DEC-E2018-012

EMPLOYMENT EQUALITY ACTS 

DECISION NO. DEC-E2018-012 

Parties:

Sylvia Ozurumba McJyn

(Represented by Cyril & Co. Solicitors) 

V 

RehabCare

(Represented by IBEC) 

File Reference: et-158170-ee-15

Date of Issue: 10th April, 2018

1.  DISPUTE

1.1  This dispute concerns complaints of discrimination, harassment and discriminatory dismissal on the ground of race arising from the Complainant’s employment with the Respondent, contrary to Sections 6(1), 6(2)(h) and 8 of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’).

1.2  The Complainant referred the aforesaid complaints to the former Equality Tribunal (now the Workplace Relations Commission, hereinafter also ‘the WRC’) on 21st July 2015.  On 27th February 2017, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Equality / Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.  This is the date upon which my investigation commenced.  As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 9th March 2017.  The Complainant was represented by Cyril & Co. Solicitors.  The Respondent was represented by IBEC and members of HR / Management attended on its behalf.

 1.3  Whilst only the ‘race’ and ‘harassment’ boxes had been ticked on the complaint form, the accompanying narrative and written submissions indicated additional complaints of discrimination in relation to the conditions of the Complainant’s employment and discriminatory dismissal.  At the outset, I confirmed that pursuant to Section 101(4) of the Acts as applicable at the time, I had no jurisdiction to hear a complaint of discriminatory dismissal in circumstances where a complaint of unfair dismissal had opened before the Employment Appeals Tribunal in August 2016.  Section 101(4) provides: “An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of a dismissal if- (c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.”  Although that complaint was subsequently withdrawn after a day of hearing, the wording of Section 101(4) is unequivocal and once a hearing has begun before the Employment Appeals Tribunal, a parallel complaint of discriminatory dismissal cannot proceed before the WRC.  I therefore proceeded to hear the other complaints of discrimination and harassment on the ground of race.  I indicated reliance upon the key statutory provisions and relevant case law in my consideration of these complaints.  It was also brought to my attention that the Complainant had pursued a number of complaints under the Organisation of Working Time Act 1997 before the Rights Commissioner and on appeal to the Labour Court, some resulting in awards in her favour.  They are of no consequence to the instant complaints.

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

2.  SUMMARY OF THE COMPLAINANT’S SUBMISSIONS AND EVIDENCE

2.1  The Complainant gave evidence supplementing written submissions made on her behalf.  At the outset, she contended that she was subjected to both direct and indirect discrimination and harassment on the ground of race at the hands of Ms A and Ms B, her Supervisors/Managers going back some years before her dismissal.  She confirmed that she is an Irish citizen, originally from Nigeria and is of African ethnicity.  She also confirmed her employment history with the Respondent, a Charity which provides home support services for persons with disabilities.  She was employed from 28th June 2005 until her dismissal on 31st March 2015.  Her annual salary was €30,267.  She worked from home and her job was to coordinate calls between home support workers and clients/their families and to follow up on any issues arising e.g. arranging cover when a home support worker called in sick.  She would report back to her Supervisors at regular meetings in HQ.  She also confirmed that she had worked on a one week on, one week off basis, back-to-back with another female staff member from Nigeria of similar ethnicity.

 
2.2  The Complainant said that she had no difficulties undertaking her role which had been paper-based until it became computerised in 2009.  Thereafter, she contended that her Supervisors continually found fault with everything she did, and her productivity in relation to the number of calls fielded within a period of time was continuously unfairly compared with an Irish national co-worker.  They did not take into account her additional duties or constant breakdowns with the computer system and fact that she covered up for the mistakes of other staff.  From 2010, she was unfairly placed on a Performance Improvement Plan (PIP), which ultimately led to disciplinary action including a verbal warning, written warning and final written warning, ultimately resulting in her dismissal for incompetence.  Whilst on this PIP, her work was excessively monitored and she was subjected to regular performance review meetings which were always adversarial and often left her in tears.  She said that the meetings, which were primarily with Ms A, focused on fault-finding and she was never given any credit for the work she did correctly.

 
 2.3  From 2010 until 2015, The Complainant had been subjected to numerous PIP related meetings.  She felt harassed, bullied and intimidated.  A report confirmed that during one such meeting, she had pointed out to Ms A: “…others make similar mistakes, but they are not treated in the same way”.  During this period, any performance issues were fabricated to deem her incompetent.  Despite previously being considered a trustworthy employee, no amount of work performed was deemed satisfactory, or training undertaken could appease Management.  She cited an example of unfair criticism on 18th January 2015 and submitted a handwritten telephone log in support of same.  She also felt that a manager who had reported her to her Supervisors had it in for her and wanted her job.  As her Supervisors were the subject of her complaint and were also the persons to whom grievances were to be directed under the Company Grievance Procedures, she was unable to pursue any complaint.  It was contended that such practices or policies seemed fair at first sight but amounted to direct/indirect discrimination on the ground of race, in that other Irish employees and/or those not of the same race with similar duties were not subjected to such action.  She sought an award of financial compensation for racial discrimination and harassment suffered.  Reliance was placed on various cases with reference to the well recognised difficulty with proving discrimination when it is covert, and particularly Citibank -v- Ntoko, Labour Court, EED045.

2.4  When questioned by the Respondent’s Representative, the Complainant agreed that she had made some mistakes in relation to her work but said that it had improved when these had been brought to her attention.  She was also asked about inconsistencies regarding her account of 18th January 2015 and other matters.  It was put to her that the PIP and related meetings arose from her poor performance and that her Supervisors had tried everything over its duration to assist her with improving in her work and use of the computerised system, including providing numerous one-to one training sessions.  She accepted that Ms A had comforted her once when she became upset during one such meeting.  It was also put to her that the Respondent has a diverse workforce including employees of a similar ethnicity.  She conceded that her Nigerian colleague of similar African ethnicity undertaking the same role had not been treated likewise and was still in employment with the Respondent.  She could not explain this anomaly, other than to say that she was not one to stick up for herself and their situations were not identical.  She was unable to point to any direct or indirect references to her race in the context of the alleged treatment.  She accepted that she had never made any complaints of racial discrimination or harassment during her employment and said she was unsure of whether the treatment was race-related until after her dismissal.

3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

3.1  The Respondent submitted written submissions which were confirmed and supplemented with evidence from its witnesses and in particular, Ms A, the Care Planning and Delivery Manager, being the Complainant’s direct Supervisor who oversaw the Performance Improvement Plan (PIP) and primarily subject to these complaints.  The Complainant’s employment history as outlined above was confirmed.  She was employed within the CareLink Service as a Home Support Worker on 28th June 2005 and later as an On-Call Team Leader from 11th January 2006 until she was dismissed for incompetence on 31st March 2015.  The CareLink Service provides a wide range of personal care, respite and home support services to elderly clients, adults and children with sensory disabilities.  This is a very vulnerable client group requiring a high level of daily care, and consequently clients and their families are very reliant upon the home support workers who come to their homes to provide such services.  Being publicly funded, the Respondent is subject to stringent budgetary constraints, verification of services provided and regulation.  To this end, a computerised IT system was introduced in 2009 to replace the existing manual system for recording information.  The Complainant was fully trained up on using the new computer system to undertake her role and had a Senior On-Call Manager available to her at all times.

3.2  However, issues arose with the Complainant’s standard of performance, particularly with the prioritisation of work, accuracy and verification of records on the computer system and communication with HQ, and these were addressed in the context of a Performance Improvement Plan (PIP) from 6th October 2010.  Significant time and resources were invested to assist with improving her performance.  When it did not improve, the matter was progressed to a formal disciplinary process in 2012 and she was issued with a verbal warning on 2nd April 2012, and subsequently with a first written warning on 7th February 2013.  The Respondent had continued to provide her with support and training via the PIP and one-to-one meetings where the areas for improvement, actions required and target dates to achieve improvement were discussed, documented and agreed.  However the Complainant had not been proactive in relation to availing of refresher training offered in the office and despite this assistance, her performance continued to fall below the required standard.  Following a disciplinary hearing on 7th August 2013, she was issued with a final written warning on 14th August 2013.  Unfortunately, the situation did not improve as documented in a report compiled, and her performance issues were negatively impacting on the service resulting in poor delivery.  Following a disciplinary hearing, the Complainant was dismissed on 31st March 2015.  She availed of an appeal and following an appeal hearing, her dismissal was upheld on 18th May 2015.  It was pointed out that she had Union and latterly legal representation throughout, and the grounds of appeal raised only alleged procedural unfairness without any reference to racial discrimination.  Documentation pertaining to the process was furnished.

3.3  The Respondent’s witnesses said that it was upsetting to face allegations of racial discrimination and harassment, raised for the first time in these complaints.  They denied the allegations or indeed that the Complainant’s work was subject to unfair criticism and monitoring.  They said that the PIP, related meetings and consequent disciplinary action as outlined above arose solely as a result of her ongoing performance issues despite their best efforts to support her.  Ms A gave examples of the impact of the Complainant’s performance on the service including missed visits to clients and consequent complaints.  She outlined all of the supports that had been offered throughout the PIP process including extra IT and one-to-one coaching.  She accepted that the Complainant had been upset at times during these meetings but had done her utmost to support her.  She also confirmed that the Respondent had accommodated the Complainant in relation to external studies and various health issues.  As her latter role was the only one she could physically undertake, there was no alternative position available with the Respondent.

 
3.4  The Respondent’s Representative pointed to the general lack of detail in relation to the allegations now being made and the invidious position it was placed in terms of defending same.  Whilst the Complainant’s reference to other employees making similar mistakes not being treated in the same way was accepted, it had been noted at the time that it was the volume and repetition of errors by her that was the issue of concern.  The Respondent further disputes that the Complainant was compared unfavourably to other colleagues.  Specifically, the Irish colleague referred to was a Team Leader employed in a different capacity at the material time.  Notes confirmed a different version of events in relation to the incident on 18th January 2015, which was contended to be outside of the requisite reference period in any event.  In this respect, concern was also expressed as to the veracity of the Complainant’s handwritten notes furnished in support of these complaints and her retention of highly sensitive information post-termination.  It was further noted that the difficulties now being asserted with the computer system in question were not raised at the time.  Other criticisms made of the Respondent were also addressed and a list of training courses provided was listed.  The Respondent’s account was not substantially challenged.

3.5  By way of legal submission, it was contended that these complaints are statute-barred as the Complainant had not identified any acts of discrimination or harassment within the requisite six-month period, as required by Section 77(5) of the Acts.  Secondly, it was clear from the Complainant’s evidence that the allegations made against her Supervisors/Managers lacked any detail and were wholly unfounded and without merit.  The Respondent’s actions in utilising a Performance Improvement Plan (PIP), being a commonly used tool across the employment sphere to support and address performance issues cannot constitute harassment or discrimination under the Acts.  Furthermore, the Respondent provided the Complainant with ‘Dignity in the Workplace’ and ‘Diversity and Equal Opportunity’ Policies, which confirms its commitment to maintaining a culture that values diversity and provides that any form of bullying or harassment is unacceptable and will be treated seriously.  However, at no stage during the five-year duration of the PIP or disciplinary process, did she raise any grievance or make any reference to discrimination or harassment on the ground of race despite having representation.  Overall, it was submitted that the Complainant had failed to show a prima facie case of discrimination or harassment on the ground of race as required to meet the burden of proof provided by Section 85A of the Acts and explored in Melbury Developments Limited -v- Valpeters (EDA 0917) & Mitchell -v- Southern Health Board (DEE011).  Accordingly, these complaints should fail and be dismissed.

4. FINDINGS AND CONCLUSIONS

4.1  The issue for my determination is whether the Complainant was subjected to discrimination and harassment on the ground of race during her employment with the Respondent, contrary to the Employment Equality Acts.  It is necessary to apply the legal provisions to the factual matrix presented.  

4.2  As per the cited case law, Section 85A of the Acts sets out the burden of proof which applies to all claims of discrimination and harassment and requires the Complainant to establish, in the first instance, facts from which discrimination or harassment may be inferred.  It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. 

4.3  Dealing firstly with the complaint of discrimination on the ground of race, Section 6(1) of the Employment Equality Acts provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,…”.  In relation to the ground of race, Section 6(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘‘the ground of race’’),…”.  The legislation clearly requires an employee to demonstrate less favourable treatment than a person in a comparable position but of a different race, colour, nationality or ethnic or national origins.  The Complainant asserts that she was unfairly subjected to a Performance Improvement Plan (PIP) owing to her African ethnicity, whilst the Respondent contends that it solely related to her performance.  On balance, I prefer the Respondent’s position and find its evidence as corroborated by a report recording numerous issues with the Complainant’s performance to be more cogent.  Additionally, the Complainant accepted that her colleague who undertook the same role had similar ethnic origins and had not been treated likewise.  Although not required, I find this to be positive confirmation of the absence of any racial element to the Respondent’s treatment of the Complainant.  I also find the Complainant’s allegations wholly incredible in the absence of any reference to racial discrimination throughout her employment, or any complaint being made under the various Grievance Procedures available to her in circumstances where she clearly had the same legal representation at the latter stages.  In this respect, the various Policies allowed for recourse above the Complainant’s Supervisors.  Furthermore, it appears that the allegations of discrimination and harassment on the ground of race against the Complainant’s Supervisors/Managers were first made after her dismissal by way of referral of these complaints.  These appear to have been referred along with other complaints to various employment fora, as an exercise of covering all eventualities with little thought as to the serious nature of the allegations being made and requisite proof.  Finally, no real basis for a complaint of indirect discrimination on the ground or race has been advanced.

4.4  Turning secondly to the complaint of harassment on the ground of race, Section 14(A) of the Acts provides that harassment is any “…unwanted conduct related to any of the discriminatory grounds”.  This unwanted conduct must have the “…purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”  The definition therefore requires the Complainant to not only show such unwanted conduct but also that it was prima facie related to her race.  In this respect, and taking her direct evidence at its height, there was a complete lack of detail in relation to any conduct which might come close to constituting this definition of harassment, let alone that it was on the ground of race. 

5. DECISION

I have concluded my investigation of these complaints and based upon the aforesaid reasoning, find pursuant to Section 79(6) of the Acts, that the Complainant has not established in the first instance, facts from which either direct or indirect discrimination and /or harassment on the ground of race may be inferred requiring the Respondent to rebut same.  These complaints therefore fail and are dismissed.

________________

Aideen Collard

Equality / Adjudication Officer

10th April 2018