhere. He was offered an office to accommodate him.
The complainant told the respondent that he believed he had received an obvious injustice and he did not want the company to do these things again, that was why he was pursuing his case. He contended that it was wrong that his contract had been broken without a proper reason or answer.
The complainant has since been successfully rehired in an alternative business.
3 Submission on behalf of the Respondent:
3.1 Apple employs in excess of 5,000 people over 80 different nationalities in Ireland. The company completely refutes the claim before it.
3.2 The claimant was hired as additional headcount in September to address a peak in activity. This is a standard annual practice which is usually reviewed in December each year. The complainant had a “one to one” meeting with his manager, Ms. AB on October 30th and was given positive feedback. The respondent submitted that the complainant was advised of performance metrics in place for the following month and offered some coaching support with a more experienced agent. The respondent submitted details of the matrix.
Ratings Categories:
Exceeded Expectations 1.00-1.50
Achieved expectations 1.51- 2.75
Expected more 2.76+
3.3 The second performance review was held on 19 November and followed up in an email dated 23 November. The complainant was given targets following completion of his training and commencement on the team. The complainant was to join the performance review markings during that month. MS AB, the manager remarked on the complainant’s communication style and advised a different path for the complainant to follow.
“I recommend that you make it clear to people that you only ask questions to fully understand the solution and not to be argumentative or doubt their advice “
In addition, she undertook to address the team to emphasise the importance of teamwork and support within the team.
The respondent submitted that the complainant had some difficulty in working on management instruction to cover other markets if his work load allowed. MS AB asked that he cover the UK market while he would often cover the Russian market unprompted.
3.4 The respondent told the hearing that the complainant had the support of the company in terms of allowing religious expression as he was permitted to take a longer lunch break to allow him to attend the mosque for prayers.
3.5 In early December, a review of headcount numbers and performance amongst those on probation was undertaken. Six employees, who were still on probation were assessed under the matrix as described and referred to as Team October. A decision was taken by the respondent to terminate the employment of three of the six employees, one of whom was the complainant. The respondent submitted the reason all three were terminated was:
“The claimant and two other employees were considered not to have passed their probationary period due to their assessment against key metrics.
The complainant was given payment in lieu of his two week notice period and accrued but untaken annual leave.
3.6 The respondent contended that the process relied on in reviewing performance was fair and objective and applied equally to the six candidates from Team October. There was no actual appeal of the outcome of the decision but a grievance raised under the grievance procedure could be relied on.
3.7 In response questions posed by the complainant in relation to his contention that his performance reviewed had been deferred and the metrics discussed at the hearing were never explained to him, the respondent relied on a copy of November 23rd email which referred to the performance management system
4 Evidence of Ms. AB, Team Manager.
4.1 Ms. AB recalled the team raising issues with her about the complainant in October shortly after he joined the team. She was informed that the complainant asked lots of questions and was argumentative. She intervened by prompting the complainant to pose questions in a qualified way such as:
“I am asking because I want to understand”
Ms. AB acknowledged that there was an insular nature to the team, but she had tried to support the complainant. She was aware of his interpersonal difficulties on the team. She tried to raise an awareness on team spirit and working together.
She was informed by her Manager in early December that headcount would have to be reduced by 3 employees. The data from all employee’s performance was entered into the matrix and discussions followed, the three lowest scores on her six employees had their employment terminated as a business decision.
She recalled reading out the letter to the complainant on Dec 18th and he did not ask any questions. There were no notes on the complainant’s performance outside the email of November 23rd and the completed matrix.
4.2 In response to questions posed by the complainant. Ms. AB acknowledged that it took a month to compile a matrix for an employee. When challenged on the complainant’s perception of his good work performance, she recalled that there had been a spike in orders in UK and the complainant was requested to assist in that market in addition to French market. She recalled the complainant stating that he would prefer to work the Russian market, which challenged her direction.
5 Findings and Conclusions of the Adjudication Officer/Equality Officer:
5.1I have given careful consideration to all submissions received in the course of the investigation and hearing. In addition, I have listened carefully to the oral evidence of the complainant, the respondent and the witness who attended the hearing. The issue for me now is, whether or not, the respondent discriminated against the complainant on race and religious grounds?
5.2 The Legislation here refers to the Employment Equality Acts 1998-2011, following the permission received from the Employer to allow the case to proceed under this Act.
Discrimination is defined in the Acts in Section 6
Discrimination shall be taken to occur where
(a) “…. A person is treated less favourably than another person is, has been or would be treated in a comparable situation on the grounds specified in subsection (2)”
In this case 6(e) religious belief and 6(h) Race:
Section 8(1) of the Acts provides that prohibition extends to conditions of employment.
Section 8(4) provides that:
“A person who is an employer shall not in relation to employees or employment
(a) have rules or instructions which would result in discrimination against an employee …….in relation to any matters specified in 8(1)(b)-(e) or
(b) Otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
Section 8 (6)(c) of the Act compels an employer to practice “ the same treatment in relation to ……dismissals and disciplinary issues”
5.3 The Burden of proof rests with the complainant as stated in the Labour Court Case Melbury Developments Limited and Val Peters [2010] 21 ELR 64
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. 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.”
5.4 I am conscious that this was the complainant’s first job in this country. He seemed to enjoy the work initially until he began to feel excluded by the other team members who were mostly French nationals. I accept that he made genuine efforts to resolve this tense atmosphere on his own and via his manager. It was common case that the complainant was facilitated in his daily prayer requirements and his attendance at the Mosque on Fridays. The complainant asked that I look particularly at the period from his performance appraisal in November to his dismissal on December 18th for collateral for his discrimination. I note that the complainant recalls one performance review meeting while the respondent recalled two meeting s prior to the dismissal on December 18th. I have reviewed the whole working period from September 29th to December 18th and I have found the following.
· The complainant signed a contract with the respondent on 19th September via a recruitment agency. This contract encapsulated a clause on probation.
“Your employment will be probationary for the first six months. The probationary period may be extended at the company’s discretion………. Termination of employment within the probationary period shall be at the discretion of the company if you are deemed not to be suitable on the grounds of performance or conduct “
It also stipulated that continuation of a contract was subject to maintaining the required standards of performance to be set and reviewed by the company. This does appear to be what happened in this case. The complainant followed the path as defined by the contract, by having training and performance reviews. It is clear to me that this path was obstructed by the undercurrents of interpersonal difficulties within the team which remained unresolved. Of course, these rendered the complainant vulnerable in a review situation. However, I must decide whether the treatment received by the complainant was discriminatory, i.e. was it less favourable.
5.5 InNtoko v Citibank, EED045, the Labour Court directed that normal rules of evidence must be adapted to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something outside their reach, which may only be within the respondent’s capacity to prove. In this case, this required a careful examination of the performance review system relied on by the respondent.
I accept that the company trades in a highly technical environment and informative matrices into performance management are an everyday event. However, I don’t accept that the complainant had an awareness that he was due to be measured in this intense detail and without any input from him. I accept that the respondent understood that they met with the complainant on two occasions to record a performance review in October and November. however, I was not satisfied that records of those meetings were not presented outside a follow up email, given that the 6-month period of probation is enshrined in the contract and given that this was the complainants first job in Ireland.
I find that the company erred in best practice in their management of the performance reviews, the trail was very cold by the time my investigation commenced in April 2016. Good record keeping must surely be the hall mark of management of probation? I believe that the complainant was unfairly treated in this regard. I observed his demeanour during the hearing and I find that he did not have prior notice of the extent of the matrices or the fact that a low measurement would render him vulnerable for dismissal. He held a genuine belief that his contract would run for 11 months without interruption. He even spoke of a fellow colleague who undertook to sort out the issue.
I found the evidence of Ms AB to be helpful in terms of getting a picture of the level of unease between the team, the complainant and subsequently management. It did not come across as a show stopper or as being hugely unusual in the world of work. I find that it was an irritant which should have been addressed either through the individual route of the grievance procedure or collectively led out by the Team Leader. This did not happen as the decision on the headcount reduction took primacy.
In Campbell Catering V Rasaq EED048, The Labour Court held that where there is a difference in treatment and a difference in race, there is prima facie evidence of discrimination. In this case, I have not found evidence of a difference in treatment by the respondent. The complainant submitted that he felt excluded due to his race and religion, but he did not submit facts of sufficient significance to reach the burden of proof in this case. Instead, the complainant painted a climate that was less than ideal which automatically took on the hallmarks of a discriminatory situation for him. I realise that the complainant felt marginalised and he interpreted this as discrimination, however, he had not submitted in what way he was treated differently to his comparator.
Darguisz v Lough Corrib Engineering DEC-E2009-038 provides a further insight into this concept. This case concerned a Lithuanian national who claimed discrimination on race grounds. The Equality Officer remarked
“Throughout this case the assertion is that where an employee is treated in a manner perceived to be less than ideal and where there is a difference in race there is automatically a prima facie case of discrimination. I am satisfied that this is not an accurate reflection on case law as it stands, which in my view requires evidence of a difference in treatment “
I find that this statement has relevance and authority in the current case.
5.6 The Respondent explained the logistics of the marking system on performance review at the hearing. Ms AB was the decision maker in the recommendation involving the three leavers. In answer to my question, she confirmed that there was just one “PM review” available at the time the decision to terminate was taken, given the lag in time in loading the figures month by month. This lead to a certain inconsistency in the time frames surrounding this matter and would go a long way towards explaining the shock experienced by the complainant on December 18th. He simply did not anticipate having to leave.
No evidence was submitted on the religious beliefs of the three leavers outside the complainant’s Muslim belief. I find that the complainant was made very welcome at the company to express his religious beliefs, by facilitation at prayer and attendance at Mosque. I cannot find evidence to the contrary before me. I accept that the company is actively engaged in supporting 80 different nationalities in Ireland.
The matrix which informed the selection of three employees for termination of contract appeared to consist of objective criteria and it was notable that there was very little disparity in the markings for the 6 employees subjected to this process within the final marks. Two females and one male, the complainant, were ranked in the lower category but from my review were all on the cusp of meeting the required rating category of “achieved expectation”. The complainant himself very narrowly missed out in this category. I find that the same treatment was given to all 3 leavers, as provided for in section 8(6)(c) of the Acts .
5.7 I find that the lack of engagement with the complainant in the immediate wake of the December 18th letter being read out to him to also be unfair. I appreciate that it was Christmas time and the company may have had “shut down” but the complainant felt wronged and compelled to raise his issues on an ES 1 form, the response to which on February 16th merely added to his confusion, given that it stipulated that headcount was the rationale for the decision. This was later rectified and I note that the complainant would have accepted that explanation if it had been proffered first in time.
I conclude that the complainant found himself in a difficult place at work between mid-October to December 18th 2014. His first job in Ireland coupled by some unease internally and externally in relation to his work team did not place him in a secure place to anticipate a challenge during his probation period. The absence of collateral paper work differentiating the performance review meetings from a consideration of a dismissal on probation go to the root of the matter.
5.8 However, I find that the complainant has failed to establish a prima facie case of discrimination on race or religious grounds in relation to his conditions of employment.
6 Decision
6.1 Having investigated the above complaint in accordance with Section 79(6) of the Acts. I find that while the complainant may have been unfairly treated with regard to the management of his probation, the respondent acted in accordance with the signed contract of employment in terms of their discretion to cease the complainant’s employment during the probationary period and this treatment did not amount to a difference in treatment as set down by the Acts on either race or religious grounds. I must, therefore, find that the complainant has not established a prima facie case of discrimination and his claim cannot succeed.
Patsy Doyle
Equality /Adjudication Officer.