Complainant

Respondent

Parties

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-00020114-001

01/07/2018

The complainant commenced employment with the respondent as a diamond and Jewellery consultant on 15 May 2017.

She worked 40 hours a week and her rate of pay was €14 per hour. She passed her probationary period in November 2017. The respondent terminated her employment on the 22 February 2018. She was advised that she was not a ‘good fit’ for the company.

She contends that she was discriminated against, victimised and dismissed   on the basis of her nationality.

She submitted her complaint to the WRC on 1/7/2018

The complainant claims that the respondent discriminated against her under the Employment Equality Acts, 1998-2015 by reason of her race;

in not giving her training;

in victimising her;

in dismissing her for discriminatory reasons; and

by discriminating against her in dismissing her because she opposed discrimination.

The complainant states that as an English person she was treated less favourably than employees of a different nationality.

Discrimination of the basis that she was not provided with training.

She asked her supervisor for training to deal with special orders in August 2017 and repeated this request at the end of the year. These were costly, bespoke items of jewellery with diamonds and not the pre-set models with which she would usually engage. Other employees with less experience than her had been given this training.

Less favourable treatment on the grounds of race

The nub of her complaint of discrimination on grounds of race is found in the following instances of less favourable treatment.

14 /9/17, the Manager, Customer Service told her on 14/9/18 that her accent comes across as “cold and careless to customers”. But the complainant asserts that this is contradicted by customer satisfaction record.

On another occasion, the Manager imitated her saying “please may I ask for your full name “whilst on the phone to a customer, she said that the complainant sounded like a child. The Manager stated that it was a compliment for her politeness.

On 20 November 2017 she sent an email to a customer asking for feedback on how helpful she had been in her engagement with him. Her email was picked up on by a supervisor in the USA who contacted the complainant’s Manager. On foot of this, on 23rd November, the complainant was brought into a meeting for receiving this one supervisor’s negative survey out of 82 positive surveys, despite other colleagues receiving a higher number of negatives and using a similar format of email to customers. She was singled out and pressured into altering her email to ask a more neutral question and states that no other employee was instructed in this way. Irish employees were allowed use the expression “is it helpful’ in seeking feedback from a customer. She deleted the alleged offending phrase ‘it would be helpful”. She does not know if her Irish colleague, DC, was pulled up for sending such emails to customers.

Following this meeting, she confided to the Manager over an instant message that she suffers with anxiety and had not shared this condition with anyone. The manager shared this information with her supervisor without her consent or knowledge.

A colleague made the remark to her that “she would have to go back because of Brexit” She didn’t raise this remark with the respondent.

Holiday request.

This was the complainant’s first job in the Republic of Ireland, after moving over from the UK on the14th May. She had been assured by the Manager, that she would be able to fly home for Christmas to be with her family. This was ultimately denied up until 2 weeks prior to Christmas Day, which was then too late to purchase a plane ticket home

On 9th February 2078, she received a request from her supervisor to contact a customer in regard to a special order. As stated, these are bespoke items of jewellery with diamonds and not the pre-set models with which she would usually engage. She was denied training to deal with these types of phone calls. On being questioned she stated that she does not know who had or hadn’t been provided with training in special orders.

ln regards to the special-order phone call, she had been previously directed by management that someone of her level should not engage in these types of calls, which was further enforced by the respondent’s Answer Book.

Prior to making the phone call to the customer and during the phone call, she advised her supervisor that she was uncomfortable and did not have adequate training, but this was ignored, and she was advised to make and to continue with the call regardless of her stress. She does not know if the assignment of staff to take special order calls in advance of receiving training was universally applied. This call caused her extreme anxiety, which ultimately lead to her seeking a meeting or telephone discussion with HR. This meeting was held with Ms L, Seattle based, on 13th February. ln this meeting Ms L advised that stating to her supervisor that she was uncomfortable taking the call and emphasising her lack of understanding and training was insubordinate behaviour'. She further expressed you should “'do everything your supervisor requests of you “‘and threatened “if you wish to progress with your career with the respondent you need to be humble and apologise for mistakes”. She complied with this direction.

On 10 February 2018, the complainant met with her Supervisor and the Manager to discuss the special-order call. She advised that her colleague, LM, had not been asked to do this and asked why she had been so tasked.

The Dismissal

At 5pm on 22 February, the Manager said to the complainant “can I have a quick chat”. The Manager told the complainant that “she was not a good fit for the company and that this perception ‘had been apparent over the last number of months”. The complainant didn’t say much. She asked for the reason. The manager said, “I do not have to give a reason” and that it was her last day after 9 months and 7 days. This despite passing her probationary period, having received glowing quarterly reviews & 1-1's, surpassing all of her targets, winning X target competitions, having a fantastic rapport and feedback from customers and including herself in numerous team- building events. Her interest in team events, team revenue targets, team building, her upbeat and positive attitude, her willingness to be flexible and help others had been noted by the respondent.

She was forced to leave the building without essential important medication, required as a preventative for her severe asthma.

She states she was dismissed because she opposed discrimination.

No any policy was ever signposted to her.

She has since made a subject access request.

Victimisation complaint.

The complainant states that her complaint about the difference in treatment concerning taking special order calls without training between her and a colleague, made to her Manager and supervisor on the 13 February 2018 was the basis for her dismissal. She did not use the word discrimination. The Manager said at this meeting that I came across as rude to that customer on the phone.

She was dismissed for opposing discrimination. She received no warning. She was not accused of gross misconduct. The respondent dismissed her without following its policies and procedures. She was not given a copy of the handbook when commencing employment.

She was told she was a great fit in January 2018 then told not a good fit in February 2018

ln summary, the respondent failed to follow any disciplinary procedures, where appropriate,

leading up to her dismissal. The evidence and facts contradict their very reason for firing her,

which when taken with their behaviour leads her to conclude that she was discriminated against and treated less favourably, due to her nationality and heritage, and ultimately unfairly dismissed.

The complainant has lodged the following claims against the respondent under the Employment Equality Acts, 1998-2015 (the “Acts”):

(a) that she was discriminated against by reason of her race;

(b) that the respondent treated her unlawfully by discriminating against her in giving her training;

(c) that the respondent treated her unlawfully by discriminating against her in victimising her;

(d) that the respondent treated her unlawfully by discriminating against her in dismissing her for discriminatory reasons; and

(e) that the respondent treated her unlawfully by discriminating against her in dismissing her because she opposed discrimination.

The respondent asserts that each of the claims of discrimination on the grounds of race submitted by the complainant is entirely without foundation.

RELEVANT FACTUAL BACKGROUND

The respondent is a jewellery retailer and manufacturer, headquartered in Seattle. It expanded into Europe in 2007. The Respondent currently employs 21 employees in Dublin. When the complainant was employed, there were 12 employees in the Customer Service Department in which she worked in Dublin, 42% of whom were not of Irish nationality.

She works as a Diamond and Jewellery Consultant in the Customer Service team. Initially she was employed on a fixed-term contract of employment, which was due to expire on 15 November 2017. On November 2017, the complainant’s employment was confirmed as permanent.

Her remuneration was €28,237 gross.

Clause 15 of the Employment Contract refers to the respondent’s Employee Handbook. The respondent’s Employment Equality Statement (the “Equality Statement”) is set out in Chapter 1, Section B, It states, as follows:

“X does not unlawfully discriminate in employment decisions on the basis of race, colour nationality, ethnic or national origin, gender, sexual orientation, age, religious belief or lack of religious belief, civil status, family status, disability or nature of disability, membership of the Traveller community, or any other characteristic protected by law.” (our emphasis)

Furthermore, the Equality Statement prescribes a complaints process for employees who have questions or concerns about any type of discrimination and makes clear that employees may make reports or complaints of discrimination without fear of reprisal. Finally, the Equality Statement emphasises that “anyone found to be engaging in any type of unlawful discrimination or retaliation will be subject to disciplinary action, up to and including termination of employment.”

Hence there was a clear route of complaint open to the complainant if she considered that she was being discriminated against on the grounds of her nationality. However, at no point did the complainant raise any complaint or concern in this regard.

Alleged Incident on 14 September 2017

The Manager, CS Europe provided feedback and coaching to employees working on the Customer Service team in relation to their phone manner and encourages a warm and friendly attitude to customers. The complainant alleges that the Manager commented to her in a 1 to 1 on 14 September 2017, almost 10 months before the complainant lodged her claim with the WRC, that her accent came across as “cold and careless.”

The Manager denies that she made any negative comment to the complainant regarding her accent.

Alleged mimicking

This complainant was never raised.

During her employment, the complainant was generally polite on the phone to customers. Insofar as the manager commented on the complainant's phone manner, and referred to her as sounding like a child, this was a compliment i.e. a reference to the complainant’s politeness on the telephone.

On the day following the termination of her employment, the complainant sent a text message the Manager for the support which she had shown to the complainant during her employment with the Respondent. It read

“I didn’t get a chance to thank you for everything you did for me, especially in the beginning - you were definitely like a mother figure to me and for that I will be forever grateful. I think you are brilliant and that won't change. Thank you for guiding me. G".

The respondent contends that the complainant would not have sent a text message of this nature had she considered that the manager discriminated against her during her employment.

Alteration of email response to customers.

The complainant had to the respondent’s way of thinking directed a customer to give feedback on how helpful she had been as opposed to the usual open-ended request for any feedback. The respondent submitted in evidence emails from fellow employees which were open ended and devoid of the request to indicate how helpful they, the consultant, had been the person who picked up on her email was a US based supervisor who sent it on to the complainant’s Manager. the Manager met her on 23 November and asked her to use open-ended questions to customers. The manager contacted the complainant afterwards and asked her if everything was ok to which she said yes and thanked the manager for her assistance.

Instant message re anxiety

The complainant disclosed that she suffered from anxiety and the manager asked her to let her know if she could help her in any way. As the manager was no longer the complainant ‘s direct supervisor she shared this information with the complainant’s direct supervisor so as to allow the supervisor to provide any necessary supports. It had nothing to do with her nationality.

Request for leave at Christmas 2017.

A Seattle based customer service scheduling analyst does the Christmas Schedule and was unlikely to have known the complainant’s nationality. As it is a very busy time it is not possible for employees to book leave and get leave at Christmas. Ultimately on the 11 December the respondent gave her 4 days at Christmas – a period longer than that   given to any other employee.

Assignment of a special-order call and failure to provide her with training for special order calls.

This training was identified as a goal for 2018 for complainant.

She was not requested to take a special order call on 9 February 2018. She was asked to contact a customer who had made a special order to advise him that delivery of his order was not possible within his requested timeframe, but that delivery of his second preference - a readymade setting was feasible and to assist him in the purchase of a readymade item of jewellery. Her supervisor had explained this to the complainant.

Contrary to the complainant’s assertion that other colleagues had not been asked to make such calls a day previously, a Chinese colleague, appointed 6 months after the complainant, with less experience in the jewellery industry had been asked to make a call to the same customer and she had no issue in dealing with that same customer.

On 10 February the complainant emailed her supervisor regarding the call which she had been asked to make on the 9 February.   The supervisor suggested that they have a discussion about same. The complainant asked for HR to be involved.

On 13 February prior to her call with HR, the complainant contacted her supervisor to arrange a meeting with them. Notes of this meeting were submitted. The primary emphasis of that meeting is that calls can take unexpected turns and that the main thing is to provide the customer with the information if not at that point then as soon as possible thereafter.

On 13 February 2018, the Seattle based Human Resources Generalist, Ms. L had a call with the complainant. The complainant advised her that she was asked to call a customer and said that she was adamant that she did not wish to do so and was vocal in her resistance about making the call and expressed her unwillingness to proceed with the call to the respondent. She advised Ms. L that she did not consider herself to be qualified to take the call. She further noted that the call was an unpleasant interaction, which, the complainant indicated, in retrospect, she should have approached differently. The complainant admitted that she may have been perceived as sounding frustrated on the customer call. The complainant expressed disappointment in her leadership team.

After listening to the complainant’s concerns, the Human Resources Generalist advised that she understood that reluctance to handle an unpleasant call was understandable. However, she indicated that the complainant’s admission that she was adamant that she did not want to make the call was inappropriate and bordered on insubordination. – a term she explained. She pointed out that there are various aspects to a role and employees must carry out duties assigned to them, regardless of personal preference for one task over another. She advised her to embrace the experience as a learning opportunity. fMs. L explained that this approach would acknowledge her commitment to continued growth and acceptance of opportunities.

The complainant appeared to Ms. L to be amenable to her guidance and confirmed that it was never her intention to be insubordinate. Ms. L considered that the call was a positive one and the complainant expressed her desire to move forward and noted that she intended to contact her leadership team, as Ms. L had suggested.

The Respondent submits that the complainant has mischaracterised her call with Ms. L

Dismissal Meeting

In the months leading up to the termination of her employment, the Complainant frequently boasted about being an “expert complainer”. The respondent States that there was a mechanism available to the complainant to make complaints of discrimination. This did not happen.

The respondent overall stated that the fact that one phone call on the 9 February led to so many meetings and emails indicated to them that she did not subscribe to the company’s ethos and that she was not’ a good fit’. They carried out the dismissal on the 22 February 2018 as allowed by her contract.

LEGAL SUBMISSIONS

Time Limit

As a preliminary matter and without prejudice to the below, the respondent submits that any alleged acts of discrimination asserted by the complainant to have occurred prior to 31 December 2017 should be disregarded by the Adjudication Officer since they relate to a period which is more than six months prior to the date on which the complainant lodged her claim with the WRC. In this regard, the respondent relies on Section 77(5)(a) of the Acts which provides, as follows:

“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.”

Burden of Proof

Section 85A of the Acts governs the burden of proof in the context of establishing a prima facie case of discrimination. Section 85A (1) states 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."

The respondent refers to the evidential burden which the complainant mist discharge and point to the Labour Court Determination Teresa Mitchell v Southern Health Board [2001] ELR 201. In that case it was held that the first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to the complainant. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which she/he will seek to rely in raising a presumption of unlawful discrimination. It is submitted that it is only if these primary facts are established to the significance of the Adjudication Officer, and they are regarded by him/her as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.

The respondent notes that this requires a complainant to not only establish the primary facts upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA21/2008, the court held that“the type or range of facts which may be relied upon by a complainant may vary significantly from case to case….. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts."

With regard to the specific claims made by the complainant, it is submitted that she has failed to meet the burden of proof set out in Section 85A (1) of the Acts in that the facts upon which she relies do not create a presumption of discrimination. In this regard, Section 6(1) of the Acts provides that “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 … discriminatory grounds.” In these circumstances, the onus of proof has not passed to the respondent. Accordingly, the respondent requests that the Adjudication Officer dismiss the within complaints on the basis that there is no case to answer.

Victimisation

Similarly, the respondent submits that the complainant has failed to establish a prima facie case of victimisation. In this regard, Section 74(2) of the Acts defines victimisation as occurring “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.”

The Complainant must establish that she was dismissed or adversely treated as a result of her making a complaint of discrimination. She must effectively show that 'but for' a complaint, she would not have been dismissed/adversely treated.

It is submitted that the complainant has failed to establish a prima facie case of victimisation. At no point during her employment did the complainant make a complaint of discrimination, notwithstanding that she lauded herself as an "expert complainer”. As such, this aspect of her claim should be rejected since there can be no victimisation in circumstances where no complaint of discrimination was made by the complainant.

CONCLUSION

For the reasons set out above, the respondent submits that the complainant’s claims, in their entirety, are ill-founded and should be rejected.

I am required to establish if the respondent discriminated against and victimised the complainant because of her race and  contrary to the provisions of the 1998 Act.

The scope of the complaint and time limits.

Section 77(5)(a) of the Acts provides, as follows:

“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.”

The complaint was submitted on 1 July 2018 so the application of section 77(5)(a) would render complaints of discriminatory incidents (the comments about her telephone manner, the comment about Brexit, the mimicking, the issue concerning her request for feedback from a customer, the request for leave at Christmas) falling before the 31 December 2017   to be inadmissible.

However, 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.”

With the exception of the request for training, I consider the incidents falling before the 31 /12/ 17 to be standalone incidents. I consider the request for training made in August 2017 to be part of a continuum in that she believed that she was disadvantaged in her dealings with the special-order customer in February 2018 due to the absence of training in a way not known to employees of a different nationality.

The burden of proof.

Section 85A (1) of the 1998 Act states 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."

The burden of proof has been established to include the following requirements;

that she is covered by the relevant discriminatory grounds,

that she has been subjected to specific treatment and,

that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated

The Labour Court in the case of Dyflin Publications Limited v. Ivana Spasic, EDA 823, stated

“the Court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

It is not clear from the primary facts submitted as evidence of discrimination, that the complainant was asked to deal with the task of putting together a special order for a customer which is a highly specialised operation. She was asked to discuss the alternative to a special order, a piece of readymade jewellery which was within her experience and competence. It may have been that there were some cross over questions.

Aside from the fact that she was not asked to undertake a task not asked of another colleague with her experience and training, I find that the complainant was unable to indicate that other employees with her level of experience and of a different nationality were treated differently and that she was treated less favourably than them. She did assert that one colleague, LM, had not been asked but did not dispute that an employee of a different nationality, with less experience than herself and without training had been asked and had undertaken the same task a day previous to her.

I accept the respondent’s statement that training in special orders is not provided to employees with less than 12 months service.

The Labour Court in Intesa Sanpaola Life Ltd. v Nowak (EDA 1840) stated:

“It is settled law that, in circumstances such as this, the mere coincidence of nationality and a perceived detriment is not sufficient to ground a complaint of discrimination. Something more must be established that would suggest the possibility that there is a relationship between the two facts.”

While the fact that the complainant was treated harshly and peremptorily ushered out of the building may be evidence of unfair treatment does not make it evidence of discrimination unless the link between her nationality and the fact of dismissal is established. I do not find that the evidence supports that link. I can understand that the complainant had a right to feel aggrieved, but this complaint is taken under the Employment Equality Act, 1998i  

I find that the complainant has not succeeded in raising an inference of discrimination and so her complaint cannot succeed.

Complaint of victimisation.

This complaint is that she was dismissed because she made a complaint of less favourable treatment on the race grounds at a meeting on 13 February.

The complainant’s written evidence makes no reference to any assertion on her part that she complained at the meeting of the 13 February that a person of a different nationality was not asked to make any special-order calls and that it was merely because of her nationality that she had been asked to do so despite not having been trained in this process. Her oral evidence was that she stated at the meeting of the 13 February with her manager and supervisor that a colleague, LM, had not been asked to make such (special order) calls and why had she been asked to do so; she did not state in evidence that at the meeting of the 13 February she had attributed this to her nationality. 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.” As

Though followed a week later by a dismissal, I do not find that the complainant’s statement at the meeting of the 13 February meets the definition of a protected act as set out in section 74(2) of the Act and so I do not therefore do not have to consider if the detriment of dismissal is linked to her statement.

I do not find that the evidence presented by the complainant raises an inference of discrimination.

Anonymisation of parties.

I have decided to anonymise the parties. The complainant is trying to establish herself in Ireland.

.

I find that the evidence presented by the complainant has failed to raise an inference of discrimination and her complaint cannot succeed.

Alleged discrimination on race grounds; dismissal