ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004513
Complaint for Resolution:
Date of Adjudication Hearing: 09/02/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
A Development Co-ordinator -v- A Professional Body for Housing policy
Procedure:
The Complainant has brought a claim to the attention of the Director General pursuant to Section 77 of the Employment Equality Act of 1998 seeking redress in circumstances where the Complainant says she has been discriminated against by reason of a contravention of the Acts.
The Complainant has brought the Complaint by way of Workplace Relations Complaint Form received the 19th of July 2017. This matter comes before the Adjudication services for the purpose of being inquired into and to hear the evidence offered and for the presentation of any further oral evidence documentation and written submission which might be offered by either side in support of their claim.
Complainant’s Submission and Presentation:
The Complainant has made the case that her dismissal on the 19th of January 2016 amounted to a discriminatory dismissal and is therefore contrary to the Employment Equality legislation. In the circumstances, the Complainant is under an onus to establish a prima facie case that the Dismissal was discriminatory. The burden of proof will shift to the Respondent once that Prima facie case has been made. The Workplace Relations Complainant Form is dated the 19th of July 2016 and was received within the six month period post the termination of employment which occurred on the 21st of January 2016. The Complainant was therefore in her employment less than 12 months. The Complainant says she was discriminated against on the grounds of disability and race. The Complainant additionally claims victimisation and Harassment. The Complainant has provided me with submissions.
The Complainant commenced her employment with the Respondent housing body in April 2015. The Complainant was to be based in the city of Dublin and was responsible for the operation of this Belfast based Employer, new presence in the Republic of Ireland. The Complainant was aware of the fact that her position would be a solitary one and that she would be reporting into and taking instruction from the office in Belfast and in particular form her immediate line Manager Ms. M. The Complainant’s Contract of Employment included a six month probationary period due to expire at the end of October 2015.
The relationship between the Complainant and staff at the Northern Irish Office never, it seems, took off. The Complainant detected a clear “them and us” attitude which had it seemed to the Complainant somewhat negative undertones – “southerners”, “liquid lunches”etc. There seemed to the Complainant to be a lack of emphasis or urgency on the work that she needed to get carried out by the administrative and clerical staff that was, she understood, meant to be supporting her. In the totality of their dealings with the Complainant the complainant felt that she was being discriminated against by the Northern Irish staff on the grounds of her Southern Irish status/nationality.
Issues came to a head in August of 2015 when Head Office in the UK was contacted in connection with the Complainant’s request that information contained in a data base be utilised. The support team in the Northern Irish Office did not raise any issue with the Complainant but instead went to Head Office in the UK to query whether Data protection issues surrounded this information. This was done without reference to the Complainant who believed then that a picture had been created of her having demanded an office subordinate (L) to do something illegal for her.
The Complainant felt undermined and under-supported by her own line manager when she raised this issue with her.
In fact this issue resulted in the Complainant’s Probationary period being extended with the contentious demand of “demonstrating positive contributions to team relations” being included. The Complainant believed this was a very one-sided demand made difficult by reason of the fact that there was no team inclusiveness in the first place and very little opportunity to work as a team. The Complainant felt that it became an almost impossible demand on her given the geographical distance between her and the rest of the team. The Complainant sought, in evidence to me, to put it one step further by stating it was more than just geographical and became a cultural or racial distance between her and co-workers arising out her being in the Republic of Ireland and not Northern Ireland.
There was some reconciliation between the Complainant and L in the October of 2015 thought this did not impact on the probationary report.
Between October and January 2016 an attempt was made to provide the Complainant with some guaranteed level of back up in the Belfast office. An individual (A) was obliged to make herself available to the Complainant on a couple of occasions a week. In reality this never happened as A was inevitably pulled in the direction of whomsoever most required her assistance and that was the person most proximate to A and not the person south of the border i.e. the Complainant
In January the Complainant’s employment was terminated at the end of her extended probationary period. The Employer cited the Complainant’s emails of the 7th of January as having had a significant bearing on the decision to terminate – it demonstrated, they said, evidence of an “unwillingness to strive to improve her relationship”. It seems they were on the point of ratifying the appointment when this email reversed their decision.
The email in question sets out the Complainant’s need for two way communication as well as planning and support
Respondent’s Submission and Presentation:
By way of preliminary point the Respondent has asked me to consider whether the Complainant’s complaint is out of time.
By way of secondary preliminary point it is noted that the Complainant’s claim is brought pursuant to the Employment Equality Acts of 1998 to 2015 wherein (pursuant to Sect 6(1)) discrimination is said to have occurred where one person is treated less favourably than another has or would be treated and based on the ground of race (in this instance) or disability (also claimed).
To succeed under these Acts there is a prima facie onus or burden on the Complainant to demonstrate that any less favourable treatment she says she has been subjected to is unavoidably linked to the fact that he is of a particular race, colour, nationality or ethnic origin. Ideally I would be provided with a comparator in this regard.
The Respondent has therefore asked me to find – as a matter of fact- that there is no evidence of a discrimination against the Complainant on the grounds of either race or disability.
The Respondent’s own written submissions were also considered by me in the course of the hearing.
Decision:
I am minded in all the circumstances to extend time in favour of the Complainant herein and am accordingly hearing the Complaints made under the Employment Equality Acts.
There can be no doubt that the Complainant has every entitlement to feel that she has been unfairly treated. It is clear that the Respondent herein gave little or no thought to the supports that a Dublin based employee would require to successfully negotiate her way into a start-up entity which would emulate the similar successful entities that operated in Northern Ireland, Wales and England. On balance of probabilities I find that there was failure to keep the Complainant integrated within the Northern Ireland structure and welcome as a member of the team. I believe the failure rests with the Complainant’s own management.
The Complainant was met it seems with a wall of excuses, obfuscation and mixed messaging from the Office situate in Belfast. There was no consistent messaging and no sense that anyone supported the Dublin based enterprise. It is inconceivable that any company, for example, would promote as preferable the use of telephone dialogue over exacting emails – where the former is so fraught with misunderstanding and miscommunication. Whilst the telephone is certainly expedient and useful, it cannot, in the modern era, be thought to have the same value as emailing. The criticism that the Complainant “over communicated ” by email was unfair, out of step and goes against good workplace practise and demonstrates a lack of awareness of the difficulty being experienced by the Complainant who was working remotely and therefore unaware of nuances of changes and culture in the Belfast office. The only sensible way for the Complainant to have communicated was by email.
Equally the refusal to have bullet points taken at conference calls so that everyone is clear on what has been on the agenda was simply unreasonable in all the circumstances, and the suggestion that the Complainant instead work on her active listening skills was inappropriate. The Complainant was not being given video conferencing facilities (which she had been promised) and was instead being put on conference calls which left her understandably worried that she was not catching everything.
It is accepted on balance that the Complainant operated in isolation and felt alone and up against a team that did not reach out to her in terms of support, assistance or collegiality. That the Complainant herself was accused of not fitting in with the pre-existing team exacerbated her difficulties.
The difficulty is that the Complainant cannot say that her treatment was in any way – directly or indirectly – discriminatory. I cannot be satisfied that the thoughtless phrase “you southerners” and other similar throw away comments, are sufficient evidence of corporate mind set. There is no evidence that the Complainant even believed that there was an unchecked discriminatory motivation behind the behaviour of her colleagues. To some extent I have to accept that the Complainant’s assertion in her Workplace Relations Complaint Form has been a response to the unfair way in which she has been treated. It does not, however, set up the required Prima facie case and therefore does not push the burden of proof over on to the Respondent.
There has been an unusual additional issue relating to the Complainant’s hearing. I cannot find that this issue has had any bearing on the manner in which events unfolded. Whilst it is common case that the Complainant found conference calls to be difficult to follow there was never any issue of a hearing impairment and although it seems to have been mistakenly taken up as having been an issue, I would fully accept that it had no bearing on the decision to terminate and was only ever raised at management level for the simple purpose of ensuring that appropriate accommodation be made – if required. There was therefore no discrimination – direct or indirect relating to any disability whether real or perceived.
On balance I must therefore find that whilst the decision to terminate the Complainant’s employment might have been considered unfair, there is no evidence that it was grounded in Discrimination. The claims of victimisation and harassment most also fail.
Decision:
The Complainant is unsuccessful under the Employment Equality Acts
Dated: 12th June 2017