Complainant

Respondent

Parties

Bogdan  Drutu

All IN Care Limited

Complainant

Respondent

Anonymised Parties

Representatives

  Self -represented

 Gleeson McGrath Baldwin Solicitors. Mr. Daniel Fennelly. B.L

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-00027842-001

15/04/2019

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

CA-00027842-002

15/04/2019

CA-00027842-001

The complainant commenced employment with the respondent on 5/12/2016 as a part-time receptionist. He earns €12.50 an hour. The respondent provides in- home care services to patients.

He is a Romanian national. He claims that he was discriminated on the grounds of race when the respondent failed to consider him for a promotional post in February 2019.

CA-00027842-002.

This complaint was withdrawn.

He submitted his complaints to the WRC on 13 March 2019.

CA-00027842-001

Access to promotion.

In mid-February 2019, the respondent offered the position of scheduler to an Irish colleague, Mr. S, a fellow receptionist who was performing the same functions as the complainant. This job entailed scheduling care assistants to visit clients in their homes. Such duties were a core element of his role as a receptionist. He had fulfilled many of the functions of the post of scheduler. There was no advertisement of the position, no process and no opportunity for the complainant to declare an interest in the position.

 He believes selection for the role of scheduler could have been done on the basis of appraisals – an exercise from which he was excluded. In January 2019 the respondent conducted appraisals of reception staff, who were all Irish, bar himself.

During the course of his two years’ employment with the respondent he had never been appraised. The respondent does appraisals every 6 months.

His probation had been originally extended. He is now permanent.

The absence of an appraisal deprived him of insight into his performance- his strengths and weaknesses -and how he could improve in the role.

He was not aware of any other internal appointments having been made in his time there.

He maintains that the failure to consider him for the position of receptionist is discrimination on the grounds of race as he was the only non- Irish receptionist.

He submitted an EE2 form on April. He received no response from the respondent.

In cross examination the complainant stated that he did not know if any other receptionist bar Mr. S had been offered to trial in the position of scheduler.

CA 00027842-002

The complainant withdrew this complaint.

The respondent denies that they discriminated against the complainant under any of the grounds cited in the act of 1998.

The respondent provides care services. The complainant worked as a receptionist, fielding calls from clients seeking care, liaising and coordinating with care assistants and patients to ensure that care is delivered.

The contested scheduling appointment which is the subject of this complaint saw a fellow receptionist, Mr S. an Irish national, assigned on a trial basis for a month to undertake this role. The basis for choosing Mr. S. was his demonstrable capabilities in the area. He had worked during the busy (morning) times. Reception takes about 1100 calls a day. There is a morning and evening shift with two receptionists assigned to each shift. The majority of calls – about 800-9000- come in on the morning shift.

Mr S took on the job of scheduler for a trial period of one month on the same salary and with same working hours. After one month he reverted back to his original position of receptionist on the same salary and hours as had been the case while employed as a receptionist. The job of scheduler has now been publicly advertised in the form of a supervisory post. Persons appointed to these supervisory roles will undertake a more extensive analysis of the needs of clients and how these needs can be met.

In contrast to Mr. S’s experience of managing a busier workload/shift, the complainant worked during the quieter afternoon periods. The complainant, one of 6 receptionists, works approximately 38 hours a` week on a Thursday, Friday, Saturday and Sunday. He is unable to work mornings as he has a job elsewhere in the mornings and the respondent facilitated him to maintain his other job in another company.

The respondent arranged an appraisal for the complainant on the 10/1/2019. Due to a manager being detained at another meeting, it wasn’t possible to engage in the appraisal. Due to operational reasons, the appraisal scheduled for 24 January did not take place. The respondent argues that the fact that the complainant was offered a full-time position- which due to his other job he was unable to accept- indicates that he was being continuously appraised- if not in a structured manner.

Profile of staff.

There are more non- Irish than Irish staff members. There are other Romanian nationals doing care work.

There are 6 staff working in reception. The complainant is the only non- Irish receptionist. None of the staff in reception bar Mr S were notified of the existence of or considered for the position. No other employee in the company but Mr S was in contention for the role of scheduler.

The respondent asks the adjudicator to reject this complaint.

Burden of Proof.

The respondent refers to the burden of proof set out in section 85A of the Employment Equality Acts 1998, as amended, which rests with a complainant making a complaint of discrimination.

The respondent cites the test found in the Labour Court determination of Southern Health Board v Mitchell, (2001), ELR 201 - a test which the complainant must meet in order to shift the burden of proof to the respondent.   

“The test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principles of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which he bears, his case cannot succeed”.

The respondent cited, as well, the determination of Cork City Council v Kieran McCarthy, EDA 0821 in support of the obligation which rests with the complainant to demonstrate that the primary facts grounding his complaint are of sufficient significance to raise an inference of discrimination.

The respondent points to the determination of Graham Anthony and Co Ltd v Mary Margretts, EDA 038 which held that mere membership of a protected class and specific treatment is insufficient of itself to ground a complaint of discrimination. An additional element is required

“The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

The respondent submits that with the exception of Mr. S, the complainant was treated no differently to his 4 fellow Irish receptionists. This pool of workers – Irish nationals, are the appropriate comparators none of whom bar Mr. S were ever considered for the job of scheduler.

It follows that the complaint cannot be upheld.

The matter for adjudication is whether or not the respondent discriminated against the complainant, and contrary to Section 6 (2)(h) of the Employment Equality Act, 1998 in failing to conduct an appraisal and in failing to consider him for the position of scheduler in February 2019.

First of all, I must consider if the complainant has discharged the burden of proof, contained in section 85 A of the Act of 1998.

 Burden of Proof.

Section 85A of the Acts provides for the allocation of the probative burden in complaints of discrimination. This requires that the complainant must first of all establish the facts which raise an inference of discrimination.

The facts on which the complainant relies to raise an inference of discrimination include the fact that he is a Romanian national and that he was excluded from consideration for the position of scheduler in contrast to an Irish colleague, offered the position through a process entirely devoid of transparency. The complainant suggests but does not categorically assert that the respondent’s appraisal process which he was not offered was the springboard to promotion for this colleague. The complainant asserts that he was thus treated less favourably because of his race in terms of his conditions of employment, and contrary to Section 8 of the Act which encompasses promotion.

While the role of scheduler lasted for only a month and did not attract a higher salary, I accept that being assigned to the role of scheduler is undoubtedly a stepping stone in one’s career progression. In fact, the respondent stated that “they were eager to hold on to a promising individual like Mr S and foster his development within the company”.

The respondent’s evidence must also be considered in establishing if the complainant has met the burden of proof . The Labour Court in the case of Dyflin Publications Limited v. Ivana Spasic, EDA 823, stated

“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”.

 It is an uncontested fact that the pool of receptionists- the pool identified as the pool from which the scheduler should be drawn- numbered 6 employees, 5 of whom were Irish. It is accepted that none of these 5 with the exception of Mr. S who was given a trial period as a scheduler were in contention. None of them were alerted to the possibility that they could declare an interest in the post. Some of these had been appraised, two had declined to be appraised. The appraisal failed to benefit the Irish receptionists and failed to put them in contention. I find that the surrounding facts in the instant case confirm that with the exception of Mr S, the complainant was treated no differently to his other four fellow Irish reception workers.

The complainant was unable to demonstrate that the choice of Mr S for a trial period of one month was the result of appraisals carried out by the respondent.

Was the difference in treatment attributable to race?

 The uncontested fact is that four Irish receptionists were treated exactly the same as the complainant. I find that the respondent’s process for lifting an employee into another realm of experience lacks transparency and is not ideal but that imperfect process militated, equally, against four Irish employees. I find that the respondent did not differentiate between the complainant and fellow employees on the grounds of race.

I find therefore and on the basis of the evidence that the complainant has failed to establish a link between the respondent’s decision to exclude him from consideration for the role of scheduler and his race. 

I do not find that that the complainant has established facts from which discrimination based on race grounds can be inferred. Therefore, his complaint cannot succeed

Discrimination on grounds of race.