ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002880
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00003208-001 | 15/03/2016 |
Date of Adjudication Hearing: 24/08/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A complainant | An Airline |
Complainant’s Submission and Presentation:
To whom it may concern, I would like to write a complain about my work conditon. I am working for the Respondent in the catering department for 8 years. For a long time now I have very difficult situation with them . I already approached the management last December. I wrote a grievance letter for them to look for a solution to my problems which are also physical and psychical. I cut the letter below and I also put it to the attahed file for you. „To: Respondent Manager - Manager, Flight Kitchen Dear X I am writing to you because my situation in my workplace is going too far. I am so stressed out because of the bullying and unfair treatment. I am always working on the worst position. There is no rotation in my area. There are some groups and if I am not in these groups they pick me all the time to do everything just to make them job easier. They want me to do double job just to leave them on the easy day. If I am saying something to my supervisor or manager like it is too hard or too much or heavy for me they not listen to me. Mostly I did not get any answer if they have one the answer is that I should know how the things are going. Which means they don’t want to know about my problem. I wrote the report about one of the working conditions but I never got answer. That was about the new chemical what we use for the machines it is causing me eye irritation and stomach pain. They want me to do jobs which is very hard and then to finish the jobs after other people who were just enjoying them day. I feel so discriminated of all of this. Always more important how the other ones are feel themselves and because they are together the supervisors do nothing to solve my problem. In addition to this it is always some problem with the machines which makes the job harder. Most of the days one is broke down and we need to finish on one machine instead of two and with four people instead of six. My wrist joint is so painful because of the hard job what I have to do all day and sometimes I cannot hold with my hands. I tried to go to the doctor with this but around that time the managers said to me I cannot keep saying that is work related and if I will do they will do the decision about me which can even dismiss me. I applied for the redundancy because I cannot see any another solution for my situation of my workplace and I said to myself: OK I step back and I will be quiet and say nothing just to get it. Try to survive and leave the company but even this way they refused me twice. Now, I am really stressed out because of all that and it cause lot of physical and psychical problems in my life like stomach ache headache or I cannot sleep or eat normally and my hands are going to be worst as well because of the double job what they except from me every day. Right now it is too painful for the normal job as well. I would like to go to the doctor to say about my problems and do something to make my health better. But if I am going to the doctor again they pushing me to feel bad because of the things what I am causing for the company with this. Like sick records. Which I am understand and I am sorry but what will be happening with my life if I am not doing anything. So now I do not know what the right solution is but my health is important for me as well. I would like to ask you to organize an appointment to the company doctor at least to show him my hands and if you have any chance to check my working condition to keep the rotation and the fairness for me as well it would be nice. Around the time when you will received this letter I will send a copy to HR as well. Thanks for your attention. I am looking forward to your reply. Best regards, Complainant 21.12 2015. “ Since this time the only thing which has happened I had an appointment to see the company doctor who organized a scan for my hand, but he did not go any further because his not a hand specialist. From the company I am waiting for three mounts for a meeting where we can find solutions and nobody contacted with me. Since this time the conditions remain the same or worst. I had to go on sick leave and see doctors because it is causing serious problems to my health. Right now I really cannot see I will able to go back to work because of the stress what I got every day in the workplace and now I am thinking about to quit but I am looking for my rights through the Labour Court. I also have some certificates from doctors which confirms my health condition. I can send you latter on when it will be necessary. Thank you for your attention. Yours sincerely, Complainant |
Respondent’s Submission and Presentation:
WRITTEN SUBMISSION ON BEHALF OF RESPONDENT
Introduction
This submission is being filed on behalf of Respondent Limited, the named Respondent in this claim.
The Claim
The Complainant has alleged that she has been discriminated against on grounds of her race in relation to her conditions of employment, has been victimised and has been harassed.
Position of Respondent
Respondent wholly rejects these claim(s) and submits that no such alleged less favourable treatment, harassment and/or victimisation of the Complainant has taken place on grounds of race or otherwise.
Facts
4.1 The Complainant was employed as a Team Member an Operative based in the Respondent Catering Department. She commenced employment on 21 July 2008. It should be noted by the Adjudicator that she decided to resign her employment on 23 June 2016.
4.2 On 21 December 2015, the Complainant submitted a written complaint to Respondent Manager, the Head of Catering. It is noted that the Complainant has cut and paste the text of this written complaint in full, into her WRC complaint form. In this complaint form, the Complainant raises a number of grievances about her work and her workplace and requests that she be referred to the Company doctor.
4.3 On receipt of this complaint it was evaluated by Ms. Respondent who determined that it should be dealt with under the Respondent Grievance Procedure. It was confirmed to the Complainant on 9th January 2016 that Ms. AX, the Respondent Manager in the Flight Kitchen had been appointed to hear the grievance complaints.
4.4 An appointment was made for the Complainant (as per her original request) to see the Respondent Chief Medical Officer on 20 January 2016, to enable her to discuss her health with Dr.XX. In the letter notifying the Complainant of this appointment, Ms. AX Manager stated “After I have received the report from Rd. XX I will be able to write to you with a date for us to meet to discuss your grievance”.
4.5 The Complainant attended the appointment with Dr. XX on 20 January as scheduled. It should be noted that she had previously been examined by Dr.XX on 19 December 2014, where she had asserted that she had been diagnosed with tendonitis. The report of Dr.XX (received by the Company on 3 May) stated that there was tenderness in the Complainant’s wrist but no definite diagnostic finding – she was referred for a MRI scan which was arranged for her by Dr.XX and she was referred to the Hand Clinic in Beaumont Hospital. The findings of the MRI were then communicated to the Complainant by Dr.XX which revealed an old fracture of the wrist joint.
4.6 The Complainant went on paid sick leave on 10 March 2016.
4.7 The Complainant submitted her complaint to the WRC on 15 March 2016, a copy of which was sent to Respondent by letter dated 5 May 2016.
4.8 She was again referred to the Company doctor, Dr.XX on 29 April 2016, who confirmed that she had a number of medical issues and continued to be unfit to work for at least the next three months. Dr.XX confirmed in mid-May that the Complainant was fit to attend meetings with the Company to discuss her grievance and these meetings were subsequently scheduled with her by Ms. AX. For completeness it should be noted that the Complainant did not return from sick leave but instead resigned her employment with Respondent on 23rd June 2016.
With reference to the substantive issues raised in her complaint document dated 21 December 2015, Respondent’ position is as follows:
a) At no stage prior to her complaint of December 2015 did the Complainant ever raise an issue of bullying or harassment pursuant to the Company’s Respect and Dignity at Work policy;
b) As per union agreement, certain functions in the Clearance area are Grade B/ TMB functions with all other functions Grade A/ TMA. All TMA functions are rotated fairly amongst all TMAs .TMAs are rostered in TMB functions if there are insufficient TMBs on duty, with these functions again rotated amongst all TMAs. Copy of work sheets show the Complainant has been rostered in all areas.
c) At the end of 2015, some staff raised concerns about an odour from the chemicals used in the dish washing machine. Any staff who raised this with management were offered an appointment with the Company’s Chief Medical Officer Dr.XX in order to determine whether there were medical issues as a result of these alleged odours. Management, a Health and safety specialist, the CMO and Eco lab (supplier of the chemicals) fully investigated this issue. Eco lab brought an expert from Scotland to address the issues raised and he conducted air quality tests in the area. All results were clear.
d) On occasion, some daily tasks may not be completed by the end of a shift due to staff shortages, machine breakdowns, flight disruptions etc. and staff members on the following shift are required to complete the task and then return to their rostered area to carry out their duties until the end of their rostered shift of 7.5 hours. No staff member would be expected to finish someone else’s work and complete all of their own.
e) Respondent management in the Catering Department has never been made aware of the Complainant’s feeling of being outside groups of her colleagues. Over the past two years, the Complainant, along with her colleagues, was invited to various employee engagement feedback sessions and workplace meetings. While these sessions offered an opportunity to staff to air any issues that they might have, staff were also reminded that in a confidential manner, they could speak to us at any time privately. The Complainant did not approach any managers to discuss any issues she was having.
f) It is accepted the Complainant did apply for voluntary severance under the 2015 Voluntary Severance scheme but that her application was not successful, in line with circa 20 other employees because the granting of voluntary severance was on the basis whereby there was no backfill required, and the Complainant’s role required backfill. This decision with regards to eligibility for voluntary severance was entirely unrelated to her race. It should be noted that the Complainant was replaced when she resigned.
g) It is the case that the Company did have occasion to engage with the Complainant with regards to her punctuality at work in 2014 and her absence record in 2015. These were normal management interventions in accordance with Respondent’s standard procedures for absence management. It should be noted that in January 2016, an appeal by the Complainant about a disciplinary sanction imposed as a result of her absence record was upheld and the sanction which was a restriction of sick leave privileges was not imposed. This is an example where appropriate fair procedures were afforded to the Complainant in the course of an internal disciplinary process, the result of which was that her appeal was upheld and a disciplinary sanction overturned.
h) Respondent is an equal opportunities employer with a large employee population, 4388 staff in total of whom 677 are non-Irish nationals. The Catering Department contains a diverse staff population of 253 representing 9 nationalities. It is submitted that the Complainant’s race or nationality was never a factor taken into consideration during her employment with Respondent.
5. Applicable Law
5.1 The Employment Equality Acts 1998 to 2015 (the Acts) require a complainant to establish that she is being less favourably treated and/or harassed on a protected ground vis a vis a named comparator. It is noted that the Complainant has asserted that she was less favourably treated on grounds of her race. This is wholly rejected by the Complainant.
5.2 The Complainant has failed to identify any example of such purported less favourable treatment nor has she identified and/or named a suitable comparator in her complaint document.
5.3 It is submitted that the Complainant has failed to substantiate any allegation of harassment on grounds of her race.
5.4 It is further submitted that the Complainant has not established that she has been adversely treated and/or victimised for having raised an equality issue or complaint such that would be protected by Section 74 of the Acts.
5.5 It is submitted that the Complainant has failed to establish a prima facie case of discrimination on grounds of race such that the requirements of Section 85(A) of the Acts are not fulfilled.
6. Conclusion
It is submitted that at no stage during her employment was the Complainant treated less favourably or victimised on grounds of her race or nationality. Where the Complainant raised a written complaint, an appropriate manager was appointed to investigate same. At the Complainant’s request, she was referred to the Company’s Chief Medical Officer and once the Complainant was confirmed to be medically fit by the Company doctor to participate in meetings, the grievance process commenced. It is regrettable that the Complainant decided to submit this complaint to the WRC instead of participating in the grievance process that was commenced by the Company to explore the issues raised by her.
24 August 2016
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Issues for Decision:
Did Discrimination as defined by the Employment Equality Act 1998 take place ?
Legislation involved and requirements of legislation:
Employment Equality Act 1998 – need for a Prima facie case to be established.
Decision:
In the Oral Hearing the Complainant, who was unrepresented, was carefully and most reasonably questioned by the Adjudicator as to the background to her case. The relevant law was explained. The Representative for the Respondent was in agreement with this approach.
It was clear that the Complainant had difficulty with the general social atmosphere and informal work networks, cliques she alleged, in the place of employment.
The required basis of an Equality / Discrimination Claim was again explained carefully to her – the grounds of Discrimination set out in the Act were also identified. The need to establish a prima facie case was explained.
The Complainant accepted, after careful consideration , some discussions with her supporting person and cautions to her from the Adjudication Officer, that no discrimination as set out in the Employment Equality Act 1998 had taken place against her.
It was a multi nationality work place and her Hungarian background had no bearing on the grounds of her complaints. She clearly stated this in the presence of her supporting person. There was no prima facie case of discrimination.
Accordingly her claim for Discrimination on the Race Ground has to be set aside.
Equally there was no prima facie evidence presented that indicated any basis for a Victimisation claim or Harassment claim.
The Respondent had detailed and comprehensive procedures, well communicated to all staff, in all areas of Equality, Harassment, Bullying etc. The Complainant had raised a grievance and it was being investigated. The investigation was pre-empted by the voluntary resignation of the Complainant. It was accepted by all parties that she was disappointed not to have secured a voluntary Severance package. She was now planning to return to Hungary.
Bearing in mind all the evidence presented and in particular the oral evidence from the Complainant, that she had not suffered discrimination on grounds of her race/ethnic origin, which evidence was given after explanation and caution from the Adjudicator, there are no prima facie grounds for a Discrimination claim, under the grounds laid out in the Employment Equality Act 1998.
Accordingly this claim is dismissed.
Dated: 16th November 2016