DEC-E/2017/036
PARTIES
Renata Stachnik
Vs
Northern Trust Management Services (Ireland) Limited
(Represented by Mason Hayes and Curran)
FILE NO: Et-159554-ee-15
Date of issue: 25th of May, 2017
1. Dispute
This dispute involves a claim by a complainant that she was discriminated against by the respondent on the grounds of race, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. There are also claims of harassment, discriminatory dismissal and victimisatory dismissal as well as a claim of victimisation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 4th of September, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 16th of January, 2017 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 23rd of February, 2017.
2.3 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.
3. Summary of complainant’s case
3.1 It is submitted that the complainant
· started working for the respondent on 02.03.2015, on a permanent contract including a 6 month probation period,
· did not receive a contract of employment,
· was the only foreigner in the Finance team,
· was responsible for accruals, prepayment and reconciliations of multi accounts for different countries like Sweden, the Netherlands, Saudi Arabia, totalling 5 countries,
· had a lot of trouble accessing her PC and using software and raised about 30 tickets or more during her 3.5 month employment due to software not working properly which put her under extreme pressure to meet all deadlines set by the management,
· did not receive proper training in how to do her job,
· found her supervisor and colleagues to be unhelpful and unfriendly and that this was due to her race,
· had monthly meetings with her supervisor to monitor her performance at work,
· applied to attend a charity event at Limerick Animal Welfare in April 2015, and was refused while Ms. H was granted permission to attend the event,
· was forced to buy a laptop out of her own money in May 2015 following an email she received indicating that she had to test a virtual PC working from home,
· was given very short notice to clean up her desk and leave the office after a meeting on 16/06/15 with HR and the Finance Manager,
· received a very nasty and malicious letter pointing out some accounting errors, procedures not followed, incomplete reconciliations or lack of understanding accounting principles, from her supervisor
· the letter stated that she had failed her probation period.
4. Summary of Respondent’s case
4.1 The respondent submits that
· it wishes to refute in its entirety the claims of discrimination on grounds of race and/or nationality made by the Complainant,
· the Complainant commenced her employment as an associate accountant in the
financial control department as a non-officer on the 2nd March 2015,
· the financial control team produce monthly management accounts, end to end month and end balances for a number of European and Middle East and Africa legal entities, monthly balance sheet reconciliations, report production and financial control support. A requirement for an associate accountant was identified following a period of change and growth within the Respondent, with a view to providing support with basic administrative accounting and bookkeeping tasks,
· the Complainant was short listed alongside an lrish national for the position of associate accountant and was selected on the basis of her superior relevant financial experience,
· the Complainant commenced her employment with the Respondent on the 2nd March
2015 and reported to Ms. S, Team Leader, who in turn reported to Mr. M, Regional Financial Manager,
· the Complainant was furnished with a contract of employment on the 7th February 2015 and this was signed and returned by her,
· the duties of employment of the Complainant were set out in a job description and
included the preparation of management accounts, assisting in the completion of annual statutory accounts, completing centralised financial processes for the EMEA region and the provision of technical support to systems and business process projects as required,
· the contract of employment of the Complainant was subject to a six month probationary clause with it being made clear in the contract of employment that the employment of the complainant could be terminated at any stage during this probationary period on the provision of one week's notice,
· the contract of employment also prescribes that if the Complainant was
dissatisfied with any issue " affecting her employment" that such issues should be
processed using the applicable policies which were contained in the Employee
Handbook. The Complainant did not raise any issues with her employment during her
three month period of employment,
· the Respondent accepts that there were a few occasions where the Complainant had to
have her PC replaced. However this did not cause any adverse effect on her abilities
to undertake her duties or role within the Respondent. It is also the case that once the
Complainant raised IT request by way of the ticketing system established within the
Respondent, each of her issues were resolved in a timely manner within 48 hours,
· the Complainant received 60 hours training which was a considerable amount of
training for an employee who had approximately three months service as at the date of
termination of employment,
· the termination of the Complainant's employment was not connected to her race and
rather was due to poor performance and her inability to meet the requirements of the
position of associate accountant,
· the Complainant's employment was terminated three months following the commencement of her employment on 2nd March 2015 and within her probationary period pursuant to her contract of employment,
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now are whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. I must also make a decision on whether the complainant was harassed contrary to section 14(A) of the Acts and victimised following a complaint to the Tribunal and or subjected to a victimisatory dismissal.
In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)…..”
5.3 Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “
5.4 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Polish. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.
5.5 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.
5.6 Discriminatory Treatment
5.6.1 The complainant advised the hearing that she was the only non Irish person on the team and that she was treated differently on grounds of race in the way that she was treated by the respondent. The complainant stated that was often ignored by colleagues when she asked for help. The complainant when questioned at the hearing as to whether she had raised this with the respondent or made any complaint in this regard replied that she did not as she didn’t feel able to complain.
Refused permission to attend Charity Event
5.6.2 The complainant advised the hearing that she had signed up for a charity event with Limerick Animal Welfare in April 2015 but that she was not allowed to go but that Ms. H who signed up after her was allowed to go. The respondent advised the hearing that the Complainant had applied online but as she failed to seek her manager's permission, her manager was unaware that she had made an application to attend. The respondent stated that Ms H had approached her manager to seek permission for the time off to attend this charity event prior to the Complainant and that the finance team adopts an approach of first come first served regarding volunteer days and as Ms H had obtained permission from her manager prior to the Complainant, she was granted permission. The complainant in response to this stated that she didn't know the rules and wasn't aware it's only one employee in a team who is allowed to go. The respondent advised the hearing that it had in the meeting of the 7th April 2015, discussed with the complainant that she was not meeting her expected performance levels and stated that it was also not in her interests to be out of the office as she would be missing out on training.
Forced to Purchase a PC
5.6.3 The complainant advised the hearing that she had incurred considerable expense due to the fact that she had to buy a new PC for use at home while employed by the respondent. The complainant advised the hearing that an email had issued from the respondent in May 2015 indicating that she had to test a virtual PC by working from home. The complainant advised the hearing that she was told that her account was set up and that she was to test the virtual PC by working from home for 2 days. The complainant advised the hearing that her own laptop at the time had Windows 8 which wasn't compatible with the company system Windows 7. The complainant went on to state that due to this issue she was forced to buy another laptop with proper software and that she had to spend 360euro on another laptop to test company's applications at home. The complainant told the hearing that she was forced to do this as otherwise she could have lost her job. The respondent in reply to this advised the hearing that the complainant was not instructed to buy a new pc. The respondent went on to state that the finance team is required to have a number of staff certified to work from home for business continuity resilience testing purposes to ensure there is sufficient cover in the unlikely event of power outage or other catastrophe. The respondent advised the hearing that there was no requirement for the Complainant to purchase a laptop and that this was never raised by her with any of the Respondent’s staff prior to her termination of employment. The respondent went on to state that if the Complainant had raised an issue about her laptop, the Respondent would have advised her that there was no requirement for her to work from home albeit that she had the ability to work from home like all other colleagues within the finance team.
Training
5.6.4 The complainant stated that the reason given for her dismissal was due to performance issues. She stated that she had made a lot of errors but that this was due to a lack of understanding on her part and that she didn’t know how to carry out certain tasks. The complainant told the hearing that this was due to the fact that she hadn’t received enough training. The respondent advised the hearing that the Complainant received on the job training like all new entrants with the Respondent and that she also received online mandatory training. The respondent went on to state that the complainant in a meeting on 1 May 2015, expressed the view that she was thankful for the training provided to her. Details of the extensive training provided to the Complainant, which was comparable to other new entrants, was submitted in evidence.
5.7 Discrimination
5.7.1 Overall, on examination of all the evidence, on balance, I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against on the grounds of race in relation to the above matters.
5.8 Discriminatory Dismissal
5.8.1 The complainant advised the hearing that she had attended monthly meetings with her supervisor Ms. S in relation to her performance. The complainant advised the hearing that there were a lot of issues raised at these meetings regarding errors she had made and problems with her performance. The complainant stated that she didn’t receive enough training and that this is why the errors were being made.
5.8.2 The complainant advised the hearing that she had a meeting with her manager on the 8th of June where her probation was discussed. The complainant stated that she had indicated that she did not know how to do a task as she had not received enough training. The complainant stated that she was told to look back at a previous account to see what had been done.
5.8.3 The respondent advised the hearing that the complainant’s performance issues were identified and brought to her attention through informal and formal one to one meetings from the outset of her employment. The respondent stated that in spite of the Respondent providing additional training and support, the Complainant's performance did not improve.
5.8.4 The respondent advised the hearing that the complainant failed to meet the requirements of her position and pursuant to the Respondent's procedure, a three month probation review meeting to assess her performance was held.
5.8.5 The Complainant's team leader, Ms S, stated that she made numerous and repeated attempts to speak to the Complainant about basic errors in the performance of her duties of employment in spite of extensive training.
5.8.6 The respondent advised the hearing that the responsibilities and key objectives of the Complainant’s role were clearly articulated in the meetings held between the Complainant and Ms S in April and May 2015. The respondent stated that the notes of these meetings (submitted) clearly demonstrated the significant performance concerns with the Complainant which is not in any manner connected to her race and/or nationality and also provide a good example of the considerable efforts made on the part of the Respondent to discuss the performance deficiencies and how the Complainant could improve her performance.
5.8.7 The respondent advised the hearing that during the 1st of May 2015 meeting, Ms S explained to the Complainant that she was spending excessive time explaining the fundamentals of the position and duties of employment to the Complainant. As the Complainant expressed the view that she was stressed by the procedures and policies within the Respondent, Ms S provided practical support in the form of writing out the journals and reasoning them prior to posting any matters. The Complainant was also informed by Ms S that she would be expected to perform her duties with no mistakes and with less reliance on team members. The respondent went on to state that the Complainant did not dispute the performance issues. The respondent submitted in evidence copies of the monthly one on one meetings of April and May 2015.
5.8.8 The respondent advised the hearing that the complainant had during her employment with them also failed to demonstrate her proficiency in accordance with her experience contained within her CV. The respondent state that the complainant struggled with basic bookkeeping tasks which was a concern having regard to her CV disclosing that she had 13 years of finance bookkeeping experience.
5.8.9 The respondent advised the hearing that the respondent operates a six month probationary period for new entrants but that within that six months there is a three month checkpoint. The respondent stated that the Complainant was consistently not meeting her weekly or monthly deliverables and following numerous one to one meetings with Ms S, and having received extensive training and there being no improvement, the Respondent met with the Complainant at her three month stage or probation review to discuss her performance.
5.8.10 The respondent advised the hearing that the three months' stage probation meeting took place on the 8th of June 2015 and that it is clear from the minutes of these meetings that the Complainant acknowledged that her supervisor Ms S was helpful and stated that she herself wishes she could perform her role faster and better. Significantly the Complainant approved the minutes of the meeting by email and stated she had no comments to make.
5.8..11 The respondent advised the hearing that as a result of the discussion at the three month probationary meeting, Mr M issued the Complainant with a invitation on the 1lth June 2015 for a probation meeting to be held with HR on the 16th June 2015. The respondent told the hearing that it was clearly stated within this invite the performance issues that would be discussed and the Complainant was advised of her right to be accompanied to this meeting. The performance issues of the Complainant were set out in this letter. The Complainant was also informed that her employment could be terminated, same being a likely outcome of the meeting. A copy of the invite to this meeting was submitted in evidence.
5.8.12 The respondent advised the hearing that this meeting took place on the 16th June 2015 and at this meeting the Complainant was provided with an opportunity to put forward any comments or observations regarding the performance issues identified by Mr M and Ms S. in the letter of 11th of June, 2015. The respondent stated that Mr M chaired the meeting and was accompanied by Ms. A of the Respondent's Human Resources department. The respondent advised the hearing that Mr. M considered very carefully the responses of the Complainant at this meeting and adjourned the meeting to consider the position. The meeting was reconvened and following careful consideration by Mr M, the decision was made to terminate the Complainant's employment due to unsatisfactory performance being accounting errors, month end accounting procedures not being followed, lack of understanding of basic accounting principles and incomplete reconciliations. The letter of the 16th June 2015 issued to the complainant reflects this position and is consistent with the performance deficiencies experienced by the Respondent.
5.8.13 The complainant at the hearing did not dispute that she had made such errors but stated that it was due to the fact that she had not received adequate training. The respondent advised the hearing that it had at the time provided the complainant with training both on the job and online and that her supervisor Ms. S had discussed problems and issues with the complainant at her one to one meetings. The respondent advised the hearing that the complainant’s dismissal had nothing to do with her race. The respondent submits that the Complainant cannot establish any less favourable treatment on grounds of race in circumstances where an Irish employee who was equally deficient in their performance would have had his or her employment terminated in an equal manner to the Complainant.
5.8.14 The respondent advised the hearing that it was only following careful consideration of all issues and after a number of meetings were held with the Complainant, that the decision was made to terminate the complainant’s employment as unfortunately her performance did not meet the performance standards of the Respondent. The respondent stated that the actions of the Respondent are not in any manner connected with the Complainant's race and therefore no discrimination as alleged or at all arises, rather the complainant's employment was terminated in conformity with her contract of employment as she was a probationary employee whose performance was deficient and unsatisfactory. The respondent advised the hearing that the complainant was provided with one week’s notice in lieu upon the termination of her employment and her dismissal was not discriminatory or motivated by her race as she alleges.
5.8.15 It is clear from the totality of the evidence adduced that there were issues with the complainant’s performance, it is also clear that these issues were raised and discussed with the complainant on a number of occasions prior to the respondent taking a decision to dismiss the complainant. The complainant herself admits that she was aware of performance issues and errors in her work. I am satisfied from the totality of the evidence adduced that the complainant’s dismissal was not connected to her race and that she was not discriminated against by the respondent in respect of her dismissal.
5.9 Harassment
5.9.1 Harassment is defined in Section 14A(7) of the Acts 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.
5.9.2 The complainant advised the hearing that she was the only non Irish person on the team and that she was treated differently on grounds of race in the way that she was spoken to, she stated that she was often ignored by colleagues when she asked for help. The complainant has submitted that her supervisor Ms. S behaved inappropriately towards her and that she had finally been sent an awful letter from her manager which shows how she had been treated.
5.9.3 The complainant when questioned at the hearing as to whether she had raised this with the respondent or made any complaint in this regard replied that she did not as she didn’t feel able to complain. The respondent advised the hearing that the complainant did not at any stage during her employment raise any issue or concern regarding communication, or unfair treatment within the team or any adverse treatment by Ms S. The Respondent stated that it has in place sophisticated equality policies, including a harassment policy which makes it clear that no discrimination or harassment is acceptable within the workplace.
5.9.4 The respondent stated that the Complainant made no attempt to raise any issues with her alleged treatment within the Respondent prior to her termination of employment. The respondent submitted a copy of its harassment policy in evidence.
5.9.5 The Complainant in advancing a claim of harassment seeks to rely on the fact that her supervisor Ms. S had on a number of occasions raised issues about her performance with her and stated that she had issued an ‘awful letter’ to the complainant at the time of her termination of employment. This letter dated the 16th of June, 2015 set out that the reasons for her termination of employment were due to performance issues. The complainant’s team leader Ms S, disputes the allegations against her, and advised the hearing that she made numerous and repeated attempts to speak to the Complainant about basic errors in the performance of her duties of employment in spite of extensive training and that she was entitled to speak to the Complainant about her poor performance. The Complainant refers to this letter as being malicious but the respondent submits that this letter is a standard letter sent to employees who fail to meet the performance standards required within the Respondent, albeit that the reasons for their failure to meet the performance standards of the Respondent would be different in each case. A copy of this letter of termination of employment of the Complainant is submitted in evidence.
5.9.6 The Respondent advised the hearing that it stands over the content of the letter of the 16th of June 2015 and states that the reason for the termination of the Complainant's employment was due to her unsatisfactory performance and was not in any manner connected with her race.
5.9.7 I find that this treatment of the complainant does not meet the definition of harassment under the Acts and that the complainant has failed to establish a prima facie case of harassment on the ground of race. I am satisfied from the totality of the evidence adduced that the complainant was not harassed on the ground of race by the respondent in relation to these matters.
6 Victimisation
6.1 The complainant has submitted that she was victimised by the respondent.
Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
6.2 In Tom Barrett v Department of Defence[1] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
6.3 The respondent advised the hearing that the complainant had not at any stage during her employment made any complaint about her treatment by the respondent or staff of the respondent or any complaint of discrimination to the respondent. The first time the complainant made any complaint of discrimination was in her complaint to the tribunal on 4th of September 2015. The complainant’s employment terminated on the 16th of June, 2015 and her complaint to the tribunal was submitted on 4th of September 2015. The complainant at the hearing did not adduce any evidence of adverse treatment by the respondent which followed a protected act.
6.4 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to this matter.
6.5 Victimisatory dismissal
6.5.1 The complainant in her complaint form also ticked the box entitled Dismissal for opposing discrimination. In making such an assertion the complainant is submitting that she was dismissed following “a protected act” and as retribution for making a complaint. As stated above the respondent advised the hearing that the complainant had not at any stage during her employment made any complaint about her treatment by the respondent or staff of the respondent or any complaint of discrimination to the respondent. The complainant’s dismissal took place on 16th of June, 2015 and her complaint to the tribunal was submitted on the4th of September 2015. The complainant at the hearing failed to adduce any evidence that her dismissal amounts to a victimisatory dismissal. I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisatory dismissal by the respondent in relation to this matter.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
(i) that the complainant was not discriminated against by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of the following
a. Training
b. Being forced to purchase a new PC out of her own money
c. Being refused permission to attend Charity Event
(ii) that the complainant was not discriminated against by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of her dismissal
(iii) that the complainant was not harassed by the respondent on the ground of race contrary to Section 14A of the Acts
(iv) that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2015 and was not subjected to a victimisatory dismissal
_____________________
Orla Jones
Adjudicator/Equality Officer
25th of May 2017
Footnotes
[1] EDA1017