DEC-E2016-069

ADJUDICATION OFFICER/EQUALITY OFFICER’S
DECISION NO: DEC-E2016-069

PARTIES

MR. A
(REPRESENTED BY SIPTU)

-V-

A NOT FOR PROFIT ORGANISATION
(REPRESENTED BY EUGENE SMARTT - SOLICITORS)

Date of issue: 3 May, 2016

1. DISPUTE
This dispute involves a claim by Mr. A (“the complainant”) that he was (i) discriminated against by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of his conditions of employment; (ii) harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts; (iii) dismissed in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts; (iv) victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011 and (v) dismissed in circumstances amounting to victimisation contrary to section 74(2) of the Employment Equality Acts, 1998-2011.

2. BACKGROUND
2.1 The complainant commenced employment with the respondent as Operations Manager in July, 2008 and continued in that role on a series of annual fixed-term contracts until July, 2011 when his employment was terminated. The complainant contends that during his period of employment he was subjected to less favourable treatment and harassment by the respondent on the basis of his Indian nationality and his Sikh ethnicity. He further contends that he was subjected to victimisation in terms of section 74(2) of the Acts. Finally he asserts that his employment was terminated in July, 2011 in circumstances amounting to discrimination on grounds of race and/or victimisation contrary to the Acts. The respondent rejects the complainant’s assertions in their entirety and states that the complainant’s employment was terminated following a restructuring process which was required due to the worsening financial circumstances it was encountering at the time.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 14 October, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 15 January, 2014 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 21 March, 2014. A number of issues required further correspondence between the parties and the Equality Officer for several months subsequent to the Hearing. In the course of the Hearing the complainant advised that he was withdrawing his complaint that he was dismissed in circumstances amounting to victimisation contrary to the Act.

2.3 At the Hearing it was noted that the submission filed on behalf of the complainant detailed alleged acts which dated back to July, 2008. I gave the parties the opportunity to make oral submissions on the relevance, if any, that the Labour Court Determination in Hurley v Cork VEC might have to the complaint. Having considered the arguments advanced I decided that my investigation would focus, in the first instance, on the alleged acts of unlawful behaviour which occurred between 15 April, 2011 and 14 October, 2011 - the six month period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts. If I considered any of the alleged incidents within that period to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident(s) within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incidents within the six months preceding the referral of the complaint not to be well founded the earlier alleged incidents would be statute barred.

3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant is an Indian national and is a Sikh. He asserts that these characteristics were evident from the outset of his employment with the respondent. He states that whilst his ethnicity was not mentioned at interview it was mentioned in the course of general discussions between him and other staff, including the Chief Executive Officer (Ms. X), early on in his employment. The complainant adds that he commenced employment with the respondent as Operations Manager on 14 July, 2008 on foot of a fixed-term contract of one year. He states that this contract provided that he work 35 hours per week at an annual salary of €49,129. He adds that this contract was extended on two subsequent occasions - July, 2009 and July, 2010. The complainant states that Ms. X met with him on 3 June, 2011 and handed him a sealed envelope which contained a letter giving notice that his employment was to be terminated on 8 July, 2011. The complainant submits that this amount to discriminatory dismissal of him on grounds of race contrary to the Acts. The complainant also contends that he was required to regularly work in excess of his contracted weekly hours without recompense; that he was assigned excessive weekend and other unsocial shifts; that he was unable to take breaks whilst other employees were permitted to do so and that his hours were unilaterally reduced to 21 hours per week from February, 2011. He submits that this constitutes less favourable treatment and harassment of him on grounds of race contrary to the Acts. The complainant also contends that he was victimised in terms of section 74(2) of the Acts.

3.2 The complainant states that he was continuously required to work in excess of his 35 hours contracted weekly working hours without additional remuneration. He adds that he was rostered for 39/40 hours each week from the outset of his employment until February, 2011 when the respondent placed him on reduced hours of 21 hours per week. He further states that none of the other senior managers were rostered for additional hours and submits that he was treated less favourably than them on grounds of race contrary to the Acts. He adds that when he raised this issue with Ms. X she was dismissive of him and implied to him that his continued employment was contingent on him continuing to do these additional hours.

3.3 The complainant states that on 22 December, 2010 Ms. X informed him that his full-time position was no longer available and that the best she could offer was part-time work (3 days per week) and that his hourly rate of remuneration would remain the same as it had when he was full-time (€23 per hour). The complainant adds that he was not happy with the position and that he met with Ms. X on 4 February, 2011 when she attempted to induce him to seek voluntary redundancy as she had “a pot” of unknown funds which she could dip into. The complainant states that he refused this proposition and insisted on accepting the part-time hours previously offered. The complainant states that this arrangement commenced on 14 February, 2011 and that he received a revised contract of employment the following week which did not reflect the terms agreed – it showed an annual salary of €24,600 and 24 hours per week - which equates to an hourly rate of €19.71. The complainant adds that when he queried this he was issued with a second revised contract of employment for part-time work in mid- March. He states that this too was incorrect and did not reflect the agreement reached – it retained a salary of €24,600 and 21 hours per week – giving an hourly rate of €22.53. The complainant states that this situation continued until May 2011 when the correct and agreed rate of remuneration and 21 hours per week applied. In the course of the Hearing the complainant accepted that he received the difference in the rates of remuneration covered by this period and that for the remainder of his employment the correct rate applied to him. The complainant submits that this amounts to less favourable treatment on grounds of race of him and/or victimisation contrary to the Acts.

3.4 The complainant states that he was assigned a disproportionate amount of shifts which were unsocial in nature (early and late) as well as shifts on weekend days (Friday and Saturday). He further states that this pattern of attendance continued after he was placed on reduced hours from February, 2011. The complainant in particular notes that he was rostered for three unsocial shifts on consecutive days during Easter week 2011 and the week following the May public holiday. He adds that in May, 2011 he was rostered for all the weekends that month and that none of his colleagues were treated in similar fashion. In the course of the Hearing the complainant accepted that his contract of employment provided that his role might include evening and weekend shifts and confirmed that this issue had been discussed with him at his interview. The complainant submits that this amounts to less favourable treatment of him on grounds of race and/or victimisation contrary to the Acts.

3.5 The complainant states that he was not permitted to take his lunch breaks and that on average he was only permitted to take one lunch break a month. He adds that this was on foot of an instruction given to him by Ms. X. He further states that she had informed him from the outset of his employment that he “needed to be on the floor” during lunch breaks because children were present and that this was his responsibility as Operations Manager. He adds that other managers were permitted to take their lunch breaks between 1pm-1:30pm and that no attempts were made to provide cover for him to avail of breaks. The complainant submits that this amounts to less favorable treatment of him on grounds of race and/or victimisation contrary to the Acts.

3.6 The complainant states that contrary to his contract of employment and the job specification for the position of Operations Manager he was assigned the duties in respect of On-call and Key-Holding duties, he was assigned these duties by Ms. X shortly after he commenced employment with the respondent. He further states that this assignment was also contrary to the agreement on after hours’ duties that had been discussed at his interview. The complainant adds that these duties varied but on average he was required to attend the respondent’s premises outside of normal working hours, on average, once every three weeks. He further states that he was not compensated for these additional duties. The complainant states that these duties should have been shared between all senior managers equally and that the fact that he was singled out for these duties amounts to less favorable treatment of him on grounds of race contrary to the Acts.

3.7 The complainant states that he was handed a letter by Ms. X on 3 June, 2011 which contained a letter advising that he was to be made redundant with effect from 8 July, 2011. The complainant adds that this was a complete surprise to him as he had not been consulted about this, despite a number of conversations he had with Ms. X following his reduction in hours in February, 2011. The complainant rejects the respondent’s assertion that the prospect of redundancy was mentioned to him by Ms. X in February, 2011. He states that had this consultation occurred he might have been able to identify financial savings which would have obviated the need for his position to be made redundant or at least would have provided him with a greater opportunity to find new employment. The complainant adds that he met with Ms. X on 8 June, 2011 in the course of which he raised his numerous work related issues and to discuss his redundancy. He states Ms. X advised him that he was being made redundant because the respondent’s financial situation had worsened. The complainant further states that he wrote to the respondent’s Chairman the following day (which he copied to Ms. X) wherein he detailed his grievances; appealed the decision to terminate his employment; sought restoration to his previous role as a full-time Operations Manager and requested a meeting to discuss the matter. He adds that he had expected a meeting would be arranged with him but instead his letter was ignored.

3.8 The complainant states that he made a number of attempts to follow up his letter of 9 June, 2011 but to no avail. He adds that received a letter from the Chairman of the respondent’s Board on 28 June, 2011 wherein he (the Chairman) did not address his concerns and instead confirmed the decision to terminate his employment and advised him to contact a member of the administrative staff to complete the paperwork associated with his redundancy. The complainant further states that received a letter from Ms. X dated 30 June, 2011 which he asserts superficially addressed the issues raised in his letter of 8 June, 2011. He states that this letter offered him an ex-gratia payment of €1,000 in full and final settlement of any outstanding claims that he may have in respect of his employment. He adds that he met with Ms. X the following day and declined to sign this waiver. The complainant rejects the respondent’s assertion that its financial situation had worsened to the level which necessitated his employment being terminated and refers to the Board Report in March, 2011 wherein it notes (i) funding from Central Government (POBAL) was reduced by only 3% (not 10% as originally expected), (ii) expected increases in other funding streams and (iii) refurbishment of the canteen and kitchen was up for discussion. He asserts that from February, 2011 when his hours were cut and certain aspects of his role were absorbed by Ms. X and the Administration Manager, he was subjected to an orchestrated campaign by Ms. X to “ease him out” of his employment and submits that the termination of his employment under the guise of a “sham” redundancy amounts to discriminatory dismissal of him on grounds of race contrary to the Acts. In support of his assertion the complainant stated (in the course of the Hearing) that two of his colleagues (Ms. K and Ms. C) who were also members of the Senior Management Team had complained to Ms. X during 2010 about work related issues and they were promptly removed by Ms. X for doing so.

3.9 The complainant states that he contacted the respondent (Ms. X) by e-mail dated 10 August, 2011 requesting a reference to assist him in his search for future employment. He adds that Ms. X acknowledged his e-mail on 22 August, 2011 but he never received the reference as requested. He states that a colleague (Mr. D) who is Irish, left the respondent’s employment in August, 2010 and he received a reference. The complainant submits that this amounts to less favourable treatment of him on grounds of race and/or victimisation contrary to the Acts.

3.10 The complainant states that at the outset of his employment in 2008 he used his personal mobile phone number for business use and subsequently transferred his number to the respondent’s business account with O2 and the respondent paid his phone bill. He adds that after his employment ceased his mobile phone was blocked on 18 July, 2011 by O2 – on the instruction of the respondent. He further states that he contacted the respondent’s Administration Manager and Ms. X and requested that the matter be rectified but they did not address the matter. In the course of the Hearing the complainant stated that he got a form signed two weeks later and that it took over another two weeks to have the matter rectified. The complainant stated that it was routine practice to unblock outgoing employees’ mobile phones on the same day they left employment and that Mr. D had not had his phone blocked when he left the previous year. The complainant submits that this amounts to less favourable treatment of him on grounds of race and or/victimisation contrary to the Acts.

3.11 The complainant contends that he was subjected to victimisation by the respondent. In support of this he advances a number of interactions with Ms. X which he submits amount to a “protected act” in terms of section 74(2)(a), (f) and/or (g) of the Acts – which are the provisions he advances his claim of victimisation on. The first of these is an e-mail to Ms. X dated 20 January, 2011 wherein he refers to the discriminatory manner he is rostered for excessive and unsocial hours on a regular basis. The second is a meeting on 15 March, 2011, in the course of which he raised the anomaly of the 21 hours/24 hours reference in his revised contract of employment following his assignment to part-time hours from 14 February, 2011. The third is a meeting on 27 April, 2011 in the course of which he raised the issue of being rostered constantly for hours in excess of his contracted hour. A meeting on 12 May, 2011 in the course of which he repeated his grievance about excessive rostered hours is also advanced as an example of a “protected act”. Finally, the complainant submits that his letter of 9 June, 2011 to the Chairman (copied to Ms. X) constitutes a “protected act” for the purposes of grounding his complaint of victimisation contrary to the Acts.

4 SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s allegations in their entirety and vehemently rejects the complainant’s assertion that his nationality or ethnicity played any part in its treatment of him. It accepts that it was aware he was from India but denies, in the strongest terms, that it knew he was Sikh. It states that it is a not for profit organisation which provides an avenue for young people in an area of social disadvantage in West Dublin to escape the ravages of social depravation. It adds that it is almost entirely funded through State Funded Initiatives with a small stream of revenue generated by providing services to members of the local community. The respondent further states that the complainant’s salary was, in the main, funded through a Community Services Programme Fund (CSP) which is administered by POBAL. It states that this Fund provided for a set amount and that any amount paid in excess of this approved salary was financed through its own resources. The respondent states that during the period when the complainant was employed its CSP funding was reduced by €25,000. It adds that faced with this shortfall in funding and cognisant of its fiduciary responsibility to maintain costs within budget, it was necessary to restructure its staffing levels – having regard to the required employee level in maintenance/operational areas and administration. It further states that six employees, including the complainant, had to be made redundant during 2011 and that notwithstanding this action and the general curtailment of expenditure in other areas, expenditure exceeded income by almost €68,000 in 2011.

4.2 The respondent accepts the contracts of employment as submitted by the complainant. It further accepts that there were occasions when he was required to work in excess of his contracted hours (as Acting Duty Manager) and that such a scenario was expressly covered by his contract of employment. It adds that there was a requirement to have a senior manager on site at all times when the Centre was open and whilst other senior managers (Youth Manager and Training Manager) did so on occasions out of personal goodwill, there was no basis upon which the respondent could force them to do these duties. It further states that the salary of these staff was funded by other external organisations for these specific roles and the functions of Duty Manager were not part of those roles. The respondent adds there was a specific need for the Operational Manager to be present and this was clearly pointed out to the complainant at interview. It further states that the staff members identified were therefore not required to attend as suggested by the complainant. It adds that when the complainant was required to attend for hours in excess of his contracted hours he was compensated with time off in-lieu in accordance with his contract of employment and it submitted records in respect of the complainant during the relevant period in support of same. The respondent states the first time it became aware that the complainant had an issue with this matter was in his letter of 9 June, 2011. It adds that the complainant was aware of the respondent’s Grievance Procedure and that he did not invoke same. The respondent rejects the complainant’s assertion that this matter amounts to less favourable treatment of the complainant on grounds of race contrary to the Acts.

4.3 The respondent states that the financial viability of the organisation was in jeopardy from 2010 and that it had no option but to take some form of corrective action in this regard. It states that the complainant’s salary was funded by POBAL in the amount of €32,000 and the remainder of his actual salary (approx. €17,000) was funded from other sources. It states that these other avenues of revenue were reduced significantly and consequently it was decided to reduce the complainant’s hours to part-time in order to curtail costs. It accepts that the complainant was informed of this in December, 2010 and acknowledges that the complainant was not happy about this. The respondent (Ms. X) accepts that she met with the complainant on 4 February, 2011 to discuss the matter and that it was agreed he would be rostered for three days each week and that his salary would be reduced pro-rata his full-time contract. The respondent accepts that there were some delays in completing the associated paperwork but states that this was due to confusion and that it was ultimately rectified and all outstanding monies due to the complainant as a result of this confusion were paid to him. It submits that this does not amount to either less favourable treatment of the complainant or victimisation of him contrary to the Acts.

4.4 The respondent accepts that the complainant was rostered for shifts which were unsocial in nature (early and late) as well as shifts on weekend days (Friday and Saturday), but rejects the assertion that these were excessive or amount to discrimination or victimisation of him contrary to the Acts. It states that the requirement to work these hours and days was clearly pointed out to the complainant at interview and that as Operations Manager this role would fall on him more than others. It further states that other senior managers identified by the complainant were not required, by virtue of their specific roles within the organisation and the conditions attached to the funding of same, to perform these functions. It rejects the complainant’s assertion that the assignment of shifts amounts to discrimination or victimisation of him contrary to the Acts.

4.5 The respondent (Ms. X) emphatically rejects the complainant’s assertion that she instructed him he was not permitted to take his lunch breaks. It (Ms. X) states that the Centre was open from 8am-9pm and that during these hours it was full of young people who availed of its services. She adds that food was provided for trainees and that there were five staff members on duty during the day (including the complainant or the person acting as Duty Manager) who were required to ensure the trainees behaved, including at meal times. She states that these five staff took it in rotation to provide the necessary level of supervision and that there was no need for the complaint to do so every day - this duty did not fall solely on the complainant. The respondent states that the complainant could elect to take his break when he chose – within reason – and that staff were expected to take their breaks and comply with the requirements of the organisation of working time legislation. The respondent notes that the complainant never raised this matter through its Grievance Procedure – it adds that the matter could have been addressed to the Chairman of the Board as the issue involved the CEO (Ms. X). It rejects the complainant’s assertion that this amounts to less favorable treatment of him on grounds of race and/or victimisation contrary to the Acts.

4.6 The respondent accepts that the complainant had On-call and Key-Holding duties and contends that these duties are appropriate to the role of Operations Manager, as the security of the Centre is an essential function of that role. The respondent (Ms. X) adds that it retained the services of a company who monitored the security of the Centre remotely and that as far as she was aware the necessity for the complainant to attend the premises following a security breach was rare – she did not receive any incident reports in this regard from the complainant and she would have expected this to be the case. Moreover, she states that the complainant never raised this as an issue with her or any member of the Board until it was included in his letter of 9 June, 2011. The respondent argues that this does not amount to less favourable treatment of the complainant on grounds of race contrary to the Acts.

4.7 The respondent accepts that the complainant was given written notice on 3 June, 2011 of its intention to terminate his employment by way of redundancy with effect from 8 July, 2011. It adds that this situation was necessary to remain within budget, notwithstanding that it had reduced the complainant’s hours to part-time the previous February. The respondent adds that this possibility had been mentioned to the complainant when Ms. X met with him on 4 February, 2011 and that between then and the end of his employment he was offered time off to pursue other positions. It further states that five other employees, three of whose salaries were fully funded and two partly funded (details supplied), were also made redundant during 2011 to address the dire financial situation it was experiencing. The respondent further states that in addition to the reduction in State funding it received other avenues of income which it generated itself were drying up and any reserve it had, which enabled it retain staff and supplement the State contribution to staff salaries, was exhausted. It states therefore that it had no alternative but to terminate the complainant’s employment and rejects the complainant’s assertion that Ms. X orchestrated a campaign to “ease him out” of his employment under the guise of a “sham” redundancy. It adds that the role carried out by the complainant was subsequently assigned to the CEO and the Administration Manager under restructuring of the respondent’s activities. The respondent submitted financial accounts and other documentation in support of its assertion that the company was in a dire financial situation at that time.

4.8 The respondent accepts that it received the complainant’s letter of 9 June, 2011 wherein he listed an array of issues he believed amounted to discrimination of him and requested the Board to withdraw the notice of termination and restore him to his full-time position. It states that it is managed by a voluntary Board of Directors comprising local residents, State Agencies and independent private sector representatives. It adds that the Board meets approximately every two months and that in normal course the complainant’s letter would be brought to the attention of the Board at the next scheduled meeting. The respondent states that the Board considered the complainant’s appeal of his redundancy and decided to uphold the original decision and this was communicated to the complainant by letter dated 22 June, 2011 – which is less than two working weeks from the date of the complainant’s letter. It submits that in the circumstances this is not an unreasonable period within which to respond. It adds that a gesture of goodwill the Board instructed that the complainant’s redundancy payment was to be calculated on the basis of his full-time weekly salary and not the part-time rates he was on at the time. The respondent (Ms. X) adds that she wrote to the complainant on 30 June, 2011 in which she addressed the other issues raised in his letter of 9 June, 2011 and offered him an ex-gratia payment of €1,000 in full and final settlement of any outstanding entitlements the complainant believed were outstanding, notwithstanding that the respondent did not believe that was the case. It submits that this is a standard practice in termination arrangements and cannot be considered to amount to discrimination of the complainant on grounds of race. Finally on this matter, the respondent accepts that a low level clerical/administrative post became available in May, 2011and states that these became available due to the need for more compliance/governance duties on certain funded programmes. It adds that the complainant was advised of this position and refused it as it was a full-time position on much lower remuneration that he had previously enjoyed. The respondent submits that the termination of the complainant’s employment was for financial reasons and that his position became redundant following a restructuring of the activities and rejects the assertion that it was influenced in any way whatsoever by his Indian nationality or Sikh ethnicity.

4.9 The respondent (Ms. X) states that following receipt of the complainant’s e-mail requesting a reference she prepared a statement of employment and posted it to the complainant. She adds that she assumed he received it because he did not pursue the matter further with her. In the circumstances the respondent rejects the assertion that the complainant was treated less favourably on grounds of race and/or victimised contrary to the Acts.

4.10 The respondent states that the complainant transferred his mobile number as his work contact number from the outset of his employment. It adds that it bought out the contract and paid the costs associated and as a result both the contract and the handset belonged to the respondent and it gave the complainant the phone for official and personal use. The respondent accepts that it is normal practice to transfer the mobile number back to the person on cessation of employment. The respondent states that the first contact the complainant made with it about the phone was to its Administration Manager and Ms. X on 21 July, 2011. The respondent (Ms. X) states that when the complainant contacted her that day she immediately instructed the Administration Manager to arrange the transfer of the number to the complainant. It is submitted that this demonstrates an absolute willingness on the respondent’s part to transfer the mobile number to the complainant and contradicts the complainant’s assertion that it deliberately delayed in processing the matter in an effort to discriminate and/or victimise him. The respondent notes that the complainant sent in the necessary form to facilitate transfer of the number on 26 July, 2011 and that the form was completed and returned by e-mail to the complainant later that day. The respondent further notes that the next contact it received is the complainant’s e-mail to the Administration Manager dated 29 July, 2011. The respondent states that the Administration Manager commenced three weeks’ annual leave that day and submits that it is likely she did not receive this e-mail prior to commencing that leave. It adds that the Administration Manager dealt with the matter on 22 August, 2011, immediately upon her return to work. It is submitted by the respondent that it dealt with the complainant’s issue in a prompt and efficient manner at all times and that it did not treat him in a less favourable fashion on grounds of race or victimise him contrary to the Acts.

4.11 The respondent rejects the allegation that it victimised the complainant in terms of section 74(2) of the Acts. It submits, without prejudice to this position, that none of the events advanced by the complainant as constituting a “protected act” in terms of any of the three paragraphs of that section relied upon by the complainant actually amount to such a “protected act” and therefore the complainant has no basis upon which to ground that arm of his complaint. In addition, the respondent submits that the complainant has not identified any of the alleged incidents as amounting to harassment of him in terms of section 14A of the Acts and argues that this arm of his complaint should be dismissed. Finally, it submits that notwithstanding its arguments that the complainant has failed to establish a prima facie case of less favourable treatment contrary to the Acts and its acceptance that the complainant was clearly unhappy about the cuts experienced by the respondent which resulted in the termination of his employment, that there are factors unconnected with his nationality and/or ethnic origins which give rise to his dismissal.

5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the complainant was (i) discriminated against by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of his conditions of employment; (ii) harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts; (iii) dismissed in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts and (iv) victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

5.2 Section 85A of the Employment Equality Acts 1998 - 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer/Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required his case cannot succeed.

5.3 The complainant contends that he was discriminated against and victimised contrary to the Acts and details a number of alleged incidents in this regard. In several of these alleged incidents he seeks to use the same facts to ground claims under both of these headings. In A School v A Worker the Labour Court held “ that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative.” and I propose to adopt the Court’s approach in the instant case. The complainant has not identified any of the alleged incidents as amounting to harassment of him on grounds of race contrary to the Acts. He has not advanced any evidence in this regard, despite the fact that his complaint form alleged he was harassed on that ground. Consequently, I do not propose to address this element of his complaint any further.

5.4 Before I proceed to deal with the substantive aspects of the complainant’s claim there are two further preliminary issues which I must address. The first of these refers to the discriminatory ground under which the complainant advances his complaint – the ground of race. He advances his complaint on the basis of his (i) Indian nationality and (ii) Sikh ethnic origins. The definition of race contained at section 6(2) of the Acts encompasses both nationality and ethnic origins so at first glance the complainant’s case is properly before me for investigation. However, I am satisfied that in order for a person to treat someone else less favorably on foot of a particular characteristic, that person must be aware that the subject of the less favourable treatment possesses that characteristic. It is not disputed that the respondent was aware of the complainant’s Indian nationality. It is disputed however, that it was aware he was a Sikh. In the course of the Hearing the complainant argued that his name was a Sikh name and that the respondent would have known this. However, he offered no evidence in support of this assertion. He added that he had spoken of the Punjab with colleagues and that this was indicative of his ethnicity. The respondent is a not for profit community based in an area of social disadvantage in West Dublin. I cannot accept, as a matter of probability, the proposition advanced by the complainant that reference to the Punjab, if indeed such comments were made (and I make no finding in that regard), would give rise to the conclusion by his colleagues that he was a Sikh. In light of the foregoing I find that any treatment of him could not have been influenced by his ethnicity and I shall not examine any of the alleged incidents of discriminatory treatment on that basis.

5.5 The complainant asserts that he was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:
“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) …….
(c) ….
(d)
(e)
(f) an employee having opposed by lawful means an act that is unlawful under this Act….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In Tom Barrett v Department of Defence 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. In the instant case I must decide, in the first instance, whether or not the complainant took action that could be regarded as a “protected act”.

5.6 The complainant advances four actions which he took during 2011 and submits that any one of them constitutes a “protected act” on which he can ground his allegation of victimisation contrary to the Acts and I shall examine each of these is turn. He seeks to rely of paragraphs (a), (f) and/or (g) of section 74(2) of the Acts in terms of this arm of his complaint and I shall examine each of the events advanced on that basis. The first of the events submitted by the complainant is an e-mail to Ms. X dated 20 January, 2011. I have examined this e-mail and whilst it, inter alia, confirms that he will accept the reduced hours previously proposed by Ms. X, it makes no reference that he believes he is being discriminated against. The second is a meeting on 15 March, 2011, in the course of which he raised the anomaly of the 21 hours/24 hours reference in his revised contract of employment following his assignment to part-time hours from 14 February, 2011. However, yet again no reference to discrimination is made. The third is a meeting on 27 April, 2011 in the course of which he raised the issue of being rostered constantly for hours in excess of his contracted hour. A meeting on 12 May, 2011 in the course of which he repeated his grievance about excessive rostered hours is also advanced as an example of a “protected act”. The complainant has adduced no evidence that he claimed the alleged treatment of him was discriminatory in terms of the Acts. Rather what he states is that he believed the alleged treatment of him was unfair, unjust and inequitable in terms of what he believed his conditions of employment provided for. Consequently, I must conclude that none of these actions amount to a “protected act” in terms of any of the paragraphs of section 74(2) of the Acts advanced by the complainant. The final action advanced by the complainant is his letter of 9 June, 2011 to the Chairman and copied to Ms. X. I have examined this letter and it is punctuated with several references of discrimination and discriminatory treatment. I am satisfied that this letter amount to “a complaint of discrimination made by an employee to an employer” in terms of paragraph (a) of section 74(2) of the Acts. Consequently, I find that it constitutes a “protected act” for the purposes of grounding his complaint of victimisation contrary to the Acts. It follows that only those alleged incidents of victimisation which postdate 9 June, 2011 could amount to that type of treatment of him and my investigation will focus on those incidents only.

5.7 It is common case that the complainant was rostered for more than the 35 hours per week provided in his final full-time contract of employment. The complainant contends that he was not paid for these hours, that he was the only senior manager who was required to do so and that this amount to less favourable treatment of him on grounds of his nationality. The respondent states that such a scenario was expressly covered by his contract of employment and that this was clearly pointed out to the complainant at interview. It adds that there was a requirement to have a senior manager on site at all times when the Centre was open and that whilst other senior managers attended for longer than their contracted hours on occasion, they did so out of personal goodwill - there was no basis upon which the respondent could force them to do these duties as their contacts of employment and their funding source did not prescribe those function as part of their duties. I have carefully examined the evidence adduced by the parties and I am satisfied, on balance, that the respondent’s version of events represents an accurate reflection of the situation and is to be preferred. The respondent further states that when the complainant was required to attend for hours in excess of his contracted hours he was compensated with time off in-lieu. I have examined the documents furnished by the respondent in support of this assertion and I am satisfied that the complainant was granted time off in lieu on two occasions during the period covered by my investigation and that these hours were approved by Ms. X. In light of the foregoing I find that the complainant has failed to establish facts from which it could be inferred that he was treated less favourably on grounds of race contrary to the Acts and this element of his complaint fails.

5.8 It is common case that the complainant had his hours reduced with effect from 14 February, 2011. The complainant contends that this amounts to less favorable treatment of him on grounds of race contrary to the Acts. The respondent states that it was forced to adopt this approach due to the precarious financial position it found itself it at that time. The respondent’s funding mechanism is rather complex and comprises a variety of Exchequer based sources, both direct and indirect, as well as a small number of internal based streams of revenue. I have carefully considered the evidence adduced by both parties on this issue and I am satisfied, on balance, that the salary of the complainant comprised a set allocation of €32, 000 from Exchequer funds and the remainder was met from internal sources. I note that the corrective action taken by the respondent, in terms of staff reduction measures during 2011, involved the reduction in hours of the complainant by 40% initially and then termination of his employment altogether in July, as well as the termination of the employment of five other employees. I further note, that despite this action, the respondent’s annual expenditure for the year exceeded income by almost €68,000, which significantly depleted the respondent’s reserves. It follows that the respondent’s excess of income over expenditure for 2011 would have been far worse had it not taken the action it did. It is entirely understandable that the complainant was unhappy at losing 40% of his hours. However, he ultimately agreed to accept this new arrangement after discussions with Ms. X. In light of the foregoing I can find no basis to upon which to conclude that the complainant’s nationality was a factor in the decision of the respondent and this element of his complaint fails.

5.9 It is also common case that there were delays in concluding the paperwork which followed on from the reduction in the complainant’s hours. The complainant contends that this constitutes discrimination of him on grounds of race contrary to the Acts. The respondent states that it was due to administrative confusion and that when the matter was finally resolved the complainant suffered no loss. The complainant has not adduced any evidence that demonstrates that the treatment of him was anything other than an administrative error. He has not identified any of his fellow employees who were treated differently in similar circumstances. Moreover, I am not satisfied that he has adduced any evidence from which it could be inferred that a fellow employee would be treated differently in similar circumstances. Consequently, I find that the complainant has failed to discharge the initial probative burden required of him and this element of his complaint cannot succeed.

5.10 It is common case that the complainant was assigned shifts which were unsocial in nature – requiring him to attend work on early morning and evenings – as well as attendance on Fridays and Saturdays. The complainant contends that he was assigned a disproportionate amount of these shifts and that this amounts to less favourable treatment of him on grounds of race contrary to the Acts. The respondent states that the requirement to work these hours and days was clearly pointed out to the complainant at interview and that as Operations Manager this role would fall on him more than others. It further states that other senior managers identified by the complainant were not required, by virtue of their roles and the conditions attached to the funding of same, to perform these functions. I have examined the complainant’s first contract of employment as well as the contract which he signed following the reduction of his hours in February, 2011. Both of these contracts provide that the complainant may be required to work unsocial shifts as well as weekends. I find that what was at issue here was the complainant being required to fulfil the terms of his contract, which he had agreed to from the outset of his employment, and consequently I do not accept that this constitutes discrimination of him.

5.11 The complainant alleges that he was assigned a disproportionate amount of these shifts in comparison to colleagues. I have examined the records submitted to me by the complainant in terms of this element of his complaint. This documentation shows that in the six months immediately before the date of referral of his complaint i.e. April-October, 2011 – the complainant worked eight unsocial shifts and seven weekend days. When this period is extended to February, 2011 i.e. the period when the complainant was on a three day week – the figures are fourteen unsocial shifts and eleven weekend days. I note that weekend shifts include Friday which one might generally consider to be a normal working day. In light of the foregoing I cannot accept the complainant’s assertion that he was assigned a disproportionate amount of these shifts. He states that he was assigned three such shifts in the week following the public holiday in May, 2011. This is correct. However, another colleague of a different nationality (Irish) was also assigned three such shifts that week. I note that this colleague was assigned four such shifts the following week when he was assigned two. Moreover, the rosters demonstrate that there was a reasonable distribution of these shifts amongst those staff who were required to perform Duty Manager duties during May. In this regard I accept the respondent’s evidence that not all senior managers were required to perform such duties and that on the occasions that they did so, it was out of personal generosity. I therefore find, having regard to my comments in this and the preceding paragraph, that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint and it fails.

5.12 The complainant states that he was not permitted to take his lunch breaks, that this was on the instruction of Ms. X and that this amounts to less favourable treatment of him on grounds of race. The respondent (Ms. X) rejects this assertion in the strongest terms. When there is direct conflict between the evidence of two parties an Adjudication Officer must decide, on balance of probabilities, which version of events is more credible. The complainant was a senior manager in the respondent organisation and was a member of the Senior Management Team. Consequently, I am of the view that he had a responsibility to ensure he complied with the relevant provisions of the organisation of working time legislation and that he had the authority to operate flexibility as regards when he took his breaks. In addition, I cannot accept that he would be required to follow any such instruction as regards his breaks and that he would do so for three years without addressing this. Moreover, he never raised this matter at any stage prior to the referral of his complaint to the then Equality Tribunal. He offered no explanation for this given that he asserts the instruction was given to him early in his employment and colleagues were free to take their breaks at the relevant times. I therefore prefer, on balance, Ms. X’s evidence in this regard and I am satisfied that if the complainant did not take lunch breaks as the same time as colleagues it was a decision he made himself and was not on the instruction of Ms. X. Consequently, I find that he has failed to discharge the probative burden required of him and this element of his complaint cannot succeed.

5.13 The complainant states that contrary to his contract of employment; the job specification for the position of Operations Manager the agreement on after hours’ duties that had been discussed at his interview, he was assigned duties in respect of On-call and Key-Holding. He submits that this constitutes discrimination of him on grounds of race contrary to the Acts. The respondent accepts that the complainant had On-call and Key-Holding duties and contends that these duties are appropriate to the role of Operations Manager, as the security of the Centre is an essential function of that role. It adds that as far as Ms. X was aware the necessity for the complainant to attend the premises following a security breach was rare. In support of this she states she did not receive any incident reports in this regard from the complainant and she would have expected this to be the case. In the course of the Hearing the complainant stated that he was required to attend the respondent’s premises outside of normal working hours, on average, once every three weeks. Firstly, I accept the respondent’s argument that the duties involved are appropriate to the role of Operations Manager. I have examined the complainant’s contracts of employment, as well as the Job Specification for Operations Manager and I can find nothing in either which supports the complainant’s position that expecting him to perform such duties was contrary to either of these documents. In addition, I do not consider the requirement to attend the premises once every three weeks, as asserted by the complainant, to assist the security monitoring company gain access to the respondent’s premises, to be excessive. Accordingly, I am not satisfied the complaint has established facts from which it could be inferred that he was treated less favourably than another person of a different nationality to him was or would be treated in similar circumstances and this element of his complaint fails.

5.14 It is common case that the respondent informed the complainant of its intention to terminate his employment with effect from 8 July, 2001 by letter dated 3 June, 2011. The respondent states that it had no option but to take this course of action because of the deteriorating financial circumstances it found itself in. I have already accepted (at paragraph 5.8 above) that the respondent was experiencing financial difficulties at the time. I also note that five other employees, three of whose salary was part-funded by Exchequer grants, also had their employment terminated. The nationality of these members of staff (Irish) differs from that of the complainant. The termination of their employment was for the same reasons the complainant had his employment terminated – a cost reduction measure. I note that the role of Operations Manager was a relatively new position within the respondent organisation and that many of the functions involved had previously carried out by the Chief Executive Officer. I further note the evidence of Ms. X that following the departure of the complainant these duties reverted to her and some were assigned to the Administration Manager. The complainant did not dispute this. I have carefully considered the evidence adduced by the parties on this matter and I am satisfied that there were factors unconnected with the complainant’s nationality which provide a credible alternative explanation for the manner in which the respondent treated him. Consequently, the complainant has failed to establish a prima facie case that the termination of his employment constitutes discrimination of him on grounds of race contrary to the Acts and this element of his complaint fails.

5.15 It is common case that the complainant wrote to the respondent on 9 June, 2011 wherein he detailed his grievances; appealed the decision to terminate his employment; sought restoration to his previous role as a full-time Operations Manager and requested a meeting to discuss the matter. He adds that he had expected a meeting would be arranged with him but instead his letter was ignored. He contends that this amounts to less favourable treatment of him on grounds of race and/or victimisation of him contrary to the Acts. The respondent rejects this stating that it is managed by a voluntary Board of Directors comprising local residents, State Agencies and independent private sector representatives. It adds that the Board considered the complainant’s appeal of his redundancy and decided to uphold the original decision and that this was communicated to the complainant by letter dated 22 June, 2011 – which is less than two working weeks from the date of the complainant’s letter. It submits that in the circumstances this is not an unreasonable period within which to respond. I have carefully considered this matter and I am satisfied that the respondent acted with due urgency when it received the complainant’s letter and responded in a prompt fashion. I am further satisfied that nothing had changed in terms of its financial circumstances which would have permitted it to reverse the original decision to terminate the complainant’s employment. The complainant has not adduced any evidence to demonstrate that he was treated differently to any other employee who was dismissed by the respondent around this time. Moreover, I am not satisfied that the respondent would have treated any other employee differently in similar circumstances.

5.16 It is again common case that Ms. X wrote to the complainant on 30 June, 2011 in which she addressed the issues raised in his letter of 9 June, 2011 (save those related to a review of the decision to terminate his employment) and offered him an ex-gratia payment of €1,000 in full and final settlement of any outstanding entitlements he believed were due to him. I accept the respondent’s contention that this is a standard practice in termination arrangements where certain entitlements might be in dispute. I have carefully considered the actions of the respondent between 9 June, 2011-30 June, 2011, including the contents of its letters of 22 June, 2011 and 30 June, 2011 and I am not satisfied that either its actions or the contents of the letters could amount to less favourable treatment of the complainant on grounds of race contrary to the Acts. At paragraph 5.5 above I set out the three components which the Labour Court stated must be present for a claim of victimisation under section 74(2) of the Acts to be made out. I have previously found (at paragraph 5.6 above) that the complainant’s letter of 9 June, 2011 satisfies the first of these – a “protected act”. I must now decide whether or not the second component of the test is satisfied – that the complainant was subjected to adverse treatment by the respondent. I have carefully considered the evidence adduced by the parties and I am not satisfied that the actions of the respondent amount to adverse treatment of the complainant. In light of my comments in this and the preceding paragraph I find that the complainant has failed to establish a prima facie of (i) less favourable treatment on grounds of race and (ii) victimisation contrary to the Acts and this element of his complaint cannot therefore succeed.

5.17 The complainant states that he e-mailed the respondent on 10 August. 2011 requesting a reference to enable him pursue new employment. The respondent Ms. X states that she prepared a statement of employment and posted it to the complainant when she received the request. The complainant states that he never received it and submits that the failure of the respondent to comply with his request constitutes discrimination of him on grounds of race and/or victimisation contrary to the Acts. I am somewhat surprised that the complainant waited a month after the termination of his employment to make the request. Moreover, he did not pursue the matter with Ms. X when he did not receive the document. This is in stark contrast to the speed with which the complainant acted when he received the respondent’s letter of 3 June, 2011. The respondent (Ms. X) states that she assumed he had received it because he did not pursue the matter further with her and I am satisfied that this is a reasonable assumption to make in the circumstances. Consequently, I find that the complainant has failed to establish facts from which it could be inferred that he was subjected to (i) discrimination on grounds of race and (ii) victimisation contrary to the Acts and this element of his complaint fails.

5.18 It is common case that the complainant used his personal mobile number for business purposes during his period of employment. During this period the respondent paid the costs associated with the service. It accepts that when a person leaves its employment it is normal practice to transfer the mobile number back to that person. The complainant states the respondent failed to transfer the number back to him following cessation of his employment and that despite a number of requests it took the respondent a month to resolve the matter. He submits that this amounts to less favourable treatment of him on grounds of race and or/victimisation contrary to the Acts. The respondent rejects this and states that the first contact the complainant made with it about the phone was to its Administration Manager and Ms. X on 21 July, 2011. The respondent (Ms. X) states that when the complainant contacted her that day she immediately instructed the Administration Manager to arrange the transfer of the number to the complainant. It is submitted that this demonstrates an absolute willingness on her part to transfer the mobile number to the complainant and rejects the assertion that it deliberately delayed in processing the matter in an effort to discriminate against or victimise him contrary to the Acts.

5.19 I have examined the evidence adduced by the parties on this matter (which comprises several e-mails in addition to the oral responses at the Hearing) and I am satisfied that the first occasion the respondent became aware there was an issue with the complainant’s phone was 21 July, 2011. The respondent’s Administration Manager responded by e-mail later that same day having spoken with Ms. X. This e-mail indicates that the respondent has no issue in transferring the complainant’s mobile back to him. In my view this is not consistent with the complainant’s assertion that the respondent deliberately delayed dealing with the matter. The complainant forwarded the relevant form authorising the transfer of the mobile number to him on 26 July, 2011. This form was completed and returned by e-mail to the complainant later that day. Again this is inconsistent with the assertion that the respondent deliberately tried to delay the process. The next contact is an e-mail to the Administration Manager on 29 July, 2011. The respondent states that the Administration Manager commenced three weeks’ annual leave that day and submits that it is likely she did not receive this e-mail prior to commencing that leave and hence she did not reply to it. I accept this to be the case as she had responded to the complainant’s previous e-mails in prompt fashion and I am satisfied, on balance, that had she received this e-mail she would have dealt with the matter before going on annual leave. I am further persuaded in that regard by the fact that she responded to the complainant on 22 August, 2011 - immediately upon her return to work. During this period the complainant made no effort to pursue this matter with other members of the respondent staff - including Ms. X – whom he had contacted without hesitation on previous occasions. I am not satisfied that the respondent deliberately delayed in dealing with the matter. The only time that the clock was ticking on the respondent’s part was when the Administration Manager was on annual leave. This would have been the case whether it was the complainant or another employee involved. In light of the foregoing I find that the complainant has failed to establish a prima facie case that he was (i) treated less favourably on grounds of race and (ii) victimised contrary to the Acts and this element of his complaint cannot succeed.

6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with (i) section 79(6) of the Employment Equality Acts, 1998-2015 and (ii) section 41(5) of the Workplace Relations Act, 2015
I issue the following decision. I find that –
(i) the complainant has failed to establish a prima facie case of discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of his conditions of employment.
(ii) the complainant has failed to establish a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts.
(iii) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts, 1998 - 2011

and his complaint fails in its entirety.

_______________________________________
Vivian Jackson
Adjudication Officer/Equality Officer
3 May, 2016