Complainant

Respondent

Anonymised Parties

A Chartered Accountant

A Financial Services company

Representatives

Claire Bruton B.L. instructed by Kennedys, Solicitors

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-00007072-001

19/09/2016

The complainant was employed as a chartered accountant by the respondent in November 2015. While the date of his initial probation passed on January 31^st 2016 his employment was terminated on March 21^st 2016.

The complainant says the respondent had raised no issues about his performance in the course of his employment.

At an early stage in his employment derogatory and abusive remarks of a racial nature were made about him, including references to his accent.

He was also given excessive work to do.

He also says that the Chief Financial Officer breached the requirements of natural justice and he was not given the opportunity to have his case properly considered.

There were contradictions between the explanations he was given for the termination of his employment over the telephone and subsequent written explanations.

He says that the reason for terminating his employment was his race. He was the only person targeted for dismissal.

The respondent says that while it is a relatively small enterprise it has a multi-national and diverse workforce and details were provided.

The respondent provided a detailed breakdown of six incidents where significant failings were identified in the complainant’s performance and submitted that his employment was terminated for this poor performance, and not for any other reason connected with his race.

The respondent notes that the only issue referred for decision was the dismissal and not the other alleged acts of harassment.

The alleged acts of harassment are also not within the time limits required by the Acts.

Further in correspondence with the company following the termination he made no reference to its having had a racial element.

Neither has the complainant identified a comparator for purposes of establishing a case of less favourable treatment as required by the Act.

The complainant referred to a number of comments made in his hearing, one of which was disparaging of his nationality and another, somewhat less so in relation to his accent. This was alleged to have happened shortly after he commenced with the respondent in November 2015. The respondent says that these incidents fall outside the time limits for a valid complaint.

The date for his probationary review passed after this.

The questions about his performance commenced also in December and there were incidents on December 21^st, 29^th and 30^th, January 16^th and 22^nd, and February 5^th and 16^th which the respondent said gave rise for concern about the quality of the complainant’s performance.

His employment was terminated on March 3^rd 2016.

There was no evidence of any incident of a racial nature apart from those shortly after he commenced work with the respondent, although he saw a racial element in other actions such as being loaded with excessive work and being excluded from certain meetings. However, I view this as mere conjecture.

He also says that he was the only person ‘targeted’ for dismissal.

So between the specified incidents, which he stated in evidence happened in November and early December, and the termination of his employment, the sequence of events of unsatisfactory performance described above took place. The complainant is essentially asking for a decision in his favour based on two unacceptable, but as it turns out very isolated incidents, but inviting me to ignore the intervening episodes where the respondent submits that his work was unsatisfactory.

The respondent described this as asking the adjudicator to ‘infer’ that the termination of the complainant’s employment is on race grounds.

This would be an insufficient basis to ground a conclusion in the complainant’s favour as, quite simply, it flies in the face of the evidence. The lack of proximity between the alleged racial comments and the termination is one factor, but much more persuasive is the substantial evidence related to the complainant’s performance and time keeping (although less so on this latter point, where there was conflicting evidence relating to time zones).

He is essentially asking that this be ignored in favour of a link to the earlier alleged incidents.

On the basis of the evidence presented it would be simply perverse to do so.

I find that the complainant‘s employment was terminated for cause and no case of a breach of the Employment Equality Act has been established.

For the reasons stated above I do not uphold complaint CA-00007072-001 and it is dismissed.

Employment Equality, race,   termination,