ADJ-00008296

Complainant

Respondent

Anonymised Parties

Administrator

Professional registration body

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011069-002

1/May/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011069-003

1/May/2017

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

CA-00011069-004

1/May/2017

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

CA-00011069-005

1/May/2017

The complainant commenced employment with the respondent on 4 November 2014 as a full time cash administrator in the respondent’s Registry and Subscriptions department on a two year fixed term contract. She received a further fixed term contract for the period November 4, 2016-May 4 2017.

On her appointment, she had over 9 years of corporate/finance/banking/customer service/charity/sales and administration work experience in ROI, together with the extensive Ukrainian and Irish educational backgrounds and qualifications (including the two equivalents of ordinary bachelor’s degree (NFQ 7) in Irish Legal and Business studies and Risk Management and Treasury).

The salary on appointment was €28,000 Euro gross per annum.

She submitted complaints of bullying to her employer in December 2016 and on 5/1/17.

She was dismissed on 16/1/2017.

The complainant submitted 4 complaints to the WRC on 1/5/2017

1 CA -00011069-002 under Section 11 of the Minimum Notice and Terms of Employment Act.

Complainant contends that her contract entitles her to a months’ notice and that she did not receive payment for same.

CA -00011069-003. Complaint under section 6 of The Payment of Wages Act 1991.

Complainant advises that she was due her March salary of €2,403 on 24/3/17. She received no advance notification from the respondent that her salary would be withheld.

She sought to have the February, March April and May salaries paid in a lump sum and in a tax efficient manner. The respondent undertook to explore same. She was advised by the respondent in April that such an arrangement was not tax compliant. Her written evidence was that the respondent asked her to sign a discharge agreement in March 2017 which she declined to do.

She received payment of €4130 on 28 April. The complainant questioned if this payment constituted salary as opposed to payment for loss of employment, payment to dissuade her for taking a complaint and on other occasions she described it a payment in lieu of notice.

CA -00011069-004. Complaint under section 77 of the Employment Equality Act, 1998

The complainant in her complaint form to the WRC contends that the respondent in

    failing to appoint her to a position within the company,

     denying her promotion,

     harassing her,

     dismissing her for discriminatory reasons,

   dismissing the complainant because she opposed discrimination,

      victimising her

discriminated against her on age and race grounds contrary to section 6(2) (f) and (h) of the 1998 Act.

Failure to appoint the complainant to a permanent position.

In October 2016, the complainant applied for a permanent position as Admissions Executive - a vacancy that arose due to a resignation. The pay quoted was still €28,000 per year. At the same time her contract was due for renewal and not having heard from HR she asked her manager if she should start looking for another job elsewhere. Eventually, her manager said that she should choose either to get a little pay increase of about €1000 per year or a permanent contract. The complainant put it to the line manager that she deserved both. The complainant had sought an increase because she believed that she was the lowest paid employee in the respondent with 2 years’ service and was a top performer. The line manager undertook to talk to the finance director and HR again about a pay increase. She advised the complainant to take over all the outgoing Admission Executive’s duties for the remainder of the year “to show everyone that I am the best candidate for this role”. She made the complainant do her job in Registry and the work attaching to the soon -to-be vacant Admissions role. The complainant states that her manager and those close to her were loudly calling her an “admissions queen” and made her believe that the job was hers, piling all admissions work on her, including administration, reporting, emails and marketing phone calls to students. The admissions target was met and the number of students admitted at the end of 2016 was the biggest in history of the Institute. A colleague, S, took all the credit for it.

The complainant was interviewed on 3 November 2016. Immediately after the Interview a former temporary employee, A, in his 20s was appointed to the vacancy on the €28,000 but declined the offer. He was later appointed to a position in student services on a salary of €32,000. His mother, the claimant submits, was a former manager with the respondent and a very good friend of her manager. The complainant states that her colleagues were loudly asking if the job was destined for A. His education was in mathematics and his previous work experience was as a customer service advisor in a spectacles outlet. The complainant had trained him while he worked from January – May 2016 as a temp in her Department. An external candidate was appointed to the position for which she had applied and which A had declined to accept.

The complainant advised colleagues that she was going to initiate legal proceedings about her non- selection.

While the interview process for this position in admissions was still in train, the HR assistant, L, gave the complainant an addendum to her existing contract (additional 6 months without changes to her existing contract). The complainant felt she was being literally forced to sign it before close of business on Monday 24 October. The complainant requested L, the HR executive to put everything into an email as she would be talking to her solicitor about all this and advised L that she was still in the reckoning for the permanent position.   She also insisted that she should be provided with an answer to her questions if the permanent Admissions role in Registry was designed for a specific person in mind as it seemed to everyone that it was. The complainant signed the contract on 24/10/2016. She emailed her understanding that signing a further fixed term contract would not endanger her application for the permanent Admissions role to the HR assistant.

Complainant states that this above is evidence of discrimination on age and race grounds.

Denying her promotion,

Complainant applied for a job in student services sometime before March 2015 but was advised that she did not have enough experience.

L, a Romanian, was appointed to an administrative post in March 2015.

A, an Irish citizen, was appointed to a position in student services in November 2017.

The complainant submits that this evidence of discrimination on race and age grounds

Harassment on race grounds.

Complainant states that colleagues joked about her nationality and said loudly “Y, read these emails”, referring to spam emails offering either mail-ordered bride or sexual services or libido pills from Russia. The complainant found the mocking to be degrading, rude and mean. On another occasion, another colleague told everyone to rush to her desk to show them a picture of a dismembered body in a newspaper article with the caption “Russian sister murdered another out of jealousy and spite”, and asked me loudly if it was common to behave like that “in my country”

At a barbecue work party in spring of 2016 a magician was performing. The magician spoke but as she didn’t hear him, she asked him to repeat. A colleague jumped in and shouted for everyone to hear “don’t mind her, she is from the Ukraine and afraid you are from immigration, looking for her papers”. Everyone burst out laughing. I felt out of place. This was inappropriate and very degrading.

The complainant took many photos at the Christmas party in November 2015 often at the request of those photographed. She uploaded the photos on to a shared staff site. A HR executive came to her shortly after to say that she should not have uploaded the photos without the subjects’ permission jokingly adding that they might not have liked them because they did not look so well and not be too worried. The complainant was not aware of any difficulties with other staff, non- Ukrainian, uploading photos

The HR Director sent an email to Finance Director telling him that she was wearing shorts. She was wearing knee length culottes. Her manager was asked to raise the matter with her which she did and she made light of it. The complainant was upset because she has noticed that some of the clothing worn by Irish staff is far more revealing. This was done to embarrass her needlessly. Complainant states that this evidence of discrimination on race grounds.

J, a colleague, shouted publicly at the complainant to work faster in October and November 2016. The complainant reported this incident to her manager later who advised her not to worry and that she would speak to the colleague and tell her not to speak like that. Immediately afterwards the manager advised the complainant to make a formal complaint of harassment. The complainant advises that the she believed this response to be disproportionate and extreme. She later regretted her decision as this type of behaviour was repeated.

When the complainant advised that she was going to report such instances to HR the manager would advise against it and express the wish to sort it out within their team.

Latest date of discrimination was 20/12/16

Dismissal for discriminatory reason

On Monday 16 January 2017, the HR director emailed the complainant to attend a meeting on the 16/1/17 with the finance director “to discuss the current situation between yourself and your manager”. At the meeting the respondent advised her that she need not come to work for the remainder of the contract. All salaries owed up the May 2017 the date of termination of the fixed term contract would be paid to her. She advised that the HR director stated that 4 months was sufficient to find another job. She offered me details concerning an employee assistance scheme. No letter confirming the dismissal was sent to her. The complainant states that she was dismissed due to her race. The complainant maintains that she was forced to leave her employment because of bullying behaviour which though notified to the respondent went unchecked. The complainant states that she was dismissed as she had challenged the respondent’s contention that she was using her personal phone and internet. Non-Ukrainians were not treated in this way. The respondent was aware of her plans to make a formal complaint of (bullying or discrimination)

Dismissal for opposing discrimination.

The complainant advanced the sane arguments as those contained in the grounds advanced for dismissal for discriminatory reasons.

Victimisation.

Complainant contends that she was dismissed when she was asked to stay away from work on the 16/1/17 for the remainder of her contract which had yet to run until May 4 2017 because she raised complaints of bullying and discrimination with the respondent on the 6/12/16 and that they knew she intended to seek the assistance of relevant authorities to correct same

Difference in salary.

This was not identified in the complaint form but was thread running throughout the complainant’s evidence.

HR executive advised the complainant that other administrators were earning €2000-4000 more as cash administrators in other departments of the respondent

The complainant quoted higher salaries as evidence of alleged discrimination on age and race grounds.

One employee, S. a UK citizen whom the complainant asserts has less relevant experience and qualifications than herself was appointed in December 2014 and secured a salary increase of €3000 a few months later. L from Romania, secured promotion and €3000 after 2 months with the respondent in early 2015. Bar a 2% pay increase applied to all staff, complainant never moved from the entry grade or salary. She raised the matter with her line manager who told her that she did not have enough relevant experience.

The complainant did question the difference in salaries but states that her manager advised her that salaries were lower in the Registry department and anyone earning more did so because of length of service with the respondent or elsewhere.

CA-00011069-005. Complaint under section 77 of the Employment Equality Act

This complaint with one exception contains the same grounds and instances as set out in of CA-00011068-004.The additional complaint is one of discrimination in the conditions of employment offered to the complainant.

Less favourable conditions of employment due to age.

The complainant instances the respondents alleged more favourable treatment of younger colleagues.

February – March 2015, two temporary staff ,20- 22 years of age, no experience, Irish, were hired on the same salary of €28,000 as the complainant who on appointment had 7 years’ experience in corporate finance and administration.

Less favourable conditions due to age and Race.

March 2015, the two-temporary staff had only to serve a week’s probation while the complainant had to serve 6 months’ probation.

They were permitted to have longer lunch breaks and could sometimes go home early, unlike the complainant. The complainant raised the matter with the line manager who advised her to remind the new temporary employees of the duration of the breaks and the line manager also spoke to them but nothing changed.

November 2016, asked to assist colleague with backlog. I was timed in my work. No Irish colleagues were timed.

Less favourable conditions due to race.

Workload.

Instances of alleged discrimination on grounds of race advanced by the complainant include the fact that the complainant applied for one permanent job as a cash administrator for the registry department in 2014. The line manager assigned another full-time job to the complainant in February 2015 -work associated with a loan provider of premium credit. She was not paid by either the third party or the respondent for this extra work. She alleges that she was doing the job of 2 people-2 admin jobs. She advises that she submitted her notice on 27 February 2015 due to what she described as targeting by her line manager for having applied for a position in another department but withdrew it after persuasion to so by the same line manager who secured more staff.

The complainant advised that she informed the line manager of her plans to raise her workload with HR but was persuaded by the same line manager to work towards a resolution of these. The complainant maintains that the heavier workload assigned to her was because she was a” foreigner” – because of her race. The complainant advises that over the course of her employment she had a more extensive workload than her fellow Irish administrator/colleague, that she had to complete a considerable amount of work left undone by this Irish colleague, J, in addition to doing her own job by 5.30 pm. Due to the said colleague’s seniority in the company (over 23 years) she was paid almost double that of the complainant.

Anytime the complainant raised the matter about the workload or assisting the colleague J, the line manager responded by asking her to accept her authority.

The complainant was timed in her work; Irish employees were not.

Incident on the 30 November 2017.

Complainant stated that she checked her personal phone once on the 30/11/16. The line manager leaned over her desk, red-faced and shouted not to use personal phones or the internet so much. She was very angry. The complainant maintains that non – Ukrainians were treated more favourably in relation to phone usage. She did understand that personal calls were not to be made during working hours. Other staff members could take personal calls whereas she was rebuked for same. The complainant noticed a new member of staff using internet for personal use. I brought this matter to the attention of authorities. I advised the line manager. She undertook to raise the matter with staff.

The manager asked to meet the complainant on the 19/12/16. She was very angry about the phone and internet use issue and especially angry about the complainant’s accusations against the line manager.

CA- 00011069-002.

The respondent advises that this is a `misconceived claim and refutes that there was any breach of the notice provisions in her contract. Her contact expired on the 4/5/17, date of which was notified to her on 4/11/16.

CA -00011069-003. Complaint under section 6 of The Payment of Wages Act 1991.

Witness 1, the respondent HR director gave evidence that the complainant had requested the respondent to explore the option of her remaining salary being paid to her in a lump sum and in a tax efficient manner. She advised that that there had been a consensual withholding of the March 2017 salary so as to facilitate an exploration of the feasibility of this proposition. When Revenue advised the respondent that such an arrangement would not be tax compliant they, in turn, advised the complainant.

All salaries owed to her were subsequently paid on 28 April 2017.

CA -00011069 -004. Complaint under section 77 of the Employment Equality Act, 1998.

Preliminary Objection.

The respondent requested that the complaint be dismissed as frivolous and vexatious. Respondent objected to the multiplicity of claims as an abuse of process using the same facts to fuel all four complaints and referred to the common-law rule as set out in Henderson and Henderson, (1843), 3 Hare 100.              

The respondent asserted that the claim as presented did not meet the standards set out in the WRC Procedure for Investigation and Adjudication of Complaints, section 5, in that there is an absence of dates. Respondent refers to lack of prima facie evidence required to ground a complaint of discrimination.

The respondent contends that any acts of alleged discrimination occurring before 1/12/16 are time barred and thus inadmissible.

Failure to appoint the complainant to a permanent position as evidence of alleged discrimination on race and age grounds

The second witness for the respondent, the line manager of the registry and subscriptions department, advised that she had no authority, contrary to what was advanced by the complainant, to either hint at or guarantee a permanent position. Selections to positions were on the basis of ability and experience. The first she heard of discrimination was when she saw the complaint form to the WRC.

Failure to promote the complainant

All vacancies are notified internally to all staff.

In relation to the 3 promotional opportunities to which the complainant was not appointed, the respondent advised as follows:

S, a UK citizen, employed in a position in IT systems, earned more than complainant. She had a BA in English literature, had experience in publishing and education and the job to which she was appointed was in education. She was the best candidate for the job. Complainant did not apply for the position in 2015.

L, a Romanian national had an accountancy technician qualification. Complainant did not apply for this position in the Spring of 2015

A, An Irish citizen applied for a job in the education Dept. The complainant did not apply for this position in November 2016.

Complaint of harassment.

The respondent states that the complainant did not activate the agreed bullying and harassment procedure though signposted to her on 3 occasions in July and November 2016 and in response to the complaint which she made about a colleague. She never referred to discrimination in any references which she made to bullying

Complainant never raised the issue of the photographs at the November 2016 party with HR.

Respondent disputes the complainant’s description of how other employees dress. Same rule in dress code applied to everybody.

1/12/ 16. Line manager advised her in an email that if she was unhappy with how the line manager had dealt with the issue of personal phone and internet use on 30/11/16 that she could use the grievance procedure.

Alleged difference in treatment concerning the use of personal phones and internet.

The HR director advised that she was aware of the volatile relationship between the complainant and the line manager. The witness set out her understanding which was that any time the line manager tried to raise a concern with the complainant, she threatened to make a complaint or refer the matter to a solicitor but this never materialised. She never approached the HR director to advise that she felt intimidated, never used processes. The complainant engaged a mediator to try and create positive working relationship between the complainant and the line manager but to no avail.

Witness 3, Support Executive in the registry department and the reported author of the statements about Ukrainians and Russians states that she made no comments about spam emails and Russians as alleged by complainant. She refutes that she ever made the remark to the magician at the Summer 2016, BBQ as alleged by the complainant.

Complainant did hint at taking proceedings in an email which she sent to the respondent on 5 January 2017 asking a question about the bullying procedure “before I submit a formal complaint’

Dismissal for discriminatory reasons

Meeting of 16/1/17. The respondent’s evidence was that they advised the complainant that they might have to instigate disciplinary proceedings against her because of her behaviour towards the line manager, other colleagues and the respondent and that her contract was due to expire in May 2017. They advised her that it was not necessary for her to attend for the remainder of the fixed term and that she would be paid up until the end of said contract. The complainant made no reference at this meeting to discrimination.

Dismissal because the complainant opposed discrimination.

The first the respondent heard of discrimination was when it appeared in the complaint form to the WRC. The respondent states that the complainant was not dismissed as the terms of the fixed term contract were honoured and she was paid up until its expiry.

Higher salaries.

The respondent advised that salary attaches to the role and that sometimes increases were given for length of relevant service.

CA-00011069-005.Complaint under section 77 of the Employment Equality Act, 1998

Alleged less favourable conditions of employment due to age and race.

The respondent refuted the complainant’s assertion that the shorter probation period offered to two temporary colleagues in March 2015 was evidence of discrimination on age and race grounds. The respondent explained that they were employed on 3-month contracts, hence the shorter probation period. Complainant never raised the matter of shorter probationary periods.

Workload.

Complainant never asked the HR director to look at the over- burdensome nature of her work load. Witness said that the work was evenly divided between all staff. Department was a busy place and the respondent has 26,000 members who make different demands on the organisation. The respondent advised that the complainant worked very well on her own but that conflict could arise in team working. The respondent advised that the work was evenly divided between all staff and refutes the assertion that the complainant was overloaded relative to other employees.

5/1/17, the complainant emailed a description of the work which she was undertaking. She did not say she needed assistance. Complainant never advised that she viewed her workload as evidence of discrimination on age and race grounds. January- April is a busy time – peak time for applications for membership.

The line manager spoke to the complainant, February 2015 which was the time at which the complainant stated that she resigned due to the workload about an altercation which had taken place between her and a colleague. This was the time at which the complainant stated that she resigned due to the workload. She submitted her resignation. The line manager encouraged her to change her mind which she did.

Longer breaks.

The handbook advises that the break is for 15 minutes. It’s an honour based system. The complainant never raised this issue with HR. Complainant never advised the line manager that she was unable to take her breaks. Sometimes she would take her break at her desk.

Witness 2. The line manager for the registry and subscription department, 24 years in the role refutes the assertion that she discriminated in any way against the complainant. Witness rejects the complainant’s statement that because she had a 21- old daughter that this somehow led to her favouring that age cohort rather than the late 30s cohort- age group of complainant.

Use of personal phones and internet for personal purposes. Alleged difference in treatment concerning the use of personal phones and internet.

The HR director advised that she was aware of the volatile relationship between the complainant and the line manager. The witness set out her understanding which was that any time the line manager tried to raise a concern with the complainant, she threatened to make a complaint or refer the matter to a solicitor but this never materialised. She never approached the HR director to advise that she felt intimidated, never used processes. The complainant engaged a mediator to try and create positive working relationship between the complainant and the line manager but to no avail.

Complainant drew the line manager’s attention to the new appointee using her personal phone. All staff were called into line manager’s office in December 16 and advised of policy on internet and phone use.

Incident on 30 November 2016 cited as evidence of alleged discrimination on race grounds and as evidence of harassment.

The line manager in evidence observed the complainant on her personal phone for almost an hour. She advised her that she was spending too much time on the phone and that it was unacceptable. Others had also observed her using her personal phone. The line manager bent over the complainant’s desk so others would not hear and asked her to meet her. At the meeting, later in the day the line manager told her told her if it continued she would have to send her a verbal warning. The complainant kept saying I am not using the phone. She states that she did not shout or jump at her as alleged nor behave in an aggressive manner. The complainant subsequently accused the line manager on the basis of the incident of the 30/11/16 of trying to destroy her and ruin her reputation.

The line manager advises that she took advice before sending email of 20 December as she wished to sort it out and have a professional working and peaceable environment. She did not wish to destabilise or destroy her as alleged. She did not make formal complaint about the complainant but found her behaviour to be stressful. The complainant responded that she was referring the email of the 20/12/16 to her solicitors. The line manager advises that she never shouted at the complainant as alleged.

When the complainant returned to work in January 2017, she ignored the line manager’s greetings and would not take direction from her, would not engage. She was very upset about this development and went to the Finance Director and the HR Director.

The complainant’s complaint that she was disconnected in January 2017 is untrue. The systems were down and everybody was disconnected

Conversation about evil eye never occurred.

Renewal of the fixed term contract

In terms of extending her fixed term contract, work on new systems needed to be done and completed. In addition, the line manager advised that she had sympathy for the complainant who worked well on her own.

In relation to the complainant’s assertion that she was replaced, a short-term contract was offered up until the end of May to complete the remainder of the work 

CA -00011069-002. Complaint under section 11 of the Minimum notice and Terms of Employment Act,

The end date of the contract signed by the complainant on the 24/10/16 was specified as the 4/5/17. The complainant was paid salary up until that date.

I do not find that there was any breach of the notice provisions.

CA -00011069-003. Complaint under section 6 of The Payment of Wages Act 1991.

The question to be answered is was the respondent’s decision to withhold the March 2017 salary fair and reasonable in all of the circumstances. The complainant contends that it was a breach of the 1991 Act. She received an email from the respondent HR department on 20/3/17 advising her that they did not intend to process her March 2017 salary as they were exploring the feasibility of her request to pay her salary owing from March to May in a lump sum and in a tax efficient manner. On the basis of the emails between the parties, submitted in evidence, I accept that the complainant did request that salary owing for the remainder of the contract should be paid as a lump sum and in a tax efficient manner. The complainant gave evidence of communications with Revenue to secure this. The respondent did explore this option. The respondent’s email of the 23/3/17 indicates that enquiries are on-going. It was not a tax compliant arrangement. The complainant was advised of this.

The respondent HR department emailed the complainant on 4/5/17 stating that salary to the amount of €4130 had been paid on 28/4/17.

I accept that the complainant’s complaint is influenced by her belief that the salary (€4130) is other than that and referred to it as a payment in lieu, or later as payment in lieu of notice, described it at one point as a good will gesture for loss of employment and later still as an inducement to dissuade her from making any complaints about the respondent but this was speculation on her part and nothing in the respondent’s communications to her supports the view that the salary payable for the remainder of her fixed term contract was anything other than that.

The complainant’s evidence on the respondent’s notification to her of non-payment of March 2017 salary was conflictual stating in oral evidence that she was not notified on the withholding of her March 2017 salary and submitting copies of emails which stated the contrary.

The evidence does not support the complaint that there was a breach of s. 6 of the 1991 Act.

CA -00011069 -004. Complaint under section 77 of the Employment Equality Act, 1998.

The first matter for decision is the admissibility of all of the alleged instances of discrimination cited by the complainant - those within and outside of the 6 months permitted by the Act. I do so as they ground her complaint.

Section 77(5)(a) of the Acts provides: -

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides: -

“For the purposes of this section —

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) [not relevant]

The complainant submitted her complaint to the WRC on 1/5/17.

The complainant identified the last act of discrimination as having taken place on 20/12/16. This was the email from the line manager to the complainant advising her that she was not to use her personal phone or access the internet so much during working hours and the line manager’s strenuous objection to the complainant’s characterisation of the exercise of this function by the manager as extremely destructive behaviour, based on falsehoods and designed to destroy her and her reputation. So was this a separate and distinct act or was it linked as part of a continuum with other instances of alleged discrimination cited in evidence by the complainant and predating the 1 November 2016, the date on which the 6 months expires.

In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5)

“Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

I consider that the email of the 20/12/16 is a stand-alone incident, insufficiently linked with the other instances cited as evidence of discrimination and stretching back to January 2015 and is not one element of a continuum. The admissible complaints are those which occurred in the period 1/11/16-1/5/17.

I must decide on the basis of the evidence, the statutory provisions and the authorities if the complaint of discrimination, harassment and victimisation on age and race ground is well founded.

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and as well-established by the Equality Tribunal and Labour Court, requires the complainant to establish, in the first instance, facts from which discrimination may be inferred.

The Labour Court in the case of Cork City Council v Kieran McCarthy, EDA 0821 stated that

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there had been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular fact or set of facts which are proved in evidence”

I propose dealing with the claim of discrimination, harassment and the complaint of victimisation as manifest in the respondent’s decision for her to stay away from the workplace albeit without any financial loss, for the remainder of her contract.

Complaint of discrimination on race and age grounds.

The statutory provisions guiding this examination of discrimination is contained in Section 6 of the Acts which defines discrimination as occurring where

(a)                “one person is treated less favourable than another is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) of this Act”.

The complainant being of Ukrainian origin is within the protected class as set out on section 6(2)(h) of the Act which prohibits discrimination

“where a person is of a different race, nationality or ethnic or national origin”.

Hence the complaints of discrimination which I propose to deal with are those which fell after 1 November 16 and any examples of where she as a non- national was restricted in her use of personal phone and internet time during working hours unlike her non-Ukrainian colleagues which fell before 1 November 2016.

Failure to appoint the complainant to the permanent position of admissions officer in     2017 and as evidence of discrimination on age and race grounds.

The respondent advised that they had 125 employees in their Dublin office 15-20 of whom are non -Irish.

Mere membership of the protected group is not sufficient. While the complainant referred to what she viewed as the inferior experience and qualifications of the first appointee, she advanced no evidence about this position nor why she had the skills to do this job, nor what the job entailed. To say it is evidence of discrimination on age and race grounds when unsupported by supporting evidence is insufficient and does not meet the requirements of s. 85 of the Act

The complainant’s verbal evidence was that the decision not to appoint her was down to race, yet her evidence was that the reason that A was appointed (and not herself) was that his mother was a friend of one of the managers and this had determined the outcome.

Failure to promote the complainant.

None of the positions identified as promotional opportunities were positions for which she had applied apart altogether from the fact that 2 of them were outside of the time limit for bringing complaints. This cannot therefore be accepted as evidence of discrimination on either ground

Harassment

Section 14A (7) of the Acts (1998-2015) describes harassment as being conduct

“Which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive work environment for the person”

I must consider the examples of harassment which occurred after the 1/11/16 to see if they conform to the statutory definition

30/11/16. This evidence was contested. The manager is alleged to have leaned over her desk and shouted at her within earshot of everybody, demanding that she restrict her personal use of phone and the internet. She did not make the same demands of persons of a different race and thus she was treated less favourably. There is a credibility to the line manager’s evidence that her proximity to the complainant was dictated by her desire to keep the conversation out of earshot of other staff. Furthermore, the complainant gave evidence that the manager called all staff into her office in December 2016 to instruct them to restrict personal use of the phone and internet.

Advising her of colleagues’ unease at her taking photographs of the at the Christmas party and uploading them in November 2016. This in the complainant’s own evidence was accompanied by a humorous attempt to put the matter in context. This was not notified to HR.

Telling her not to use the mobile phone and internet.

I do not consider that these instances match the definition found in section 14A(7) of the Act.

Dismissal for discriminatory reasons.

The complainant’s own evidence is that she was dismissed because the respondent was on notice that she intended to take proceedings against the respondent. Insofar as they were identified, the proceedings related to bullying. There was no reference to discrimination in her communications to the respondent before her dismissal. It is not sufficient to prove that dismissal on the basis of discrimination occurred merely by adding the tag of discrimination to behaviour which you may be entitled to question or object. The complainant’s notification was a preliminary enquiry about the Anti- bullying procedure. The complainant continually referred to the fact that she was pushed out and forced to leave because of the respondent’s bullying behaviour. Therefore, I do not find that she was dismissed for discriminatory reasons based on the age and race grounds.

Dismissal on 16/1/17 because the complainant had opposed discrimination on 20/12/16.

It is beyond doubt that the complainant had expressed unhappiness with the behaviour of the respondent and some colleagues. Conflict ran through her employment relationships. The grievance procedure and the anti-bullying procedures were signposted to her as possible avenues to examine and rectify her concerns. The complainant chose not to avail of those avenues. The complainant perceived the exercise of a managerial function to be catastrophic for her and ascribed very destructive impulses to her manager and denied that she was using the phone for personal use.

I do not accept the respondent’s contention that a mere expiration of a fixed term contract takes it beyond the reach of an examination into whether or not it was a discriminatory dismissal or a dismissal triggered by opposing discrimination. There was no disclaimer in the complainant’s contract of employment in which she relinquishes her right to draw on the protection of the Act in the event of the expiration of the fixed term contract.

However, there is no evidence of her voicing her opposition to discrimination on either age or race grounds while she was in the respondent’s employment. She challenged many decisions, objected to statements made to her, but she did not submit evidence that she voiced complaints of discrimination. Her email to the respondent of the 6/12/17 does enquire if the behaviours encompassed by the respondents anti bullying procedure encompass “gaslighting” (she explains this term to include orchestrated, manipulative, aggressive behaviour, pretending that such behaviour has not happened). The respondent replied that the procedure would encompass that. Hence there is insufficient evidence to support this complaint

Victimisation.

In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2) The Complainant was subjected to adverse treatment by the Respondent, and;

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

I do not consider that an enquiry as to whether certain behaviours come within the ambit of the Anti- bullying procedure and bullying which is unconnected to race or age matches the requirements set out in section 74(2) (a) to (c) of the Act and it is therefore futile to look at the second or third limb of the test set out above.

Difference in remuneration.

The complainant referred to different employees earning a different rate of pay and named some. She submitted no evidence at why these employees should be considered as comparators and no evidence was provided to demonstrate that she and they were engaged on like work as is required by the Act.

The scarcity of evidence as opposed to statements does not support the suggestion that the difference in pay was attributable to race or age.

Having considered the conflict of evidence, concerning the totality of complaints, I do not find that the facts relating to any of the different elements of each of the complaints are sufficiently credible or significant to transfer the probative burden to the respondent.

I therefore do not uphold the complaint of discrimination on grounds of race and age.

CA-00011069- 005.

What distinguishes this complaint from CA -00011069- 004 is the additional complaint that the complainant was discriminated against in relation to conditions of employment.

Excessive workload

The complainant attributes her excessive workload occasioned by a requirement for her to help the colleague in November 2016 to the capabilities of a colleague and not to an organisational policy or rule. The complainant did not approach HR about this matter.

The other instance occurred in February 2015 and was separate to this October 2016 instance.

Phone usage.

The complaints of bullying were linked to the behaviour of a colleague and the statements by the manager that she was using her phone for personal use. The complainant advanced no evidence of a link with the impugned behaviour and either race or age.

Having considered the evidence advanced regarding this complaint, I do not find that the facts are of sufficient credibility or significance to shift the burden to the respondent.

I do not uphold this complaint.

CA -00011069-002 under Section 11 of the Minimum Notice and Terms of Employment Act.

I do not uphold this complaint. CA -00011069-003.

Complaint under section 6 of The Payment of Wages Act 1991.

I do not uphold this complaint

CA -00011069-004. Complaint under section 77 of the Employment Equality Act, 1998

I do not uphold this complaint

CA-00011069-005. Complaint under section 77 of the Employment Equality.

I do not uphold this complaint.

I have decided to anonymise the parties.

Notice in Fixed term contracts; consensual withholding of salary to allow for other possibilities.

Employment Equality; race and age; failure to notify employer of discrimination; conflict of evidence.