ADJ-00002023

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002023

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

Date of Adjudication Hearing: 30/11/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

The Complainant, a male Polish National, was employed at the Respondent’s childcare crèche as a Kitchen Assistant through a CES scheme from 3^rd August 2015 to 29^th July 2016. He was on the CES rate of pay, circa €10.8 per hour.

The Complaint has alleged that due to an altercation he experienced with his manager he had his terms and conditions of employment unlawfully altered and that he has been discriminated on the gender ground. He maintains the offences occurred between 18^th February 2016 and 3^rd March 2016.

In his evidence at the hearing the Complainant has contended that, following a series of altercations in the workplace with his supervisor regarding concerns that he had related to the hygiene matters, care of his daughter that attended the crèche, and the general tidiness of the crèche, his job was changed without written notification. He further contended that as a consequence of the ongoing altercations he was discriminated on the gender ground as he was the only male working in the crèche, and where the attitude of his supervisor and the other female staff in the crèche treaded him less favourably than the female staff in the workplace.

The Complainant alleged that the issues came to the fore following his daughter being offered food that would cause her an allergy. The outcome of this event led to disciplinary action being taken against the Complainant which amounted to a verbal warning and a corrective plan of action to address a finding of a breach of behaviour related to the Crèche facilities Code.

The Complainant has made two complaints as follows:

1. CA-00002739-001 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant maintained that he had expressed concerns regarding the provision of allergens to his daughter at the crèche. An event had occurred in circa October 2015 where his daughter was given food that she was allergic to and where the Complainant had asked that this should not happen again.   However on 3^rd Feb 2016 he observed a member of staff attempting to provide his daughter with similar food and he came into the area to address the matter.

Following a conversation with his supervisor, a female member of staff, the Complainant remained unhappy with the outcome. He contended that his supervisor had been aggressive towards him, and he felt this behaviour had been unreasonable. The Complainant subsequently spoke with the Services Manager, a female member of staff, and he seemed reassured with that discussion. He then met again with his supervisor where another argument ensured and where he told his supervisor that he was resigning and not coming back to work. The Complainant also relayed this to the Services Manager because he was so upset with what happened.

The Complaint advised that he changed his mind overnight and returned to work the following day. However when he retuned to work he was advised by the Receptionist, a female member of staff that he could not attend work. He reported the mater to the CES Manager. He was then appointed to another job as a cleaner and in a different place of work under the CES scheme.

The Complainant also alleged that the Respondent abused his sick leave scheme. From 4^th February 2016 until 10^th March 2016 the Complainant maintained that he was banned from attending his workplace, was forced to work elsewhere, and did not receive any notification of these changes in writing. He subsequently retuned to his role on 10^th March 2016.

The Complainant therefore alleged that his job was changed between February and March 2016 without any written notice or agreement, contrary to the Terms of Employment (Information) Act 1994.

The Complainant also contended that he was required to complete tasks that were beyond the role of a Kitchen Assistant such as cooking, creating safety check lists, and associated duties and that this was not reasonable or within his terms of employment. 

2. CA-00002739-002 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Complainant alleged that he has been treated unfairly by his Supervisor who is female. He outlined that since his appointment in August 2015 he has been the only male employed in the crèche. He had observed ongoing concerns regarding the running of the crèche and specifically observed the following concerns:

• the children being fed from dishes that had fallen on the floor but had not been washed;

• a member of staff taking her smoke break between two bins and returning to work with the children without washing her hands and this was unhygienic;

• his daughter being fed allergens in October 2015, and following this event a further attempt to feed his daughter allergens on 3^rd February 2016;

• regularly finding the kitchen area untidy after he had cleaned it;

• that he had raised many ongoing concerns with his Supervisor who regularly committed to come back to him but never did, and when she discussed the issues with him she shouted at him;

• that he was forbidden form talking with any of the childcare staff who were all female; and

• that the other members of staff, who were all female, stopped speaking to him.

As such the Complainant contended that he was being treated differently by his female supervisor, and other females in the workplace, and this amounted to discrimination against him.

Respondent’s Submission and Presentation:

The Respondent confirmed that Complainant worked with them as a Kitchen Assistant from the setting up of the crèche in early August 2015, before it opened on 15^th August 2015. It advised it was a new project in the area as part of a Woman’s Aid Project and they were learning as the project developed. They acknowledged the Complainant worked to a very high standard and was supportive of the project, where he was the only male member of staff.

1. CA-00002739-001 Response to Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent acknowledged that the Complainant’s daughter had been fed allergens in October 2015 and this had caused a difficulty for the Complainant and resulted in difficulties between the Complainant, his supervisor, and some of the Childcare Assistants. The Respondent also acknowledged that there was a history of ongoing difficulties between the Complainant and his Supervisor, and there were concerns raised regarding the manner the Complainant would speak to the Childcare Assistants if he believed that appropriate standards were not maintained.

The Respondent maintained that this ongoing behaviour had impacted on relationships in the workplace where the Service Manager had to directly intervene and speak with the Complainant at the time. The Respondent also argued that the Service manager would have met with the Complainant on an ongoing basis to address his concerns and to advise him on how to behave towards others. Up to 3^rd February 2016 these discussions had been informal.

The Respondent confirmed that a particularly difficult altercation occurred between the Complainant and his Supervisor on 3^rd February 2016 which concerned the offering of food to the Complainant’s daughter and which she was allergic to. The outcome of this altercation was the Complainant spoke to the Services Manager who decided to review what had happened. Upon an initial review, the Services Manager became concerned with the alleged behaviour of the Complainant, and where it was reported to her that the Complainant had upset some of the children and staff in the crèche. The Respondent therefore decided that the matter needed to be formally investigated. The Respondent also maintained that during the altercation the Complainant had said he was going to leave and that he would take legal action against the Supervisor. The Respondent understood that later that day the Complainant and the Supervisor had a further altercation and where the Complainant was angry and aggressive and told the Supervisor he was leaving. In cross examination at the hearing the Complainant confirmed he had told his supervisor he was leaving the job.

On that basis the Respondent had intended to investigate matters, and did not expect the Complainant to turn up for work the following day. When the Complainant returned he was advised to go to the CES Manager and was not permitted to enter the workplace in light of the report that he had upset the children the previous day. The Respondent was subsequently advised that the Complainant had taken sick leave after reporting to the CES Manager. Notwithstanding, the Respondent progressed to investigate matters, wrote to the Complainant to advise him of this decision, and invited him to participate in its investigation, which he did.   In cross examination the Complainant maintained that he did not receive the letter informing him of the investigation, but he did sign a confirmation that he was willing to participate in the investigation process. The Complainant did attend the investigation meeting, and he did receive notes of the meeting.

During the course of the investigation the Complainant was not allowed to attend work, and once he completed his sick leave the CES Manager, not the Respondent, redeployed him to another job without prejudice, to facilitate the investigation.

The outcome of the investigation was that the Complainant may have breached the crèche’s behaviour code and he was subsequently invited into a disciplinary hearing, which the Respondent maintained the Complainant had consented to participate in. The outcome of this hearing was that a behavioural breach had occurred, and following an adjournment of the disciplinary meeting to consider matters, the Respondent reconvened the meeting and then issued the Complainant with a verbal warning. This warning was provided to the Complainant in writing, where it was read out to him at the re-adjourned meeting, and he also signed a confirmation to that effect. (It is noted that at the hearing the Complainant denied receiving the warning stating that he did not know what he had signed, and that he would never have consented to a warning as he maintained he had done no wrong).

The Respondent also asserted that at the disciplinary meeting that the Complainant had made a detailed submission, a copy of which they presented to the Adjudication hearing, and where they maintained they subsequently dealt with the relevant issues raised therein, and this was confirmed at the hearing by the Complainant.

Following this the Complainant returned to work and no further issues were encountered. The Respondent noted that his behaviour and approach had improved, and the Services Manager met with him regularly to review matters. The Complainant then left of his on accord on 29^th July 2016 following ones years service under the CES scheme and where he did not renew his contract with the Respondent.

The Res pendent also maintained that the role of Kitchen Assistant was a broad role and not just one that related to cleaning. There was a requirement to prepare and cook food, and this practice was standard for the Complainant’s grade. As the project was new and all were learning from the roles and what was required the Respondent did not accept that it changed the role of the Complainant and therefore it denied it breached or changed the Complainant’s Terms of Employment.         

2. Response to CA-00002739-002 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Respondent denied that any discrimination on the gender ground occurred in relation to its dealings with the Complainant.

The Respondent acknowledged that the Complainant was the only male member of staff. However they had selected him in August 2015 at the start of the project. The Respondent maintained that the childcare sector tends to attract few male employees, but this was not discrimination. They believe their decision to recruit a male member of staff supports their contention that they do not discriminate.

The Respondent agreed with the Complainant that there was a pattern of difficult relationships between him, his Supervisor, and other members of staff, all of whom happen to be female. The Respondent argued that these difficulties emerged due to the attitude and behaviour of the Complainant towards his supervisor and other staff members. In this regard the Respondent maintained that the Complainant had very high and exacting standards and if these were not met he would have engaged with staff in a manner that was upsetting to the staff. The Respondent acknowledged that in particular issues emerged in October 2015 regarding the Complainant’s daughter being offered food with allergens, and the same again occurred on 3^rd February 2016. However the Respondent maintained that it had a number of discussions with the Complainant about his behaviour over the February 2016 incident, and this was in part what led to his warning following a disciplinary process in March 2016. It therefore contended that the experience the Complainant had with members of staff was not related to gender but as a consequence of interpersonal relationships and the attitude the Complainant had towards others I the workplace. The Respondent further maintained that at no stage did the Complainant raise any concern that he was being discriminated on the gender ground up to the time of its complaint of the 3^rd February 2016, (which is the complaint under consideration at the Adjudication Hearing), nor at any time thereafter. The Complainant acknowledged this to be the case during cross examination.

Decision:

Having heard the parties, and carefully reviewed the evidence presented, I make the following decision.

1. Decision in relation to CA-00002739-001 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

   Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act, and Section 7 of the Terms of Employment (Information) Act, 1994. 

   Sec 5 of the Terms of Employment (Information) Act, 1994 requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than- (a)1 month after the change takes effect… 

   Based on the evidence provided I am satisfied that the Complainant was required, without prejudice, not to attend the workplace to facilitate an investigation, and that the Respondent was entitled to exercise this decision, particularly in light of its concerns regarding the care for the children in the crèche where it was reported that the Complainant’s behaviour towards his Supervisor had upset some of the children, and where there was a history of the Respondent addressing the Complainant’s general behaviour. In addition the evidence presented conforms that it was the CES manager, not the employer, who decided to redeploy the Complainant to another work location to facilitate the investigation rather than to leave him on administrative leave to facilitate the investigation. On completion of the investigation the Complainant received a written warning and returned to work with no change in his work duties. 

   I therefore do not uphold that the Respondent failed to comply with Sec 5 of the aforementioned Act. As such the complaint fails. 

2. Decision to CA-00002739-002 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

With regard as to whether the Complainant was discriminated against, I refer to the Employment Equality Acts 1998-2011 as follows: 

Section 6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) 

Section 6.(2) (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), 

Section 8(1)(b) it is unlawful to discriminate in relation to conditions to employment. 

Section 8(4) (4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination. 

Section 8(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,  

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different. 

Having reviewed the events that occurred I do not find that a prima facia case exists that the Complainant was discriminated as a consequence of his gender or other protected ground under the Employment Equality Act 1998 as outlined above.

It is clear that the Complainant experienced difficult interpersonal relationships with his Supervisor and his work colleagues. However, it is also reasonable to conclude from the evidence presented that the Complainant contributed to these interpersonal relationships by his argumentative nature, and this was a concern that was brought to his attention within two months of starting his work, and particularly so after an event in October 2015. Whilst it may well be that his Supervisor also contributed to a deterioration of the relationship by her alleged attitude towards the Complainant, it is not at all evident that what occurred was either wholly or even partially as a consequence of the Complainant’s gender. Indeed, the Complainant never raised discrimination as a concern before the incident of 3^rd February 2016, or during the subsequent investigation and resulting disciplinary hearing. In fact, on at least two occasions he confirmed that he was a willing participant in the procedures. I find he was afforded a fair disciplinary procedure and he has not presented a comparator where he believes he was treated less favourably.

I am conscious that as a Polish National there was a risk that he may have been disadvantaged at the Respondent’s investigation and disciplinary hearings as English is not his native tongue. However based on his appearance at this Adjudication hearing I am satisfied he is competent and capable of understanding the Respondent’s procedures that were conducted in English. Furthermore, following the Respondent’s disciplinary hearing the Complainant was issued with a verbal warning; and under the circumstances I view the verbal warning as being quite a reasonable sanction, and not reflective of the actions of an employer who might be intent on acting in a discriminatory manner.

I therefore do not uphold that the Complainant was discriminated against and consequently find that his complaint under the Employment Equality Act fails.

Dated:   08 February 2017