ADJ-00010660

Complainant

Respondent

Parties

A Fund Accounting Supervisor

A Fund Management Company

Representatives

Greg Ryan Greg Ryan Solicitors

Aisling Jordan Jordan Law

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014273-001

25/09/2017

The Complainant commenced employment on 29th May 2017 with the Respondent as a Fund Accountant Supervisor. She is a French national. She was dismissed on 26th July 2017.

She complains that she has been (i)discriminated against, (ii) harassed and (iii) victimised due to her disability, and race, by not receiving training, in her conditions of employment, (iv) in failure to reasonably accommodate her disability, and (v) in dismissing her for discriminatory reasons.

The Complainant suffers from Ankylosing spondylitis which is a type of arthritis. She was appointed as a Fund Accounting Supervisor and was on a probation period of 6 months with a company.

She complains that she has been discriminated against due to her nationality and disability in her treatment in the workplace. During the first month of employment she was working on a dysfunctional computer that required to be repaired every 2 to 3 days. This took a few hours each time when IT was repairing it. The computer was only replaced on 30th June 2017 and she could not complete or save her work or use the system functions. The computer could have been replaced after her first week. She says she was accused of poor performance due to the computer problems and of taking long breaks when IT were working on her computer.

She says her Supervisor was creating difficulties for her in doing her work or doing it correctly. The Supervisor forbade her to contact clients and told her new staff were not allowed. She was told not to contact clients for documentation she required to complete her work. She said this led to important information not being received, and issues she could not clarify. This was done on purpose so that she would do incorrect valuations. She says her Supervisor also forbade her to ask her colleague to train her on one fund that she was due to take over.

However, the Complainant says this was inconsistent as she was authorised to send prices to clients when she finished valuations and payments on behalf of the funds.

She says she was told not to leave the office during the day, so she had to wait to go to the bathroom at lunchtime or 5pm, or she had to request permission from her Supervisor. She says her Supervisor was tracking all of her movements even though she could see IT working on her computer, and recorded her breaks. The Supervisor allowed her take her breaks but then reported these as excessive. She was being treated differently to other staff.

The Complainant says that 4 members of staff of the Respondent constantly harassed her, and this is due to them not liking her and her French nationality. She was reproached for asking for a new chair and cancelling her health insurance. She says 2 months was not enough time to evaluate her performance.

She says she received very poor training and that she was told she did not require to be trained on the system as she will be working on a new system. The training given by her Supervisor was completed very quickly.

She says she was discriminated against as she was told she has cultural issues by one of the Managers. She was accused of calling her Supervisor fat who was 7 months pregnant, and being impolite due to her nationality. This is a stereo type of French people that they have a poor manner. This was reported by her Supervisor to another Manager who believed her Supervisor (due to her long service with the company) and not the Complainant. She was told not to talk on her mobile phone in French which she did for 5 minutes as she had to speak to the Gas company in France.

She was intimidated because she requested a new chair for her back due which was uncomfortable due to a disability, then the company agreed she could bring a chair in at her own cost. They said she complains too much and made her feel like a burden for requesting this. Then after a number of days she received a more comfortable chair.

She says she tried to follow the grievance procedure by trying to resolve the issues with her Supervisor and another colleague but this did not work, as they were working together and trying to get her dismissed. She followed Stage 2 of the process and went to speak to a Manager to explain the situation. He asked why she was doing this, and said if there was someone to be dismissed it would be the Complainant as her Supervisor had 18 years of service in the company. She was unhappy with this and said she would go speak to the CEO. The Manager told her not to do this and if she did she was defying his authority. She decided to go speak to the CEO and ask for help but he did not have time to discuss this. She said there was no investigation into her complaint and she was accused of having defied her Manager. She was victimised as a result.

She was brought into a meeting on 20th July 2017 when she was told she was not performing and she agreed to comply with instructions to be reviewed in a few weeks. However, on 26 July 2017 she was forced to attend another meeting when she arrived into work and was dismissed. She was not given any notification in advance. She was not given a proper opportunity to improve and she was dismissed due to discrimination.

In addition, the Respondent made it very difficult for her to get her personal data.

The Respondent denies all allegations of discrimination, harassment, failure to provide reasonable accommodation, discriminatory dismissal and victimisation by not receiving training, and in her conditions of employment.

The Respondent works in a multi ethnic, multi-cultural environment and have never had any such accusations previously. They deny harassment by the Complainant’s line manager who they say was advising the Complainant of the correct practise and procedure to prevent breach of policy. The same training was given to the Complainant as is given to every other member of staff which continues to work and the Complainant was performing poorly. The reverse function was required by the Complainant due to information posted incorrectly on the system numerous times per day. A member of staff would have to reverse this in Axys.

Her Supervisor disputes that 2- 3 hours per day were spent by IT on the Complainants computer. Some of the issues could have been dealt with by the Supervisor initially but the Complainant ignored her request to direct the queries to her regularly. The Complainant’s PC was replaced after one month. The Supervisor recorded cigarette breaks of the Complainant for 1 week only after her PC had been fixed.

The Complainant agreed that the money laundering training she received was the best ever.

In relation to the Complainant being told she has “cultural issues” and not to talk on her mobile phone in French, the Manager advised that she thought the Complainant was having difficulty fitting in with the Corporate Business culture and the comment was made in this context. This comment was made following a series of incidents when the Complainant showed up late for work on a few occasions in the first few weeks of employment, unprofessional and over familiar comments were made by her to staff, including advising a staff member who was pregnant about weight loss. This was an attempt to prevent further unease amongst staff.

There were incidents of insubordination including a failure to show respect to managers, to follow instructions of line manager and multiple episodes of circumventing direct supervision. The Complainant breached company policy not to contact clients directly and their insurer which caused relationship issues.

She was advised that she should not be making personal calls in work and taking these on the floor was disruptive to other staff members. This delayed her from returning to work for approximately 20 minutes. The difficulty with the mobile call made by the Complainant was that it was on the work floor not that it was in French.

The Respondent denied that allegation that the Complainant was intimidated against because she asked for a new chair for her back. Following a meeting on 31 May when the Complainant mentioned this, the Complainant received a new chair and confirmed that her issue had been resolved. She also said the chronic pain had only started 2 days ago.

Following issues with her computer, this was replaced. As the Complainant spent extended amounts of time away from her desk on breaks her line manager needed to record this as it is a breach of company policy. The Complainant was told to raise any concerns she had with her line manager first.

In relation to the allegation that the company made it difficult for the Complainant to obtain her persona data, this was received on 28 July 2017. On 8 September the Complainant confirmed she would extend time to deliver this for 10 days, and the documents were ready for collection on 12 September. The Complainant refused to collect this and reported the company to the Data Protection Commissioner as they were not obliged to post this to her. When confirmation was received of the Complainant’s address this was sent to her by Registered Post.

The Company believes this complaint is vexatious as 3 complaints have now been made in less than 1 month.

The Complainant complains that she has been (i)discriminated against in terms of S6 (2) of the Employment Equality Acts 1998-2015 and contrary to S8 in respect of her training and conditions of employment, (ii) harassed by the Respondent on grounds of disability and race specifically nationality in terms of S6 (2) and contrary to S14A of the Acts, (iii) victimised by the Respondent in relation to S74 (2)of the Acts, (iv) that the Respondent failed to afford her reasonable accommodation for her disability pursuant to S16 of the Acts, and (v) in dismissing her for discriminatory reasons.

In reaching my decision I have taken into account all of the submissions made and evidence given in the course of the hearing.

The Complainant is a French national and she relocated to Ireland prior to taking up employment with the Respondent as a Fund Accounting Supervisor.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant details a number of alleged incidents and claims that she was discriminated against, harassed and victimised in various overlapping incidents. I will deal with these overlapping claims in the alternative in line with A School v A Worker EDA 122.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The “race ground” is defined in the Acts and is on the basis of different race, colour, nationality or ethnic or national origins. The “disability ground” is on the basis that one is a person with a disability and where the other person either does not have a disability or is a person with a different disability.

Disability in the Acts means –

(a)    The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)    The presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)     The malfunction, malformation or disfigurement of a part of a person’s body,

(d)    A condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)    A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behavior…

S16 of the Acts provides that a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as appropriate measures) being provided by the person’s employer. The employer shall take appropriate measures, where needed in a particular case to enable a person who has a disability-

(i)                  To have access to employment.

(ii)                To participate or advance in employment, or

(iii)               To undergo training,

Unless the measures would impose a disproportionate burden on the employer.

The Complainant suffers from an ongoing disability called ankylosing spondylitis which was verified at the hearing by medical evidence. This is a type of arthritis that affects the spine, it results in pain and stiffness from the neck to lower back for which she takes medication.

The Complainant commenced work with the Respondent on 29th May 2017. She has a pre-existing disability which comes within the Acts. She informed her Supervisor that her chair was uncomfortable on her legs and back, which can cause difficulties with her circulation and walking and asked if it was possible to bring her own chair into the office. She did not provide evidence of her disability or medical recommendations in relation to accommodation sought to her employer. She was asked was this a pre-existing disability. She said in evidence she did not inform the company of her disability at the time of her employment as it does not prevent her working. She was given another chair 2 days later which she agreed was better and allowed to bring in her own chair if she wished. The Respondent was initially unaware of the Complainant’s disability and denies any discrimination or failure to reasonably accommodate the Complainant, as the Complainant later confirmed the alternative chair given was much better. There were no further complaints.

The Respondent says they addressed the complaint made about the Complainant’s chair as soon as possible. They employ other employees with disabilities including an employee who has a speech impediment, and another with a visual impairment.

In light of the evidence, I find that there is no prima facie case of discrimination against the Complainant on the grounds of disability or failure to reasonably accommodate has been adduced, and the complaint fails.

Section 14A of the 1998-2015 Acts expressly prohibits harassment at work or in the course of a person’s employment on any one of the nine prohibited grounds of discrimination. Section 14 A(7) of the 1998-2015 Acts provides as follows:

(a) In this section –

(i)                  References to harassment are to any form of unwanted conduct relating 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,

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

(c) 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’

S72 provides that victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a)    A complaint of discrimination made by the employee to the employer,

(b)    …

(c)     …

(d)    …

(e)     

(f)      An employee having opposed by lawful means an act that is unlawful under this Act…

(g)    An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs

The Complainant claims that she has been discriminated against on the grounds of race and in particular her French nationality.

The Complainant had difficulties with her computer for the first month of her employment. She had difficulties saving information and accessing Sharepoint and had to contact the IT Department to fix this. She said IT worked on her computer for approximately 2 hours every few days which was disputed by her Supervisor. Her computer was eventually replaced after 1 month on 30 June due to the problems. The Supervisor said the Complainant was deleting the formulas in excel and was manually inputting instead which was causing problems. Tasks requested to be done were not done. The Supervisor recorded the Complainant’s breaks after the computer was changed for 1 week and said she continued to take long breaks, and the performance issues persisted.

She says that the company managers accepted her Supervisor’s reports that she was rude to other staff and not sensitive in comments about her Supervisor’s area and weight-loss. She says this is a well known stereo-type about French people that they can thought of as rude due to their manner. Her efforts to explain herself were not accepted. The misrepresentations by her Supervisor led to her stopping speaking to her Supervisor in order to avoid misunderstandings. On one occasion she sent an email to one of the Managers accepting the blame if she had been in anyway rude in order to change her behaviour on this. She denies advising anyone on their weight loss. The Respondent says she was critical of the area where her Supervisor lived and some of her comments caused offence. One of the Managers tried to explain this to her.

The Complainant complains that the training received from her Supervisor was inadequate. It was too quick and she was not allowed take notes. She did not receive 6 weeks training, only 3 weeks. The Manager said that the training the Complainant received is adequate as it is the same for all members of staff and is still used. New employees are restricted to access to certain programs and from dealing directly with one client who does not want to be copied on all correspondence. In fact the Complainant had commented that the anti-money laundering training received was the best ever.

The Complainant raised concerns about due diligence carried out on investors from Peru and reported her concern that more due diligence was required to her Supervisor as the investor passports were new. She said her Supervisor said the Complainant wanted to file a report on this which was not correct and misrepresented what she said. The Respondent says this was a new venture company which never took off and additional money laundering documentation was not required as a result.

She made one phone call in French to a gas company on her mobile which was necessary and was told off for speaking in French which was the first time she did this. She says she was treated differently to other staff who all made personal calls. The Respondent said they have a company policy that there are no personal calls on the floor as people are not able to work as a result. It was not that the call was in French, it took the Complainant away from her work for 20 minutes.

The Complainant said sometimes she was allowed email clients, and sometimes not which was confusing. This prevented her from performing her role properly. She was late on her first day and 3rd day of employment only as she got off at the wrong bus stop otherwise she was around 30 minutes early. The Respondent said they are strict on time and this issue was discussed with her.

The Complainant went on holidays during her second month of employment. She understood she would be paid for her holidays in advance but found out that her pay would be paid pro-rata to the time worked and only 2.5 of 5 days leave would be paid. The Complainant was not happy about this and raised a grievance to a Manager. The Manager referred her back to her Supervisor and would not deal with her complaint. The Complainant says she was unhappy with this and would raise it with the next level of management and the Manager told her not to do this. However, the Complainant was not happy with the outcome and raised this to the CEO against the Manager’s wishes. The CEO said he was too busy to deal with it at the time. The Complainant says she was penalised as a result of pursuing this. She is entitled to pursue a grievance particularly where the actions of her Supervisor led to the grievance. The Respondent says that the Complainant had a practice of not going to her Supervisor on issues and not including her in emails. This was contrary to their Employee handbook.

The Complainant disputes that she took long breaks. She bought a sandwich for her lunch and ate it at her desk. The breaks that she took were her lunch breaks. When IT had to work on her computer during the day, she would take a break or sit on the sofa beside her work area.

She filled out the check-list sheets for the 3 funds for her Supervisor but 1 page was missing. There was a complaint by the broker that the Complainant was rude on a call when she wanted to cancel her insurance cover. She had been told not to call the broker directly.

The Respondent says that the Complainant was not performing well in the role. She was late on her first 3 days and had difficulties completing the tasks in the time allocated. She did not adhere to the instructions given by her Supervisor not to contact clients or the broker. The Supervisor and a Manager met the Complainant, to discuss her performance on 20th July 2017. The Complainant was told that her level of performance was less than what was expected, she was not ticking checklists and was taking too long breaks. Ten minutes was enough. The Complainant says she was told not to leave the office anymore. She was not complying with instructions and was emailing clients. One of the managers agreed that she referred to cultural issues at the meeting but says that she was referring to the Complainant not fitting in with the company corporate culture, and this was not a reference to the nationality of the Complainant.

The Complainant says at the meeting she agreed to follow the Supervisor’s procedures. She subsequently requested that her breaks not be recorded and asked permission to use the toilet. She was told this was not necessary. The Supervisor and Manager told her they would meet in a few weeks. However, on 26th July 2017 she was requested to go to the meeting room. She was not notified of the purpose of the meeting nor to bring a witness. She was told she was not performing well, she was not ticking the checklists, and was using the reverse function too much. She was told the company had received legal advice, and they were dismissing her. She was asked to leave.

The Respondent said that the employee subsequently recruited for the role is non-national and has successfully passed her probation. They had other Irish employees in the past who have not passed their probation and does not relate to race or nationality.

The Complainant had a short period of employment with the Respondent. I accept the evidence of the Respondent’s management of legitimate concerns regarding the Complainant’s work performance and absences. Directions regarding personal calls, complying with instruction of direct managers, and time-keeping are all set out in the Employee Handbook. However, there were also acknowledged difficulties with the original computer used by the Complainant which was replaced after one month which undoubtedly caused problems for her in carrying out her work.

1.              The Respondent has a grievance procedure in place their employee handbook which provides:

2.              “Where an Employee has a particular grievance or problem, the following procedure should be adhered to ensure a prompt resolution:-

3.              Stage 1 The individual should raise the matter informally with his/her Manager/ Supervisor who will make every effort to resolve the problem as quickly as possible.

4.              Stage 2 if a solution is not reached at stage 1, the employee should speak to a member of Senior Management and follow this up by putting their grievance in writing to Senior Management. The views of the Manager/Supervisor involved in stage 1 may also be sought.

5.              Stage 3 If you are still unhappy, you may refer the matter to the Managing Director. The Managing Director will then arrange a meeting between the parties involved to resolve the matter as soon as is mutually convenient.”

The Complainant was unhappy with the response of her Supervisor in relation to her holidays and sought to raise this with the next 2 levels of management. The Managers did not comply with the grievance procedure in considering the issues raised, and in fact one Manager warned the Complainant not to pursue her grievance to the next level. The Respondent’s handbook requires employees to comply with the instructions of their direct Supervisor however, this cannot override an employee’s right to pursue a grievance regarding her treatment.

The Respondent provides the same training to all staff and has given evidence of a diverse multi-cultural environment. The Complainant found this unsatisfactory and found she was not listened to nor was additional training provided. Her computer was replaced after 1 month.

The Company Disciplinary procedures provides that unsatisfactory performance will be the cause of disciplinary action, this includes lateness, unauthorised or unexplained absences, unsatisfactory performance of duties and slow work. A warning procedure will be used to advise the employee of the offence and consequences of the failure to improve. An employee must be given notice in writing that a meeting is to take place, when and where this will take place and what will be discussed. The employee can bring a colleague and will be given the opportunity to explain the poor performance.

The Complainant was employed for a short period of 2 months, however the disciplinary process in her contract of employment and employee handbook was not applied to her alleged poor performance. She had one performance review meeting on 20 July 2017 and the dismissal followed on 26 July 2017. She was told that she would be given an opportunity to address the issues. No disciplinary action was taken against her prior to dismissal. If the disciplinary process had been applied, fair procedures would have been applied to allow the Complainant to explain any difficulties and have an opportunity to try to address these. Only the Complainant’s Supervisor had direct knowledge of the performance of the Complainant.

A prima facie case of discrimination has been shown and the probative burden has shifted to the Respondent to show that the Complainant has not been discriminated against on the grounds of her nationality. The response of the Respondent is insufficient in my view to discharge the burden of proof.

The Complainant has been discriminated against on the grounds of nationality as she was not afforded fair procedures in the investigation of her grievance and application of the disciplinary procedures for poor performance in breach of the Company’s own procedures. She was treated less favourably than other employees in a similar situation. In addition, the comments made by a Manager that the Complainant had “cultural issues” also implies that the Complainant due to her French nationality was not fitting into the Irish Corporate culture of the company.

The Labour Court in Campbell Catering Ltd v Rasaq [2004] 15. E.L.R. 310 stated that “in the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand the allegation of misconduct and the consequences of same. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled. Applying the same procedural standards to a non-national worker as apply to an Irish worker could in itself amount to discrimination”. The same training was applied to all regardless of nationality.

I have considered the arguments of the parties and I am not satisfied that any of the behaviours identified by the Complainant fall within the definition of harassment on the grounds of race in the Acts and this aspect of her claim fails.

The Complainant has also made a complaint of victimisation that she was penalised as a result of her “protected act” which was raising her grievance with the company. However following the grievance she was brought into a performance review meeting on 20 July 2017, at that time she was told her performance was unsatisfactory and she would be given some weeks to improve. This did not ultimately occur as she was dismissed one week later but there does not appear to be any causal link between the “protected act” and subsequent dismissal in the circumstances. The complaint of victimisation also fails.

In all the circumstances and in light of the Complainant’s short length of service with the Respondent I award the Complainant 10,000 euro compensation for discrimination and discriminatory dismissal on the grounds of nationality which does not include financial loss. The complaints of disability discrimination, failure to reasonably accommodate a disability, harassment, and victimisation fail.

Discrimination on the grounds of race, disability, alleged poor performance, harassment on the grounds of race, and victimisation, fair procedures