ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006151

Parties:

Complaint(s):

Date of Adjudication Hearing: 20/06/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The claim under the Unfair Dismissals Act, 1977 CA-00008481-003 was withdrawn prior to the hearing.

1:        Background:

3:        Summary of Respondent’s Submission and Presentation:

3:1     The Respondent, in a major documentary and oral submission, vigorously disputed all the claims made by the Complainant. The Respondent has a major multi racial, religious and multi nationality workforce throughout the UK and Ireland. It has excellent HR procedures to cover all the areas alleged by the Complainant. All procedures were followed carefully and the Complainant has no grounds on which to base his claims.

The Onus is on the Compliant in an Employment Equality case, as clearly set out by legal Precedent, to establish a “prima facie” case before the onus shifts to the Respondent to refute same.

The claim of Constructive Dismissal is without foundation in its entirety. The Respondent offered work to the Complainant post his Resignation and always made it clear that they had no desire to see the Complainant end his employment.

3:2     Incidents of June /July 2014

In relation to the Incidents of July 2014 /Alleged Bullying and Harassment / the Respondent carried out detailed investigations. An Independent Manger was appointed and carried out an Initial Investigation which was appealed by the Complainant and an Appeal Investigation was carried out by a Senior Manager. No grounds to substantiate the Complaint were found. The Option of Mediation between the Complainant and his Manager was suggested as a good means of building a better working relationship going forward.

3:3          Handling of Workplace Accident of September 2015.

This was not raised during the Complainant’s period of employment and if it had been it would have been vigorously investigated.

3:4          Store Closing Incidents December 2015

The situation was investigated and the Complainant offered Mediation or Access to a Third Party (the Labour Relations Commission). These offers were not followed up on by the Complainant. The Manager (Mr X) took a formal note of the Conversation he had with the Complainant - this is a standard practice and has no discriminatory overtones.

3:5          Changes in Contractual Hours

Documentary evidence was presented to substantiate the Respondent’s position. The request to change hours had been clearly a permanent request. The reversion to his former hours was complicated by the Respondent going into Examinership in mid 2016. This made facilitating the Complainant difficult as it would represent an increase in working hours.

The situation was handled properly; the reasons for not immediately granting the Complainants’ request to revert to 30 hours were explained fully. There were absolutely no Racial or Religious overtones to the situation.

As soon as it was possible the option of additional work was made available -even post the Complainant’s resignation.

3:6          Access to Training.

No details were provided to support this allegation and as such the Respondent maintained that they could not respond.

3:7          Overall complaints of Discrimination on Grounds of Race and Religion, Victimisation and Harassment.

The Respondent pointed to all the actions and investigations they had taken during the above incidents. No where could any allegations of Discrimination be supported by the required prima facie evidence.

4:        Findings and Conclusions

Section 4 – The Equality Claim

The Equality claim comprises seven elements

1. Discrimination on the Grounds of Religion

1. Discrimination on the Grounds of Race

2. Discrimination on the Grounds of Training

3. Victimisation contrary to Section 74(2) of the Employment Equality Acts

4. Discrimination in Conditions of Employment

5. Discrimination an Unfair Dismissal /Constructive Dismissal

6. Discrimination in being subjected to Harassment

In the presentation of the claim the Complainant relied on a number of Specific Incidents to ground his claim and these have to be discussed below.

However it is first useful to consider the Burden of Proof position in a claim of this nature.

4:1          Legal issues / Burden of Proof. The evidential basis required.

It is now well accepted law that the first requirement for a successful claim of Discrimination lies in establishing a prima facie case.

In this regard, I consider that it is appropriate for me to firstly consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent…”.

The Labour Court continued

“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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Furthermore, the Labour Court in EDA038 of August 2003 stated that

“The mere fact the Complaint falls within one of the discriminatory grounds laid down in the Act is not sufficient in itself to establish a claim of discrimination. The complaint must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

Accordingly, in the case in hand, the key and primary issue is for the Complainant to establish clear and definitive facts that clearly indicate that acts of discrimination occurred.

(In this case there were considerable Internal Investigative and Appeal Processes which effectively ran from mid 2014 to late 2015 and considerable evidential weight had to be taken of this.)

4:2          Element No 6 above - The Discriminatory Dismissal Case.

At the hearing it was agreed that this was probably the most central element and I will address this at first.

The Claim was one of Constructive Dismissal. It is accepted law that the two major tests which apply in an Unfair Dismissals Act, 1977 case also apply here namely Fundamental Breach of Contract and Unreasonableness of Conduct.

4:2:1   Fundamental Breach of Contract.

The Complainant resigned his position with effect from the 31^st August 2016.

In his e mail he stated that this was due to

“with no choice but to resign in the light of the recent experiences regrading my contract”.

The essence of the dispute being over whether or not the change in hours requested in January 2016 was permanent or temporary and the interaction with the Respondent in regard to this issue.

At August 2016 the Complainant had had a number of extensive interactions with the Respondent. He was not a novice to the Employment procedures and was well aware of how to purse his case in relation to this issue. He had been through all stages including the Appeals stage in relation to other issues especially the June /July 2014 Bullying and Harassment situation.

The Complainant was in regular permanent employment and the Respondent had made no suggestions that he was anything other than a valued employee. The Examinership complicated his changing hours but he was not unique in this situation as the same position applied to all staff.

I could not find that the actions of either party here, especially against the background of the Respondent being in Examinership were sufficient to qualify for the accepted definition of a “Fundamental Breach of Contract”.

I did not accept that this “Fundamental Breach of Contract” argument by the Complainant was supported by required evidence.

4:2:2   Unreasonable Behaviours by the Parties.

Reviewing all the evidence it was clear the Complainant and the Respondent were, by August 2016, seasoned campaigners in the Respondent’s Employment /Dispute & Grievance Procedures.

While the Complainant may have disliked the outcome of certain processes it was not evident from the evidence given and from reading the supplied documentation with Reports/Investigations attached that there had been any “Unreasonable Behaviour” by either party such as to warrant a Constructive Dismissal.

It will be necessary to refer further to the evidence of alleged elements of Religious and Racial discrimination but even taking these into account they did not sustain a claim of Unreasonable Behaviours.

The key evidential issue in this whole scenario was the most comprehensive Investigation and Appeal processes regarding the Incidents in June /July 2014 and the July Religious/Leave issues in 2015. The process finally concluded with the Report / Letter of the 28^th September 2015 from Ms. A, the HR Advisor Ireland, to the Complainant.

Reading this extensive material it was difficult to find evidence of Unreasonable Behaviour.

In all cases of this nature the EAT and the Labour Court have consistently referred to the need to fully exhaust internal procedures before the ultimate decision to Resign is taken. It has also been established that it is necessary for a Complainant to demonstrate that “all faith in Internal Procedures has been justifiably lost”. There was no evidence to this effect in this case.

Accordingly I did not accept that the test of Unreasonable Behaviour and failure of Internal Employment Processes such as to warrant a resignation had been satisfied.

4:2:3     in summary therefore I did not find that the case for a Constructive Dismissal had been satisfactorily established.

4:3   Elements No 1 and No 2 above - Discrimination on Grounds of Religion and Race

4:3:1   The evidence in support / Changes in Hours / inadequate notice

Reviewing the evidence both written and oral it was clear that the operations of a major Department store are always going to have difficulties in regard to rostering and shift time notifications. In the Store in question this was well recognised and was the subject of an understanding with the Trade Union. The Four Week’s Notice Protocol was an attempt to manage if not completely rectify this issue.

The issue of primary complaint by the Complainant was the Sunday 6^th July 2014 incident where his hours were altered at short notice. Oral evidence was given by the Manager, Mr. X and the Complainant in regard to this matter. It formed the initial foundation for a complaint of Bullying and Harassment by the Complainant against the manager.

Having reviewed all the evidence and read the investigation reports that went to Appeal Stage by a Senior Manager I could not find the basis for a prima facie Racial or Religious element to the case. The Complainant’s plans for the Sunday were obviously disrupted but there was no evidence to support the case that it was done by the Manager for discriminatory Religious or Racial grounds.

4:3:2   Supporting Evidence - The question of Leave, working through lunch during Ramadan and the due recognition of the Islamic Religious Festival of Eid.

It was clear from the evidence of the Manger, Mr. X and the Complainant supported by a Colleague Co Religionist that communications /understandings could have been better regarding the significance of Ramadan fasting and the exact calendar timing of the Eid Festival.

However the evidence pointed to a genuine effort by the Respondent to facilitate the Complainant’s request once the case was fully understood. The taking of Leave in the Loss Prevention Department was also complicate by the present of a “Legacy” Irish employee with more advantageous privileges in choice of leave.

The delays in processing the Annual Leave applications of the Complainant were admitted at being not good Management practice and were apologised for.

The Manager was an employee of considerable years standing and most experienced. I found his evidence forthright and honest. The Department was racially and religiously mixed. The Manager had recruited the Complainant and up to the year 2014 had an accepted good relationship with the Complainant.

Again having reviewed all the evidence and noted the detailed Internal Investigation and Appeal reports referred to above( the process lasted effectively from Mid 2014 to September 2015) and extensive correspondence I could not find a prima facie basis to sustain a religious or racial discrimination claim.

4:4     Elements No 4 Victimisation and No 7 Harassment

The Harassment evidence centred largely on the issue of the Respondent seeking to have the Complainant complete a Working time /Additional Employment Form ,required by the Respondent’s Policies, completed by the Complainant.

The Complainant declined to complete the required form as he felt it required further clarification as to what “working” elsewhere actually meant. The Respondent allegedly did not offer additional Hours to the Complainant as a result.

What brought this additional hours issue to light was the admittance by the Complainant, during one of the Investigations referred to that he was very tired as he was working /studying on a 7 days per week basis. Seeing that the duties of the Complaint were in essence of a Security nature and would require the Employee to be sufficiently alert and physically refreshed the inquiry of the Respondent was not unwarranted. The issue of the non completion of the form, as required by the Organisation of Working Time Act, 1997, and the fall out in terms of granting additional hours was difficult for both parties but I could not accept that it comprised prima facie grounds for a Harassment claim on Employment Equality grounds.

The handling of the Workplace Accident in September 2015 was also considered. The Respondent was not fully on notice of this element. None the less however from reviewing the oral and written evidence I found it hard to see how it satisfied the grounds for prima facie evidence, as required by the Employment Equality Act, 1998 of Discrimination or harassment or victimisation.

Likewise the incidents over the Closing of the Store in December and the Leaving of Lights On overnight were not issues that would normally ground a harassment claim under the Employment Equality Acts.

4:5:     Elements No 3 Training and No 5 Conditions of Employment  

No evidence was produced in regard to No 3 Training and as regards No 5 Conditions of Employment it has to be seen in the context of the overall claim and the specific incidents cited.

The Respondent is a major Multi National in both the UK and Ireland with a very varied staff in terms of Racial, religious and ethnic origin. Extensive documentary evidence was provided of procedures governing all these area. The oral evidence of the Dublin mangers did not point to any local deviations from these policies and the Complainant was in my view not able to satisfactorily point to strong examples where, as require by the Employment Equality Acts, his Race or his Religion were key factors in alleged Discrimination against him.

There could be no doubt that the relationship with his Manager became troubled in the period from 2014. This was noted and commented upon in the Investigation reports of 2014 and mediation suggested.

4:6     Conclusion/Assumptions being made by Parties.

In conclusion it is a major assumption to immediately assume that a series of incidents and disputes between a Manger and a staff member can be laid primarily at the door of alleged Racial or Religious Discrimination. The Respondent pointed to other similar rostering/working hours disputes involving staff, at the Store in question, that had been through the Workplace Relations Commission and Adjudication Service without any Discriminatory overtones.

From a careful review of all the evidence in this case, both oral and written I could not find that the requirement to clearly establish that a dispute had its foundations in prohibited Discrimination as set out in the Employment Equality Act, 1998, had been established.

4:7   Summary Conclusions to the Equality Claim CA-00008481-001

Having read and considered all the extensive evidence I could not find sufficient prima facie grounds to support a claim under the Employment Equality Act, 1998. The claim is dismissed.

Section 5.     The Information Claim

5:1     The specific evidential basis for this complaint was I felt, not satisfied. The volumes of documentation that were exchanged in this case were extensive and there could have been no doubt that all issues were clearly set out in writing and in the numerous e-mails exchanged.

Accordingly I did not feel that the claim under section 7 of the Terms of Employment (Information) Act, 1994 was well founded. The Claim is dismissed.

6:     Decision:

Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 7 of the Terms of Employment (Information) Act, 1994requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts in particular section 82 of the Employment Equality Acts Act.

Dated:   28^th September 2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

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