ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001377

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 21/06/2016

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or Section 8(1B) of the Unfair Dismissals Act, 1977, and 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).  

BACKGROUND

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

1. The Complainant submitted that;

A             he was discriminated against by reason of his Disability.

B             he was discriminated against by reason of his Race.

2. Complainant’s Case

2. The complainant was employed by the respondent.
3. The complainant submitted that he was the only black sub-Saharan African on his team and   he has not been treated equally in terms of performance appraisal, career prospects and general workload. He received no invitation for interview or sometimes no response at all to   his applications for internal job offers despite performing at a high standard.
4. He had always been rated with high-performance records, until March 2015, when he decided to raise a grievance for ongoing incidents of bullying, harassment and discrimination that he had been subjected to in the workplace.
5. He was assigned the most challenging market closing with high rates of delinquency and a difficult workload which lead his team leader to go out on sick leave due to ongoing stress and anxiety. The portfolio given to him was not clean, it had a lot of discrepancies, customers not paying for invoices on time or not paying at all.
6. In December 2014, he was pulled aside by his manager regarding that particular application and was told that he was not skilled enough and not set yet to fit into a team leader position, meanwhile, other members of the collection team, to whom he was senior, were being interviewed and were given full opportunity to be promoted to a leadership position.  
7. He flagged an incident to his manager related to racial background as a work colleague was laughing about his name in public. His email went unanswered.
8. In March 2015, he noticed the further deterioration of the work environment. Bullying, harassment and discrimination being regularly used in both verbal and electronic communication by his colleague, an initial grievance was raised against him and he subsequently apologized and acknowledged his failure to maintain an appropriate and professional tone. That first grievance was raised under a particular condition of stress, sleepless nights, frustration and anxiety which was highlighted to both the human resources department and his team leader.
9. In March 2015, he started to notice a drastic increase in the volume of communication being received from his team leader. He noticed deterioration in the tone of the communication used by her, despite having highlighted his medical condition of stress and anxiety. In comparison, the communication was professional and friendly when she was interacting with other team members. Furthermore, there was definitely no intention to develop his career as the IDP was not followed upon and not regarded whatsoever. Instead, the intention was to marginalise him and single him out from the rest of the team by researching failures and gaps in his performance.
10. In July 2015, the situation got worse, after the first grievance was raised and after being subjected to victimization for that reason, further discriminatory treatment and ongoing harassment were made by both his team leader and his Manager despite his particular medical condition being highlighted on several occasions. This discriminatory treatment was performed by means of unpleasant remarks and mainly materialized in a coaching document highlighting alleged failures of performance that could lead to the involvement of a human resources representative. The areas covered by this coaching document were office hours, general workload, communication and results. Having identified inconsistencies in the treatment that was applied to the other members of the team facing the same situation/challenges in those areas, the coaching was clearly discriminatory and was inefficient in enhancing skills and developing competencies. It is a tool to dismiss and get rid of unwanted employees. He, therefore, decided to raise a second grievance against his team leader and manager.
11. The complainant submitted additional points in support of his case.

3. Respondent’s Case
4. The respondent outlined a background of issues involving the complainant which had been dealt with promptly by them.
5. They strongly refute the allegation that the complainant had not been treated equally in terms of performance appraisal, career prospects and general workload. The Respondent, as a global company, is committed to diversity. In particular, Cork employs a diverse workforce with over 80 different nationalities. They are committed to recognising and valuing diversity at all levels. A Collections team, in which the complainant was employed, has a number of employees of different race and nationality and all are treated equally (10 nationalities in a team of 17 people). They would also point out that the complainant was not, as he states, the only sub-Saharan African on the Collections team and in fact since his resignation his duties have been transferred to a colleague, whose ethnic origin is also sub-Saharan African. Employees receive an automated response to all internal job applications to confirm receipt of their application and further state that candidates who meet the requirements of the role will be contacted to arrange interview etc.
6. The respondent supplied details of all communications that were to various applicants.
7. The Respondent like most companies, implements an annual performance review process. Employees are rated across three criteria: Teamwork, Innovation and Results. There are three possible ratings that can be achieved and which are self-explanatory: Exceeded Expectations, Achieved Expectations and Expected More.  
8. Details of the complainant’s performance ratings since commencing employment was supplied at the hearing.
9. The complainant was, by his own admission in his IDP submitted one month prior to this recruitment process, some ” 2 to 3 years” away from developing the skills to manage a Collections team. This view was also shared by his manager.  
10. Seniority in the Collections team was not a deciding factor in selecting for an interview. Rather, experience in career to date and relevant skill set were considered when selecting for an interview.   The respondent always recruits based on merit and ultimately the successful candidate for the role was hired on the basis of relevant experience and demonstrated capability. This position called for previous experience in managing a team and also required a professional accountancy qualification.
11. The respondent submitted that the issue of “laughing at his name “was fully addressed with both parties and the claimant was satisfied that the matter had been dealt with.
12. That all correspondence was answered and the manager met with the complainant on two occasions following the email that he states was unanswered.
13. There was no evidence to support a conclusion of either bullying or harassment and this was communicated to the complainant. He further confirmed in writing to a Manager on the 12^th May 2015 that ”this case has been investigated and resolved”, which he also confirmed to Human Resources on the same day.
14. The respondent stated the level of communication by email   was in response to emails initially sent by the complainant.
15. The respondent refuted entirely that the complainant was subjected to victimisation on the basis of raising previous grievances. The respondent met with him on a number of occasions to address any concerns that he may have had.
16. The respondent submitted an email from the complainant dated the 19^th March 2015 where he stated   that his team leader, “has been very supportive and quickly reacted to this last Friday”. The complainant raised additional grievances and the respondent submitted that these were thoroughly investigated. The complainant did appeal the outcome of one grievance and while his appeal was not upheld, recommendations were made to his line management structure. The complainant was offered the opportunity to move to other departments but this was turned down by him.
17. The respondent submitted that the company had engaged with the complainant in a significant manner and over an extended period to provide support and investigate any concerns that he raised. It was further submitted that despite finding no basis to the allegations made, there were options offered to support him which he did not avail of. The complainant was treated in a fair and consistent manner, in line with the respondent’s policies and procedures and in line with the principles of natural justice.

4         Conclusions and Findings.

4. I address first the complainant’s submission made under section 15(c) of the Employment Equality Act to the effect that;

‘Anything done by a person in the course of his or her employment shall, in any proceedings under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

4. I find that the Collections department, where the complainant worked, had 10 other nationalities out of 17 people employed there.
5. As to the complainant’s submission regarding promotion, I find that the position was advertised with a set criteria and was filled by a person who was a qualified accountant. The complainant did not have that qualification.
6. I find that the complainant was offered several options which included, working in other respondent entities, work from home, work with another team within the wider organisation, work in other business teams and that he refused all options.
7. I find that the respondent's performance management process is designed to support employees and to resolve issues informally before any formal action would potentially be required.
8. I find there was no evidence to support the allegation of bullying and harassment and that the complainant submitted on the 19^th March that his team leader had been very supportive and again in writing, to the respondent on the 12^th May 2015, that “this case has been investigated and resolved “. I also find that on the same date he confirmed the same to HR.
9. Two related questions arise here concerning the respondent’s actions and a third concerning those of the complainant. The first is whether the respondent acted reasonably and with due diligence in processing this matter. There is nothing in the evidence that would suggest that the respondent acted other than with a sense of seriousness to what was alleged and the need to act on it without delay.
10. And this gives rise to the second question arising for the respondent. Can the provisions of section 15(c) be triggered by a mere allegation? The complainant alleges he was harassed, and harassment is defined by section 14A (7) of the Acts which states:

“References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

4. The complainant referred to comments and treatment by colleagues which he contended were discriminatory. The respondent’s actions in response are outlined above and the issue was addressed to the satisfaction of both parties.
5. Section 14A(2) of the Employment Equality acts gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment or where the harassment took place to reverse its effects.
6. In relation to the complainant’s peremptory termination of his employment, I, therefore, conclude that the respondent can rely on the defence in section 14A(2) of the Acts and find that the complainant was not harassed by the respondent in accordance with the Employment Equality Acts.
7. Further, the respondent must surely have an initial opportunity to establish that something was, as a matter of fact ‘done’ as required by the Act. Only where he has delayed unreasonably might this be overturned. The facts outlined above indicate that he acted diligently in seeking to establish the facts of the matter which moves matters to the employee’s behaviour.
8. I find the work that the complainant was employed to do was identical to the work performed by the rest of his colleagues in the Collections department.
9. To deal more specifically with the complaint that the complainant was the victim of a constructive dismissal, a constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract. The burden of proof is set high in such cases for the same reason that it is in unfair dismissal cases of the normal type. A breach of the employment contract sufficient to fall under the Unfair Dismissal Act must be very serious and well justified.
10. The Supreme Court has said that

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61

4. Judged by the Berber test, and the general principles applicable to a constructive dismissal, the complainant’s case falls very far short of what is required both in respect of any failings in his employer’s actions.
5. In section 8 (4) the first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that the complainant must prove on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

5         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 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find that there has been no constructive dismissal and the complaint falls.

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.

In accordance with section 85A, I find that the claimant has failed to establish a prima facia case.

Dated:   5^th October 2016