Complainant

Respondent

Anonymised Parties

A supervisor

A   retail outlet

Representatives

MDM Solicitors

Tom Smyth & Associates

Act

Complaints 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-00017162-001

30/01/2018

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

CA-00017162-002

30/01/2018

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

CA-00017162-004

30/01/2018

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

CA-00017162-005

30/01/2018

The background to this case covers a 3.5-year period of employment between the complainant, an American national and the Respondent who operates Retail stores. I have exercised my discretion in anonymising this decision.

The Complainant was represented by her Solicitor and the Respondent by their Human Resource Advisors. A claim for Unfair Dismissal, while raised at the outset was subsequently withdrawn in accordance with Section 104(4) (a) of the Act on 28 February. The case proceeded with 4 live complaints under Minimum Notice Legislation and Employment Equality Legislation.

The parties confirmed that a case was also active under PIAB. Both parties made helpful written submissions.

The Complainant is an American national who was employed on a student visa in the Respondent pet shop from 3 February 2014 to when her employment ended by dismissal on the grounds of gross misconduct on 1 August 2017. At first, she worked in General Operative positions until her promotion to Supervisor in November 2016. She worked a 40-hour week in return for €460 gross per week.

It was the Complainants case that she was exposed to a difficult working environment which caused her stress and anxiety.

On Monday, 29 May 2017, the complainant took a single bulb for illuminating an animal cage from a locked cupboard. Staff were permitted a 20% discount and the bulb was priced at €8.76 post discount. The transaction ought to have been a manager/ supervisor to manager /supervisor transaction, but the complainant acted alone. She submitted that no other supervisor was in the store. The Complainant told the Assistant Manager that she fully intended to pay for it, but she forgot to do so.

An Investigation followed where the complainant pleaded that this was not theft but offered reasons for the omission as her stand-alone status and the high activity levels of the store, where a Manager had to leave to attend hospital.

The Complainant co operated with an Internal Investigation and Disciplinary hearing and continued to plead that she had not stolen the bulb. The Complainant was unhappy as a “past mistake” of a money bag taken home by mistake in 2015 had found its way into the Respondent deliberations on the 2017 incident. The Complainants representative contended that the dismissal was disproportionate in the face of alternative and lesser sanctions being available to the Respondent.

CA -00017162-001 Minimum Notice

The Complainant submitted that she had been summarily dismissed and denied her two weeks’ notice period.

CA -00017162-002 Minimum Notice

The Complainant submitted that she did not receive all her rights during the period of notice. On dismissal she was informed that an appeal should be lodged within 5 working days, however, her I dismissal was immediate without any option for stay pending the appeal.

CA -00017162-004 Discriminatory Dismissal

The Complainant submitted that she had been Indirectly discriminated against by reason of race and discriminatorily dismissed on 1 August ,2017. She contended that she was treated differently to Irish employees as Irish supervisory managers were given chances following similar mistakes. The Complainant submitted that as she was a US citizen on a student visa, the Respondent knew they could fire her without fear of her enforcing her rights. This placed her at a disadvantage compared with others without her racial background.

Prior to the hearing the Complainant had submitted an EE2 form seeking answers to questions from the Respondent. This was not addressed or responded to by the Respondent.

The Complainants representative outlined that the complainant had worked in a hostile work environment where the pressure was such as might have led to circumstances of constructive dismissal. The complainant had observed that other staff made mistakes the affects of which did not linger as her mistakes had done.

He outlined that the complainant was an American national and covered by race grounds for the purposes of the Act. He contended that the complainant was not given a proper opportunity to explain herself at the disciplinary meeting on 26 July. The Complainants representative contended that the complainant’s nationality was the reason for her unfair treatment because the respondent expected that she would not appeal her dismissal.

The Complainant was resident in the country on a Stamp 4 visa and had breached the conditions of her visa by working more hours than the permitted hours under a student work concession .The Complainant submitted that the Respondent used her vulnerable position to dismiss her , based upon the fact that the Respondent would not likely complain ,as by doing so she risked being flagged to Immigration enforcement . He also submitted that the complainant was routinely singled out to feed animals over the Christmas period just because she was a non-national.

The Complainant was the only supervisor dismissed for making what she accepted was a mistake in failing to pay for the bulb notwithstanding that other EU /Irish staff had made similar mistakes by failing to pay for items

By being dismissed, the claimant was treated less favourably than Irish / EU nationals were treated in comparable situations contrary to section 6(2) (h) of the Act.

The Complainant submitted that the Respondent decision to terminate her employment in the summary way occurred was

1 Predicated upon her nationality

2 entirely unreasonable in the circumstances

3 Without substantial grounds

4 a breach of fair procedures

And based on a continuum of issues where the Discriminatory Dismissal amounted to a “fait accompli”.

The Complainants evidence

The Complainant addressed the hearing by confirming that she had was undertaking a master’s Programme and had experienced a difficult working environment at the respondent shop. she stated that she suffered stress and anxiety as a result. She was not part of the clique as managers and supervisors were “not in the crowd”. She recounted the bulb episode and qualified this by stating that she had no intention of deceiving the respondent. The Complainant recalled a previous incident involving a past supervisor, Mr C  which occurred at a 2015 Christmas party, where she was called in regarding a €300 deficit and a money bag taken home by mistake. She expressed a strong sense that she was always being called in on disciplinary issues. She cited this Manager as her comparator, Mr C was Scottish.

She took over when the supervisor left and tried to share the message with staff to raise issues when they occurred but felt brushed off. An existing colleague, Mr A was appointed Manager. Mr A supported her and pushed for her formal promotion, but the complainant heard from a Senior Manager that she was not to be upgraded.

The Respondent staff then comprised of Mr A and Ms A as Managers who were Irish, the complainant and a fellow key holder who was Irish, two Polish sales assistants and the remaining staff were Irish. The Complainant contended that the staff were not informed that she was holding a supervisor position. She thought she may have signed another contract. She did receive a salary increase.

When the invitation came for the Disciplinary procedure, the complainant was informed by Mr B that she couldn’t pay for the bulb because of the investigation. She expressed a sense of disbelief surrounding the Disciplinary process which ended in her dismissal some 20 minutes before closing on 1 August ,2017, following which she handed in her keys. She attributes not being provided with a second chance as racial discrimination and contended that her reputation at the company had not survived the 2015 Christmas Party incident. She submitted that she was not trusted by her employer after that point and was shocked when the incident was referred to as “my bad mood” during the disciplinary procedure. She confirmed that she had been a participant in a separate disciplinary regarding a “shouting episode “with Mr C.

The Complainant recalled her first Christmas at work where it was presumed that as she had no family in Ireland she should work over the season to attend to the animals. Subsequently, the complainant offered to work at Christmas time.

During cross examination, the complainant confirmed that she had offered to cover Christmas only after she was told that she had no family in Ireland.

The Complainant also confirmed that she had raised an extensive grievance regarding her Manager, Ms A in September 2016 which had been successfully resolved.

The Complainant confirmed that Mr C was her comparator and had told staff at the staff party in 2015 that he had extra money to spend courtesy of the company and was prevailed on by Ms A not to spend it. The Complainant seemed unsure on the disciplinary sanction that arose from this for her and was vague when the Respondent representative submitted that she had attended 3 such meetings. The Complainant submitted that she had been denied a second chance and had been treated differently to her colleagues on grounds of race

The Complainants Representative relied on the jurisprudence in Stobart ltd and Richard Beamshelf EDA 1411 and UCD and Dr Eleanor Higgins EDA 131.

CA -00017162-005 Reasonable Accommodation

The Complainant submitted that she suffered from anxiety and was unsupported in this by her employer and denied reasonable accommodation.

The Complainant attributed an inflammation of the Anxiety to the concurrent deterioration in the working relationship with Ms A her Manager. She was being challenged on her attitude at work and she sought to resolve the conflict informally through a letter of grievance in 2016. She went on to experience severe anxiety which the company were aware of. She felt vulnerable in her role as Supervisor and had sought support in line with Section 16(3) of the Act. She contended that no effort was expended to assist her, and the company had its “head in the sand”. She found work situations very stressful. She was medically advised to take stress leave.

The Complainant submitted that she had been singled out by the Respondent and disciplined for “poor attitude and bad mood” The Complainant submitted that she felt punished for raising issues of flippant attitude of other staff to animal welfare and inconsistent application of staff discounts.

The Complainants representative stressed that the request for information under the EE2 form (July 2018) had been ignored by the respondent and the Adjudicator should draw inferences from this.

The Complainant contended that the Respondent was on notice of the complainant’s disability due to her absence due to anxiety and stress.

The Complainant confirmed that she found it difficult to discuss her condition with her Manager. Once promoted, she felt under a lot more pressure and had not discussed any alterations to her work pattern.

During cross examination, the complainant confirmed that she had requested support but not specifically for reasonable accommodation.

The Respondent operates several Pet Shops located in several locations. The Respondent refuted all claims raised. In relying on Section 77(5) of the Act, on statutory time limits, they submitted that the cognisable period for the employment equality claims ran from 31 July 2017 to date of claim to WRC, that of 30 January 2018.

The Respondent made a primary written submission dated 16 July 2018.

The Respondent pointed to the pre- existence of the Company Equality Policy in place to prevent discrimination in any form. This Policy was signed as accepted by the complainant. The Respondent contended that they had no basis to respond to the EE2 form as the complainant had not made out a prime facia case and her presentation at that time was void of the facts “of sufficient significance” directed by the Labour Court in case of alleged discrimination.

CA-00017162-001 Minimum Notice

The Respondent submitted that Section 8 of the Minimum Notice and Terms of Employment Act provides that as the complainant was summarily dismissed for gross misconduct, she therefore has no claim for notice.

CA-00017162-002 Minimum Notice

The Respondent submitted that the Company disciplinary procedure provides that “after a full investigation, gross misconduct will not be subject to the warning procedure and will result in summary dismissal …. without notice or payment in lieu of notice”.

The Respondent disputed the claim for notice.

CA -00017162-004     Discriminatory Dismissal

The Respondent   refuted the claim for Discriminatory dismissal and reaffirmed that the sole reason the complainant was dismissed by the Respondent arose from the circumstances involving a Disciplinary procedure which resulted in a finding of gross misconduct warranting a summary dismissal. The Respondent adhered to their own procedures and the complainants ethnic background had no role to play in this decision. They argued that the complainant was given every opportunity to state her case. They contended that they had not applied inconsistent disciplinary practices towards other staff to amount to discriminatory practice towards the complainant.

The Respondent submitted that the present claims amounted to latter day actions as the complainant had not availed of the pro offered opportunity to appeal the dismissal at the time it was offered. It was clear that she was legally advised at that time as evidenced in the concurrent data protection request.

The Respondent contended that the complainant had not demonstrated a nexus between her dismissal for gross misconduct and her race and thus could not satisfy the test for burden of Proof set down in Mitchell V Southern Health Board [2001] ELR 201.and cross referenced in Transport Infrastructure Ireland and Maurice Leahy EDA 1819.

“By instructing the complainant to attend a meeting arranged on this basis the Respondent had made it clear that no decision had been made and none would be made until the Complainant had made full submissions in relation to all or any aspect of the issues arising from the report “

The Respondent detailed that an Investigation had followed the light bulb incident. The complainant was given all the relevant documents, the Investigation reports and requested to attend a disciplinary hearing deferred due to her illness to 27 July. Mr A attended, did not participate and just took notes which were subsequently agreed. The Complainant

Evidence of Mr A, Manager

Mr A had been a Manager since October 2016. He became aware of the light bulb incident through a text from one of the shop assistants while he was in hospital attending to a fracture. the incident was relayed to him through written statements. He sought direction from head office in relation to a theft having taken place and was advised to commence a formal investigation. The complainant submitted that she had mentioned her intention to pay for the product to Mr B, but Mr B denied this. Mr A also disputed as “completely ridiculous “that the complainant was forced to cover the Christmas period as he was clear that she had offered to work to top up the animal feeds.

He described the complainant as a superb worker, whom he had supported. She excelled at paper work. He himself had benefited greatly by working for the company. He detailed the Management chain of command at the company shop where he was placed third in the order the complainant a joint fourth as Supervisor/ Key holder.

Mr A confirmed that he had conducted the investigation and was not a decision maker in the decision to dismiss. He expressed a sadness at her leaving.

He submitted that the complainant had missed out in time to pay for the bulb as it “was too late to pay “He did not dispute that the complainant had not been given the opportunity to pay.

Mr B, Assistant Manager

Mr B submitted that the complainant had not appraised him of her intention to pay for the bulb. He contended that he would have remembered if she had said it as there was a nominated area to put things aside.

Ms H, Service Manager

Ms H had been with the company for 22 years and invited the complainant to the disciplinary hearing. The company prided itself in looking after staff and was proud of the staff purchase/ discount policy. The customer is king.

Ms H attended the Respondent store cited in this case on Wednesdays. Mr B had informed her that the complainant was ready to return to work post illness.

Ms H confirmed that the company had supported the complainant in 2015 as evidenced in the letter sent to her at that time (February 2016) where she had given the benefit of the doubt. The manager, Ms A was out sick at that time. Looking back, Ms H reflected that the complainant had been given numerous chances and there was no doubt in the case. stealing from the company was expressly forbidden and two employees had issued statements confirming the theft, she felt there was no alternative to dismissal and her hands were tied.

She was aware that the complainant regularly worked alone and was concerned at the trust required to support that work system and the complainant’s distance from that trust. She confirmed that she held the authority to dismiss employees. The complainant had not appealed her decision.

During cross examination, Ms H confirmed that the Investigation followed 1 week after the incident where the complainant had time to come forward.

In referencing the 2016 grievance, Ms H confirmed that the complainant had chosen the informal resolution route and the matter was resolved.

She affirmed that the incident from 2015, while volatile was not discriminatory.

In concluding, the Respondent represented submitted that the complainant had not satisfied the burden of proof based on credible evidence. Her position was terminating solely on the grounds of gross misconduct was never attributed to her race.

CA -00017162-005 Reasonable Accommodation

The Respondent refuted that the complainant had been denied reasonable accommodation in respect of a disability. The Dismissal was attributed solely to gross misconduct in line with company procedures. The Complainants medical condition was never a factor in this action. The Respondent relied on the Equality Policy at Section 38 of the staff handbook. The Respondent submitted that anxiety could not meet the definition of a disability

The Respondent submitted that a Doctors letters to the Respondent relied on by the complainants for its reference to a disability was never received by the Respondent. The Respondent was never requested to provide reasonable accommodation to the complainant either by the complainant herself or her medical doctor. The Respondent on site Manager, Mr A gave evidence that he had no idea that she experienced an anxiety condition The Respondent acknowledged the complainants sick leave which was also associated with back to work meetings where the company was not placed on notice that a reasonable accommodation was sought. The contemporaneous records did not reflect any requests in that vein.

The Respondent in considering the reasons for the complainant’s sick leave attributed just one cert for 1-day absence on 23 April 2015 and 1-day absence on 19 July 2017 for anxiety and stress respectively. The matter was not raised at probation meetings.

The Respondent submitted that the burden of proof could not therefore be satisfied in the case. The Complainant had not been treated less favourably or denied reasonable accommodation on grounds of disability.

I have considered both party’s submissions both oral and written in this case. I have also reviewed the contents of the EE2 form submitted by the complainant in February which went unanswered. I have noted that this document referred to discrimination on race and disability grounds.

I now propose to address the four submitted complaints, given the withdrawal of the complaint under unfair dismissal.

CA-00017162-001 Minimum Notice

I have considered both parties submissions in this case. I note that the reason for dismissal advanced by both parties was gross misconduct which the respondent submitted a reliance on Section 8 of the Act below.

 Right to terminate contract of employment without notice.

8

8.— Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

I have not considered this case under the Unfair Dismissals Act, but I have found that the complainant was discriminatorily dismissed. I believe that it would be unjust to withhold payment in lieu of notice in this regard and I have established a breach of Section 4(2) of the Act and I award the complainant 2 weeks pay in lieu of notice. This amounts to €920 gross. The claim is well founded.

CA -00017162-002 Minimum Notice

I have considered both parties submissions in this case and cannot establish that the complainant was denied her right to stay an appeal during the notice period. The claim is not well founded.

CA -00017162-004 Discriminatory Dismissal

The Complainant has submitted that she was dismissed due to her race and that she was not given the second chances given to other workers for similar mistakes. The Respondent has denied this stating that the dismissal was informed wholly by the removal of company property and thus gross misconduct.

My role in this case, in the first instance is to investigate the claim to ascertain whether the complainant can satisfy the burden of proof outlined in Section 85A of the Act?

In considering the submitted case of Higgins, I am drawn to the extract from Nagarajan V London Regional Transport [200] UKL48 where Lord Nicholls of Birkenhead made a strong direction on principles of discrimination. I am equally guided by the Respondent submitted case of Mitchell V Southern Health Board on the burden of proof necessary.

Section 8(6) of the Act sets out the parameters of the law in relation to conditions of work inclusive of Dismissals.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

The Complainants Representative contended that a continuum of indirect discrimination had prefaced the dismissal dated August 1, 2017. This covers an apparently neutral provision, criterion or practice applied to all which would put persons of a protected group at a disadvantage in comparison with other persons not in possession of the protected ground. He argued that the dismissal was such an outcome. The Respondent was clear that race had nothing to do with the decision to terminate the complainant’s employment and the breach of trust alone had gone to the root of the decision taken to dismiss her.

Firstly, I must be satisfied that the complainant is covered by the grounds of race. As an American national who travelled to this Country to complete a Masters in Zoology, I find that she has satisfied the grounds of race necessary to advance her claim. The Complainant was participant in a multicultural workforce and her cited comparator was Mr C, a Scottish national.

I have looked very carefully at the facts of this case. I note that the complainant clearly loved working with animals and this enthusiasm ought to have been a perfect fit with the respondent who shared this fervour. However, unease entered the employment relationship for the complainant at an early stage and friendships and relationships in being ceased. She presented at hearing as an outlier who had a strong sense of purpose but seemed to struggle with how she was perceived at work. She did not immediately attribute this to her race, but she expressed a defined sense of ongoing exclusion. This was also reflected in the Grievance letter of September 2016.

I noted that the complainant accepted a verbal warning for an interpersonal conflict issue. I also noted that the complainant signed acceptance of a contract of employment and staff handbook one year into  her employment. I have reflected the reliance by the complainant on a continuum of incidents which underpinned the claim for indirect discrimination. The Respondent was very clear that several issues on attendance, interpersonal relationships and role demarcation had been addressed and resolved through back to work meetings and the grievance resolution letter of October 2016. I found these incidents to be operational incidents not attributed to the complaints race. The Complainant has not satisfied the burden of proof in this regard.

In reflecting on the claim for Discriminatory Dismissal, I found a confirmed opaqueness around the complainant’s transition to Supervisor in 2016. While she felt that she had been provided with a contract reflective of the transition, this was not shared with me for the purposes of my investigation. Instead, I relied on the primary contract dated 25 April 2015 which signalled an agreement to be bound by the above terms and conditions. This referenced “Dishonesty of any nature “as grounds for immediate dismissal. The contract also references that all cases would be treated individually.

The Complainants core argument centred on the inconsistency in how the Respondent treated her through the lead up to the dismissal in 2017. This is not an Unfair dismissal claim but given the serious allegations levied at the complainant, I must be satisfied of the procedural fairness. The Respondent was very strong in their rejection of the argument on an inconsistent approach and emphasised the breach of trust which by then was irreparable.

For my part, I began to look at the complainants standing in the workplace, was she a potentially vulnerable person in terms of work processes? I found that the complainant had a very clear understanding of her role and function at work, I also found that she was procedurally adept, having been party to both grievance and disciplinary procedures prior to 2017. She was a fluent English speaker and had made a career progression to Supervisor. However, I was unhappy in the opaqueness surrounding this progression. The Respondent referred to it loosely in the November 2016, where the complainant was referred to as a member of the management team and further back in February 2016 where the complainant was referred to as a “ joint temporary supervisor on an acting basis “ Yet , she does not appear to have received commensurate notification of the revision or served a period of probation in the role .

The Respondent was clear that the complainant’s involvement in the Disciplinary process was managed through the framework of fair procedures, where she could state her case at the Disciplinary hearing. I accept that this occurred in part, however, I found that the respondent may have unwittingly paid insufficient regard and weighting to the complainant’s nationality and her lack of clear knowledge of how the Irish Statutory systems of high-end Disciplinary systems worked. I appreciate that the complainant resorted very early to taping the Investigation and Disciplinary hearing in this case. I found this to be an excessive gesture which ought to have been discussed in advance. I have also found that she may have benefitted from Professional representation from early in the case. The Respondent was clearly open to and inviting of same. I find that the complainant was not familiar with high end disciplinary procedures due to her American Nationality. I appreciate that she ha signed her acceptance of a comprehensive staff handbook, inclusive of a paragraph on Equality, however, this was a terse paragraph which did not explain discrimination.

I have looked carefully at the submitted statements that prompted the investigation. I found a considerable overlap in these statements and noted that the complainant herself was not requested to provide a statement prior to the commencement of the investigation. Mr A was clear in his evidence that he was treating the incident of the light bulb as a theft from the outset. This is a very serious charge. I found that while there was an inexcusable delay on the complainant’s side in offering to furnish payment for the lamp, she did offer to pay for the product. I found that her eventual offers of payments were prematurely brushed off. I can appreciate that this was a busy store reliant on higher supervisory support from Dublin one day a week, however, I found the absence through illness of Mr A was the true antecedent event in the case.

Mr A told the hearing that he received a text from the complainant’s floor staff indicating an incident had occurred within 24 hours of the lamp issue. Yet, statements were dated June 7, some 9 days later. Neither party in the case mentioned the light bulb in the intervening period, this was a major omission directed at both parties and I found a shared blame here.

I found that Mr as absence through illness permitted a cooling off period that proved fatal in the case. Given that the company was on notice of the complaint within 24 hours of its occurrence, I found the delay which followed before investigation on 26 June 2017 to be injurious to the complainant.

I make this point as I was struck by the inconsistency in the methodology applied by the company in the face of oversights brought to the management attention in the immediate aftermath of completion. i.e. both instances referred by the complainant at the Disciplinary hearing. Both incidents carried a risk to the integrity of the business, yet both appear to have been resolved promptly. The episode of the light bulb did not follow that course and stands out for that reason. I am particularly mindful that the company accepted texts from both the Manager and Assistant Manager to close oversights in cash handling. I have established that the complainant was not afforded a timely opportunity to address what she vehemently referred to a hearing as an oversight and not a theft.

I found an inconsistency in the composition of the undated Staff Policy on Goods purchase. It was not paginated or numbered. It was laid out differently to the staff handbook in terms of the Equality and Grievance/Disciplinary Policies. This inconsistency raised some doubt in my mind as to the cohesiveness of the document and while this was not raised by the complainant during the disciplinary process, I have taken account of it.

I also have a difficulty in understanding the significance the Respondent placed on the February 2016 letter which excused the complainant from sanction on the money bag issue, but which was incorporated into the decision-making process regarding the bulb. This was a breach of fair procedures.

I was not satisfied that the Respondent had taken account of the potential vulnerability of the complainant in terms of a decision to terminate employment. (Rasaq) While I appreciate that the complainant found new work shortly after her dismissal, I found that the Respondent erred in this regard. To lose a job at any stage must be considered an extremely difficult place to be, to lose a job so far away from home without supports must be considered in any analysis as a catastrophe. The Complainant relied on a friend who worked as a Deli Assistant to accompany her to the Disciplinary hearing. Nobody advanced that this person was skilled in representation and this was a missed opportunity for both parties. The Complainant is of course responsible for her own representation, however, I found that the Respondent ought to have offered a higher level of guidance to a non-national employee.

In Campbell Catering Ltd v Rasaq EED 048, the Labour Court pointed to the nuances associated with Discriminatory action when it stated  in relation to a Discriminatory Dismissal in reaction to the consumption of bananas at the work site.

It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.

In seeking to apply Rasaq to the facts of this case, I found that the Respondent certainly addressed the case with the best of intentions to undertake a fair procedure, inclusive of deferring the hearing to permit the complainant to recover post illness. I have established that the Respondent did not consider special measures to assist the complainant in terms of guidance in making a defence. The Complainant could not have had a working awareness of Dismissal Law in Ireland and was at a disadvantage because of this. I do not accept that the complainant feared exposure to Immigration, which in turn prohibited the pro offered appeal. I have concluded that she failed to appreciate its significance in Dismissal Cases. I was also struck by the complainant’s continuity in the work place post incident. I found that the Respondent does not appear to have addressed this uneventful period in their reasoning for dismissal. The lamp bulb incident occurred on 29 May 2016 and the dismissal occurred on August 1. The Complainant continued in her role as Supervisor without any special measures during this period.

In the Labour Court Case of Ntoko V Citibank [2004]15 ELR 116 in addressing a single incident episode of phone usage by a Congolese Agency worker which led to dismissal:

The Court is satisfied that the complainant has proved as a matter of probability that he was singled out for special unfavourable treatment by his manager, that another agency employee of a different racial origin would not be so treated and that his dismissal arose as a direct consequence of the special treatment to which he was subjected. Having regard to all of the surrounding circumstances this is a fact of sufficient significance to raise a presumption of discrimination. The Court has considered the respondent's explanation of what occurred and in light of the evidence as a whole, finds it unconvincing. Accordingly the respondent has failed to satisfy the Court that it's decision to dismiss the complainant was not racially motivated and the complainant is entitled to succeed.

I found that the Complainant exhibited a vulnerability in her evidence . I found that the Respondent was genuinely concerned about protecting high levels of performance at the retail shop. However, on balance I have identified that the complainant has met the prime facie test for raising the presumption of discrimination and the burden now moves to the Respondent to demonstrate that the dismissal was not tainted by discrimination.

The Respondent committed to treating all cases involving summary dismissal individually. On considering the evidence, I was struck by the scale of the previous mistakes attributed to other staff, such as a Christmas Party overspend, a €50 oversight, a mobile moneybag. The issue of a lamp for reptile illumination seemed minor when judged against these actions, all of whom had settled peacefully. The Company have not dated the staff goods policy and I found a lack of transparency in that. I also drew inferences from the respondent’s lack of engagement with the EE2 form submitted on February 28, 2018.

I completely accept that the complainant presented a challenging management issue via the removal of the lamp. This was not her property. I heard Mr B for the company tell me that there was a designated location for goods for staff purchases in a lay by format, but this was expressly prohibited in the Policy. I found that the Respondent placed a disproportionate weighting on the Floor Staffs reports without an immediate reciprocal report from the complainant.

I must conclude that the Respondent did not pay enough attention to the complainant’s nationality in applying the terms of a universal Disciplinary Policy. I found that there was a “ rush to justice” by the Respondent which placed the complainant at a particular disadvantage .I have identified some instances in the case where the complainant did not take the time to reflect on the gravity the Respondent applied to the unrecorded lamp and perhaps became over reliant on a surveillance of the procedures adopted during her disciplinary rather than adopting an advocacy approach . This was a missed opportunity.

I have also found that the Respondent formalised an Investigation without first approaching the complainant for her version of events and through that formalised process forsake an opportunity for the potential for a simpler and earlier resolution. For all these reasons, I find that while I appreciate that the Respondent lost property rightly for sale, I must conclude that the complainant’s dismissal was related to her race and was discriminatory. The Respondent has not succeeded in objectively justifying their action to dismiss as appropriate or necessary.

The claim is well founded.

CA -00017162-005 Reasonable Accommodation

The Complainant has submitted that she suffered from anxiety and had been denied reasonable accommodation for same. She was troubled that she had made her condition known to the respondent and had not been supported through her transition to the Supervisor role and up to the time of her dismissal.

The Respondent was emphatic that the company was not on notice of any disability and pointe to the statutory time limit associated with the claim. The Respondent submitted that the respondent had done everything to support the complainant through an extensive period of sick leave attribute to a variety of conditions.

Section 2 of the Act provides a definition of Disability

disability” 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 behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Section 16 of the Act outlines an employer’s responsibility to make reasonable accommodation in support of a disability with some exceptions.

For my part, I undertook a careful analysis of the complainants record of sick leave which was accompanied by records of back to work meetings. I found records of medical certs covering a variety of physical illnesses. I note that the Respondent facilitated the claimant on her return to work post an abdominal issue in 2015. I found one record of a one-day absence for anxiety in April 2015 and nothing further in that regard until the 2-day stress leave in July 2017 accompanied by a Fitness to return to work report from the complainants own Doctor.

I must conclude that the Respondent was not on notice of the complainant’s disability. There was adequate provision to incorporate a discussion on any condition on the back to work forms, however apart from the abdominal condition, no lifting restriction, the section appears to have remained unpopulated in the records.

The moment of whether an illness/condition can be classified as a Disability has focussed many minds in the higher courts both here in Ireland an in the CJEU as the forthcoming Supreme Court appeal on Marie Daly and Nano Nagle School [2018] IECA 11 demonstrates.

I accept the reference drawn by the complainant to Depression constituting a disability in Beashel. This is indeed settled law. I also accept that Anxiety, based on facts could be equally classified as a Disability in accordance with 2 (e) However, Anxiety does not equate with Depression.

However, I must conclude that the complainant has not demonstrated that she was living with anxiety to the level where it had crystallised into Disability. I am strengthened in my view of this by Mr As honest submission where he had no idea that the complainant suffered anxiety. He was regarded by the complainant as her support at work and somebody who canvassed for her.

The CJEU has ruled on a three-part test in terms of establishing the limitation of a person’s capacity when assessing for disability.

On those grounds, the Court (Third Chamber) hereby rules in Daouidi V Bootes Plus SL, Fondo De Garantia Salarial ( Wages Fund) and Ministerio Fiscal ( public Prosecutor) C-395/15 , 1/12/16

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that:

– the fact that the person concerned finds himself or herself in a situation of temporary incapacity for work, as defined in national law, for an indeterminate amount of time, as the result of an accident at work, does not mean, in itself, that the limitation of that person’s capacity can be classified as being ‘long-term’, within the meaning of the definition of ‘disability’ laid down by that directive, read in the light of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009;

– the evidence which makes it possible to find that such a limitation is ‘long-term’ includes the fact that, at the time of the allegedly discriminatory act, the incapacity of the person concerned does not display a clearly defined prognosis about short-term progress or the fact that that incapacity is likely to be significantly prolonged before that person has recovered; and

– in the context of the verification of that ‘long-term’ nature, the referring court must base its decision on all the objective evidence in its possession, in particular on documents and certificates relating to that person’s condition, established on the basis of current medical and scientific knowledge and data.

Having considered the facts of this claim, I have not established that the complainant possessed a disability in accordance with Section 2(e) of the Act and as such lacks the locus standi to progress this aspect of her claim.

The Complainant certainly demonstrated that she was unhappy lonely and unsupported at work, but these conditions are distinguished from a disability for which reasonable accommodation can be claimed.

The claim is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA -00017162-001 Minimum Notice

I have found the claim to be well founded and I order the Respondent to pay the complainant compensation of €920 for the breach of Section 4(2) the Act

CA -00017162-002 Minimum Notice

I have found the claim not to be well founded.

Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to the complaints in accordance with the provisions of the Act.

CA -00017162-004 Discriminatory Dismissal

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the complainant was discriminatorily dismissed on the grounds of race on August 1, 2017.

I order the Respondent to pay the complainant €10,000 in compensation for the discriminatory treatment she experienced. This sum does not attract a reduction by Revenue.

I also order the respondent to undertake an immediate review of the company Equality Policy which should be revised to reflect the current legislative definitions of discrimination.

Finally, I would direct the Respondent to host a workplace awareness on cultural diversity for all staff and management within two months of the date of this decision.

CA -00017162-005 Reasonable Accommodation

I have found that the complainant lacks the locus standi to advance her claim. The claim is not well founded.