EDA1917

The Complainant is a Slovakian national. He was employed by Novachem Corporation Limited (‘the Respondent’) from 4 May 2015 until 10 October 2017 as a Warehouse Logistics Manager. His salary at commencement was €24,000.00 per annum and he was paid monthly. The Complainant gave detailed evidence in relation to his employment history with the Respondent. He told the Court that during the first number of months he was very happy in his job and a friendship developed between him and the proprietors of the Respondent’s business and particularly with Mr Ian Millrine. According to the witness, he and Mr Ian Millrine often met for smoking breaks during which they shared information about their personal life outside of work. In the Complainant’s words, his relationship with the Respondent’s principals began to “cool down” after the 2015 Christmas party, which he recalls took place in late November 2015. He told the Court that Dr William Millrine began to act more formally towards him and that Mr Ian Millrine and he didn’t talk as much as they had previously done from that time onwards.

When the Complainant was initially employed by the Respondent he did not have any childcare responsibilities. This, for example, made it possible for him to be at his place of work regularly at 8.00 am in the morning, although his official working hours were from 8.30 am to 5.00 p.m., Monday to Friday. However, the Complainant no longer had this degree of flexibility from September 2015 onwards. In or around that time, his partner’s daughter (now his step-daughter) arrived from Poland to live with him and his partner. In June 2016, the Complainant’s partner’s second daughter also joined their household. The Complainant’s daughter was subsequently born in September 2016.

By his own evidence, it would appear that assuming parental responsibility for his partner’s two children and then becoming a father himself, impacted significantly on the Complainant’s attentiveness to his work. He told the Court that on a number of occasions he had to start work late in order to take his first step-child to see their General Practitioner because she suffered badly with asthma. On other occasions he had to leave work early for similar reasons. In addition to this, he found himself routinely taking phone calls from his partner during the working day to assist her in resolving various domestic and child-related issues that arose from time to time.

The Complainant outlined to the Court a pattern of what he believed were inappropriate, offensive and discriminatory remarks allegedly made to him from time to time by Dr William Millrine. He said that Dr Millrine had called him a “Slovakian cowboy” on approximately six occasions, the first of which was sometime after the 2015 Christmas party. The Complainant said he believed that the last occasion when he was referred to in this manner occurred sometime in the summer of 2017. However, he could not be precise about when in the summer of 2017 this was. In response to questions from the Court he could not confirm that Dr Millrine had used that term in addressing him in July, August or September 2017. Under cross-examination from Mr Walsh, Solicitor for the Respondent, the Complainant accepted that there had been no reference to the allegation that Dr Millrine had called him a “Slovakian cowboy” in his submission to the Workplace Relations Commission and the first occasion when this was adverted to in the proceedings was during his direct evidence before the Adjudication Officer. The Complainant volunteered that he had forgotten to mention this to his Solicitor. The Complainant also accepted that he had never thought to raise his discomfort with being called a “Slovakian cowboy” by Dr Millrine with Mr Ian Millrine during one of their many smoking breaks although they were on friendly terms and talked about many personal issues. In reply, the Complainant said that he was conscious that Dr Millrine and Mr Ian Millrine are father and son. He also said that while he was reasonably friendly with Mr Ian Millrine at the time they weren’t so close that he would feel comfortable in raising such an issue with him.

The Complainant also alleged that Dr Millrine made various comments about the food he brought in for his lunch in the early months of his employment. At that time, his lunch often included typical eastern European foodstuffs such as chorizo, salami and sour cabbage. According to the Complainant, Dr Millrine – on four or five occasions – made remarks such as: “Is that what you eat in Slovakia?”; “Is it dead or alive?”. The Complainant says he was asked to keep his lunch in the fridge in the warehouse rather than in the canteen. He appeared to suggest that this was partly due to Dr Millrine’s aversity to meat products. In any event, the Complainant said that he stopped bringing such food items for his lunch early in 2016.

The Complainant had his first performance appraisal in or around 12 October 2015. This coincided approximately with the end of his six-month probationary period. The appraisal report of that date was opened to the Court. It appears the Respondent was generally satisfied with the Complainant’s performance but indicated a range of areas in respect of which he needed to improve. A second performance appraisal took place approximately twelve months later, at which stage the Complainant’s household had expanded to include the three children referred to above. The Complainant’s second performance appraisal, dated 20 October 2016, was also very positive and indicated that the Respondent remained very happy with him as an employee. However, a number of aspects of his work were highlighted as being in need of improvement. Nevertheless, under the various individual sections of the appraisal form, his scores equalled or exceeded those he had received in the previous performance appraisal report.

A third performance appraisal report, dated 14 September 2017, was also opened to the Court. The Complainant disputes that any performance review was conducted with him in September 2017. His evidence was that he first saw the purported appraisal report for 2017 at the hearing before the Adjudication Officer. This ‘report’ paints the Complainant’s performance in an altogether negative light in contrast to the two previous appraisal reports. The document opened to the Court concludes with the following observation: “Note: - Following this performance review, we are confirming that you will be issued with a formal notice of a disciplinary meeting at a date to be agreed.” The Complainant told the Court that he never received any such letter. However, he does recall that Dr William Millrine mentioned to him that he would like to meet with him following his return from annual leave.

The Complainant went on annual leave on 20 or 21 September 2017, during which period he travelled to Poland and Slovakia. He did not return to work until Monday 9 October 2017, although he had been due to return on the previous Friday. It appears that extremely bad weather in Poland had disrupted flights leaving there on the day the Complainant and his family had been scheduled to make their return trip.

On 9 October 2019, the Complainant arrived at his workplace. Both Dr William Millrine and Mr Millrine had arrived there before him. The Complainant says he was told to go and get a cup of coffee for himself and then to come to Dr Millrine’s office for a meeting. When the Complainant went to the office, Dr Millrine told him that he had concerns about the Complainant’s work performance and further concerns arising from his failure to attend work as scheduled on the previous Friday. The Complainant also went on to outline various mistakes that the Complainant had allegedly made in relation to fulfilling customer orders. A number of emails from dissatisfied customers were shown to the Complainant at this time. The Complainant was then dismissed with immediate effect on the basis of the alleged shortcomings in his performance.

When asked by his own Counsel, Mr Slein BL, why he thought he had been dismissed, the Complainant opined that he had been dismissed because he was no longer single and, therefore, not as available to his employer as he had been before he assumed parental responsibilities and, therefore, the Respondent – he suggested – was paying him the same money for less work.

Discussion and Decision

The Complainant, by his own evidence, confined his claim of discriminatory dismissal to the family status ground. Having carefully considered his evidence in this regard, the Court is satisfied that that evidence does not establish facts from which an inference of discriminatory dismissal could be made. By his own very clear admission, the Complainant’s level of attendance at work began to deteriorate shortly after he first assumed parental responsibility for his partner’s first daughter. As detailed above, he told the Court that there were a number of occasions when he arrived several hours late and other occasions when he was required to leave early in order to attend to some issue with one or other of the children. On top of this, he admitted that he frequently took calls on his mobile phone from his partner during the working day in order to assist her to deal with various childcare issues. It does not follow that the Complainant was dismissed because he was no longer as flexible as he claims to have been before assuming parental responsibilities or because his employer was paying him the same salary for less work due to his family status. The Court’s conclusion in this regard is borne out by the fact that, as of the date of the Complainant’s second performance appraisal (October 2016), the Complainant was already in loco parentis of three children but nevertheless received a very positive appraisal albeit that a number of areas for further improvement were also highlighted to him on that occasion. The fact of the matter is that the Complainant was increasingly unable to maintain appropriate boundaries between his home life and his work life such that the former impacted on his ability to complete his contractual hours or deliver a reasonably satisfactory level of performance to the point where the Respondent took the view that it was not prepared to put up with this any longer.

There was no evidence before the Court that any alleged racially inappropriate remarks were made to the Complainant in the six-month period before his complaints under the Act were received by the Workplace Relations Commission on 24 January 2018. The Complainant told the Court that the remarks allegedly made about his Slovakian food stopped in early 2016 when he discontinued bringing such food to the workplace. His evidence was that the last occasion on which he alleges he was referred to as a “Slovakian cowboy” was “in the summer of 2017”. However, he could not recall being referred to by this moniker in July, August or September 2017. It follows that this aspect of his claim must fail also.

The Court determines, therefore, that each elements of the appeal is not well-founded and the appeal in its entirety fails. The decision of the Adjudication Officer is affirmed accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
6 June 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.