Complainant

Respondent

Anonymised Parties

Multilingual Support Advisor

A Computer Company

Representatives

Appeared in Person

Mr Darragh Whooley ,Employee Relations Manager .

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00007120-001

21/09/2016

This case concerns a Lithuanian National in his complaint that he was discriminated on age grounds during the course of his employment and subject to discriminatory dismissal on 28 April 2016.The Respondent denies the claim.

On 13 February, 2017, in accordance with her powers under Section 75 of the Acts, The Director General, WRC, delegated the case to me for investigation, hearing and decision. I commenced my investigation on that date .Submissions were received from both parties and a joint hearing was heard on 23 March, 2017 as required by Section 79(1) of the Acts.

On May 2, 2017 I received a supplementary submission from the respondent following the hearing, which was exchanged with the complainant. No further commentary followed.

The Complainant commenced work as a Multilingual Service and Support Administration Advisor on a permanent contract on 14 September, 2016.He enjoyed his job and submitted that he brought a significant amount of knowledge and skills to the position .He understood that his work performance was satisfactory, he was aware that two period of lateness had been an issue for the Department he worked in, but customer feedback was excellent.

The complainant submitted that after Christmas 2016, the respondent’s attitude changed towards him and he was the subject of a plan by the respondent to cease his employment .He contended that this was age related. He stated that he was 44 years old during the course of his employment and 45 years old on the day of the hearing .He submitted his comparator as Ms AB, a 27 year old co –worker who had commenced work around the same time.

The Complainant state that Ms AB had worked together with him ,” sharing knowledge and the same procedural routine and workflow , covering each others absences ”Ms AB had passed her probation ,going on to secure pay and benefit improvements , while he had not succeeded at probation. The Complainant submitted that Ms AB had no experience in the field and he taught her a lot. They earned the same salary.

The Complainant understood that he was facing a six month period of probation, which could be extended at the discretion of the company .The Complainant believed that he had been treated differently to Ms AB as she was not subjected to the same scrutiny of her performance, attendance or Performance Evaluation as he was.

The Complainant submitted that he had been approached by his Manager, Mr M, in early February 2016 with a discussion sheet, which was followed up by a Performance Improvement Plan .He believed that his remarks were ignored and his work was devalued, training withheld and his probation extended .This raised a suspicion for that complainant that it was the Departments “real intention to dismiss him by the end of my one year tenure at any cost “He took professional advice from January 2016.

The Complainant described being unwell where he needed to avail of 10 days sick leave, for which he was unpaid .During the course of the hearing, the complainant stated that he was still unwell and exhibited a plastic bag consisting of his personal medication.

The Complainant lodged three grievances and consulted with the Human Resource Department in early February, 2016.

The complainant submitted that he broached the subject of seeking a “peaceful separation “with his Manager on two occasions over 5 February and 8 March 2016 in his 1:1 meetings, but this proposal was not accepted .He also stated that he had contacted two other Managers in seeking support for his contention of “taming the in office inequity rapidly accumulating against meshed did not receive a favourable response.

The Complainant confirmed that he had raised a grievance against Ms D, regarding her alleged Bullying Behaviour on April 20 .This was finalised by the respondent on 12 May, 2016 after his dismissal had taken place and did not uphold the grievance.

The complainant stated that he received a letter of dismissal with immediate effect on 28 April 2016, which he appealed. The Appeal Report issued on 17 May 2016 and did not uphold the appeal.

The Complainant contended that his Manager, Mr M had mismanaged his employment and he believed that he had been firstly discriminated on age grounds and latterly dismissed on age grounds

The Complainant submitted that he had left a permanent position to avail of the position at the respondent company .He contended that the reasons given for dismissal suggested both misconduct and underperformance, which seriously compromised his good professional and personal reputation and damaged his health .His Non EU Family were also vulnerable as a result, His wife was a Filipino national. He regretted the outbursts he directed at his Manager.

The Complainant sought restitution of his job and monetary compensation for his jobless period .He also sought a letter outlining his involuntary unemployment.

The respondent employs in excess of 5,000 people in Ireland and disputed all claims of discrimination.

On commencement of employment, the complainant was advised of the Company Attendance Policy in addition to the Company Probation Policy.

In November 2015, Mr M, the complainants Manager emphasised the importance of handling cases in line with established processes. The respondent confirmed that the complainant did not follow the established procedures in handling a case and received a discussion sheet/Action Plan on December 18,reminding him of the importance of following established processes and the support and resources available to him .The complainant signed acceptance of this plan .

The Complainant came to the attention of his Team Manager when he had a high level of absences and lateness and he was issued with a second discussion sheet on February 5, 2016.

On 21 March, 2016, the complainants probation period was extended by a period of 3 months in respect of he concerns already outlined .The Complainant refused to sign this sheet .The Respondent made further attempts to support the complainant through Personal Improvement Plans ( March to April ) and Attendance management . The complainant recorded further absences on April 8 and 14, 2016.

The Respondent held an Investigation Meeting and Outcome meetings and the complainant had his employment terminated with notice on April 28, 2016.An Appeal lodged on May 4 was heard by Ms M 2, from the Agreements Team and was not upheld.

The respondent submitted that all stages of the Company Performance Improvement and Probationary Procedures were followed fairly and diligently and at no stage did the age of the complainant or indeed any other discriminatory factor form part of the process that was followed at Probation or the circumstances which led to the termination of his contract.

Mr A( Employee Relations )

Mr A submitted that the episodes of lateness that caused concern were those over 5 minutes in duration. There was no pay reduction before that. He confirmed that he was aware that the complainant was upset through the periods where his work performance was being analysed, but the respondent was troubled by his disparaging remarks directed at his Team Manager .The Complainant signalled his intention to lodge complaints, and eventually submitted a grievance on 22 March 2016 which was found to be unfounded. He also lodged a complaint against a fellow worker, which was not upheld .The Respondent had removed Mr M from the process and Ms M2, Area Manager stood in .The Investigation was undertaken by another Representative of Employee Relations, Mr HR 1 and based on a full review.

The respondent wished the complainant well but there was no proof that he was treated less favourably on age grounds or that his dismissal was age related. He did not pass his Probation.

Mr A submitted that the average age of employees in the Department, where the complainant worked was 46 years.

Mr M submitted that he had implemented several improvement plans and coaching for the complainant aimed at addressing his performance. He had undertaken a performance review in the company of Mr A and Ms M2 March 22, 2016 .The complainant had been challenging to manage and had directed an extraordinary outburst towards him as a Manager , inclusive of a social media contact on April 22,2016

“Why don’t you fire me, please? I’m so tired of your rubbish and “management charade “Where are you now? I want to speak to you?”

Ms M2 gave evidence that she had taken over from Mr M on the issue and she had been in attendance with Mr A and Mr HR 1 when the decision to terminate the complainant on probation took place.

The Respondent furnished a response to the complainants Solicitor dated August 15, 2016. This outlined the reasons for his dismissal and rejected the application for an additional payment.

Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in 6(2); a person is treated less favourably than another is, has been or would be treated. The discriminatory ground alleged  in this case is age. Therefore the issue for me is to make a   decision on is whether the respondent:

(a)    Discriminated against the complainant on age grounds?

(b)   Whether the Respondent discriminatorily dismissed the complainant?

I must first consider ,in evaluating the evidence ,whether the complainant has established a prima facie case in accordance with Section 85A of the Acts .The Burden of proof rests with the complainant as set down in the Labour Court Case Melbury Developments Limited and Valpeters [2010] 21 ELR 64

“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. While those facts will vary from case to 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 discriminationHowever, 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.”

1 Age Grounds

I have given careful consideration to the submissions raised by the parties in respect of the claim of discrimination on age grounds. The complainant cited a 27 year old co worker, Ms AB as a comparator and it was accepted by the parties that the complainant was 44 and the comparator 27 years old.

The complainant contended that Ms AB passed her probation and went on to secure greater benefits , while he was faced with a problematic employment progression .He submitted that Ms AB was junior to him in both experience in the field that they both worked in and in skills and he contended that his age disadvantaged him .

I was struck by the consistent approach adopted by the respondent in the management of the complainants episodes of lateness and illness .The documents exchanged were based on the contractual probation position and proved to be objective in their approach. I accept that the complainant asserted that he was being “managed out “from early 2016, however, I did not establish evidence of this. I was struck in particular by the concerted efforts made by Mr M to integrate the complainant into the workforce by way of discussion plans, improvement plans and training.

The complainant presented as very aggrieved by his experience at the respondent company and I reflected on the number of efforts he made to secure an amicable severance in advance of the decision taken by the company on his probation status .This led me to form the view that the complainant was not actually as satisfied with the company as he presented at hearing. He did not dispute the evidence given by Mr M with regard to the email canvassing his dismissal on April 22.

In Ntoko v Citibank, EED045, the Labour Court directed that normal rules of evidence must be adapted to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something outside their reach, which may only be within the respondent’s capacity to prove. I asked for some detail on the comparator relied on by the complainant. The Respondent furnished a copy of her CV.This did not prompt any further commentary by the complainant. I did not find anything in this document which influenced my findings bar a CV which detailed extensive work experience on behalf of Ms AB.

In Campbell Catering V Rasaq EED048, The Labour Court held that where there is a difference in treatment and a difference in race, there is prima facie evidence of discrimination. In this case, I have not found evidence of a difference in treatment on age grounds by the respondent. The complainant submitted that his age was the reason that he was treated less favourably during his time spent working for the respondent .He did not; however submit facts of   sufficient significance to reach the burden of proof in this case. He did not sufficiently link the fact that Ms AB passed her probation, while the complainant was unsuccessful to age grounds.

I accept the comprehensive reasoning and rationale for this proportionate outcome of the probation procedure as submitted by the respondent. In Darguiz v Lough Corrib Engineering DEC-E2009-038, the case concerned a Lithuanian national who claimed discrimination on race grounds. The Equality Officer found that

“Throughout this case the assertion is that where an employee is treated in a manner perceived to be less than ideal and where there is a difference in race there is automatically a prima facie case of discrimination. I am satisfied that this is not an accurate reflection on case law as it stands, which in my view requires evidence of a difference in treatment “

I have already remarked that the complainant carried an indented sense that he had not been fairly managed and I can draw an analogy between his position and that captured by Darguisz. The complainant sought to raise some grievances regarding his issues; however, these reflected interpersonal difficulties he experienced rather than concrete appeals of the probationary process. He did not rise that he was being treated differently on age grounds at that time.

I find that the complainant has not established a prima facie case of discrimination .I understand his stated difficulties in how he observed a premature ending of an employment placed him in a precarious, financial, social and health situation .However, on the evidence presented, and in the all the circumstances, I have found this to be a case of a proportionate management of the complainants’ probationary procedure rather than a breach of the Acts.

2 Claim for Discriminatory Dismissal

Employment Equality Legislation prohibits dismissal on any of the protected grounds .Dismissal is described in Section 2 of the Act. The Labour Court case of A Worker ( Mr O , No 2)V An Employer ,[2005]ELR 132 outlines the circumstances of a Discriminatory Dismissal on disability grounds .

I have to decide whether the respondent dismissed the complainant in circumstance amounting to discrimination on the grounds of age in accordance with section 6(2) of the Act and in contravention of Section 8?

The Respondent opened details of the probationary procedures before the hearing. The complainant accepted that he was subject to this probationary process as part of his contract of employment. I have found that he was dissatisfied with this management approach and expressed repeated difficulty at the hearing on the respondent management techniques in this regard. I noted that while the complainant refused to sign a number of the documents linked to his probationary process, he did not appeal the decisions taken, outside his eventual appeal of his dismissal.

He did not take issue with the factual merits of the respondent’s reasons for this approach. He accepted that he had been late, had sustained periods of illness and had difficulties with components of the task he was set. However, it seemed to me that he condensed these difficulties into his understanding of interpersonal difficulties between his Dutch Co Worker, Ms. D, Co workers and latterly with his Manager, Mr. M. The complainant confirmed that he had directed some very strong language towards his line Manager which he regretted. I was struck by the complainants very strong views expressed at the hearing concerning Mr. Ms. management style exhibited towards him. He was clearly uncomfortable .I also noted that the Respondent augmented the Management Team by installation of Ms. M2 in that regard. I found this to constitute a fair and reasonable approach.

I found that the complainant’s submission to the present hearing of his case was largely based on the appeal submitted of his dismissal in May 2016. I noted that this appeal was presented by the respondent as a review appeal rather than a 1; 1 Appeal hearing .While the Area Manager who conducted the Appeal did not present before the hearing, I found the Investigation Summary presented did not encompass a hearing per se and it may have been beneficial and more in keeping with fair procedures for all parties, if the complainant had been heard and met with rather than written to at that key juncture. I also noted that the complainant was a lay litigant and while he may have been in receipt of professional advice from early 2016, I could not establish that anyone advocated on his behalf outside himself. It may have been beneficial for the complainant to have considered such an advocate.

I have considered the circumstances outlined by both parties in relation to the dismissal. I have taken account of the respondent evidence that 46 was the average age of team members at that time, this was not disputed by the complainant .However, I was drawn most to the documentary evidence submitted in relation to the probationary process .The complainant was an active participant in the process up until his probation period was extended at the end of March, 2016.

The documentary evidence was plain and consistent and referred to at first a mutually agreed need to chase an improved performance followed by a Respondent statement on the complainants work performance and behavioral shortfalls unsigned by the complainant .I noted that the complainant made a complaint against Mr. M which was addressed and not upheld in the letter of termination on 28 April, 2016.

I could not establish any evidence within either the documentary evidence or oral evidence submitted that pointed to a decision making process of dismissal which was related to the complainant’s age. Instead , I found that the respondent demonstrated that the company had presided over a probationary process which was found to be objectively unsuccessful in terms of the

1 Complainants work performance which did not meet the company standard requirement.

2 Complainants behavior.

I noted that the complainant had sought a severance payment during the employment relationship and Appeal letter on May 4, 2016 in addition to canvassing for his decision .This again struck me as evidence that the complainant had developed an insight that his position was not working out .I have found that the company made a concerted effort to underpin the complainants chances of success at probation and it was regrettable that this goal was not realised by the parties. I have found that The decision taken to dismiss the complainant was unrelated to his age.

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.

I have found that the complainant has not established a prima facie casein relation to :

2 That he was discriminatorily dismissed on age grounds.

The complaints are not well founded.

Discriminatory Dismissal, Discrimination on age grounds.