Complainant

Respondent

Anonymised Parties

A Project Manager

A Manufacturing Company

Representatives

Lars Asmussen B.L. instructed by Sean Ormonde & Co. Solicitors

Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011906-001

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011906-002

15/06/2017

The complainant was employed by the respondent in October 2010 as a Manager in the Shielding Department. The complainant’s employment ended on 23rd December 2016 when he was made redundant by the respondent. The complaint relates to alleged Unfair Dismissal on the basis that there was not a legitimate redundancy situation in existence at the time.

The complainant has also alleged that the respondent discriminated against him on the basis of his race, in relation to training, in relation to his conditions of employment and that the respondent subjected him to harassment while in employment. The complainant is seeking compensation in relation to his complaints.

The parties furnished written submissions at the adjudication hearing. Further information was requested and was submitted to the WRC on 31st October 2018

The respondent stated that the dismissal was not unfair. The respondent contends that the complainant was made redundant in legitimate circumstances following a review of the entire business in and around October 2016. The respondent stated that from early 2016 the Managing Director of the business was attempting to develop the business in Ireland. It was in the context of this development that the Operations Manager and the Sales and Marketing Manager were recruited. The respondent stated that the General Manager was unsure of the specific duties carried out by the complainant and identified the Manager’s role in the Shielding Department as at risk of redundancy. The respondent confirmed that in September 2016 a further staff member was recruited to focus on global sales and marketing but that unfortunately that role was terminated in December 2016.

The respondent contends that having identified the complainant’s role at risk of being made redundant, it held a number of meetings with the complainant in November 2016 to consider alternatives within the organisation and to explore any suggestions the complainant may have that would result in the complainant remaining in the organisation. The respondent stated that although the complainant was dissatisfied that his role was being made redundant, he had not put forward any alternative roles that he could undertake.

The respondent stated that its attempts to improve the business were ultimately unsuccessful and as well as the Sales Manager’s role being terminated in December 2016, the General Manager’s role was terminated in August 2017 having been on a reduced working week from January to March and June to July 2017. The respondent also stated that since the complainant was made redundant in December 2016, three Carpenters within the shielding department are no longer employed by the Company and the Shielding Department is in the process of being wound down.

The complainant stated that he was unfairly dismissed by the respondent. The complainant stated that the respondent had predetermined that he was to be dismissed and that it would be conveyed to him as a redundancy situation.

The complainant stated that he obtained a computer transcript of a management meeting held on 3rd November 2016. At that meeting members of senior management discussed “moving the complainant on” and the fact that if he were employed elsewhere in a short timeframe it would “not be worth his while ever taking an Unfair Dismissal.” The complainant stated that this is conclusive proof that management had decided to contrive a redundancy situation and terminate his employment accordingly.

The complainant stated that a number of meetings took place in November 2016 in relation to the purported redundancy and the alternatives that the complainant himself could put forward in relation to his continued employment. The complainant stated that the respondent offered no explanation as to its redundancy selection criteria and did not provide an opportunity for him to appeal the redundancy. The complainant stated that he first became aware of the possibility he would be made redundant on 17th November 2016 and a short number of days later he was provided with a severance agreement. The complainant contends that the short timeframe further proves that the respondent was intent on removing him from the employment as quickly as possible.

The complainant’s representative cited the cases of Boucher v Irish Productivity Centre [1994] ELR 205, JVC Europe Ltd v Panisi [2011] IEHC 279 and Williams v CompAir[1982]1 ICR 156 (at P.162) in support of its position.

In relation to this complaint, I find as follows:

The respondent company was obviously in difficulty at the time the complainant’s role was terminated. The Managing Director had returned to Ireland and was focussing on the future of the company. To this end, the respondent employed an Operations Manager and a Sales and Marketing Manager in an attempt to streamline the business and ensure its continued viability. The respondent stated at the adjudication hearing that the Department where the complainant worked and indeed the wider organisation had endured shorter working weeks, staff reductions and the eventual termination of both the Sales and Marketing Manager (after four months of employment) and the General Manager (after 18 months of employment). The respondent also alluded to the fact that despite the Managing Director’s best efforts, the Department where the complainant was employed was now in the process of being wound down.

On the basis of the respondent’s submissions, I accept that the organisation was in survival mode and were looking to effect savings and reduce costs to ensure continued viability. On that basis, I find that it is quite likely that the complainant would have been made redundant at some future point along with the other employees of the shielding department as well as other members of senior management and staff. However, evidence was presented by the complainant at the adjudication hearing relating to what occurred at a management meeting on 3rd November 2016.

Management meeting of 3rd November 2016

Senior members management held a meeting on 3rd November 2016 at which the complainant’s employment was raised. The issue of moving the complainant on was raised at this meeting in the context of having been previously raised at a senior management meeting but not included in previous minutes. The General Manager speaks of the previous discussions in relation to the complainant’s employment and surmises that it would be pointless of the complainant to make an Unfair Dismissal complaint if he were moved on quickly to another employment with minimal financial losses. The General Manager also states that he wants the complainant to leave on good terms as his help may be needed at some future point. The meeting continues, and the General Manager speaks of the need for the complainant to “go” and that “the break” has to happen sometime. The General Manager discusses issues relating to the employment of a new Manager to replace the complainant and how it would be seen as a completely different role with different duties and responsibilities etc.

From reviewing the transcript of the meeting of 3rd November 2016, the conversations between those present relate to the complainant personally. The position which the complainant occupied is hardly mentioned and although the General Manager previously assured the complainant that the possible redundancy was not personal and related only to the position, the conversations at the meeting of 3rd November 2016 are entirely personal in my view. It is clear from the conversations that previous consideration had been given to “moving on” the complainant.

The Applicable Law

Section 6(1) and 6(3) of the Unfair Dismissals Act, 1977 provides as follows:

6 (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

6(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

In all of the circumstances of this complaint and notwithstanding the requirement for the respondent to make savings and secure its future viability, I am satisfied that it acted at variance with fair procedures concerning the termination of the complainant’s employment. The respondent, at its meeting on 3rd November 2016, for the most part spoke about “moving on” the complainant as opposed to making his role redundant. The respondent also spoke about the circumstances of hiring a replacement and the validity of the complainant making an unfair dismissal complaint if he was assisted in finding an alternative role elsewhere in a short period of time. Having considered all of the evidence on the matter, I find that the complainant was unfairly dismissed as claimed.

Mitigation of Loss

The complainant stated that he made a number of applications in the months following his termination. The complainant confirmed that he started new employment on 20th April 2017, approximately four months after the termination of his employment with the respondent.

Having considered the submissions of both parties to this complaint, I find that the complaint is well founded. The respondent is directed to pay the complainant €12,500 in compensation (the equivalent of 4 months gross pay).

The complainant stated that he was discriminated against by the respondent on the grounds of race. The complainant contends that he was discriminated against as a result of a salary reduction, being excluded from Senior Management meetings, being excluded from promotion opportunities, carrying out excessive overtime, by virtue of him raising a grievance against the Sales and Marketing Manager, being denied the necessary equipment and training and as a result of the misspelling of his name by the respondent on numerous occasions.

The complainant contends that the actions of the respondent amount to continuing acts of discrimination and therefore the entirety of the complaints are within time.

The respondent refutes the complaint. The respondent stated that it did not discriminate against the complainant on the grounds of his race or at all. In relation to the eight issue that were raised by the complainant, the respondent contends that the majority of the issues complained of occurred outside of the cognisable period of the complaint and are therefore out of time. Notwithstanding the time issue, the respondent stated that the issues raised by the complainant are mere assertions and without substance.

The respondent cited the cases of Southern Health Board V Mitchell, DEE011 [2001] ELR 201 and Margetts v Graham Anthony and Company Limited in support of its position.

Timing of complaints

The complaints were submitted to the Workplace Relations Commission on 15th June 2017. The cognisable period of the complaint is therefore the 16th December 2016 – 15th June 2017. The complainant’s employment ended on 23rd December 2016. Accordingly, the complainant must show that he was subjected to discriminatory treatment between 16th December 2016 and 23rd December 2016. The complainant’s representative stated that there is continuing discrimination in this case and the complainant has discharged the burden of proof in relation to his complaint.

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) 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,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Harassment

Harassment is defined under Section 14A of the Employment Equality Acts, 1998 to 2015 as follows:

14A. (1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and,

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘employee’ includes an individual who is —

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material

Specific Complaints

In relation to the complaints of alleged discrimination, the complainant set out eight issues with respect to his claim. I have considered each of the issues separately as follows:

Training (Safe pass).

As the issue of the expiry of the Safe pass arose in Aug 2015, I find that this issue is outside of the cognisable period of this complaint and is therefore out of time.

Exclusion from Senior Management Meetings.

The complainant reported to the General Manager and the General Manager attended the Senior Management Meetings. On that basis, I do not find that the exclusion of the complainant from Senior Management meetings was as a result of his race. I find that he was not a member of senior management and this was the reason why he was not required to attend the meetings.

Exclusion from promotions

The most recent opportunity for promotion was in February 2016 and related to the recruitment of the Operations Manager. As this is outside the cognisable period of the complaint, I find that this issue is out of time.

Overtime

Having considered the submissions of both parties, I am satisfied that the complainant managed his own workload and in those circumstances was not treated any less favourably with respect to additional hours of work.

Pay Reduction/Discrimination

In relation to this complaint, the reduction in question took place in November 2013 and was initially for a period of six months. The reduction continued until May 2016 and retrospective repayment was made to April 2014. As the reduction was outside of the cognisable period of the complaint, I find that this issue is out of time.

Misspelling of Complainant’s Name.

The complainant asserts that the misspelling of his name constituted discrimination on the race ground. The spelling errors occurred in February, March and June 2015 and involved an incorrect spelling of the complainants first name. As the emails in question are outside the cognisable period of the complaint, I find that this issue is out of time.

Equipment

The complainant stated that he was treated less favourably than comparable Irish colleagues in respect of the provision, in a timely manner, of the necessary equipment required to carry out his duties. The specifics of this complaint occurred outside of the cognisable period of this complaint. Accordingly, I find that this issue is out of time.

Bullying and Harassment

The complainant stated that he was bullied and harassed by the Sales and Marketing Manager as a result of an interaction in October 2016. I find that an apology was offered and accepted in relation to this complaint and no further incidences were reported to management. Notwithstanding the specifics of the issue, the incident that took place in October 2016 is outside of the cognisable period of the complaint and is therefore out of time.

Continuing Discrimination

In considering the complainant’s position that the actions of the respondent constitute ongoing or continuing discrimination, I have considered Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland where Labour Court states as follows:

“The Appellant did submit to the Court that the events contended to be acts of discrimination were elements of a continuum of discrimination and thus capable of being considered by the Court as sufficiently connected to acts of discrimination occurring within the time period specified by the Act as to be within the jurisdiction of the Court of the within appeal”.

The Court further held that:

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

In the Dunnes Stores case the Court also held that:

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.

Having considered the submissions of both parties on this issue and for the reasons stated above, I do not find in favour of the complainant’s argument of the occurrence of ongoing discrimination by the respondent or that any discriminatory treatment occurred within the cognisable period of the complaint.

Conclusions

In all of the circumstances of this complaint and the specific issues referred to, I find that the complainant has failed to establish facts from which an inference of discrimination can be drawn and therefore has failed to discharge the burden of proof. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination.

Having considered all of the submissions of the parties to this complaint, I declare that the complaint is not well founded.

Redundancy, Unfair Dismissal. Discrimination