Complainant

Respondent

Parties

Sandip Kumar

Parc Aviation Limited

Representatives

Sean Ormonde & Co. Solicitors

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-00020708-001

23/07/2018

The Complainant was employed by the Respondent as a Sales Support Executive, in what is an on-line specialist recruitment company. His employment commenced on the 9th October 2017. His employment was terminated by the Respondent on the 21st March 2018. This included one week’s pay in lieu of notice.

The Complainant complains, pursuant to Section 77 of the Employment Equality Act, 1998-2015, that the Respondent discriminated against him, on the basis of his race, in: getting a job; the conditions of his employment; harassing him; victimising him; and in dismissing him for discriminatory reasons.

He says that he is an Indian national who has lived in Ireland since 2006.

He says that he is a Hindi speaker but that he is also fluent in English.

He says that when he joined the Respondent company he was given a contract of employment. He says that this did not contain a probationary clause.

He says he was also given policies on Grievance and Disciplinary issues, Dignity at Work and Equal Opportunities.

He says that he had a meeting with his supervisor shortly after he joined the Company. He says that she talked about the job content and she asked that he set down goals for himself and that she would also set down goals for him.

He says that initially he achieved his goals but that there was no training provided to him to assist him in areas of the role where he had no previous experience.

He says that he was “subjected to bullying and harassment and to undue scrutiny and undue criticism by his supervisor, due to his race, and that Irish comparators were not subjected to”.

He says that he accepts that he did make a number of mistakes throughout his employment with the Respondent, but that he always sought to take on corrections and criticisms of his work in a constructive manner.

He says that as time went by the criticisms from his supervisor escalated and that he was accused of committing errors and actions that were causing significant financial loss to the Respondent, while not giving credit for successes achieved. He says that Irish comparators were not subjected to such treatment.

He says that in January 2018 he was advised by his Supervisor that he was employed subject to a 6-month probationary period. He says that he responded saying that there was no such clause in the contract. He says that his supervisor said that it must have been mistakenly omitted, as all contracts include this clause.

There followed a series of probationary meetings which continued to focus on areas of improvement required. During one such meeting he says that his Supervisor berated him for consistently making mistakes and that she said: “English is not your first language”. The Complainant says that he was distressed and annoyed by the continued suggestions of incompetence but was even further distressed by the implication that this was linked to his race.

Following further probationary discussions the Complainant was advised that he was not reaching the standards required and that the Respondent was intending to terminate his contract. They did so on the 21st March 2018.

The Complainant cited the case of;

A Complainant v. The Health Board, DEC-2004-010:

where the Equality Tribunal held that it was entitled to take into account comments made by the Complainant’s colleagues regarding issues of assimilation, integration and cultural differences, in determining that his nationality was a factor in him being treated less favourably.

He says that “there is clear evidence as to amount to a prima facie case of discrimination on the ground of race and that in those circumstances, the burden of proof must now shift to the Respondent to prove the contrary”.

The Respondent says that standard company practice requires that the Complainant was subject to a six-month probationary period. Under this standard practice performance is monitored to assess that standards demonstrated by an employee are as required for the role.

Arising from this, they say that the Complainant was required to attend frequent 1-to-1 meetings with his manager to discuss his performance. They say that these meetings took place as part of the probationary review process. They say that all employees go through this same probationary review process, as the Complainant.

They say that if the “probationary clause” was missing from his contract, that it was so, in error. They say, however, that it is referred to in section 12 (sick pay) and section 18 (termination) of the contract of employment. They say it was also discussed at the early stage of the performance/probationary review process. They say that the Complainant fully participated in all of the meetings associated with this process.

They say that “as part of the probationary review the Complainant had a 3-month review with his Supervisor. Areas that required improvement in performance included quality and accuracy of work and competency in the role”.

They say that the issues raised and discussed at that meeting included “content writing – quality of work needs to improve – less spelling errors, typos, mistakes etc.. Content writing is a key part of this role; thus, the level of work needs to improve. Overall digital campaign management – key stats have dropped since you took over the campaigns. As campaign AdWords was the key responsibility of this role, these stats need to improve that existed before you took over the campaigns and ideally increase”.

They say that areas for improvement were advised to the Complainant. It was explained that “a higher level of work needs to be attained to pass probation”.

They say that aside from the early goal-setting meetings, there were subsequent meetings where the Complainant was shown where he could access training, the performance meetings, reviewing the standards agreed and the various performance/work quality issues that arose. Much of the many “mistakes” of the Complainant were in the areas of grammar, spelling and typos. There were other serious mistakes in the product names of large customers. They say that these, as a result, would have a significant financial difficulty for the company.

They say that despite all of the meetings, at which the problems in his performance were pointed out, the problem areas were repeated, requiring more supervision – which the Complainant resented- they became absolutely convinced that the situation was not going to improve. They therefore advised the Complainant at a meeting on the 21st March 2018 that they would terminate his contract of employment.

The General Manager, who delivered the decision was unable to be present -for business reasons- so delivered the decision by conference-call to the Complainant and a HR representative. The General Manager offered to discuss the decision face-to face with the Complainant, on his return.

They say the Complainant says he was happy with the decision. He says he was going to leave anyway.

Section 6(1) of the Employment Equality Acts 1998-2015, provides that:

“…discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds”.

The Respondent advanced the case of Dublin Corporation v. Gibney EE5/1986, as defining what a prima facie case is, in the judgement, as:

“evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

On the Burden of Proof, the Respondent referred to the decision in:

Minaguchi v. Wineport   Lakeshore Restaurant, as follows:

“It appears to me that the three key elements which need to be established by a Complainant to show that a prima facie case exists are:

(i)that she is covered by the relevant discriminatory grounds

(ii)That she has been subjected to specific treatment and

(iii)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”.

I am also minded to take into account the determination of the Labour Court in the case of Dyflin Publications Limited v. Ivana Spasic:

“…. 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”.

I find, in this context, that the Complainant is relying on a remark by the Respondent that “I know that English is not your first language” to make his case of discrimination, but when taken in the context of the significant amount of grammatical and spelling errors by the Complainant, I believe that it is simply a recognition of the facts.

I find that the Complainant was not discriminated against.

The Complainant admits to the various grammatical and spelling errors. The business trades in a niche market where such “mistakes” can have a detrimental effect and were having such an effect given the statistics presented to the Complainant.

I find that the Complainant was treated as per his contract of employment by the Respondent. I find that it is fair to assume error in not including the terms of the probationary period, but I also find that a probationary period can be assumed as a part of a contract of employment and is indeed referenced in the text of the Complainant’s contract.

Finally, the Complainant mentions other employees in his submission but did not produce evidence at the hearing of different treatment of them in relation to a probationary period or how their performance reviews were handled.  

I find that the   complaint fails.