Employment Equality Acts
Decision No: DEC-E-2017-076
Riecelda Landvelde
-v-
Vesta Payment Solution Ltd.
File No: EE/2013/151
Date of issue: 29 September, 2017
Keywords
Employment Equality Acts - discriminatory treatment – race - working conditions – discriminatory dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment in her working conditions by the respondent on the grounds of race in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. The complainant also alleges that she was subjected to a discriminatory dismissal on grounds of race.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 28 February 2013 under the Employment Equality Acts. On 5 April, 2017 in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 29 May 2017.
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 84(3) of the Workplace Relations Act, 2015.
2. Summary of the Complainant’s case
2.1 The complainant submits that she, as a black Dutch national, was discriminated against on grounds of race by the respondent company national and was treated less favourably vis a vis her white Dutch national colleagues. She contends that she was bullied by her supervisor Ms. H. She states in April 2012, she was taking her break unaware that she was to ask anyone before taking said break and a colleague shouted her name through the call centre to inform her that she must ask before going on break. The complainant also states that she requested time off as she was attending classes on Monday evenings but management refused same as they stated that the time must be request two weeks in advance. However, the complainant states that she is aware of a colleague getting two days off with only a minimum of two days notice in advance and this was requested by telephone which is not proper procedure and this request was acceded to. The complainant submits that she requested to work 20 hours a week until completing her studies but that this was denied. The complainant states that Ms. S her colleague on the Dutch team had been calling in sick each week and she was not dismissed and yet the complainant states that she was dismissed within one month as a result of her sick leave.
3. Summary of the Respondent’s case
3.1 The respondent states that the complainant commenced employment with the company on 1 February 2012. The respondent states that it operates a call centre and is a multi-cultural environment employing 9 different nationalities to run the call centre. The respondent submits that for example, on the Dutch team, there are 6/7 persons employed and the rosters cover from early morning to late at night 7 days a week and 365 days per year. The respondent states that given the nature of its business and the unpredictability of call volume intake, employee breaks are not scheduled at exact specified times and subject to call volume, agents are free to arrange same but it is done in conjunction with their team lead. Where an agent plans to take a break where the team lead can observe high incoming volume, they may be asked to delay the break for a reasonable time but not to the extent that it interferes with agents rights to take breaks within certain time periods. The respondent submits that Ms. F does not recall any incident where she shouted at the complainant. The respondent further submits that requesting an agent to delay going on a break happens many times when calls are at peak periods. The respondent states that it has a record on file relating to 17 February 2012 where the complainant was one of two Dutch employees rostered. The respondent submits that when the other Dutch service agent was on her break, the complainant got up and went to go on her break. Her team lead informed the complainant that there were many calls in the queue and if she left her position, there was no one to answer them and could she wait until the other agent came back from her break. The respondent submits that the complainant informed the team lead she really needed to go to the bathroom and if she did not have permission the team lead would “have a mess to clean up”. Consequently, the team lead had to request the other agent who had gone on their break to come back from break to cover for the complainant.
3.2 The respondent denies the allegation by the complainant that she was discriminated against in being refused personal time off PTO. The respondent states that the position is that PTO can be requested but the decision to allow at particular times is at the discretion of the company subject to operational requirements in the call centre. The respondent contends that for some language teams, it can have as few as 3 /4 agents and it becomes necessary to schedule their time off across the group rather than to just treat each request in isolation. The respondent states that it could not accommodate some PTO requests made by the complainant but it could approve others. The respondent states that on 18 January 2013, the complainant applied for PTO for Mondays on 21 January, 28 January 4 February. The 21 and 28 was denied but 4 February was approved. With regard to Mr. G, he requested two hours annual leave and this was approved as he was still attending his shift but a little later than usual.
3.3 The respondent refers to the complainant’s assertion that her Dutch colleague Ms. S received more favourable treatment than her. The respondent submits that Ms. S also had attendance issues. She was subjected to the same disciplinary procedure as the complainant including being issued with a written warning for absence in January 2013. The respondent states that during 2013, Ms. S continued to have long term absences and was issued with a final written warning in November 2013 and her employment was terminated due to absence in March 2014. The respondent states that 70 percent of calls are required to be answered within 30 seconds if not the company pay penalties. The respondent states that they were working within very tight timelines. It states that the complainant called in sick on 21 December but the company did not receive a sick note regarding same. The respondent states that the complainant never advised it that she was undertaking a course of study and while they accommodated some Mondays off, they were unable to do so with other Mondays and the complainant ended up taking sick leave in respect of same. The respondent submits that the situation became untenable and the complainant was demonstrating an inability to be available and committed to the work. The respondent submits that at each stage during her probation period, it coached her and supported her but the situation did not improve. It states that it operates within strict business rules and ultimately it had to protect its reputation with customers and took the decision to dismiss the complainant based on her poor attendance and her inability to adhere to standard call procedures.
4. Conclusions of Equality Officer
4.1 I have considered all the evidence both written and oral presented to me. 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 in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts 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.”
4.2 The issues for decision by me in this case are (i) was the complainant discriminated against on the race ground in relation to her conditions of employment and (ii) was the complainant discriminatorily dismissed from her employment on race grounds. Having carefully examined the issues in the instant case, I find that the complainant has not established that she was treated less favourably than her white Dutch colleagues on account of her race, i.e. a black Dutch national. Having taken testimony from both parties at hearing, I find the testimony given by the respondent to be more cogent and convincing. Having examined the documentation submitted, it is clear that the company has comprehensive procedures in place and these procedures were followed throughout the process. There are records of where the complainant did not adhere to correct call procedures and she was spoken to about these matters, however the issues ensued. In addition, she had undergone a course of study without advising the company and then at short notice looked for a number of Mondays off which proved a difficult balance for management given the operational needs of the respondent company. While she stated that her Dutch white colleagues namely Mr. G and Ms. S were treated more favourably, she provided no evidence to substantiate these allegations and in effect it transpired that Ms. S’s employment was also subsequently terminated due to poor attendance and lengthy absences from work. Having adduced all the evidence in the instant case, I find that the complainant has not demonstrated a nexus in relation to her treatment in employment and her race and therefore I find that she has not established a prima facie case of discrimination in her working conditions on grounds of her race. I am satisfied that her termination from employment was as a result of poor attendance and her inability to adhere to standard call procedures and was unrelated to her race.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
5.2 I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relations to her conditions of employment.
5.3 I find that the complainant has not established a prima facie case of discriminatory dismissal on grounds of her race.
____________
Valerie Murtagh
Equality Officer/Adjudication Officer
29 September, 2017
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.