ADJ-00005213

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005213

Parties:

	Complainant	Respondent
Anonymised Parties	A Sales Manager	A Global Technology Company

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00007205-001	22/09/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00007205-002	22/09/2016

Date of Adjudication Hearing: 23/03/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 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.

Background:

The Complainant was employed as Manager Inside Sales from 1^st May 2008 to 29^th June 2016. He was paid €144747 in total in 2015 based on the P60. He has claimed that he had a disability and his employer failed to provide reasonable accommodation, he was discriminated against under family status in the application of parental leave and he was victimised and harassed. He has sought compensation.

1) Payment of Wages Act 1991 CA 7205-002

The complaint under the Payment of Wages Act CA 7205 002 was withdrawn.

2) Employment Equality Act CA 7205 -001

Summary of Complainant’s Case:

The Complainant submits that he was discriminated against on the family status and disability grounds in relation to his conditions of employment with the Respondent resulting in his work-place stress, and that there has been a failure on the part of the Respondent to provide him with reasonable accommodation for his disability work-related stress and depression. As a result of his discriminatory treatment at work, the Complainant began to suffer from work-related stress which caused him great upset, distress and anxiety, greatly disrupted his sleep, gave him a poor appetite, and adversely affected his professional and personal life. He was subsequently diagnosed by his GP with moderate depression.

Notwithstanding that the Complainant informed the Respondent of the fact that he was suffering significant stress as a result of his discriminatory treatment, the pressure of work, and long hours which he worked, the Respondent failed and refused to provide him with reasonable accommodation in relation to the scheduling of disciplinary meetings, the conduct of the disciplinary proceedings, failure to allow him to appeal, to engage with his solicitors in relation to his appeal and his resignation which he gave to the Respondent due to his concern that he was being forced out..

He was harassed and victimised by the Respondent and the termination of his employment amounted to a discriminatory dismissal.

THE ALLEGATIONS OF DISCRIMINATION, HARASSMENT AND VICTIMISATION

Pursuant to a contract of employment dated the 30^th of July 2013 the Complainant was employed by the Respondent as Manager, Inside Commercial Sales at its company offices situated in Dublin effective from the 1^st day of October 2013, he had been employed by the parent company in or around the 1^st of May 2008 until his relocation to Ireland in October 2013.

As would appear from the said contract of employment the Complainant’s basic salary was in or around €67,024.20 per annum and he was eligible to participate in the Respondent’ commission scheme, namely the Sales and Services Compensation Program.

For the purposes of the aforementioned commission scheme, for the period from the 1^st of April 2015 to the 31^st of March 2016 – the Fiscal Year 2016 - the Plaintiff’s Target Incentive was set at 44,520 and his Quota of Total Bookings was set at 13,531,218.

On or about the 16^th of May 2015 the Complainant completed a Parental Leave Notice Form wherein he gave notice of his intention to take parental leave in respect of his infant daughter commencing on the 4^th of January 2016 and returning to work on the 25^th of March 2016. On or about the 24^th of June 2015 the said request was approved by the Complainant’s then manager.

In or around November 2015 a new manager was appointed as his line manager. The new manager made it known to the Complainant that he disapproved of him taking parental leave and/or disapproved of how the Complainant intended to spend his parental leave and made a number of attempts to convince the Complainant to take unpaid leave instead. The Complainant was very concerned at this proposal as he believed he would have no protection if he agreed to take unpaid leave and could not understand why this was now being proposed given that his parental leave application had been approved 5 months previously.

Given the pressure exerted on the Complainant, he then contacted HR and discussed this and specifically his protection when taking parental leave and his right to return to his role. He understood that he would receive greater protection when taking parental leave. He subsequently confirmed to his manager of his intentions to take this leave and refused to take unpaid leave.

Knowing that he would be absent from the workplace for the period between the 4^th of January and 25^th of March 2016 on parental leave the Complainant set about ensuring that not only were his and his teams targets met but that they were exceeded. Prior to commencing parental leave in January 2016 it was apparent that for the Fiscal Year 2016 the Complainant had achieved more than the targets set for him, achieving 126.3% of his target or 17,088,814 bookings by the end of the third quarter. In this regard reference is made to the FY16 Sales Incentive Calculator. As can be seen therefrom the following incentives were earned and due to the Complainant as of January 2016:

Total Incentive Earned and Due €94,197, Minus Total Incentives Paid YTD between April 2015 and January 2016 €39,009, Balance Total Incentive Payout €55,188

The Complainant was paid his commission in April, May, June, July, August, September, October, November, December 2015 and January 2016 and therefore there was nothing to suggest, prior to the Complainant’s parental leave, that the balance of €55,188 would not be paid to him in February and/or March 2016. Furthermore, at no material time prior to the Complainant commencing parental leave was he informed by the Respondent that he would forfeit his entitlement to any commission earned and/or accrued by him and which had not been paid, i.e the €55,188, if he took parental leave between the 4^th of January and the 25^th of March 2016. The Complainant worked generally from 7.30am to 6.30pm in the evening and reviewed his emails in the evening at weekends and while on holidays. When the Complainant went on parental leave he did not review any of his emails nor did he contact the Respondent during this period.

Notwithstanding the payments made to the Complainant between April 2015 and January 2016 and the fact that the Complainant had overachieved his target for the 12 month period within 9 months, the Respondent refused to pay him the balance of the commission due and owing to him at the end of March 2016 on the basis that he had taken parental leave.

Throughout the period from March to June 2016 the Complainant pursued the issue of the non-payment of his commission and notified his manager that he was unhappy with his treatment in relation to this and continued to seek payment of the commission during this period. The work-stress disability of the Complainant arose from the refusal of Respondent to pay him commission earned due to him taking parental leave. The sum which remains owing is a substantial sum of money for the Complainant who is the sole earner for his family and comprises almost half of his remuneration. The Respondent failed to and refused to properly consider his complaints regarding his discriminatory treatment and failure to discharge his commission due to his absence on parental leave. The Respondent failed to enter into any adequate or transparent appeals process in relation to this decision to refuse payment of commission, failed to consider his complaints adequately or at all, failed to engage with him in any discussions in relation to discharge of his commission.

Giving the significant amount of his commission which the Respondent refused to pay him even though he had overachieved his targets, the Complainant felt that he was being targeted, excluded, and forced out as a result of him taking parental leave due to the level of commission being denied and the failure of the Respondent to engage with him in any reasonable way given that he was such a high performer for the business.

On his return from parental leave it was clear to the Complainant that his manager was unhappy that he had exercised his right to parental leave. During this period the Complainant continually sought payment of his commission and questioned the process and indicated his unhappiness with his treatment. Further difficulties arose and the Complainant felt that he was under constant scrutiny when he questioned the performance ratings of members of his team and his ratings for a salary increase. He could not understand how he was being rated SRN Stronger Results Needed when he had massively overachieved at 120% as had his team. His manager raised a number of new issues which he said had a bearing on the Complainant’s salary review which the Complainant was entirely unaware of and had never been notified to him previously. The manager was appointed his role in November 2015 when most of the financial year had passed. The Complainant was most concerned with the lack of clarity on the rating system for pay increases for his team also.

Subsequently he raised concerns about the process of performance assessment for his team and himself who had significantly overachieved. Following 3 meetings with HR and management where performance ratings for his team were agreed, the Respondent failed to furnish him with adequate information as to why the ratings which were agreed were then reduced that his team members were not entitled to any pay increase whatsoever without any explanation even though they had clearly reached the goals and performance targets set out by the Company. When the Respondent raised his concerns about this process, and his own salary increase, he was then excluded from meeting with his team member who had made a complaint about the process, and then placed in a heavy handed disciplinary process by the Company. He was accused of breach of confidentiality, when he endeavoured to clarify the employees concerns about his rating. The Complainant complained of the stress he was suffering and his upset about the manner of his treatment as a high performing and high achieving member of management with an excellent record. Despite an unblemished employment record over the previous 8 years in or around June 2016 the Complainant was then accused of a breach of trust, a significant breach of the Respondent’s Code of Conduct and a failure to carry out a direct request from his line manager which arose from a heavy handed approach by the Respondent to an issue which arose in respect of the performance assessment of a member of the Complainant’s sales team. The Respondent failed to furnish reasonable accommodation in giving the Complainant adequate time to deal with the disciplinary process, failed to give him an adequate opportunity to respond in relation to the issues raised, and failed to engage with him in relation to his complaints about their heavy handed manner of dealing with him and the flawed process.

At the relevant time the employee was in another role however the Complainant was required to finalise his review and assessment as his manager for the Fiscal Year 2016. His performance was rated as “good” and he achieved the required standards therefore a salary increase of 3% was agreed by the Complainant with his manager. This assessment was subsequently downgraded and “recalibrated” to 0. The Complainant sought to understand the reasons for this as the employee had achieved the required standards and the reasoning for this was never explained properly. The employee was unhappy with his performance assessment and sought a further meeting. There was no policy or procedure for the review of team members which made the process unclear. In an attempt to bring clarity to the situation the Complainant gave the employee details of his assessment of his performance. The Complainant was then accused of a breach of trust although he genuinely did not understand the reason for the recalibration and wanted to try and get to the bottom of the matter. The Complainant was treated in a hostile manner by the Respondent and on or about the 23^rd June 2016 he was disinvited from the meeting between his manager and the employee to discuss the process by the manager.

Thereafter, and without any prior warning, on the evening of Friday the 24^th June 2016 the Complainant was called to a disciplinary meeting the following Monday, 26^th June 2016, which meant that he did not have adequate time to obtain advice or assistance or representation in relation to the meeting. No investigation was carried out into what had occurred and the issue was escalated into a disciplinary process and called a “significant breach of trust”. The Complainant was accused of behaving contrary to the Respondent’s core values of integrity and accountability, breach of the Respondent’s Code of Conduct and failure to carry out a direct request from his line manager. None of these allegations ever set out what procedure the Complainant was alleged to have breached. In this regard reference is made to the letter dated the 24^th of June 2016.

The Complainant was astounded at the way he was treated. He felt like he was being treated like a criminal and was convinced, as a result of the conduct of the Respondent that he was going to be summarily dismissed as a result of what happened. Despite his excellent record of service, good relations and history within the organisation the Respondent would not accept his apology and explanation that he acted in good faith. This pre-judgement of the Respondent shocked the Complainant; he felt bullied and harassed and due to the stress and pressure he was under since his return from parental leave and as the Respondent would not accept that he acted in good faith he resigned at the disciplinary meeting.

The Complainant genuinely felt he had no option but to resign as a dismissal on his employment record would have catastrophic consequences for his employment prospects into the future. Following the Complainant’s resignation he was placed on garden leave for a one month period.

The Complainant was advised of the outcome of the disciplinary process however he did not realise that he had a right of appeal and/or that any appeal would have to be lodged within a specified period of time.

During this period the Complainant engaged the services of his solicitors who wrote to the Respondent on or about the 13^th of July 2016 seeking to resolve matters before the Complainant’s employment ended however no, or no adequate, response was ever received from the Respondent.

Ultimately the Complainant sought to appeal the disciplinary sanction imposed on him however he was advised by the Respondent that despite his solicitor’s correspondence to the Respondent he had not lodged an appeal within the requisite time period and was therefore out of time. This is a further example of unlawful, adverse and discriminatory treatment and amounts to victimisation.

The Complainant suffered from stress, distress and upset and depression as a result of the way in which he was unlawfully treated, harassed, victimised and discriminated against by the Respondent and attended his General Practitioner as a result.

The Complainant has no doubt but that the disciplinary action taken against his was a direct result of him taking parental leave. After the Complainant refused to agree to his manager’s request to regrade his leave from parental leave to unpaid leave he felt that the Respondent took a negative view of him. It was absolutely clear to him by the actions of the Respondent that the Respondent did not approve of the fact that he had taken parental leave and/or approve of the manner in which he used his parental leave.

The Complainant further submits that had he not taken parental leave between January and March 2016 he would have been paid the outstanding commission due and owing to him at the end of March 2016 and he would not have been disciplined by the Respondent, whether with a heavy hand or at all. This is discriminatory on the family status ground as the Complainant should be entitled to exercise his statutory right to parental leave without a punitive and unfair sanction as the standards required of him were achieved and there was no breach of any policy or procedure by him.

LEGAL SUBMISSIONS

This case concerns a claim that the Respondent unlawfully discriminated against the Complainant on the family status and disability grounds in terms of section 6(2)(c) and (g) of the 1998-2015 Acts and in contravention of section 8 of the 1998-2015 Acts in relation to his conditions of employment, in contravention of the requirement to provide the Complainant with reasonable accommodation in relation to the work related stress and depression which he was suffering, section 14A of the 1998-2015 Acts in relation to harassment and section 74(2) in relation to victimization.

DISCRIMINATION

Section 6(1) of the 1998-2015 Acts provide that discrimination is taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which discrimination exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned.

Section 6(2)(c) provides for the “family status ground” and the Complainant submits that he has been subjected to less favourable treatment arising from his family status as a parent of young children.

Section 6(2) (g) provides for the “disability” ground for work-related stress and depression which the Complainant was suffering as a result of his treatment. He specifically sought reasonable accommodation from the Company and he brought it to their attention during the disciplinary process that he was suffering from stress and upset due to his treatment, the denial of commission and his manner of treatment, and the Company failed and refused to provide him with adequate time to obtain advice in relation to the disciplinary process, failed to accept his apology and explanation, failed to engage with him after his resignation had been given in relation to the circumstances of this as he felt that he had been forced into this position as he was being excluded notwithstanding his status as a high earner and performer within the Company. In addition, the Respondent refused to allow him to appeal the outcome of the disciplinary hearing, to engage with his representatives in relation to resolution to accommodate his disability, whereby he felt compelled to resign from his employment due to the work-stress he was suffering.

Section 8(1) of the 1998-2015 Acts prohibits unlawful discrimination against an employee in relation to conditions of employment, training and promotion. Pursuant to section 8(6) of the 1998-2015 Acts an employer will be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, and in the instant case the family status and disability grounds, the employer does not offer that person the same terms of employment, the same working conditions and the same treatment in relation to, inter alia, dismissals and disciplinary measures as those offered to someone else in materially similar circumstances.

It is clear from the foregoing factual submissions that as a result of the Complainant’s family status as a parent of small children and his disability the Respondent, its servants and/or agents did not offer the same working conditions and treatment as an employee not covered by the said grounds.

HARASSMENT

Section 14A of the 1998-2015 Acts expressly prohibit harassment at work or in the course of a person’s employment on any one of the nine prohibited grounds of discrimination, and in particular the family status and disability grounds. Section 14A(7) of the 1998-2015 Acts provides as follows:

(a) In this section –

(i) References to harassment are to any form of unwanted conduct relating 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, and 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’.

During the course of his employment with the Respondent, and in particular from in or around March 2016 the Complainant was subjected to harassing and derogatory remarks regarding his family, and an intimidating, degrading, humiliating and hostile working environment as detailed above under the factual submissions as a result of exercising his right to take parental leave. The Respondent failed, refused and/or neglected to have any or any adequate policy on bullying and harassment in place and to investigate the Respondent’s complaints in relation to the non-payment of his Commission and to provide him with an adequate and transparent appeals process in relation to the refusal to discharge the commission and the pressure exerted on him to not take parental leave. During this period the Complainant raised his objections to his treatment to his manager who failed, or refused to investigate the Complainant’s complaints adequately or at all, and in particular in relation to his solicitor’s letter of the 13^th July 2016.

VICTIMISATION

In relation to the claim of victimisation, reference is made to Section 74(2) of the 1998-2015 Acts which provides, inter alia, that victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to an employee having sought redress under equality legislation either by way of a complaint by an employee to his employer or by lodging a complaint, giving evidence in an equality case, being the subject of equality proceedings, opposing unlawful discrimination or having given notice of an intention to do so.

Reference is made to the case of Panuta v Watters Garden World Ltd [2010] E.L.R. 86 wherein the Labour Court indicated that it was satisfied that the Court of Justice decision in Coote v Granada Hospitality Ltd [1998] E.C.R. I-5199; [1998] I.R.L.R. 656 was authority for the proposition that the concept of “victimisation” should be “construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act”.

It is submitted that there is a causal connection between the complaints of discrimination and harassment made by the Complainant to the Respondent and the subsequent treatment which he was subjected to during the course of his employment with the Respondent, particularly his objections to non-payment of commission, failure to provide any transparent appeal process in relation to the refusal to pay the commission, particularly during the course of the disciplinary process and failure to engage with him and engage with his representatives in relation to his resignation, and during the course of the appeal process. As a result of the foregoing, it is submitted that the Complainant was victimised by the Respondent.

BURDEN OF PROOF

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” The Complainant accepts that the burden of proof lies with a Complainant who is required to establish that a prima facie case of discrimination, harassment and victimisation exists. It is submitted that the Complainant comes within one of the prohibited grounds, namely the family status and disability grounds, and that the factual submissions above establish a prima facie case of discrimination, harassment and victimisation such as to now oblige the Respondent to discharge the burden that it has not discriminated against the Complainant on the grounds of his family status and/or disability and/or failed to provide him with reasonable accommodation and/or harassed him or victimised him.

REDRESS

Section 82(1) (c) of the 1998-2015 Act provides that the Adjudication Officer can make an order for the effects of the discrimination, harassment and victimisation on the Complainant.

The Labour Court has confirmed that in measuring the appropriate quantum of compensation regard must be had to all the effects which flowed from the discrimination, harassment and victimisation which occurred. This included “not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings”. Fox v Lee DEE6/2003

In the case of Citibank v Ntoko [2004] 15 E.L.R. 116 the Labour Court awarded compensation over and above economic loss in circumstances where the Complainant was deprived of his “fundamental right to equal treatment and freedom from racial prejudice”.

In Vincent Kavanagh v Aviance UK Limited DEC-E-2007-039, the Equality Tribunal, in awarding compensation for loss of earnings and the stress suffered as a result of the discrimination and the failure to provide reasonable accommodation, referred expressly to the European Law requirement that sanctions must be effective, proportionate and dissuasive.

CONCLUSION

In all the circumstances the Complainant believes that he has been subjected to less favourable treatment on the family status and/or disability grounds, that the termination of his employment amounts to a discriminatory dismissal, that he has been harassed during the course of his employment with the Respondent and that the conduct of the Respondent, its servants or agents has violated his dignity at work and has created an intimidating, hostile, degrading, humiliating and offensive environment. In addition, the Respondent victimised the Complainant and in all the circumstances the Respondent has acted in breach of the Complainant’s entitlements pursuant to the 1998-2015 Acts. In addition, the Respondent failed to furnish the Complainant with reasonable accommodation in relation to his disability and victimised him.

It is submitted that the Adjudication Officer should find in favour of the Complainant and give the appropriate orders that will protect him, redress the damage caused to him, compensate him for the discrimination, harassment, failure to reasonably accommodate his disability and victimisation suffered by him and deter the Respondent from any further discriminatory actions.

The Complainant has suffered severe financial loss as a result of the unlawful discrimination (including dismissal), harassment and victimisation. The Complainant has also suffered significant pain, distress and trauma as a result of the manner in which he has been treated by the Respondent, its servants and/or agents, and the manner in which he has been discriminated against on the family status and disability grounds, harassed and victimised.

The Complainant reserves the right to adduce further and better particulars of factual and legal submissions, including oral submissions, and legal authority as soon as same are to hand and prior to the hearing of the action and/or on the facts that may be pleaded by the Respondent or such evidence that may be adduced by the Respondent.

Summary of Respondent’s Case:

The Respondent denies all claims under the EEA and it denies any claim of discrimination, and/or victimisation, and will be defending all claims. The Respondent reserves the right to introduce additional evidence at the hearing of this matter.

Preliminary points of law on the claim under the Unfair Dismissals Act 1997 & the “EEA”

It is respectfully submitted; The Complainant served notice on the 29th June 2016 and cease employment with the Respondent on the 29th July following his contractual notice period. Without prejudice to the Respondent’s replying submission below, the Respondent’s position is that this claim should be struck out as the Complainant has failed to establish a prima facie case for dismissal.

Section 1(B) of the Unfair Dismissals Act 1997 provides that a constructive dismissal arises where an employee involuntarily resigns from their employment, with or without providing the requisite notice to the employer. The resignation is classified as involuntary as it arises as a consequence of the unreasonable behaviour of the employer. In accordance with Section 1 of the Unfair Dismissals Act a constructive dismissal can be defined as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer...”

The onus of proof pursuant to section 1 of the Unfair Dismissals Act 1997 is on the Complainant to establish facts from which he alleges an involuntary dismissal arises or may be inferred. It is the Respondent’s respectful submission that the Complainant has not sufficiently raised the presumption of constructive or wrongful dismissal in circumstances where he resigned to take up alternative employment in another country.

Berber –v- Dunnes Stores [2009] 20 ELR 61 the employee claimed wrongful dismissal in circumstances where he had resigned. Mr. Berber claimed that the company’s treatment of him was a repudiatory breach of the contract of employment and that he was entitled to resign and sue for damages, including for wrongful dismissal. The Plaintiff succeeded initially in the High Court and was awarded €72,622 in damages. In the Supreme Court (which overturned the decision of the High Court and thereby refused the Plaintiff’s claim) Finnegan J. considered that the test which should be applied to determine whether or not the behaviour of the employer was so unreasonable as to amount to a repudiatory breach which entitled the employee to resign was governed by the following general principles:

The test is objective;
The test requirements that the conduct of both employer and employee be considered;
The conduct of the parties as a whole and the cumulative effect must be looked at;
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”.

Section 6(1) of the EEA provides that discrimination shall be taken to occur where “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)(c) of the EEA states that as between two persons, the discriminatory ground of “one has family status and the other does not (in this Act referred to as “the family status ground”), It is the Respondent’s submission that the Complainant has failed to prove a prima facie case under the EEA as he has not named or identified any comparator in relation to whom he alleges he was less favourably treated.

Section 6(2)(g) of the EEA states that as between two persons, the discriminatory ground that “one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), It is the Respondent’s submission that the Complainant has failed to prove a prima facie case under the EEA as he has not ever disclosed a disability, named or identified any comparator in relation to whom he alleges he was less favourably treated.

The onus of proof pursuant to section 85A of the EEA is on the Complainant to establish facts from which discrimination (as defined) may be inferred. It is the Respondent’s respectful submission that the Complainant has not sufficiently raised the presumption of discrimination. As set out by the Labour Court in Valpeters v. Melbury Developments Ltd [2010] E.L.R., the Complainant must put forward “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.” This case states that section 85A of the Acts “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.” Without prejudice to the Respondent’s replying submission below, the Respondent’s position is that this claim should be struck out as the Complainant has failed to establish a prima facie case.

Section 77A of the EEA provides that a claim may be dismissed if it is frivolous, vexatious or misconceived or relates to a trivial matter. The Respondent respectfully submits that the claims taken by the Complainant under the EEA are at a minimum misconceived, if not frivolous, and should be dismissed. In Nowak v Data Protection Commissioner [2013] 1 I.L.R.M., the Court found that the word “frivolous” meant a complaint that was “futile” or “hopeless”. This was elaborated on further in O'N v McD [2013] IEHC 135, where the Court held that the words “frivolous” and “vexatious” were “terms of art” and merely mean that the plaintiff has no reasonable chance of succeeding and as a result, it is frivolous to bring the case. In addition, the Court noted that the bringing of such claims imposes a hardship on the defendant as it has to expend time, effort and money defending an action which cannot succeed, which the Court regarded as vexatious. The Respondent respectfully submits that the Complainant’s complaint in this instance has no reasonable chance of succeeding and should be dismissed.

Submission

Without prejudice to the above, the Respondent’s substantive reply to the Complainant’s complaint is as follows.

The Complainant commenced employment with the Company 1st May 2008 in Germany, he relocated to Ireland under the Company’s international transfer on a new contract with continuous service on the 1st October 2013 to the role of Manager, Inside Sales, Grade 6 in the Company’s Dublin office.

The Complainant was provided with and signed a new Irish contract of employment dated 5th August 2013. Further to the contract stating the Respondents policies are available online. The Complainant was also invited to a new hire presentation on 17th September 2013, which detailed the benefits in place and also provided access to the New Employee Orientation Programme. Following this presentation the slide deck was circulated on the same day by email to the Complainant. This presentation also confirmed that all of the Company’s The Complainant contact the Respondent’s commission payment team on 6th December 2015 regarding applying for parental leave. The Complainant was informed the period of leave would be unpaid in accordance with the Respondent policy. The policy was available to all employees on the Respondent’s HR online intranet.

The Respondent questioned the parental leave status as the Complainant was going travelling to Australia with his partner and child. The Respondent decided to grant the application for parental leave pursuant to the Complainant’s request in the knowledge it was surrounded by travel.

Subsequent to this, the Complainant opted to avail of parental leave. The Complainant went on parental leave from the 4th January to 25th March 2016 and returned resuming his position, in the knowledge there was no eligibility for commission payments.

The Respondent contents it did not depart from its ‘policy and the matter was closed, no payment was granted for the period of parental leave. The Complainant on 27th May 2016 again contacted the commissions’ payment team requesting policy details on the decision. The Complainant was provided with the global sales compensation guide. It was again re- iterated that the matter was closed as per the policy.

The Complainant’s manager raised an issue with the Complainant’s handling of a query from an employee who reported into the Complainant. This related to the employee’s focal rating and subsequent pay review. The Complainant was no longer the manager of the employee that was seeking clarify around why he did not receive a pay increase. The Complainant had recommended 3 % increase and this was not granted in line with a global directive from the Respondent. The Complainant disclosed that there was a difference in his recommendation and the outcome to the employee.

A meeting was held on the 21st June 2016 regarding this. It was advised by the manager that the Complainant could face disciplinary action following the meeting given the significant breach of trust by him and the failure to carry out a direct request by his line manager.

The Complainant was invited to a disciplinary hearing regarding his alleged behaviour on the 27th June 2016. It was alleged this may constitute a breach in a number of areas includingA significant Breach of Trust Contrary to Symantec’s core values of Integrity and Accountability A breach of Symantec’s Code of Conduct, Failure to carry out a direct request of your line manager, policies are available on the Respondent’s HR online intranet for employees to access. The Complainant had access to the Respondent’s HR online intranet.

A disciplinary hearing was held on the 27th June 2016 it was reconvened on the 29th June 2016 at 4.30 p.m. on the above alleged breaches. The Complainant was aware under the disciplinary procedure of his right to representation; the Complainant did not bring or advise of any representatives to accompany him.

The Complainant prepared a statement that was furnished on 29th June, in which he admits his mistake of conducting a meeting with his former direct report in the absence of details on the pay increase decision.

The Respondent queried the following;

Why the Complainant failed to raise any potential concerns regarding the pay & performance review during set time frames.
Why the Complainant proceeded to meeting with the employee knowing the Respondent had a different view from the Complainant and not seeking clarification from the business on this.
The Complainant’s decision to step away from the decision made by the business and to ssue paperwork to the employee confirming same.

The Complainant confirmed this was his mistake – he should never have gone ahead with the review if he was unsure. Also flagged he had been aware that other colleagues were given no increase due to the global direction.

The Complainant was asked again by the Respondent why if unsure of the rating and or increase did he not reach out in advance of the first meeting to the business for clarity. At this point the Complainant advised that he would like the meeting to end as he had said all he wished.

The Complainant’s Manager stated he would like to respond to the Complainant’s statement. The Complainant confirmed that he would like to hear this response. The manager commenced by saying he believe the pay and performance review process was not followed. The Complainant raised is hands in the air interrupting him telling him to stop speaking. The HR Manager also present interjects to flag this response was very inappropriate and disrespectful.

The Complainant immediately confirmed that he wished to resign and the Respondent will have this in writing tomorrow and proceeded to leave the hearing. The Complainant was advised that the meeting would continue on the basis of his submissions to date, and would not be reconvened again. The meeting concluded at 5.05 p.m.

The HR Manager confirms to the manager that he should put together his findings and recommendations in line with the process as the complainant had furnished us with his response to the allegations.

Following the meeting on the 29 June at 18.37 the Complainant by way of email notified the Respondent that he was leaving his position effective from the 2 July 2016 detailing to HR “please accept this message as notification that I’m leaving my position in Symantec effective 2^nd of July 2016” signed Best regards the Complainant.

The Complainant then in fact service notice of four weeks in compliance with his contract and ceased employment 29^th July 2016.

On the 13^th July 2016, the manager closed out the disciplinary hearing and wrote to the Complainant informing him that he was to be issued with a first written warning to remain on his file for the period of one year. This could not have been done sooner as the manager was on annual leave for the intervening week from the hearing to the issuing of the sanction.

In the said letter dated the 13^th July 2016, the Respondent also detailed the Complainant’s right to appeal and how to initiate an appeal if he so wished. Any appeal is required in writing to Global HR Investigation Lead, within 5 working days of receipt of letter, stating grounds of appeal.

The Complainant to date never appealed the sanction as he had left his employment with the Respondent.

The Complainant informed the Respondent of his plan to move to Spain following obtaining employment. The Respondent understood the Complainant to have re-located and commenced employment within the month August.

The Complainant’s solicitor wrote to the Respondent in a letter dated the 13^th July but not received until the 22^nd July. It advised in the final paragraph The Respondent “will withdraw the allegations and disciplinary process against him immediately and seek resolution of this, failing which our client will have no option other than to pursue a grievance in relation to these issues and further legal action within 7 days”.

The Respondent did not receive an appeal of the sanction from the disciplinary nor did it receive a grievance within 7 days of the date of letter from the Complainant’s solicitor as was advised.

The Respondent is not aware of any complaints or grievances made by the Complainant during his employment in relation to allegations of discrimination, harassment and victimisation.

The Respondent is not aware of any disability the Complainant had or has. No details were ever furnished to the Respondent in respect of this.

Discrimination

Without prejudice to the Respondent’s preliminary legal argument. The Respondent respectfully submits that the Complainant has not shown any evidence of discrimination on the grounds of family status.

The Complainant did not raise any grievance in respect of any alleged discrimination at any time during his employment or subsequently with the Company.

Disability and failure to provide reasonable accommodation for a disability

The Complainant alleges that he was discriminated by reason of disability. However, the Complainant has not provided any evidence of disability at any time during employment to the Respondent. This is a very serious allegation and the Complainant must provide details of such an allegation. The Respondent Company categorically denies this allegation.

The Respondent respectfully submits that the Complainant has not shown any evidence of discrimination on the grounds of disability status.

Harassment

Under Section 14A (7) of the EEA, harassment is defined as “any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” it is the Respondent’s submission that the Complainant has failed to put forward any evidence of alleged harassment by the Respondent.

The Complainant did not raise any grievance in respect of any alleged harassment during the relevant period or during his employment or his notice period.

Victimisation

The Complainant further alleges that he was victimised. However, the Complainant has not provided evidence of any victimisation by the Respondent.

Pursuant to the code of practice on victimisation (S.I. 139/2004), victimisation is defined in general terms as any adverse or unfavourable treatment that cannot be justified on objective grounds.

As set out by the Labour Court in National Gallery of Ireland -v- Donnelly EDA1312:

“This section of the Acts is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.”

Without prejudice to the fact that the Complainant is out of time to submit this complaint, he has not provided any evidence of same and did not raise any grievance in respect of this allegation of victimisation during his employment or during the relevant period.

Conclusion

The Respondent met every legal obligation it had to the Complainant under the EEA. The facts simply do not support a finding of dismissal, discrimination, victimisation, or harassment. For the reasons stated in this response, the Complainant’s claims should be rejected in their entirety

Findings and Conclusions:

I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.

I note that the Complainant has made four allegations of breach of the Employment Equality Act as follows

1)Disability

Sec 2 of this Act defines disability :

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

In this case I find that there was no medical evidence of a disability.

I find that no disability was communicated to the Respondent.

I find that the Respondent was not informed that he was suffering from stress.

I note that the time sought by the Complainant was not in respect of stress but to prepare for a disciplinary hearing.

I find that any reference to stress was what could be called as the ‘exigencies of life’ rather than a disability.

I find that no reasonable accommodation was sought by the Complainant.

I find that the Complainant has not established a prima facie case of discrimination on the grounds of disability.

I find that this part of the complaint fails.

2) Victimisation & Harassment

Harassment

Victimisation

Victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act.

I find that the Complainant did not raise a grievance.

I find that no evidence has been adduced that the Complainant was victimised or harassed.

I find that the Respondent dealt with an operational matter which they were entitled to do when they invoked the disciplinary procedure.

I find that the Complainant has not established a prima facie case of discrimination on grounds of victimisation and or harassment.

I find that this part of the complaint fails.

3) Family Status - Parental Leave

I note that the Complainant requested and was granted parental leave.

I note that the Respondent learned that the Complainant was intending to travel to Australia with his partner and child during the parental leave and they queried this with him as they had not experienced this reason before.

They explained that they had some concerns about setting an unhelpful precedent.

I note that they satisfied themselves that this was a genuine parental leave request.

I note that they granted the parental leave and this leave was taken.

I find that the Complainant has not established a prima facie case of discrimination on grounds of family status.

I find that this part of the complaint fails.

4) Discriminatory Dismissal

Section 1 of the Unfair Dismissals Act defines a constructive dismissal:

I note that it was the Complainant’s role to review team members’ performance.

I note that he recommended an increase of 3 % for one member but the review board did not accept his recommendation.

I note that it is the Respondent’s position that the Complainant did not comply with the Respondent’s instructions as to why the employee did not get the increase.

I note that the Respondent initiated a disciplinary investigation because they believed that he failed to carryout an instruction and tell the employee why he did not get the increase. They also accused him of sharing a confidential document issued from one manager to another but not for the employee’s attention.

I note that the Respondent invoked the disciplinary procedure.

I note that the Complainant resigned his position before the conclusion of the investigation.

I find that the Complainant did not wait to see if any disciplinary action was being contemplated.

I find that this was an operational matter and not related to an equality issue.

I find that the Complainant has not established a prima facie case of discriminatory dismissal.

I find that this part of the complaint fails.

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.

For the above stated reasons I have decided that this complaint fails.

Dated: 12 June 2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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