DEC-E2017-048

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-048

PARTIES

Mr Riadh Haddad

(Represented by Ms Deirdre Canty, SIPTU)

And

Velocity Markets Ltd

(Represented by Kelly, Dunlea Solicitors)

File reference: EE/2014/343

Date of issue: 15th June 2017

Background to the Dispute:

1.1 This dispute concerns a claim by Mr. Riadh Haddad that he was discriminated against by Velocity Markets ltd on the grounds of race contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment in terms of sections 8 of the Acts.

1.2 The complainant referred his claim to the Director of the Equality Tribunal on 26 June 2014 under the Employment Equality Acts. On 26 August 2016 in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to hold two hearing days on 5 October and 15 November 2016.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2 Submission on Behalf of the Complainant:

2.1 The complainant was employed as a Multilingual Customer Support Team member from 20 February 2012 to the date of his termination on 14 November 2014. The complainant contended that he was the only employee placed on Night Shift to deal with the Arabic market, which was not available or accessible during the night shift hours. The Arabic markets were subject to a two-hour time differential, this prevented him carrying out his duties.

2.2 The complainant submitted that he was denied training regarding his work in breach of Section 12 of the Act. Other employees were given training opportunities in Financial transaction training.

2.3 The complainant submitted that he was not promoted to a higher grade during his employment. There were two grades higher than his grade of support staff and he remained at Support Staff level for the duration of his employment without any prospect of promotion.

2.4 On 14 May 2014, the complainant was notified by the respondent that a complaint had been lodged against him by a fellow worker. No information on the complaint was issued now.

The respondent held an investigation, where the complainant was represented by his Union and the complainant was found to have had no case to answer.

The complainant sought the complaint treated as malicious and vexatious but the respondent refused to act on this request. The complainant submitted that the refusal to investigate was because of his race, he contended that the respondent applied the investigation process to all other employees except the complainant.

2.5 The complainant had a case for Unfair Dismissal before the Employment Appeals Tribunal due to his being unfairly selected for redundancy, while all other employees remained at work for the respondent. A fellow Arabic colleague had voluntarily resigned.

3 Evidence of the Complainant:

3.1 The complainant submitted that he was hired for his Multi Lingual skills in French and Arabic and was not satisfied when he was placed on Night Shift of 10.30pm to 8 am in March 2012 until October 2013. He was the sole worker on Nights.

The Co-ordinator, Mr TM was not available after 11 pm. He requested to be returned to day work in May 2013 due to a difficulty in sleeping. He was eventually returned to day work in October 2013.

3.2 The complainant contended that the training he received on 17/20 February 2012 in relation to “cashback” was the only training he received. He wanted training in higher courses to enable his promotion. He contended that Ms JC received training in January 2014.He submitted that people were picked for promotion and he was not picked. Promotions occurred in February and July 2014 and Ms JC was promoted to Assistant Team leader.

There were no internal web site signalling job vacancies and the complainant contended that one month before year end, other employees were approached to invite them into promotional posts.

3.3 The complainant submitted that his annual pay review in April 2013 was two months late and resulted in a pay increase of 7% for him while Ms JC received a 10% increase in May 2013. Mr AG, a Chinese employee, who commenced in 2011 received a 10% increase also. He received another 7% increase following his second pay review, where he also sought a higher post.

3.4 The complainant indicated that he was dissatisfied with several issues at his work and raised three issues before the Rights Commissioner Service in December 2014. These involved

1 No Provision of Pension in the employment

2 Unfair Selection for Redundancy

3 The May 2014 complaint.

The Rights Commissioner awarded compensation, which was under appeal at time of the hearing of this case.

3.5 The Complainant submitted that he believed that he had been discriminated against due to his race in relation to his exclusion from training /promotion and in the manner, he was treated by the company followed Ms JCs complaint against him in May 2014.

He contended that Mr TM had asked Ms JC to make a complaint against him and statements made by two colleagues were not shared.

Both parties were asked to attend the same meeting after the Investigation and the complainant sought to raise the vexatious nature of the complaint against him, but this was not heard by the company. Mr TM refused to investigate this aspect of the complaint.

3.6 He contended that employees were obliged to observe a confidentiality clause on pay and referred to the company remuneration policy. He told the hearing that he believed he would be disciplined for disclosing any detail of his pay to his colleagues. He did not have access to a Grievance Procedure.

3.7 The complainant contended that he was punished for being Arabic.

4 Submission on Behalf of the Respondent:

4.1 The respondent disputed the claim. The company is a service provider for foreign exchange services to the global market place. The company no longer has any employees following a Redundancy Programmed in July 2015.

On the first day of hearing, the respondent was represented by their Solicitor. The main witness for the respondent, Mr. TM was unable to attend and a request was made to reconvene the hearing to allow for Mr. TMs attendance. Mr. TM was introduced as the complainants Line Manger. The request to reconvene was granted but Mr. TM was not in attendance during the second day of hearing as he had returned to the United States on a permanent basis.

The respondent submitted that the complainant had lodged his complaint before the Equality Tribunal on 26 June 2014 and events which arose postdating this time are not properly before the Equality /Adjudication Officer. The matter of the complainants claim for Unfair Dismissal was awaiting an outcome from the EAT. There was also a live appeal before the Labour Court.

4.2 On 28 June 2016, the respondent had submitted an initial response to the claim lodged by the complainant. It recorded:

· The complainant was not rostered alone on night duty, outside periods of annual leave and sickness.

· There were 5 other employees/contractors who worked as support staff who were not promoted to a higher grade.

· The complainant received more training than any other support staff and was paired for training purposes with the respondent main trainer.

4.3 The respondent submitted an additional submission in response to requests for further information from the Equality/Adjudication Officer in time for the second day of hearing.

· 6 employees received statutory redundancy in July 2015.

· Training was provided remotely by a California based trainer to those in promoted grades.

· The salary scales for the complainant and Ms. JC was submitted

Ms JC Start date 8 May 2013

Start Salary €25,000. Salary Increase 9 December 2013 €27,000. Salary Increase 8 May 2014 €30,000

Complainant: Start Date 20 February 2012

Start Salary €26,000 Salary Increase February 2013 €28,000. February 2014 €30,000 and 24 June €31,000.

The respondent submitted that the complainant also received a €1,000 Christmas bonus.

4.4 The respondent submitted copies of the complainant’s performance reviews and drew the attention of the hearing to the commensurate pay rises which followed these events for the complainant. The respondent submitted that these documents were signed by the complainant.

4.5 The respondent submitted the casefile of the management of the written complaint lodged by Ms JC against the complainant on 14 May 2014. The respondent submitted that the respondent had an obligation to deal with all complaints made to it in a fair and impartial manner. It could not ignore the complaint that had been made both verbally and in writing. It investigated the complaint, engaged with the complainant, who was represented and made findings that the complaint was not upheld. There were no adverse findings against the complainant. The company met with the complainant in June 2014 and proposed “moving forward together”.

4.6 The respondent contended that there was an overlap in the instant complaint and the case that proceeded before the Rights Commissioner in December 2014. The respondent confirmed that the complainant had been restored to day duty some 8 months before he submitted his complaint to the Equality Tribunal. The respondent denied any form of discrimination against the complainant.

4.7 The respondent submitted that there was no advertising of promotional posts in 2012 and 2014.Some people were offered promotions post performance review. Pay was determined according to ability and gave an example of one employee who had never received a raise. The respondent submitted that while the promotional system may have been unfair it was not discriminatory.

5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

5.1 I have considered the submissions, both oral and written received by both parties and I am grateful for the supplementary documents received during the interval in the two hearings. I was disappointed not to meet Mr. TM as I had been assured that he would be in attendance during the reconvened hearing. The respondent solicitor was unable to give evidence in the case and instead made submissions and presented an extensive array of documents reflective of the complainants work experience. However, these had limited probative value.

5.2 Discrimination is defined in the Acts in Section 6

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 the grounds specified in subsection (2)”

In this case 6(e) religious belief and 6(h) Race:

Section 8(1) of the Acts provides that prohibition extends to conditions of employment.

Section 8(4) provides that:

“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 …….in relation to any matters specified in 8(1)(b)-(e) or

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

Section 8 (6)(c) of the Act compels an employer to practice “the same treatment in relation to ……dismissals and disciplinary issues”

5.3 The Burden of proof rests with the complainant as stated 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 discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

5.4 I noted the overlap in the complainant’s submissions to both the Rights Commissioner and the Equality Tribunal. It was clear that the same set of facts underpinned both complaints in respect of the May 2014 complaint. My investigation has centred on the complaint of discrimination lodged on 26 June 2014, while the complainant was still employed which was not an equal pay complaint. I accept the respondent submission that events post 26 June 2014 have no bearing on this case and are in any event live before the EAT and the Labour Court.

5.5 I have considered the submissions made by the complainant in relation to being selected for Night Duty because of his race. I noted that the market he was assigned to was Arabic. I appreciate that it may not have been busy and he may have felt isolated, but I found that he was assigned to the market in accordance with Section 8 of the terms of his contract and I did not establish facts from which discrimination could be inferred. I had no way of confirming whether the complainant worked alone or with a colleague. Therefore, I accept the evidence of the complainant that he worked alone.

5.6 I have considered the submissions made by the complainant in relation to being denied training and thus missing out on promotion. I noted that the complainant aspired to become a Financial broker. I have analysed the records of the performance reviews which were submitted by the respondent, signed by the complainant and not disputed by him.

During the first review in February 2013, 5 goals were identified for the complainant before a pay increase was agreed. On 20 March 2013, the complainant signed off another performance review. This time, there was a 17-point action plan identified and a 6% pay increase which was followed by an acknowledged improvement on 30 June 2014, where the remainder of the 10% pay increase was applied.

I noted the universal application of the Christmas bonus and while I noted that the complainant submitted that his shift allowance was included in his salary, at the time of the claim, the complainant and the comparator earned the same salary, resulting from the performance reviews. I could not establish facts from which discrimination could be inferred in relation to the performance reviews.

5.7 I have considered the complainant submission in relation to an absence of training due to his race and I did not establish facts from which discrimination could be inferred in this regard. I accept that the complainant asked for a higher position and he was not given one. I can only rely on the performance reviews which were not disputed by the complainant as evidence that the complainant had accepted an expansive learning action plan in both 2013 and 2014 which, in my opinion nullifies his contention that he was excluded from training.

5.8 I took some time to consider the complainants submission that he was excluded for promotion and was in fact by passed by Ms JC, a Polish national, when she was given the Assistant Team leader in 2014.I examined the respondent Equal Opportunities Policy in the Staff Handbook submitted by the respondent

“The firm will implement and strive for recruitment, employment, training and promotion practices and policies that are free of barriers…….and employees are selected, promoted and treated based on their relevant merits, abilities and job performance “

The complainant did not point to a promotional position he had applied for and had been overlooked for. He submitted that he was not permitted to enter the promotion zone at the company. This caused him a high level of dissatisfaction and he submitted that he was treated less favourably than Ms JC who had been promoted. He had not processed this matter through the Grievance Procedure contained in the same staff handbook as the Equal Opportunity policy.

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 by the respondent. The complainant submitted that he felt excluded due to his race but he did not submit facts of sufficient significance to reach the burden of proof. Instead, the complainant described a climate in relation to accessing promotion that was less than ideal which automatically took on the hallmarks of a discriminatory situation for him. I realise that the complainant felt marginalised and he interpreted this as discrimination, however, he has not submitted in what way he was treated differently to his comparator. I was not in receipt of Ms JCs performance reviews prior to her promotion to Assistant Team leader.

Darquiz v Lough Corrib Engineering DEC-E2009-038 provides a further insight into this concept. This case concerned a Lithuanian national who claimed discrimination on race grounds. The Equality Officer remarked

“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 find that this statement has relevance and authority in the current case.

I find it necessary to record the fact that access to promotion was clearly lacking in transparency at the company. However, I did not establish that is was discriminatory. The respondent outlined that positions were not advertised between 2012 and of course they should have been. However, the complainant did not identify a set of facts from which I could draw an inference of discrimination in relation to him being denied promotion. It did not feature on any of his performance reviews.

The complainant also submitted a list of employees and contractors based at the company, there were 5 other support staff mentioned comprising of employees and contractors at Support staff level The nationalities of these workers were Arabic, Chinese and Japanese. These colleagues were not promoted.

5.9 This brings me to the final aspect of the complainant case, that having received a complaint in May 2014, he cooperated fully with the investigation and received confirmation on 29 May 2014 that the complaint could not be upheld. The complainant confirmed that he had been invited to a joint meeting to be hosted by the company on 30 May to conclude matters and decided against attendance. He preferred to await the outcome of the written report.

I was particularly drawn to the File note of the June 6, 2014 meeting, called to address the complaint lodged by the complainant that Ms JC remained on the office post completion of her shift on 5 June 2014.

The File note recorded a meeting between Mr TM, Ms JC, the complainant and the Company CEO by phone and where the complainant was recorded as taking issue with how the previous complaint lodged by Ms JC was handled by the company. The complainant indicated that a letter would issue from the then Labour Relations Commission directing that Ms JC be moved from her base at the Support room.

The File note contained several salutary statements attributed to the complainant, which he did not deny. This was followed up by a copy of a letter sent to the company Hr Manger by the Union on June 10, 2014. This referred to:

1 The Investigation into the May 2014 complaint was not fair or impartial.

2 The presence of a vexatious complaint against the complainant, for which the Ms JC had “got off scot free” and the complainant sought sanctions and disciplinary action to be applied to Ms JC.

The respondent confirmed that the letter was received on June 12, 2016.

I have found that the letter of 12 June 2016 did not request an investigation on behalf of the complainant. Instead, it sought to engineer both a relocation and disciplinary sanction for Ms JC the author of the written complaint of May 14. I am satisfied that the matter of the initial complaint was closed by the company in their communique to both parties and the complainant was found not to have a case to answer.

I have not established a set of facts from which an inference of discrimination could be drawn. The complainant has based his complaint on the failure of the company to sanction the author of a complaint against him. This issue would have been best placed in the activation of the company grievance procedure, which was shared with the parties at the hearing. I could not establish a connection between this request and the complainant’s contention that he was discriminated against on the grounds of race. I noted the efforts made by the respondent company to resolve the conflict raised in May 2014.I noted that the complainant acknowledged receipt of the statement of complaint on 15 May, 2014.

6 Decision

6.1 Having investigated the above complaint in accordance with Section 79(6) of the Acts. I find that while the complainant may have had a very strong sense of being unfairly treated about his experiences at work from February 2012 to June 2014, this treatment did not amount to a difference in treatment as set down by the Acts on race grounds. I found considerable evidence of supportive management detailed in the three performance reviews. I must, therefore, find that the complainant has not established a prima facie case of discrimination and his claim cannot succeed.

………………………………………………………..

Patsy Doyle

Equality Officer/Adjudicator.

Dated: 15TH June 2017