ADJ-00012941

Complainant

Respondent

Anonymised Parties

A Warehouse and Logistics Assistant

A Global Adhesive Manufacturer

Representatives

Lars Asmussen B.L. instructed by Sean Ormonde & Co. Solicitors

McDowell Purcell 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-00016998-002

24/01/2018

The complainant, referred a complaint under the Employment Equality Acts on the 24th of January 2018 alleging discrimination on grounds of race and family status in relation to his conditions of employment.   There are also claims of harassment, victimisation and of discriminatory dismissal on grounds of race and family status.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015.   I proceeded to a Hearing on the 31st of August, 2018.

The names of the parties have been anonymised due to the sensitive nature of personal information contained in the decision.

The complainant submits that

He was employed by the respondent as a logistics and warehouse systems assistant from 1 May 2015 to 9th 10th of October 2017,

When he commenced his employment with the respondent he had no parental responsibilities,

During the period from September 2015 he became a parent after which his flexibility towards his employer decreased,

He was harassed by the respondent on grounds of race and family status,

He was dismissed in circumstances amounting to discrimination on grounds of his family status and his race.

The respondent submits that

The complainant was employed by them as a logistics and warehouse systems assistant from 1 May 2015 to 9th 10th of October 2017,

The complainant was dismissed due to performance issues following numerous mistakes and errors and following his repeated failure to show improvement in areas where deficiencies were identified,

The complainant was not discriminated or harassed on grounds of family status or race.

The issues for decision by me now are whether or not the respondent discriminated against the complainant on grounds of race and family status, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of his conditions of employment and in respect of his dismissal.   There is also a claim of harassment on these grounds. The complainant at the hearing withdrew the claim of victimisation.

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”

Sections 6(2) (c) and (h) of the Acts define the discriminatory grounds of family status and race as follows – “as between any two persons …..

(c)   that one has family status and the other does not,...

(h) that they are of different race, colour, nationality or ethnic or national origins… “

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of his family status and/or on grounds of his nationality i.e. because he is a parent and/or because he is Slovakian. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination.   If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “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”.

Discriminatory treatment

The complainant advised the hearing that he was treated less favourably by the respondent on grounds of family status and race.

The complainant told the hearing that he had initially got on very well at work when he was single and had no parental responsibilities.  He told the hearing that he had been very flexible initially and that he would regularly come into work earlier than his start time and would leave later.   He stated that he was at this time always available to do overtime or to deliver parcels before or after work when needed.

The complainant told the hearing that he was doing so well in his initial employment with the respondent that they had given him a pay rise even though he had not even asked for one.   The complainant stated that he was made to feel like a valuable member of the respondent’s team.   He advised the hearing that he had successfully passed his six-month’s probation period with a few areas that needed improvement and that the respondent had scored him at 58 % in his performance appraisal carried out in October 2015. The respondent’s comments on this appraisal were “in general we are very happy with the last six months”.   The respondent at this stage noted that some areas for improvement should focus on   the Complainants ability to draft emails in English and the complainant’s ability to use Outlook, Excel, Word and PowerPoint.

The complainant told the hearing that his relationship with the respondent changed in September 2015 after he met his partner Ms. E and following which he became a parent to her two children. He told the hearing that he met Ms. E in 2015 and that she and her daughter O moved in with him in September 2015 he stated that her second child M later came to live with him in June 2016 he stated that he had at this time become responsible for two children   The complainant stated that he and Ms. E later had a child of their own in September 2016. The complainant advised the hearing that once he became in loco parentis to Ms. E’s children his flexibility at work decreased and he was no longer available to work overtime or to come in to work early or stay late.

The complainant submits that this led to him receiving unsatisfactory performance appraisals from the respondent and later led to his dismissal.

The complainant advised the hearing that he had at the time of his daughter’s birth asked for a few days off to help with the care of his daughter, he stated that the respondent said yes “take enough time”. The complainant told the hearing that he took 4 days and at the end of it he rang the respondent to ask if he could take an additional day which he was granted but he stated that the respondent at the time also told him that “he would have to be more organised”.

The respondent advised the hearing that the complainant had come to work for them in May 2015. The respondent told the hearing that the complainant had worked for a courier company prior to this and that they had become friendly with him when he delivered parcels to them during his employment with the courier company.   The respondent told the hearing that they were aware that they complainant was unhappy in his job with the courier company and when an opening came up for a warehouse assistant with them they offered it to the complainant.

The respondent stated that the complainant at the time had some reservations over his ability to do the job as his written English was not great the respondent stated that the job also involved IT skills with a degree of expertise in Word and Excel which the complainant advised them that he had.

The respondent told the hearing that the complainant had a number of performance reviews during his employment with them and that the outcome of the first two reviews was that certain areas for improvement were highlighted. Copies of these were provided.  

The respondent agreed that the complainant did come into work early and usually before his shift started but stated that this was because he had breakfast in the canteen and a cigarette before starting work. The respondent stated that there had never been any need for flexibility because the complainant did not have to work overtime either before or after he became a parent.

The respondent told the hearing that the complainant's circumstances had changed after he became a parent in that he had requested an earlier start time for work and an earlier finish time in order that he could drive his partner Ms. E to her place of work and also to pick up the children. The respondent told the hearing that it did not have a problem with this and that the complainant was facilitated in this regard.   Both parties agreed that the complainant was facilitated with the earlier start and earlier finish time in order to facilitate his personal circumstances.    

Witness for the respondent Mr. B advised the hearing that he himself also had a young baby and that he understood that this brought with it responsibilities and stated that they did their best to support the complainant when he became a parent.

The complainant in advancing his case stated that the respondent had taken issue with him travelling to Poland for his daughters christening.   The respondent told the hearing that his travelling to the christening was not an issue but that the complainant had planned the christening trip to coincide with a court case which his partner Ms. E was attending in Poland involving her previous partner.  The respondent stated that the arranging of the christening was ancillary to the Court case in Poland. The respondent stated that the date of the Court case was moved and so the complainant had moved the dates of his trip and the respondent again facilitated this.   The complainant stated that the court case was very important, and he agreed that the christening was arranged to coincide with the court case which Ms. E had to attend as it involved a large sum of money for Ms. E. The complainant accepted that he was facilitated in being granted the time off when he requested same.

Both parties advised the hearing that the complainant was under a lot of stress after he became a parent to three children and that he had to juggle work with looking after the children as well as dropping and collecting his partner Ms. E to and from her work.

The complainant told the hearing that he was also under a lot of financial pressure with bills to pay and three children to support and stated that the respondent Mr. B had often helped him out financially when he found himself in difficulty.

The complainant told the hearing that his house had been broken into one night and that he had immediately phoned Mr. B of the respondent in the middle of the night after it happened. He stated that Mr. B drove to Drogheda in the middle of the night and gave him €100 out of his wallet to help him out as the complainant’s wallet had been stolen during the break in. The respondent never asked for this to be repaid.

The complainant told the hearing that he had on another occasion gone into work and told the respondent that he had no money to provide food for the children’s breakfast, on this occasion Mr. B of the respondent gave him €150 and told him to go and buy food for the kids and to go home to feed them.

Other examples were given of instances where Mr. B had given the complainant advances on his wages to pay household bills where such bills arose before pay day. The respondent also gave the complainant a loan of €400 to enable the complainant to pay for a reception for his step daughters confirmation.

Both parties agreed that the complainant did not always pay back these loans and that Mr. B had sometimes told him that there was no need to re pay the loans.

The parties also told the hearing of an incident where the complainant’s friend had died in Poland and the complainant could not afford to go to the funeral. The parties told the hearing that the respondent had paid for the complainant’s flight ticket to attend the funeral and had also granted him time off with pay to attend the funeral. This paid time off was not taken out of his annual leave.

The respondent told the hearing that the complainant had a lot of financial pressures and personal issues and that it had always sought to help him out.   The respondent told the hearing that the complainant’s car had been impounded by the Gardaí on another occasion due to the complainant’s failure to tax the car and that the respondent had to facilitate him with a change in working hours so he could avail of a lift to work with a neighbour.   This meant that he arrived late and left early to avail of the lift to work and this went on for a number of weeks.

The respondent stated that it sought to facilitate the complainant as it understood the pressures he was under due to having to provide for three kids.   The respondent also stated that the complainant had confided in them about his personal issues and problems.  The respondent stated that it had facilitated the complainant until his standard of work deteriorated to such an extent that they could no longer afford to keep him in employment.

The complainant told the hearing that his early performance reviews had been very positive and that it was not until he became a parent and became less flexible due to his parenting responsibilities that the respondent sought to find fault with his work and ultimately dismissed him for performance issues.

The respondent told the hearing that there had been some performance issues from an early stage and that each of the performance reviews reflected this.   The respondent stated that the complainant prior to taking the job had led them to believe that his IT skills were up to the standard required but that they soon discovered that this was not the case. The respondent stated that the complainant’s standard of written English needed to be improved and that this was highlighted to him from an early stage and courses suggested to improve this. The respondent stated that it had even offered to pay for the complainant to attend a course in written English and writing emails but that he declined this offer.   The respondent stated that instead of improving, things started to disimprove.   The respondent stated that it had also advised the complainant of a number of mistakes and errors he had made and that these are detailed in emails from Mr. M to the complainant in June, July, August and October 2016 where he outlined specific mistakes and errors in the complainant’s work.

The respondent stated that the complainant began to make mistakes and made two very serious mistakes by mislabelling a product sent to a customer and also by sending the incorrect quantity of a product to another company.     The customers in question complained to the respondent and stated that it was not the first time they had received the incorrect quantity of product from the complainant. The respondent stated that providing a mislabelled and incorrect product to a customer could have very serious consequences.   The respondent who is an adhesive and sealant manufacturer, told the hearing that the product in question was for use in gas sensors which if they had malfunctioned due to the wrong product being supplied could have fatal consequences.

The respondent produced documentary evidence of these mistakes.   The complainant did not deny that he had made these mistakes and blamed the pressure he was under at the time due to trying to secure a passport for his child in order that she could travel to Poland for her christening as well as his financial pressures.

The complainant told the hearing that he had a second performance appraisal in October 2016 and that he had scored 68% on this appraisal.   Again the respondents comment was “in general we are very happy with the last six months”.   The respondent at this stage noted that the areas for improvement should focus on the drafting of emails, labelling and logistics errors.

The complainant told the hearing that he had in August 2017 booked annual leave for the period from 21 September to 5th of October 2017 to travel to Poland for his daughters christening.

The complainant stated that the respondent carried out a performance appraisal on 14 September 2017 and this time his score had decreased dramatically to 29% following which disciplinary proceedings were instituted against the complainant. The complainant submits that this appraisal was carried out in his absence. The complainant told the hearing that following this he received a final written warning stating that the unsatisfactory performance and conduct was as follows:

Multiple and consistent ordering production errors causing problems to the company and customers,

Refusal to apply training given to address shortcomings in IT duties,

Poor time keeping and multiple instances of unauthorised days and time off,

Inaccurate stock control record maintenance.

The complainant stated that he was then purportedly issued with a notice of a disciplinary hearing scheduled for 19th of September 2017 which he states he did not receive.

This meeting was later rescheduled to 6th of October 2017 at the request of the complainant. The complainant states that he did not receive either of these letters, but he does not deny that he asked for the meeting to be rescheduled.

The respondent told the hearing that it had handed these documents to the complainant and that they were explained to the complainant in detail.   The respondent stated that this took place before the complainant went on annual leave. The respondent stated that the documents were given to the complainant and that it was possible that the complainant had mislaid the documents as he was very disorganised and stressed about the trip to Poland.   The respondent stated that the complainant had at the time been very stressed and distracted due to his having misplaced documentation in respect of his daughter’s passport and which he needed in order for her to obtain a passport to travel to Poland for her christening.   The respondent told the hearing that the trip to Poland had been arranged to coincide with a court case which the complainants partner was attending in respect of her previous partner. The respondent stated that the date of the court case had previously been changed causing the complainant a lot of stress.  The respondent told the hearing that the meeting had been arranged for 19th of September but was later changed at the request of the complainant due to the fact that he was going away on the 21st of September.   The meeting was then re arranged for the 6th of October, 2017 at the complainant’s request.

The respondent told the hearing that the complainant was due back in work on the 6th of October but that he did not show up for work on that day.   The complainant stated that he had contacted the respondent as his flight had been delayed and advised them that he may be a bit late getting back. The complainant stated that he had arrived back in time for work but that his car wouldn’t start and so he could not go into work. He phoned the respondent to advise them of this and it was agreed that he would return to work on Monday.     The complainant was called to the disciplinary meeting on Monday 9th of October where he was notified that he was being dismissed due to mistakes and logistical errors. The complainant told the hearing that he was at this meeting shown copies of complaint emails from customers.  The complainant stated that the respondent on this date did not even allow him to turn on his computer when he came to work.   The respondent told the hearing that they had to use the complainant’s computer while he was away and while doing so discovered that it had been contaminated by malware due to sites the complainant had been accessing on his lunch breaks.   The respondent told the hearing that it had explained this to the complainant and that they requested that he not turn on his computer for this reason.    

The respondent stated that it had received a number of complaints from customers in respect of mistakes in quantities of products provided and mislabelling of products which could have had very serious consequences for the customers.   The respondent told the hearing that it had also encountered other mistake s and that these had been raised with the complainant on an ongoing basis and specifically in emails dated 8th of June 2016, 5th of July 2016, 2nd of August 2016 and again on 11th of October 2016.        The respondent stated that a serious customer complaint was received on 13th of September 2017. The respondent stated that the complainant’s performance had significantly deteriorated by the September 2017 appraisal and the number of mistakes being made by the complainant and the seriousness of same had increased. The respondent stated that the complainant had been subjected to its disciplinary procedure following these mistakes and that it had no choice but to terminate the complainant’s employment.    The complainant at the hearing did not deny that he made such mistakes or that such performance issues arose. The complainant stated that he himself had lost confidence in his work.   The respondent told the hearing that the complainant at the time of his dismissal stated that he was not surprised that he was being dismissed as he no longer felt comfortable in the job. The complainant told the respondent that he was going to look for a job closer to home as he was under a lot of pressure and they parted on good terms. The respondent upon dismissing the complainant provided him with a month’s pay.   The respondent told the hearing that they had parted on good terms and that following his dismissal the complainant had emailed the respondent on 10th of October 2017 thanking Mr. B for all he had done for him. The complainant at the hearing stated that this email was not genuine and that he was being sarcastic.

The complainant submits that the respondent failed to follow procedures in relation to the manner of his dismissal and that his dismissal was procedurally unfair. The complainant in this case had initially submitted a claim for Unfair dismissal which was later withdrawn, and he decided to proceed with a claim of Discriminatory dismissal. The complainant’s representative at the hearing raised a number of issues in respect of the disciplinary procedure followed by the respondent such issues being more appropriate to a claim of Unfair Dismissal which the complainant had already withdrawn.   The complainant’s representative in advancing a claim in respect of the procedures followed in the complainant’s dismissal sought to advance a case that the complainant was discriminated against on grounds of race and family status in respect of the disciplinary and dismissal procedures followed by the respondent.   The complainant submits that the procedures followed amounted to less favourable treatment of the complainant on the ground of his race submitting that   hypothetical comparator of a difference race and family status would not have been subjected to the same disciplinary procedures and dismissal given the same circumstances.

I am satisfied from the totality of the evidence adduced that the case before me is a complaint of discriminatory treatment in respect of conditions of employment and of discriminatory dismissal on the grounds of race and family status. Separately the complainant is claiming harassment on these grounds.

As regards discriminatory treatment in respect of conditions of employment on the ground of race and/or family status I am satisfied from the totality of the evidence adduced that the complainant in this case was not subjected to less favourable treatment on grounds of race and/or family status.     In fact it is hard to believe from the examples cited how the complainant could claim that an employer who provided him with such flexibility in work hours to facilitate his family commitments, provided him with loans and advances when he found himself in financial difficulty and in some cases did not even request the loans to be paid back and whom he called on for help when he encountered problems outside of work in his personal life, could be said to have treated the complainant less favourably on grounds of his race and or family status.

As regards the claim of discriminatory dismissal the case before me is that the complainant in this case was dismissed due to his race and or his family status.   The respondent has adduced evidence of mistakes made by the complainant and complaints received from customers arising from those complaints. The respondent has adduced evidence of performance issues which arose with the complainant’s performance from the start of his employment and which he was advised needed improvement. The complainant does not deny that he made such mistakes or that such performance issues arose and states that he himself had considered leaving as he no longer felt comfortable in his work.   The respondent told the hearing that the complainant at the time of his dismissal stated that he was not surprised at being dismissed as he had in his own head considered leaving as he felt he was no longer good enough and was no longer comfortable in the job.   The complainant told the respondent at the time of his dismissal that he was going to look for a job closer to home and they parted on good terms. The respondent upon dismissing the complainant provided him with a month’s pay and the complainant emailed them thanking them for how he was treated.     The complainant at the hearing tried to say that this email was not genuine and that he was being sarcastic.  

I am satisfied from the totality of the evidence adduced that a person of a different nationality and/or family status would in the same circumstances have received the same treatment as the complainant.

Based on the totality of evidence adduced I can find no evidence to support the claim that the complainant was treated less favourably by the respondent due to his race and/or family status. Accordingly, I am satisfied that the complainant was not discriminated against on grounds of race and/or family status by the respondent in respect of his conditions of employment and/or in respect of his dismissal.  

Harassment

Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

The complainant prior to the hearing did not provide any details or any evidence of harassment on grounds of race and or family status. The complainant at the hearing stated that the respondent had referred to him as a ‘Slovakian cowboy’. The complainant stated that the respondent was joking when he said this but that the complainant had found it offensive.     The complainant stated that this had happened on more than one occasion, but he could not provide specifics in terms of details of incidents or dates or times when this had allegedly happened.   The complainant when questioned at the hearing stated that he had not ever raised this as an issue with the respondent. The complainant attributed this statement to Mr. B.  

The respondent told the hearing that this was the first time such an allegation of name calling had been raised with them and the first time any attempt had been made to provide any specifics in respect of the claim of harassment.   Mr. B witness for the respondent denied that he had ever called the complainant a ‘Slovakian cowboy’ and stated that it is not a term which he would use as it is offensive. Mr. B went on to state that he himself is Scottish and would find it offensive if someone were to call him a ‘Scottish Cowboy’.    Mr. B also stated that he had considered the complainant as a friend and had offered him the job in the first place after he had become friendly with him through his work with the courier company.   Mr. B stated that he was the first person the complainant called after his house was broken into. Mr. B stated that he had driven to Drogheda in the middle of the night to help the complainant that night and that he had on that occasion and on other occasions given the complainant money out of his own wallet when the complainant told him of his financial problems.  

I am satisfied from the totality of the evidence adduced that the complainant was not harassed by the respondent either on grounds of race and/or family status.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –

that the complainant was not discriminated against by the respondent on the ground of race and/or on the grounds of family status in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of his conditions of employment,

that the complainant was not discriminated against by the respondent on the ground of race and/or on the ground of family status in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of his dismissal,  

that the complainant was not harassed by the respondent on grounds of race and/or on grounds of family status contrary to Section 14A,

that the complainant was not victimized by the respondent contrary to Section 74 of the Acts.

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