Complainant

Respondent

Anonymised Parties

Sales and Customer Care Consultant

A Call Centre Company

Representatives

Appeared in Person

Noreen Leonard, Human Resource Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00021017-001

06/08/2018

This case concerns a complaint of Discrimination on grounds of gender and race. The Complainant, a Hungarian National submitted that he had been the subject of direct discrimination which caused him to resign his position on one month notice on 13 July 2018. He also raised complaints of discriminatory practices with reference to his promotion and conditions of employment.

The Respondent rejected the complaint in its entirety from the outset. Both parties filled outline submissions. I requested further details from the Respondent on certain policies and documentation pertaining to the complainant’s period of employment. This was furnished promptly post hearing, copied to the complainant but did not illicit a further response from him.

I raised a concern at hearing that the Respondent had not invited the Team Leader to attend the hearing. The Respondent reflected on this and wrote to post hearing to indicate her availability. The Hearing had concluded at that stage. I would have liked to have met with her.

The Respondent operates a large call centre. The respondent rejected the entire complaint and submitted that the Complainants resignation could have been avoided had he exhausted the company’s internal procedures prior to hi referral to the WRC.

The Respondent filed a replying submission to the complainants’ case in early October 2018. I have summarised this as:

The Respondent agreed that the complainant had commenced work as a Customer Care Consultant for Europe and Middle East in May 2015. He applied for a Web chat specialist position in and was interviewed in September 2016. He was unsuccessful and did not avail of the pro offered feedback.

In the meantime, the company had engaged in a review process where efficiencies in service were explored and a decision was made to merge sales and customer service to chase a better service. Under that umbrella the complainant transferred to the French team in October 2016 and an amendment to that effect was place on his contract of employment.

In responding to the three main tenets of the complainant’s submission, the Respondent stated:

1 Education Trips

The Respondent operated an Education Policy. The Company organised business sponsored off site trips to Affiliates and related destinations to provide first-hand experience to sales staff. The Company had a discretionary clause on selection in Section 5.1 and denied any “secret proceedings “which the complainant had attributed to the selectin process.

“Educational attendees may be selected following either an incentive/contest based on productivity or other specified route focus. The company reserves the right to apply discretionary selection for educational attendance eg. a Developer request for specific market.”

The Respondent submitted that Town Hall meetings occurred January 25-27, 2017 to address staff on Revenue Results, Updates post-merger of functions and Events calendar, inclusive of the planned trips where the focus of selection, where possible was to be on newer employees, those employees with 6-18-month tenure. This was aimed at assisting in their adaptation at the company. The Respondent displayed a record of the complainant’s attendance at this meeting.

The Respondent submitted that new hires from August 2015 -December 2016 received an announcement email that they were to be identified as a potential pool of attendee’s contingent on operational issues like budget. The Respondent reflected that the complainant did not follow up any concern regarding the education trips until July 21, 2017, at which point the French related trips had been allocated. The Operations manager brought up the prospect of a Hungarian trip, but this was not something the complainant wanted. The 6/18-month tenure was not applied to this trip due to the expanded tenure of this team. the Respondent submitted that the 2018 Business trips were announced at a Town Hall meeting on December 13 and 14 2017 and as part of the selection process, applicants were invited to submit a short video on why they would be a suitable ambassador for rhea company.

The Respondent continued to dispute discrimination in this regard.

2 Coaching

The Respondent had no recollection of the complainant chasing a coaching position. These are positions which do not attract a financial differential and sometimes can lead to a diminution if coaching time impedes on the incentive periods. The last interview for these positions was held on October 2, 2017.

The Respondent submitted that the Human Resource Manager recalled the complainant’s recollection of this period during his engagement with her on June 18, 2018. He confirmed that he was permitted to apply but it was too late and was overwhelmed that the eventual Coaches chosen in March 2017 were then   monitoring his calls. He stated “I’m here three and a half years this cannot happen “.

The Respondent confirmed that both coaches were confirmed post interview in October 2017. While one post was advertised at French coach, both were appointed due to “the nature of their interest and energy for the role “. The Complainant had a very positive reputation as a coach within the company and his application for Coaching would have been processed.

3 Alleged Disruptive Behaviour.

The Respondent disputed discrimination in the context of the complainants third issue that of the behaviour of two of his female colleagues while the Team Leader was on leave. The Respondent submitted that the complainant had not adhered to the Locum reporting structure during this period and there was some underlying unease between another female colleague whom the complainant had referred to as an “idiot “efforts to resolve these difficulties were tenuous as the complainant did not appear to appreciate that this constituted an insult.

The Respondent disputed any discrimination on nationality or gender grounds. The complainant first raised this issue at a May 15 meeting with his Team Leader who was open to exploring this further in particularised mode. The Complainant deferred to HR and did not revert with examples to progress his statement of concern.

The Respondent submitted that the complainant had forfeited repeated opportunities to resolve his stated issues once formalised on June 13, 2018. They appreciated that the Team Leaders refusal to engage in an informal resolution may have been a disappointment to the complainant. They contended that they had rowed in immediately with the provision of the formal grievance route. The Complainant curtailed this process when he disputed the impartiality of the nominated managers to address this, including refusal of a manager he had previously agreed to. The Human Resource Department had engaged fully with him in the hope that he would resolve his issues prior to leaving.

The Respondent formed the view that he was just going through the motions as he told them that his Solicitor had advised him to engage in the grievance procedure but equally had informed him that there were exceptions acceptable to this process. He informed the company on June 26 that that he still intended on leaving. This was in the context of a final meeting with the Operations Manager who had acknowledged his positive contribution to the company and had encouraged him to stay. She had offered him a transfer to the Italian Sales Team, but he had refused this.

The Respondent recalled that the complainant had competed for a marketing role some three day before he left the company and had received a score of 15/30 and 14.5 /30 which was lower than the average score of 25/30. He scored the lowest of the four competitors.

The Gender Breakdown in the call centre is 26% Male and 74% Female locally and 26% Male and 80% Female Globally. There is a higher interest from females in Call Centre work.

The Respondent wanted to place on the record that the complainant was a high achieving employee who benefitted from the company’s incentive programme. He was Top Silver Guide in 2016 and Top Bronze Guide in February 2018. He featured three times in the top monthly incentive programme in in January, February 2017 and May 2018.He had retained his Italian allowance of €1,270 on his transfer to the French team as a recognition of his work with new Italian guides.

The Respondent sought that the complaint be dismissed. The Complainant was given every opportunity to resolve his issues and chose not to be heard, instead he moved prematurely to the WRC.

During the hearing, the Respondent Representative re-affirmed the narrative in the submission and emphasised

1 The Discretion held by the company on Education Trips

2 That the coaching role did not attract additional pay and was truly an extension of the role. There was no closing date.

3 That the complainant had disregarded his locum Team Leader as a contact person during his Team Leaders absence through leave in May 2018.

The Respondent confirmed that the Complainant was welcome to remain in the company and he had not been isolated.

I have considered both parties oral and written submissions during my investigation. I am obliged to conclude on whether the complainant was discriminated against based on all the evidence adduced.

Section 85 A of the Act places an obligation for burden of proof on the Complainant in the case. If the burden of proof is satisfied, it becomes the Respondents turn to prove the contrary.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him, it is for the respondent to prove the contrary.”

The Complainant raised a submission on a breach of S. 76(2) of the Act. However, the Complainant had not submitted a request for information to the Respondent in line with this section of the Act. This was accepted at hearing.

I have considered the sequence of events as relied on by the complainant and accept that they form a continuum for the purposes of my investigation.

The Complainant did not plead a Discriminatory Dismissal on his complaint form. Instead he stated that the cumulative effects of discrimination caused him to leave in July 2017. I have considered his complaint through this prism.

The Respondent denied all discrimination and submitted extensive paper work in support of this position. I would have liked to have met and heard from more of the operational staff in this case as there is a very limited probative value to paper work in considering whether discrimination occurred. I concentrated my attention on the participants at hearing and I followed up on the narrative and documentation included in the paper work in the aftermath.

There was a clear conflict in both parties recollection of the facts of the case.

My investigation revealed that the complainant came to work with the Respondent with a clear determination to commit to hard work. He thrived until the Reconfiguration of the Sales and Customer Care occurred. While he stated that this reconfiguration had not held him back, the facts point to a different turn of events. It is clear to me that he began to experience some interpersonal difficulty with his new line Manager.

For the Respondents part, they were proud of the complainants work and acknowledged his commitment to the company by way of repeated high achiever awards and retention of an “Italian Allowance “. I accept their evidence that they tried very hard to encourage the complainant to stay at the company. I was particularly struck by the apparent kindness demonstrated by the operations manager when she conversed in Hungarian (her native language) during her last meeting with the complainant.

The Complainant has submitted that he was the subject of discriminatory treatment on gender and race grounds. He has also submitted that he received discriminatory treatment in relation to his conditions of work such as is prohibited under Section 8 of the Act. He did not identify a specific comparator outside submitting that he was treated less favourably than everyone else on the French Team, eight females.

The Labour Court has stated in Mellbury Developments ltd and Val Peters that Section 85A of the Act requires the complainant to first establish facts from which discrimination may be inferred. They went on to emphasise that “there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination, ……established as facts on credible evidence. “

The Education Trips

I have considered both policies submitted in this case and note that the Policy submitted by the Respondent is populated in full, while the complainant’s version is bereft of detail. My role here is not to decree who the Respondent should send on an Education Trip and I accept that discretion is a component of corporate management for both incentive and reward purposes. However, I must be satisfied that the process Is not tainted by discrimination. I note that a fellow Hungarian Male was selected to attend one of the trips. The complainant was aggrieved as he understood that this Man had travelled previously. This concern emanated more from a vantage point of unfairness rather than “less favourable treatment “.

I note that the Complainant was aggrieved that he had not understood the selection process announced at the Town Hall meeting he attended in January 2017. I note that it was accepted at hearing that he did not raise this issue for clarification purposes in the workplace. I am not convinced that the complainant feared a job loss if he was found to have raised an issue. By January 2017, the complainant was well established at the company and has not demonstrated fear during his exchanges.

I was struck that the complainant did not include details of being offered an education trip to Hungary later in 2017. He was focussed on the trip offered to two newer female recruits on his team and saw that the company’s investment in these female workers would result in his being overtaken in the workplace. I found this groundless when balanced against the latter day offer to Hungary and the complainants ongoing highly accredited work.

I did identify some marked inconsistencies in the application of the Education Policy. I found two different avenues of access over two different years. One by way of invitation by way of narrow field of chosen candidates and criteria of service. The second, by way of an application through video submission. I preferred the second system.

I could not establish that the Complainants race or gender were the cause of him being excluded from the selection process. He had not made an application following either of the Town Hall Meetings. He had vetoed the latter day offer of a trip to Hungary. While I have misgivings regarding some inconsistencies surrounding the operation of the Education Policy selection, I cannot identify facts from the complainant’s evidence in which I can infer discrimination at this point.

Coaching:

As I have already stated, it was clear that the complainant had formulated a plan for career progression at the company. He associated a positive role in Coaching with enabling this plan. I accept the coaching was a diversification and not a promotion. It did not attract extra pay.

The Complainant submitted that he had been purposefully excluded from applying for the position as he was on leave. The Respondent stated that he had not asked to be considered. They went on to state that his application would have been entertained given his acknowledged skill in coaching as reflected in his retention of the “Italian Allowance “. The Complainant did not formalise a grievance regarding his exclusion.

For my part, I reviewed the advertisement as submitted by the Respondent and established an element of confusion. There were two posts mentioned on the ad yet the reference to a closing date only referred to one position. This should have prompted enquiry by the complainant and may be the reason that the respondent attributed an open-ended date to the coaching role, but it did not expressly state that on the ad.

I accept that the coaching role did not harvest tangible benefits in the workplace in terms of pay or promotion. I appreciate that the complainant viewed coaching as a stepping stone. He began to feel overwhelmed when he perceived that the Coaches went on to have a tangible and negative impact on his work. However, I have not been able to establish that he was treated less favourably on gender or race grounds in the face of the selection of coaches. I have not found proof that the Competition closed in the manner submitted by the Complainant. I have also taken account of the lack of real time grievance / complaint by the complainant in this regard. I was not impressed when the complainant stated that he “wasn’t in the mood to ask” in the face of his being overlooked for coaching. I cannot establish facts from which I can safely infer discrimination occurred.

I would also like to refer to the complainants repeated stated opinion that he was being overtaken by Junior staff. He expressed a very strong subjective belief that tenure constituted power, this was not shared by the respondent

Office Behaviour during May 2017:

The Complainant confirmed that he had a sustained difficulty with his Team Leader and his issues in her absence on leave clearly upset him. He felt unsupported and alone. He did formalise this issue, but he believed that he had not been heard and was reduced to being chastised for taking on a management issue himself rather than calling in the Team Leaders locum. I can appreciate that he felt demoralised by this in early June, but I could not find evidence which linked this fall out to the complainant’s race or gender. Instead, I considered it to be a growing chasm in this deteriorating working relationship.

I now go to June 13, 2017. I have read the Complainants Appraisal completed by his Team Leader. I understand that this appraisal disappointed him greatly and he wrote his letter of resignation at 14.24 hrs that same day.

On careful consideration of what followed, it is clear to me that the complainant viewed this document very much as a basis for negotiation. I viewed this letter of resignation as an act of finality and an action which signalled the complainants clear intention of leaving his work. I was surprised that both parties viewed this letter as a grievance. I accept that the Respondent sought to open an avenue for resolution as a result.

I note that the Respondent sought to lead with the informal process of resolution, which was unsuccessful. The next proposed method of resolution never got off the ground as the complainant rejected the company’s proposed managers for their lack of independence and impartiality. It is important to remember that once a complaint is written and submitted, it enters the temporary ownership of the recipient pending resolution. It is regrettable that the complainant did not consider real time representation during his employment as this key point may have been teased out in such a safe setting. The Complainant did not submit details of his ill health to the Respondent or seek occupational health review. The Respondent did not pick up that the complainant did not feel well.

I note that he rejected the Italian job offered on June 26, during his notice period as not being suitable. I appreciate that he was disappointed that he was unsuccessful in the Marketing position 3 days before he left. I could not infer discrimination on gender and race grounds here.

I found it regrettable that the Complainant had not cultivated a stronger working relationship with his operational Manager. I found the details of their exchange in June to reflect a genuine exchange of concerns and offers of support. I found the operational managers evidence to be cogent and reflective of her empathy directed towards the complainant, inclusive of their conversation in Hungarian language.

I fully accept that the complainant was in a difficult place in the early months of 2017. He confirmed that this was attributable to the difficult working relationship with his Team Leader. He was prepared to enter an informal process of resolution, but this was refused. The Complainant held an unshakeable view that he was treated less favourably because he was a Man and Hungarian. I have not been able to find evidence to endorse that viewpoint.

In Employee Mr O V Employer, no 2 [2005] ELR 132, the Labour Court determined that a return to work post mental health difficulties was tainted by discrimination. They accepted that a vacuum in a raised grievance did not destabilise this verdict. In that case the employer did not have a grievance procedure. The facts of this case are distinguished as the Respondent in this case had a fully functional grievance procedure which remained unutilised until the notice period. I cannot attribute this omission to the Respondent.

These claims originated from claims of less favourable treatment in the workplace. I have not identified less favourable treatment. Instead, I have identified a growing sense of the complainant’s alienation in the work place following an amalgamation of services set against a backdrop of a significant reduction in workforce. I believe these fears were real but were more reflective of a reduced opportunity to thrive in a career in a shrinking company rather than active discrimination. I accept that his relationship with his Team Leader served as a perceived boulder to his progress, however, I also found that the complainant should have formalised his concerns at a much earlier time in his working relationship. Coming so late in the day without an adjunct commitment to enter a process of resolution proved fatal to his case. The Complainant was clearly in receipt of legal advice during the latter part of his time with the company. It is again regrettable that this was not accompanied by representation which may have clarified the distinction between unfair treatment and discrimination and the various pathways open to resolution.

While I have expressed some reservations on the inconsistencies in the selection process for education trips and the lack of clarity in the coaching position, I have not established, on the evidence before me that the complainant has established a prima facie case of discrimination on the complaints raised. I found a highly defined sense of isolation at work which had not been remedied by recourse to the company’s procedures. On balance, I also found a respondent who worked hard to try and retain a good worker.

I cannot accept that the complainant was the subject of discriminatory treatment to justify his lack of commitment to a resolution of his stated issues prior to his leaving date.

I find his claims are not well founded.

Decision:

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

I have completed my investigation in this case and I have found that the complainant was not discriminated against on gender or race grounds, nor was he discriminated in relation to promotion, training or conditions of employment.

Discrimination on Race, Gender, Conditions of employment, training and promotion.