Complainant

Respondent

Parties

Magdalena Sakowska

Nox Hotel Galway Limited

Representatives

Eamon Concannon Concannon Solicitors

Rory Treanor, BL Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00017692-001

27/02/2018

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

CA-00017692-002

27/02/2018

The Complainant commenced employment with the Respondent, a hotel, on 8 June 2015, initially in the role of housekeeper, within the Respondent’s housekeeping department.

The Complainant was put forward for a Junior Supervisor position in October 2016. In May 2017, a six-month probationary period, attaching to the new role, was extended by a further four months. In September 2017, at the end of the extended probationary period, the Complainant was demoted back to her previous position in housekeeping, having been deemed to have failed to pass her probation.

In September 2017, the Complainant raised a grievance against her direct line manager. Having considered the Complainant’s grievance, the Respondent suggested to her that it should be submitted in the form of a Bullying and Harassment complaint. In October 2017, the Respondent held an investigation into the Complainant’s complaints. An investigation report issued on 27 October 2017 and held that there was no evidence to support the Complainant’s allegations.

At that point the Complainant requested Carer’s Leave into 2019, which was granted. The Complainant resigned her employment in January 2019.

The Complainant submitted two complaints to the Workplace Relations Commission on 27 February 2018. These complaints consisted of a claim under the Equal Status Act, 2000, (Complaint Reference: CA-00017692-001) and a claim under the Employment Equality Act, 1998, (Complaint Reference: CA-00017692-002), both alleging discrimination on the grounds of race.

These complaints are the subject of this adjudication.

CA-00017692-001 - Equal Status complaint:

At the commencement of the Oral Hearing into the Complainant’s complaints, her legal representative withdrew the complaint submitted under the Equal Status Act and confirmed that the Complainant’s claim would be pursued solely under the Employment Equality Act.

CA-00017692-002 - Employment Equality complaint:

Background:

It was submitted on behalf of the Complainant that she commenced employment with the Respondent in 2015. According to the Complainant’s submission, she was initially employed to do some deep cleaning in the hotel after renovation but was subsequently employed as an Accommodation Assistant.

According to the Complainant’ submission, she was victimised and bullied by the Accommodation Manager (Ms A) throughout the course of her employment with the Respondent. It was submitted on behalf of the Complainant that she was constantly stressed about work and sometimes found it difficult to sleep at night as a result of this work-related stress. It was further submitted that she had frequent nightmares about Ms A. According to her submission, the Complainant suffered from depression and was prescribed sleeping tablets and directed for psychological therapy. It was stated on behalf of the Complainant that working in close proximity to Ms A throughout the course of employment had a negative impact on her family life.

A comprehensive submission was presented on behalf of the Complainant, which set out a detailed account of the alleged difficulties she encountered in her working relationship with Ms A. These included difficulties pertaining to her promotion to a Junior Supervisor position in November 2016 and her subsequent demotion from that position. In addition, the Complainant’s submission set out a series of issues that she had with Ms A’s behaviour and management style, including the following:

·         being jealous of the Complainant’s working relationship with other staff,

·         refusal to train the Complainant on the use of office systems,

·         treating the Complainant less favourably than Irish employees,

·         being extremely condescending towards the Complainant,

·         refusing to allow the Complainant assist colleagues in their work,

·         intensely examining the Complainant’s work,

·         constantly trying to make the Complainant’s job more difficult than necessary,

·         shouting at the Complainant,

·         being critical of the Complainant’s weight and subjecting her to a weekly weigh-in

The Complainant’s submission also contained details of a formal complaint which she submitted against Ms A in September 2017. According to the Complainant, she was advised by the Duty Manager (Mr B) that, despite the fact that there had been four prior complaints made against Ms A the Respondent would not take action against her. The Complainant further submitted that the Deputy Manager (Mr C) who conducted the investigation into her complaint against Ms A and who found no evidence to support the allegations, tried to provide explanations for her (Ms A’s) behaviour.

In support of the Complainant’s complaint, her legal representative cited the following cases: Margaret Kelly v Bon Secours Health System Limited [ 2012], Glynn v Minister for Justice Equality and Law Reform and Others [2014], Quigley v Complex Tooling & Moulding Ltd [2009]

In conclusion, it was submitted, on behalf of the Complainant, that she was very hard-working person and that many staff employed at the hotel were aware of this. It was further submitted that the Complainant did not deserve any of the unfair treatment she received. According to the submission, the Complainant was learning and improving her skills throughout the course of her employment, however, she was subjected to corporate bullying and was treated less favourably than her Irish colleagues.

According to the Complainant, all the hard work and dedication was overlooked and Ms A focused intensely on her mistakes, which were scarce. It was further submitted that the Complainant was stripped of her position as Supervisor because the presence of dust over a door frame. It was also submitted that she was given no opportunity to improve.

Finally, the Complainant submitted that she did everything in her power to make her complaint heard, but she was unanswered. Consequently, the Complainant submitted that she had clearly been the victim of workplace bullying and victimisation.

CA-00017692-001 - Equal Status complaint:

The Respondent had prepared a detailed submission in response to the Complainant’s claim under the Equal Status Act. However, given that this claim was withdrawn at the commencement of the Oral Hearing, the Respondent’s submission in this regard was not opened or considered.

CA-00017692-002 - Employment Equality complaint:

Preliminary Point:

The Respondent raised a preliminary point in relation to the Complainant’s failure to name a suitable comparator in line with the provisions of Section 7 of the Employment Equality Act, 1998 – 2011, in relation to “like work”.

According to the Respondent’s submission, the Complainant did not mention any actual comparator in advancing her claim and did not advance any hypothetical comparator. With specific reference to Section 85A (1) of the 2004 Act, which requires a complainant to establish a prima facie case of discrimination before the burden of proof shifts to the respondent, it was submitted on behalf of the Respondent that it follows that the Complainant, in the within case, cannot establish a prima facie case of discrimination as she cannot show that she has been treated differently to an actual or hypothetical employees engaged in like work.

Substantive Submission:

Notwithstanding the preliminary issue as set out above, the Respondent denied the allegations of discrimination contained in the Complainant’s complaint. In support of the submission in this regard, the Respondent further reiterated their views in relation to the requirement on the Complainant to establish a prima facie case as per Section 85A (1) of the 2004 Act. In this regard, the Respondent referenced the case of Melbury Developments v Arthur Velpetters [EDA 0917]

It was also submitted on behalf of the Respondent that Section 15 (3) of the 1998 Act provides a defence for employers where the alleged act of discrimination has been done by an employee of the employer. It was submitted on behalf of the Respondent that the aforementioned section requires the employer to take such steps as are reasonable and practical for committing those acts. According to the Respondent, an employee handbook, which sets out the policy on bullying and harassment, the policy on equality and equal opportunity and the grievance/disciplinary processes had been in place throughout the Complainant’s employment.

In addition, it was submitted that the Complainant was aware of these policies and had occasion to avail of them. According to the Respondent, all formal grievances raised by the Complainant were dealt with in an adequate and proportionate manner.

While the Respondent claims that the Complainant is not a person to whom the Act applies, it was submitted that, in the event that it is held that the Complainant is a person to whom the Act applies, the Respondent denies that the Complainant has been dismissed or subjected to adverse treatment as a result of same.

In conclusion, the Respondent submitted as follows:

·         The Complainant’s claim is statute barred.

·         The Complainant has failed to elect an actual hypothetical comparator and so the claim for discrimination fails to raise a prima facie case of discrimination.

·         The Complainant was not harassed.

·         The Complainant did not engage in any protected acts.

·         The Complainant was not dismissed or otherwise treated adversely as a result of engaging in a protected act.

·         The Respondent is entitled to avail of the defence set out in Section 15 (3) of the 1998 Act.

Based on the above submission, the Respondent claimed that the Complainant’s complaint should be dismissed.

CA-00017692-001 - Equal Status complaint:

The Complainant’s complaint under the Equal Status Act was withdrawn by her legal representative at the commencement of the Oral Hearing. Consequently, no consideration was given to this complaint.

CA-00017692-002 - Employment Equality complaint:

Preliminary Point:

The Respondent’s arguments with regard to the Complainant’s failure to nominate a suitable comparator were based on the Complainant’s initial complaint as submitted on 27 February 2018 to the WRC.   At the Oral Hearing into the Complainant’s complaint, a more detailed submission was presented on behalf of the Complainant. Based on that submission, it appeared that the Complainant may be in a position to satisfy the requirement with regard to the provision of appropriate comparator(s), at least to the extent that would allow the substantive case to be heard.

On that basis then, I rejected the Respondent’s preliminary point and proceeded to examine the substantial element of the Complainant’s complaint.

Substantive complaint:

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he/she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

In support of her complaint, the Complainant, in the within case, is inferring that she was discriminated against by reason of her race, as she is a polish national. The Complainant further claimed that she was discriminated against (a) in getting a job, (b) in being promoted (c) in being victimised (d) in Conditions of employment and (e) in being dismissed for discriminatory reasons.

Having carefully considered all the evidence adduced and the respective submissions made by and on behalf of the parties, it appears the Complainant had significant issues in her working relationship with her direct supervisor, the Accommodation Manager, Ms A. It is further noted that when the Complainant initially raised issues under the Respondent’s Grievance Procedure, she was encourage to resubmit them as a complaint under the Bullying and Harassment Policy.

Having carefully reviewed the evidence adduced in this regard, I am satisfied that the Bullying and Harassment Policy was the more appropriate procedure for the Complainant to take her complaint, as the challenges she was alleging she was having in her working relationship with Ms A, had all the hallmarks of a dignity at work issue.

Furthermore, it is also clear from the evidence that the Complainant was dissatisfied with the manner in which the Respondent investigated her complaints and, more particularly, with the outcome of that investigation.

It is not my role, as a Adjudication Officer, to reinvestigate workplace complaints and/or to comment on the validity/credibility of the allegations being made. My role, where appropriate in this regard, is to consider the processes/procedures utilised by the employer in their response to an employee’s complaint. Having carefully reviewed all of the evidence in relation to the process adopted by the Respondent, in the within case, I find that the Complainant was provided with all of the elements that might be associated with a fair and objective process. The Complainant’s rights, including all of the standard rights which might be expected to apply in such circumstances, were applied to the Complainant throughout the process.

However, the views/conclusions, referred to above, must all be viewed in the context of the nature of the Complainant’s issues, i.e. dignity at work issues, arising out of the appropriateness or otherwise of her Manager’s behaviour, style or approach. Having carefully reviewed all of the evidence in this regard, I find none that would suggest that the issues raised by the Complainant, in her complaint against her Manager, were grounded in or related to discrimination, on the grounds of race, as set out in the Employment Equality legislation or as alleged by the Complainant in her complaint.

Furthermore, I find that the Complainant has failed to identify or nominate an appropriate comparator which would support her contention that she was treated differently to colleagues of any other nationality.

The Complainant contends in her complaint that she was discriminated against in relation to getting a job and to being promoted. However, I find the evidence indicates that the person she alleges discriminated against her, i.e. Ms A, was her direct supervisor when she got her original position and also when she was promoted subsequently. While I accept that the Complainant was subsequently demoted, having failed to pass an extended probation period, I find no evidence to suggest that an individual of a different nationality was not or would not have been demoted, in similar circumstances.

Finally, in this regard, I note the Complainant’s contention that she was discriminated against in being dismissed for discriminatory reasons. The evidence clearly shows that the Complainant’s request for Carer’s Leave, in accordance with the Carers Leave Act 2001, was sanctioned by the Respondent for a period commencing on 30 October 2017 and concluding on 27 October 2019. By her own evidence, the Complainant’s employment ceased in January 2019, when she resigned her position. In a context where she resigned from her employment, the Complainant clearly has no grounds to suggest that she was dismissed for discriminatory reasons.

Taking all of the above into consideration and having carefully reviewed all of the evidence adduced, I can only conclude that the Complainant has failed to establish a prima facie case of discrimination and, therefore, her complaint, in this regard, must fail.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my decisions in relation to the Complainant’s complaints:

CA-00017692-001 - Equal Status complaint:

As the Complainant’s claim under the Equal Status Act, 2000, was withdrawn at the commencement of the Oral Hearing, no decision issues in this regard.

CA-00017692-002 - Employment Equality complaint:

The Complainant has failed to establish a prima facie case of discrimination, such that the burden would have shifted to the Respondent to prove the contrary, as set out in Section 85 A (1) of the Employment Equality Acts, 1998 – 2007.

Consequently, I find that the Complainant’s claim of discrimination on the grounds of race is not well founded and is, therefore, rejected.

Employment Equality Acts

Equal Status Acts