ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00003131

Parties:

Complaint and Dispute:

Date of Adjudication Hearing: 25th January 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

In May 2016, the complainant referred both a complaint and a dispute to the Workplace Relations Commission pursuant to the Employment Equality Acts and the Industrial Relations Act. The complaint and dispute was scheduled for adjudication on the 25^th January 2017. The complainant made other complaints for investigation by a Workplace Relations Commission inspector.

The complainant attended the adjudication and was represented by Kamal Vaid, BL, instructed by MS Solicitors. The Managing Director attended for the respondent and was accompanied by a former employee and a representative from a non-governmental organisation.

In accordance with section 79 of the Employment Equality Acts, 1998 – 2015 and section 13 of the Industrial Relations Acts 1969 following the referral of the complaint and dispute to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to either the complaint or the dispute.

Background:

The complainant worked for the respondent between the 11^th January 2016 and the 11^th May 2016. His weekly remuneration was €480.77. He asserts that he was subject to discrimination on grounds of race and that his dismissal had been unfair. The respondent denies the claims.

Summary of Complainant’s Case:

In submissions, the complainant asserts that the respondent discriminated against him with regard to his conditions of employment. He states that the respondent did not follow its own disciplinary procedures when it dismissed him. These employment breaches are sufficient to establish a prima facie case of discrimination. He suffered loss and inconvenience as a result of the actions of the respondent, including a sense of overwhelming hopelessness. He states that the discrimination was on the grounds of race. He is Irish and his country of origin is Nigeria. He also asserts that he was subject to harassment. The complainant provides emails exchanged between him and the respondent as well as his diary entries of workplace issues and a letter from a GP. The complainant also exhibits his letter of complaint of the 26^th April 2016, where he raises grievances to the Managing Director, including in relation to the tasks he was required to do.

The complainant asserts that he was subjected to discrimination, harassment, bullying and intimidation in how he was treated by the respondent. His contract stipulated that he did general administrative duties, including invoicing and working on the respondent website. He was not given the necessary training and assigned menial tasks to do. This included being told to get milk and other small jobs, such as putting the rubbish out. These menial duties were not part of his contract of employment and he had been singled out for these tasks. He and two colleagues had been shown where the bins were, but only he was asked to empty the bins. He brought this to the Managing Director’s attention in April 2016. Only he and the Managing Director had ever cleaned the kitchen area. He had been asked to buy milk when three colleagues were in the office and not asked to do this task. He refused to buy milk as he had work to do.

In respect of the start of his employment, the complainant outlined that he had been homeless for some time and as part of an employment support programme, he met with representatives of a non-governmental organisation, including the witness present at the adjudication, with whom he developed a good relationship. He attended training on CV preparation and interview technique. In October 2015, the NGO witness texted him to say that two jobs were coming up, one with an accountancy firm and a second with the respondent itself. The respondent chose not to put him forward for the accountancy role, but he sat the interview for the role with the respondent. This took place on the 17^th November 2015 and he started the role that day. He was trained in by a named colleague in how to advertise roles, in particular on social media. He attached links to specific roles and would also do this work on Saturdays and Sundays. He did search engine optimisation. The complainant said that he was impeded because of the actions of another named colleague. This colleague had refused to produce the necessary KPIs and did not give him jobs to put on LinkedIn. He raised this issue with the colleague and at a team meeting, and despite the intervention of the Managing Director, the colleague refused to help him.

The complainant outlined that issues developed with the Operations Director and referred to their emails between the 20^th April and the 10^th May 2016. There was an issue involving the complainant posting two jobs online and circulating emails to colleagues to remind them to like and share the roles. He omitted one colleague in error from the circulation list for one role. This was an oversight and he described it as a trifle. When he discussed this with the Operations Director, he informed him that the colleague omitted from the circulation list never shared the posts. The complainant said that the Operations Director scolded him at this time, talking to him like a baby. The complainant felt that the Operations Director was trying to placate the colleague. This conversation would have been overheard by the Managing Director, and she later sent an email to criticise his actions. The complainant later became upset when another colleague raised with him his failure to open notifications and he said that he had not been advised to do this. This led to an argument and the complainant and the Managing Director spoke about this in the conference room.

The complainant was asked to attend a disciplinary meeting after the phone conversations of the 26^th April 2016. He attended the meeting and presented his own letter of complaint, which the Operations Director refused to acknowledge. The complainant later sent this by email. No minutes were taken of the disciplinary meeting and he received a verbal warning on the 26^th April 2016 and confirmed in the letter from the Operations Director of the 10^th May 2016. This was on the grounds of refusing an instruction and questioning the manager’s authority. The complainant said that he had been on annual leave between the 3^rd and 9^th May 2016. He was short of money as he had not been paid in advance of this period of annual leave. He found on his return that he had nowhere to sit in the office as someone, possibly an intern, was using his desk. He attended work the following day and this is when he was told he was being fired. He was walked to his desk on the 10^th May 2016 in order to clear the desk. He then left the office. He later received the letter of the 11^th May 2016 and was paid until the 20^th May 2016.

The complainant stated that early on, the Managing Director gave him a lift to work until he was able to travel by public transport. He said that delay on the part of a named colleague meant that he was not able to progress an application for JobPlus, meaning that he lost out on social welfare benefits. He applied for this support in early January 2016 and gave the forms to the respondent in early February 2016. He was only handed the necessary documentation back on the 10^th May 2016 and the respondent did not avail of the scheme. Furthermore, the complainant lost the entitlement to JobPlus when his employment ended with the respondent.

The complainant signed a contract of employment on the 8^th January 2016, which states that his employment would start on the 11^th January 2016. He had started working for the respondent in November 2015, but had only received irregular cash payments in this time. He worked 40 hours per week, but was not paid for this amount of work. He was also not supplied with pay slips for this period. He was later sent pay slips, but all at one time. He said that later, the respondent had not followed the terms of its own contract and procedures, for example making accusations about the complainant in the open office. He said that on a number of occasions, the complainant was criticised but he was not given training in the relevant regulations. He said that the respondent had failed to follow its own disciplinary procedures, even during a period of probation.

In respect of the end of his employment, the complainant said that he was given notice that it was to end on the 10^th May 2016, and received a letter of termination the following day. His employment ended on the 11^th May 2016. He outlined that as of the date of the adjudication, he was unemployed and said that this matter had affected his health.

In closing comments, the complainant said that there was a conflict of interest between the respondent and the NGO. There was no evidence to support the submissions of the respondent. The Operations Director had emigrated and the colleagues were not present to give contradictory evidence. The notes relied on by the respondent were hearsay. The complainant did not accept the respondent’s evidence regarding hot-seating and did not accept the evidence regarding the business plan with the manager. It was no wonder that the complainant had become agitated when he was ordered around by the Operations Director.

Summary of Respondent’s Case:

The Managing Director gave evidence. She outlined that she had previously coached staff of a named NGO dealing with homelessness about helping their clients find work. She was then approached by this NGO to set up a specialised recruitment agency to help their clients find work and to get introductions with potential employers. This was how she met the complainant. She had mentioned to the witness that the respondent was looking for someone and the complainant went through the interview process. She was aware of the role with the accountancy firm, but this was only a six-month role. The complainant performed well at the interview and was offered the role.

The Managing Director said that the complainant had initially attended training for four weeks and was reimbursed travel expenses. At this time, the complainant would have attended work three days per week. She considered availing of the JobPlus scheme but did not follow up on this.

The contract of employment was provided to the complainant in January 2016. As the complainant was not in work on one particular day, they arranged to meet on a Saturday and the Managing Director collected him to meet a named colleague.

In respect of the first incident with this named colleague, the Managing Director said that she came late into the office and heard the complainant speak loudly and inappropriately to this colleague. She had spotted a comment on Facebook where a person had said that they could see the administrative part of the posting for a role. The colleague had said that there was a need to react to this. The Managing Director said that she understood that the complainant had behaved inappropriately and had seen him speak inappropriately and loudly to the colleague. The Managing Director then intervened and the colleague explained her efforts to fix the problem. At this time, the respondent was occupying hot desks in an office area shared with other entities. The Managing Director addressed the complainant’s behaviour in the conference room and described him as being “wound up”. They later spoke about this on the 23^rd January 2016, when the complainant apologised. At this time, the NGO witness called to speak with the complainant and with the Operations Director.

The Managing Director outlined that the complainant had three lates in April 2016 and had only texted to say he would be late on the first day. In respect of the tasks allocated to the complainant, all staff did the menial tasks associated with the office. She acknowledged that while the complainant did more than others, they all did their part. Each entity occupying the shared space had a rostered time to restock the shared fridge and she did this many times.

In respect of the omission of a colleague from the complainant’s email, the Managing Director said that this had been raised by another director. She forwarded this email to the Operations Director, who in turn raised it with the complainant. The Operations Director tried to sort the issue, but reported back to her that there was a problem. She was aware that the manager had not been sharing and liking posts for personal reasons. She had not been in the office on the 26^th April 2016.

In respect of the period of annual leave, the complainant had asked to be paid in advance, but he was paid on the Thursday of the week he was taking annual leave. He said that he was returning to work on Tuesday, 10^th May 2016, but attended work a day early.

The Managing Director and the Operations Director attended the meeting of the 10^th May 2016, where she sought to establish what had happened. She raised whether the complainant had acted appropriately with the Operations Director and commented that the complainant would not acknowledge the Operations Director at the meeting. The Managing Director raised the issue of there being a breakdown of trust and the complainant agreed with this. The Managing Director then said she was calling it a day. She said that in reply to the complainant’s grievance, they had supplied him with pay slips. The letter of the 11^th May 2016 refers to workplace incidents and the complainant’s refusal to accept directions from the Managing Director and his manager.

The NGO witness gave evidence. She said that she had highly recommended the complainant for the role with the respondent and that the role with the accountancy firm was being pushed out. She checked with the complainant that he wished to go forward for the role with the respondent and he agreed. She had an obligation to check in with both the employer and the employee to see that the role was working out. An issue had arisen in January 2016 regarding the tone of a conversation between the complainant and a colleague. She popped into the office to check that things were going well. She said that they raised the JobPlus scheme in some cases and that they were casual about people availing of it.

In closing submissions, the respondent submitted that it had been the email chain between the Operations Director and the complainant that triggered the disciplinary meeting. The dismissal had been based on the complainant’s reaction to these issues and the process.

Findings and Conclusions:

The complainant asserts that he was the subject of discriminatory treatment and harassment on grounds of race and in contravention of the Employment Equality Acts. He also challenges the fairness of his dismissal via a dispute made pursuant to the Industrial Relations Acts. The respondent denies the claims.

The first issue to address is the proper identity of the respondent. This arises because the contract of employment signed by the parties on the 8^th January 2016 refers to a different limited company. At the adjudication, the respondent acknowledged that the complainant had referred the complaint against the correct employer, and this differs to the employer incorrectly listed on the contract of employment.

CA-00004295-001 Employment Equality Act complaints

Section 85A of the Employment Equality Acts sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely on when asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in Valpeters v Melbury Developments Ltd [2010] E.L.R. 64, the Labour Court held, at page 68, as follows:

            “Section 85A of the Act provides for the allocation of the probative burden in    cases within its ambit. This requires that the Complainant must first establish    facts from which discrimination may be inferred. What those facts are will vary          from case to case and there is no closed category of facts which can be relied   upon. All that is required is that they be of sufficient significance to raise a        presumption of discrimination. However they must be established as facts on       credible evidence. Mere speculation or assertions, unsupported by evidence,  cannot be elevated to a factual basis upon which an inference of discrimination            can      be drawn. Section 85A places the burden of establishing the primary facts fairly  and squarely on the Complainant and the language of this provision admits of no         exceptions to that evidential rule.”

The complainant asserts that breaches by the respondent of employment statutes, such as not supplying pay slips and not complying with its disciplinary procedure, are sufficient to establish a prima facie case of discrimination. The Equality Tribunal in A Domestic Worker v An Employer (DEC-E2011-117) assessed such a proposition in the following terms:

“4.8 In addressing the probative burden in this case I am mindful of the Labour Court's finding that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case. This has been followed in a number of Equality Officer decisions. In this case it is alleged that an Irish employee would not have been treated in a similar fashion to the complainant. The complainant's representative submitted that the complainant was in a particularly vulnerable position. She was recruited from South Africa by the respondent. She was without family, friends or support network here. She had nowhere to live other than the respondent's house. When she arrived she found herself working here illegally without a work permit, a situation created by the respondent.

4.  In A Company v A Worker (EED024) the Labour Court found  "... on the balance of probabilities the treatment of the worker by the manager,            and the almost complete non-implementation of relevant legislation, was due to the fact that it regarded the worker as someone of a different nationality, who would not have the capability to stand on their legal rights and that by its actions.... discriminated against her on grounds of her nationality...In a normal recruitment situation the indigenous prospective employee would have far greater confidence about the situation. It would be possible to seek support in making their decision from advisory services, family, understanding of the structure and the interactions of the labour market, financial support of the state, to name but a few. In this situation, these options did not exist. It was either return to her country of origin (bearing in mind that she had sought to leave her country and committed substantial resources to bring it into effect) or take up the job offer. It was not a situation which would relate to an Irish employee."

Section 14A of the Employment Equality Acts addresses harassment and provides as follows:

            “(1) For the purposes of this Act, where—

            (a) an employee (in this section referred to as “the victim”) is harassed or          sexually harassed either at a place where the employee is employed (in this             section referred to as “the workplace”) or otherwise in the course of his or her     employment by a person who is—

            (i) employed at that place or by the same employer,

            …

            (b) without prejudice to the generality of paragraph (a)—

            (i) such harassment has occurred, and (ii) either—

            (I) the victim is treated differently in the workplace or otherwise in the course of         his or her employment by reason of rejecting or accepting the harassment, or

            (II) it could reasonably be anticipated that he or she would be so treated

            the harassment or sexual harassment constitutes discrimination by the victim's           employer in relation to the victim's conditions of employment.

            (2) If harassment or sexual harassment of the victim by a person other than his          or her employer would, but for this subsection, be regarded as discrimination by   the employer under subsection (1), it is a defence for the employer to prove that        the employer took such steps as are reasonably practicable—

            (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b)             also applies), to prevent the person from harassing or sexually harassing the        victim or any class of persons which includes the victim, and

            (b) in a case where subsection (1)(b) applies, to prevent the victim from being   treated differently in the workplace or otherwise in the course of the victim's         employment and, if and so far as any such treatment has occurred, to reverse its   effects.

            …

            (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have          effect as if for “in relation to the victim's conditions of employment” there were     substituted “contrary to section 11”, or, as the case may be, section 12.

            (7)(a) In this section—

            (i) references to harassment are to any form of unwanted conduct related to any        of the discriminatory grounds, and

            (ii) references to sexual harassment are to any form of unwanted verbal, non-  verbal or physical conduct of a sexual nature,

            (b) 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.

            (c) Without prejudice to the generality of paragraph (a), such unwanted conduct        may consist of acts, requests, spoken words, gestures or the production, display or        circulation of written words, pictures or other material.”

The first issue to address is whether the employment law breaches cited in this case, of themselves, establish a prima facie case of discrimination. Having considered the evidence, I find that the complainant has not met the legal burden in this regard. I say this because the height of the breaches advanced by the complainant relate to pay and pay slips in the period of November – December 2015 and adherence to the disciplinary procedure. There is a conflict of fact between the parties whether he worked for the respondent in 2015 or whether he attended training days and received expenses. I note that the complainant does not refer to 2015 in his diary entries entered as evidence. I have found as fact below that the respondent did not follow the disciplinary procedure for an employee under probation. Even if the remaining conflicts of fact are resolved in his favour, the employment law breaches are not of the same measure as arose in A Domestic Worker v An Employer and A Company v A Worker decisions referenced above. The complainant was not in the same position of vulnerability as the workers in those two cases, for example he was not working in the employer’s home and his right to be in Ireland was never in jeopardy.

Addressing the question of whether the complainant has established a prima facie case of discrimination on the evidence presented, I make the following findings. It is clear that in the months between January and May 2016, differences developed between the complainant and the respondent. The complainant objected to performing menial tasks in and about the office and felt singled out. The respondent raised issues regarding the completion of tasks and the complainant’s tone with colleagues. Having considered the evidence, there is insufficient evidence to say that these issues were in any way related to race. In relation to the claim of harassment, I find that the complainant has not met the burden provided by section 14A of the Employment Equality Acts. The respondent raised issues regarding the complainant’s behaviour and his tone to colleagues. While he disputed the validity of the criticisms, this is not sufficient grounds to say that the respondent’s actions constitute harassment of the complainant. For these reasons, the complaints made pursuant to the Employment Equality Acts do not succeed and are not well-founded.

CA-00004582-001 Dispute submitted pursuant to the Industrial Relations Act

The complainant asserts that he was dismissed unfairly and that the respondent failed to follow its procedures. The contract provides that during probation, an employee is entitled to one verbal and one written warning in an abbreviated process. The Operations Director first referred to giving a verbal warning to the complainant in a telephone call on the 22^nd April 2016 and confirmed this in an email of the same day. The verbal warning was formally delivered to the complainant at the meeting on the 26^th April 2016. It is referred to again in the letter of the 10^th May 2016, where the offer of an appeal is put to the complainant. This was the day the complainant was informed his employment was ending. This was confirmed by letter the following day. His employment ended on the 11^th May 2016 and he was paid notice pay until the 20^th May 2016.

Having considered the evidence, it is clear that the respondent had strong substantive grounds for the dismissal. It held a reasonable belief with regard to the complainant’s interaction and tone with colleagues and management. It acted by issuing a warning to the complainant. The respondent did not follow the stated disciplinary policy applicable to employees on probation, i.e. one verbal and one written warning. Even if the warning of the 10^th May 2016 could be classified as the second warning, the respondent indicated on that day that it was dismissing the complainant. There was no opportunity for the complainant to mend his hand. Weighing up the substantive grounds for the dismissal and the failure to follow procedure, I recommend that the respondent pay to the complainant redress of €600.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

CA-00004295-001

For the reasons outlined above, the claims of discriminatory treatment and harassment made pursuant to the Employment Equality Acts are not made out and are deemed not well-founded.

CA-00004582-001

I recommend that the respondent pay to the complainant €600 arising from the circumstances of his dismissal.

Dated:21^st August 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Employment Equality Acts

A Domestic Worker v An Employer (DEC-E2011-117)

Section 13, Industrial Relations Act, 1969