Complainant

Respondent

Anonymised Parties

A Marketing Co-ordinator

A Financial Services Company

Representatives

Des Ryan B.L. instructed by Eversheds Sutherland, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00011978-001

18/06/2017

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

CA-00011978-002

18/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00011978-003

18/06/2017

The complainant was employed in a marketing function by the respondent which is a multi-national company.

He commenced with the respondent in March 2010 and concluded in April 2017 was paid a monthly salary of €2915.00.

(Although the burden of proof falls on the respondent in respect of the Unfair Dismissal, it will be more helpful to the reader to outline the complainant’s case first in view of the other complaints involved).

CA-11978-001; Complaint under the Unfair Dismissal Act

The department in which the complainant worked was outsourced under a transfer of undertaking.

However, the complainant did not wish to transfer to the outsourced entity. He is a Spanish national and hoped to return to work for the respondent in Spain. He saw the transfer as unhelpful to that objective and wished to remain in the employ of the respondent with a view to eventual transfer.

Following his refusal to transfer, or to find an alternative assignment with the respondent it terminated his employment.

CA-11978-002; Complaint under the Employment Equality Acts.

The complainant alleged that a named manager in the company carried out a series of discriminatory acts against him on the basis of his nationality and/or gender.

Those on the gender ground included isolation, giving him additional work, giving him an adverse performance appraisal, identifying his job role incorrectly and threatening not to pay him for sock leave absence.

On the nationality ground he complained about incorrect designation in respect of his role in marketing.

CA-11978-003; Complaint under the Redundancy Payments Acts.

The complainant offered no evidence to support this complaint.

The entire team in which the complainant worked transferred by means of a TUPE transfer on April 3rd 2017.

In the lead up and throughout the consultative process the complainant was adamant that he did not wish to transfer.

He made it clear to the respondent that he wished to be considered for a redundancy package.

The respondent made it clear to him that any refusal to transfer would be considered to be a voluntary resignation.

When he persisted with his refusal this is what happened on the date of transfer; April 3rd 2017.

In relation to the discrimination case the complainant has failed to establish a prima facie case. He has not identified a comparator in respect of whom he can claim to have been less favourably treated on any of the grounds; nationality and gender.

The respondent relied on Southern Health Board v Mitchell [2011] ELR 201, Graham Anthony & Company Ltd v Margetts (EDA 038) and Arturs Valpeters v Melbury Development Limited (EDA 0917) in support of its submission that the complainant had not met the probative burden.

In respect of the complainant’s refusal to accept the transfer the respondent relied on the authority of Symantec v Leddy [2009] IEHC 256 where the court declined to recognise a ‘right to redundancy’, that is a right to be made redundant in a situation where employees objected to a transfer.

The respondent says that the complainant has ‘improperly duplicated’ the three complaints.

As a matter of fact, I find that the termination of the complainant’s employment was a result of his refusal to transfer to the new entity.

He made it clear at the hearing that he had a very definite ambition to return to Spain and he saw the transfer as a setback to that ambition.

Whether it was or not, his position now is a lot worse that it would otherwise have been had he transferred and he demonstrated very poor judgement in his approach to the matter. He allowed that consideration to overwhelm all others to the extent that he now finds himself without a job in either entity.

This cannot be viewed as a redundancy situation. His employment situation was secure, indeed he would have remained in the same office location, so there was no redundant position.

There was evidence given at the hearing of the support given by the respondent to his efforts to find alternative employment.

On the basis of the authority in Symantec any claim to redundancy fails.

In relation to the complaints under the Employment Equality Acts the standard required to establish a prima facie case is relatively low. It is not a requirement to establish that the complaint is likely to succeed; merely that facts have been presented that are of sufficient significance to raise a presumption of discrimination.

A prima facie case establishes three things;

1.       That the complainant is covered by the relevant discriminatory grounds,

2.       There was specific treatment by the respondent,

3.       The treatment was less favourable than treatment that was or would have been afforded to another person (the comparator) in similar circumstances.

Equality Officers have held, for example in Mr Marcin Wilcocki v Alliance PLC (DEC-S2016-032), relied on by the respondent, that there must be facts of ‘sufficient significance’ to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or the acts are transparently attributable to a non-discriminatory cause.

I investigated the complaints against the named manager individually and in some detail.

They comprised a list of relatively minor workplace grievances; some were downright trivial, one was a threat that did not actually materialise. The complaint regarding his performance appraisal related to his achieving a score of 80%, although higher scores were the norm.

More importantly, these were no facts of any significance, much less of sufficient significance to raise a presumption of discrimination and obviously, the failure to identify a comparator was fatal to this complaint.

The complaints are flimsy, insubstantial and completely devoid of merit. The complainant’s view of how he might best secure a return to his homeland while understandable, does not provide him with a platform for the complaints in this case. He made a serious error of judgement which cost him his job but this is an outcome for which he bears sole responsibility.

He was neither unfairly dismissed nor terminated by reason of redundancy.

He has also failed to meet the requirement to establish a prima facie case in respect of those complaints under the Employment Equality Acts.

All his complaints fail, therefore.

I do not uphold any of the complaints; complaint CA-11978-001 under the Unfair Dismissals Act, complaint CA-11978-002 under the Employment Equality Acts, or complaint CA-11978-003 under the Redundancy Payments Act and they are all dismissed.