Complainant

Respondent

Anonymised Parties

A Staff Nurse

A Hospital

Representatives

Kevin Bell B.L. instructed by Lavelle Solicitors

Aoife McFadden IBEC

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-00018112-001

23/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018268-001

03/04/2018

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

CA-00018112-001

23/03/2018

The complainant has submitted claims of discriminatory treatment on the ground of race on the 23rd of December 2016 (Adj-00006549) and again on the 23rd of March 2018 (Adj-00013621) under Section 79 of the Employment Equality Acts, 1998 – 2015 against the respondent.     The claim submitted on the 23rd of March 2018 also contains a claim of victimisation.   The complainant has also submitted a claim under Section 13 of the Industrial Relations Acts 1969 which was submitted on the 3rd of April 2018 (also submitted under Adj-00013621).

The cognisable period for the claims submitted on the 23rd of March 2018 dates from the 24th of September 2017 to the 23rd of March 2018.  

These claims were heard along with another claim submitted by the complainant on the 24th of January 2016 under Adj-0006549.     Final correspondence in respect of these matters took place on the 5th of April 2019.

A previous decision by another adjudicator in respect of Adj -0006549 dated 10th of April 2018 was quashed by an order of the High Court dated 18th of October 2018 and the matter was remitted back to the WRC for a de novo re hearing of the matter by a different adjudicator.

The complainant submits that

She is employed as a staff nurse in the Respondent’s hospital since June 2004,

She is of Indian nationality,

Since taking up this employment she has successfully completed a post graduate diploma respiratory nursing and is undertaking a masters in the same,

she has applied for a number management and specialist jobs in respect of three separate competitions held between October 2017 and January 2018 and on each occasion, she has been unsuccessful,

the reason that she has been unsuccessful in her promotion applications is due to her race,

the complainant contends that she has been subjected to victimisation due to her lodging an earlier complaint of discrimination with the WRC in respect of posts she had applied for between the period 2007 to 2016 and in which she was unsuccessful,

In April 2016, she wrote to the Respondent claiming discrimination on the ground of race, in respect of her numerous unsuccessful attempts to get promoted,

A meeting took place with the Respondent in July 2016 to discuss the matter, it was agreed to investigate the issues involved and respond by August, but a response was not received until September,

The complainant following her complaint to the WRC in December 2016 applied for the following promotion competitions

Respiratory Candidate Advanced Nurse Practitioner – October 2017

CNM1 Respiratory Post – December 2017

CNS Respiratory Post – January 2018

She submits that she was unsuccessful in these competitions due to her race and also due to the fact that she had previously made a complaint of discrimination to the WRC which she submits amounts to victimisation.

The respondent submits that

The Respondent completely rejects the allegations of discrimination and victimisation,

they conducted the named promotion competitions, and all earlier competitions involving the Claimant, in line with its Recruitment Guidelines,

they deny that the complainant was victimised following a complaint of discrimination.

The Complainant advised the hearing that she is an Indian national. She claims that she has been discriminated against by the Respondent in respect of promotion competitions in that she has been consistently passed-over in favour of candidates who are less experienced and/or less qualified, on the basis of her national origin/ethnicity.     She submitted a complaint of discrimination to the WRC on the 23rd of December 2016 and submits that she was victimised by the respondent following this complaint.

The present claim of discrimination was submitted on 23rd of March 2018 and thus the cognisable time period for this claim dates from the 24th of September 2017 to the 23rd of March 2018.  

The issue for decision by me now is, whether or not, the respondent discriminated against the complainant on the ground of race in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015.   I must also make a decision on whether the respondent victimised the complainant contrary to Section 74 (2) of the Act.   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) ….”

Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons …. 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 nationality i.e. because she is Indian.

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”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the claimant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court and stated as follows: -

“The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

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.

The complainant advised the hearing that she was treated differently on grounds of race by the respondent when she was unsuccessful in her application for the following posts

Respiratory Candidate Advanced Nurse Practitioner – October 2017

CNM1 Respiratory Post – December 2017

CNS Respiratory Post – January 2018

Respiratory Candidate Advanced Nurse Practitioner – October 2017

The complainant advised the hearing that she had by the time of this competition already instigated a claim of discrimination in respect of previous promotion competitions, this claim had been submitted to the WRC on the 23rd of December 2016 and had been part heard before the WRC in July 2017.

The complainant advised the hearing that she had applied for the Candidate Advanced Nurse Practitioner role in October 2017. She was invited to attend for interview on 12th October 2017, however, due to illness, she sought an extension to her interview date.    The respondent replied on 13th October 2017 confirming that they would grant her an extension but stated that the interview would have to take place prior to Wednesday the 18th of October 2017. On Tuesday 17th of October 2017, the complainant’s representative emailed the respondents Recruitment/HR advising that the complainant was having a 24-hour blood pressure monitor fitted so she would not be in a position to attend for interview on Tuesday 17th or Wednesday 18th October 2017.   The complainant requested that the interview be re organised for Thursday 19th October 2017 considering the complainant’s situation. This request was denied by the respondent who had offered the complainant an extension from the 12th of October to the 18th of October 2017.

It is the Complainant’s submission that the refusal of the extension as requested amounts to victimisation of the Complainant as a result of her having raised a claim of discrimination against the Respondent in December 2016.

The respondent advised the hearing that claimant did not interview for this position. The complainant alleges that she was not accommodated in this campaign despite being invited to interview on the 12th of October 2017 and upon her request being offered an extension up to the 18th of October.

The respondent advised the hearing that the initial interview date was extended upon a request from the complainant and to accommodate the claimant.   The respondent advised the hearing that due to recruitment constraints and pressures to ensure continuity and cover for the respondent hospital the campaign had to be closed to fill the position on 18th of October 2017.    This was communicated to the claimant by letter dated the 13th of October 2017.     Witnesses for the respondent provided direct evidence on this matter at the hearing and advised the hearing that the respondent was under pressure to complete all interviews by the closing date as it had to provide the name of the successful candidate before being able to draw down funding for the position. The respondent stated that it did provide the complainant with an extension to a later date following her request but that it could not facilitate her with an even later date due to the fact that the drawdown of funds for the post was dependant on their providing the name of the successful candidate.     The respondent also added that the complainant had been afforded flexibility whenever it was possible to grant her flexibility and cited an example of an instance where the complainant was facilitated with a Skype interview while she was in India as she was unable to attend an interview in person on that occasion.

The complainant has submitted that the failure of the respondent to provide her with the extension she requested amounts to discrimination and victimisation following her complaint of discrimination to the WRC.  

Section 74 of the Employment Equality Acts sets out the definition of Victimisation as follows

(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),  

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,    

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or  

(d) given notice of an intention to do anything within paragraphs (a) to (c).

The Labour Court in Minister of Defence V Tom Barrett in a 2015 case EDA 1516, referred to the test for Victimisation as follows:

The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

The employee was subjected to adverse treatment by the respondent, and,

The adverse treatment was in reaction to the protected action having been taken by the employee. (Dept. of Defence V Barrett) Bolger, Bruton and Kimber, 2012.

The complainant in this case submitted a claim of discrimination to the WRC on 23rd of December 2016. I am satisfied that this claim does amount to a protected act for the purposes of section 74(2) however I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to provide any evidence of adverse treatment in reaction to that protected Act for the purpose of grounding a claim of victimisation under the Employment Equality Acts.     Accordingly, the claim of victimisation fails.

For the sake of completeness I note that the respondent granted the complainant an extension to the 18th of October but have submitted that they could not grant her an extension to a later date and I note the evidence adduced by the respondent regarding the constraints under which the respondent was operating in respect of funding for the post. Accordingly, having considered the totality of the evidence adduced in relation to this matter I am satisfied that the complainant was not discriminated against by the respondent on grounds of her race in respect of this matter.

CNM1 Respiratory Post – December 2017

The complainant advised the hearing that she had prior to the interview for this post requested that persons involved in those competitions about which she had previously complained not be included in the decision-making panel so as to allow for a fair process.   Mr. A head of HR replied to the complainants request on 11th December 2017 confirming that none of the staff involved in the competitions, which were the subject matter of the Complainant’s previous claim, would be involved in this competition.

The complainant advised the hearing that despite this assurance, a CNM2 from the Respiratory Ward, Ms. R who had been a member of several of the panels criticised by the Complainant for allegedly discriminating against her was a member of this interview panel, in spite of Mr. A ’s commitment.

Witness for the respondent Mr. A in response to the claim that he had agreed not to place certain people on the interview panel stated that he had at the time asked the Medical Director Mr. W to step down from this interview panel as Mr. W had been involved in a previous interview panel which was criticised by the complainant in her allegations of discrimination by previous interview panels, Mr. W had also been named by the complainant in her grievance letter of 12th of April 2016 and the addendum to this letter submitted on the 12th of July 2016. Mr. A advised the hearing that he was unaware of any involvement by Ms R in the allegations which had been made by the complainant and as no formal complaint had been made against Ms. R she was allowed to sit on the interview panel.  I note that Ms. R was mentioned by the complainant in her complaint letter of 14th of April 2016 in which the complainant made allegations of bullying by a CNM3, Ms. M. Ms. R was mentioned in this letter as having advised the complainant to contact Ms. M, a CNM3 in respect of a request by the complainant to extend her annual leave due to the complainant’s husband having incurred a medical emergency which necessitated the complainant having to stay in India for a longer period than planned in December 2015/January 2016.   Following this request the complainant was granted an extension of one week to her planned return to work date.   The complainant advised the hearing that Ms. R had also been a member of previous interview panels in 2011 and 2014 where the complainant had been unsuccessful, and these competitions had been referenced by the complainant in her complaint of discrimination.  

The complainant advised the hearing that it was then unsurprising that the Complainant was passed over for an Irish candidate with only five years’ experience (as against the Complainant’s 18 years). She stated that the successful candidate had only just completed her post graduate diploma. The Complainant by contrast had completed her diploma years previously and was undertaking a master’s degree in Respiratory Nursing. The Complainant states that she was not panelled following this interview in spite of her obvious experience, qualifications, and clinical competency. The Complainant submits that passing her over in December 2017 was both discriminatory and an act of victimisation for having initiated her claim.

The respondent advised the hearing that the interview score sheets show that the successful candidate in this recruitment campaign scored consistently higher than all of the other candidates, with an overall total of 88 points with the claimant scoring 69. A score of 69, is set out in the Interview score sheet as being reflective of “brief experience or knowledge mentioned, did not convince the panel on depth or breath of experience or knowledge.”

The respondent went on to state that the successful candidate had a Bachelor of Science Degree in Nursing, and 3 post graduate diplomas; in respiratory nursing; organisation and personal development and in Medical/Surgical Specialist Practice Programme.

The respondent advised the hearing that the successful candidate had attained a first-class honour in respiratory nursing, a distinction in the organisational and personal development diploma and a 2:1 in the Medical Surgical Specialist practice programme Diploma.  

The respondent adduced direct evidence from its interviewees who stated that the complainant had not succeeded as she had not performed well at interview. The respondent stated that the complainant failed to elaborate on answers and often answered questions incorrectly or focused on the incorrect aspect of a question.   The respondent at the hearing cited a number of instances and examples of where the complainant had incorrectly answered a question or where she had not answered a question which was asked. The respondent added that it would have been an easy solution for them following the complainants claim to the WRC to have simply granted her a promotion, but the respondent stated that it had to award the post to the most meritorious candidate. The respondent added that it had on a number of occasions offered the complainant feedback after interviews to help her to improve her interview performance but that she did not avail of this offer. The respondent went on to state that it had in September 2016 offered the complainant interview training and professional coaching in order to assist her in future promotion competitions.

In considering this matter I am mindful that is not the role of the Workplace Relations Commission or the Labour Court to substitute their views on the relative merits of candidates for those of the designated decision makers or to determine who the most meritorious candidate was. This was set out in Moore Walsh v Waterford Institute of Technology Labour Court, EDA 042. The Labour Court held that its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. In adopting the threshold of manifest irrationality, the Labour Court has placed a high onus on complainants.

In O'Halloran v Galway City Partnership, EDA077 the Labour Court stated that the qualifications or criteria which are to be expected of candidates are a matter for the employer in every case. It is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.

Having regard to all of the circumstances and the totality of the evidence adduced in relation to this matter I cannot accept that the Complainant’s failure to attain the position is a fact from which discrimination on the grounds of race could be inferred and accordingly I find that the complainant was not discriminated against by the respondent in relation to the outlined promotional competition.

The complainant has also submitted that she was not successful in this competition due to the fact that she had already lodged a complaint of discrimination against the respondent.   Bearing in mind the definition of victimisation above and the test applied by The Labour Court in Minister of Defence V Tom Barrett in a 2015 case EDA 1516 i.e. a protected act which was followed by adverse treatment in reaction to the protected action having been taken, I must be satisfied that the complainant did not succeed in this competition due to the fact that she had lodged a claim of discrimination in December 2016.   Having regard to the circumstances of this claim and the totality of the evidence adduced in relation to this matter I am satisfied that the complainants lack of success in this competition does not amount to victimisation on foot of a protected act.    

CNS Respiratory Post – January 2018

The complainant advised the hearing that in light of the serious procedural and substantive unfairness arising from the December 2017 competition, the Complainant ‘s trade union wrote to the Respondent requesting that an independent external panel be utilised for this competition.

The complainant told the hearing that the respondent provided one external person on this panel but did not provide a completely external panel which is what the complainant had requested.  

The complainant submits that the Respondent advised her that there should be no issues with fairness as no member of the panel had been the subject matter of a formal grievance raised by the Complainant.  The complainant states that this was untrue as Mr. A, the HR manager was a member of this panel and that Mr. A had also been involved in the handling of the interference issues in respect of the results of the June 2016 competition whereby the complainant had been incorrectly informed in December 2017 that she was third on the panel and not second and which was the subject of the complainant’s earlier complaint to the Commission in December 2016.   Mr. A advised the hearing that he was involved in the Interview panels due to the fact that he is the Head of Recruitment and that he is the only person in that grade.

The complainant advised the hearing that she was again passed over in favour of an Irish candidate with much less experience than her (five years v. eighteen years) and who also had just completed her PG diploma.

The respondent in reply to this advised the hearing that in this campaign the successful candidate had a Bachelor of Science Degree in Nursing with a Post Graduate Diploma in Respiratory Nursing and had completed a medical surgical module in the respondent hospital.  The respondent stated that her position prior to promotion was as a Senior Staff Nurse and she had undertaken a role as a clinical practice support nurse, with managerial responsibilities for 2 years.  This candidate obtained 78 in the interview score, as against the 60 the claimant obtained.

The respondent stated that this successful candidate was then further promoted form the position she was successful for the and the candidate who panelled as number 2 and who is of Indian origin obtained the role.This successful candidate is of Indian origin and she obtained an interview score of 72 as against the claimants 60. This successful candidate had a Bachelor of Science Degree in Nursing was undertaking a Post Graduate Diploma in Respiratory Nursing at the time and had 7 months experience as a Clinical Nurse Manager.

The respondent advised the hearing that the claimant has incorrectly concluded that that the only reason that she did not achieve promotion was that she was being discriminated against due to her race and or that she was being victimised for making complaints about discriminatory treatment. In previous competitions.

The respondent advised the hearing that the reason the claimant did not achieve promotion was that she was not the most suitable candidate, and that this is reflected in the lower scores the claimant attained as against the successful candidate and also because the successful candidate was more suitable for the role as regards, relevant experience and education.

The respondent added that its interview scoring system is under constant review to ensure that it reflects and supports objective criteria and that individual scores are referenced in the case of Munck V National University of Ireland Maynooth DEC-E2005-030 as being indicative of an objective process.

Furthermore, the respondent submits that the claimant is unable to point to any event during the interview processes which would indicate a discriminatory bias on the part of the interview panel.    The respondent states there is no pattern of discriminatory bias in the respondent hospital. Although the percentage of non-Irish Nurse Managers in the hospital is below the percentage of non-Irish nurses in the Hospital on an overall basis, that percentage is in line with those in the other large teaching hospitals in the area.

The respondent advised the hearing that they selected the best person for the job based on their qualifications for the role, not on the basis of the applicant’s race or any other similar criteria.

The respondent states that the complainant in her arguments has repeatedly emphasised that she is more qualified or experienced and thus more suitable than other candidates and in doing this she is equating suitability to length of service.   The respondent advised the hearing that a greater length of service does not necessarily equate to a greater ability or suitability for the post. The respondent stated that it is important to emphasise that promotions are based on ability which is assessed through competency-based interviews and are not based on length of service.

The respondent also advised the hearing that the complainant had lodged a complaint with them in April 2016 and that the respondent had met with the complainant in July to discuss these issues and had replied to the issues raised by the complainant in a detailed reply dated 9th of September 2016. The respondent stated that it had in this reply addressed the issues raised by the complainant and in some instances advised her that it would be making recommendations to interview boards in the future in respect of some of the issues raised by her regarding the recording of marks on score sheets and also in respect of her concerns that all posts be advertised both internally and externally. The respondent stated that it had also as a result of her complaint advised the complainant that it would be recommending that a focus group be set up to explore the reasons behind the low percentage of overseas nurses (13%) in cnm1 and cnm2 posts.

The respondent advised the hearing that the proportion of Indian nurses in promotional grades is not overly disproportionate considering that the proportion of Indian nurses is about 19% while the proportion of Indian nurses in promotional grades is 12%.   The respondent stated that this is about the same as Irish nurses in promotional posts as 72% of its nurses are Irish with 61% of promotional posts held by Irish nurses.   The respondent added that many overseas nurses opt to remain in staff nurse grades as these retain the ability to earn overtime for additional hours worked unlike managerial grades and many overseas nurses opt to work overtime to enable them to send n=money home to their country of origin to support family members.

The respondent advised the hearing that it had in this letter of 9th of September 2016 offered to support the complainant in preparing for and participating in future interviews and offered her the assistance of an external professional interview coach in order to assist her to achieve her potential in any future competitions. The complainant did not accept this offer.

The respondent in its evidence to the hearing stated that the complainant may not always have demonstrated her experience and ability in interviews and stated that it had offered the complainant feedback after interviews on more than one occasion, but the complainant declined to participate in such feedback.

In considering this matter, I am mindful that is not the role of the Workplace Relations Commission or the Labour Court to substitute their views on the relative merits of candidates for those of the designated decision makers or to determine who the most meritorious candidate was. This was set out in Moore Walsh v Waterford Institute of Technology Labour Court, EDA 042. The Labour Court held that its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. In adopting the threshold of manifest irrationality, the Labour Court has placed a high onus on complainants.  

In O'Halloran v Galway City Partnership, EDA077 the Labour Court stated that the qualifications or criteria which are to be expected of candidates are a matter for the employer in every case. It is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.

Having regard to all of the circumstances and the totality of the e evidence adduced I cannot accept that the Complainant’s failure to attain the position is a fact from which discrimination on the grounds of race could be inferred and accordingly I find that the complainant was not discriminated against by the respondent in relation to the outlined promotional competition.

The complainant also submits that she was not successful in this competition due to the fact that she had already lodged a complaint of discrimination against the respondent.   Bearing in mind the definition of victimisation above and the test applied in Barret i.e. a protected act which was followed by adverse treatment in reaction to the protected action having been taken. I must be satisfied that the complainant did not succeed in this competition due to the fact that she had lodged a claim of discrimination in December 2016.     Having regard to the totality of the evidence adduced in relation to this matter I am satisfied that the complainants lack of success in this competition does not amount to victimisation on foot of a protected act.

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 her race in relation to these matters and that

the complainant was not victimised by the respondent in respect of these matters.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018268-001

03/04/2018

The complainant has submitted a claim under Section 13 of the Industrial Relations Acts 1969 which was submitted on the 3rd of April 2018 (also submitted under Adj-00013621).

This claim was heard along with a claim of discriminatory treatment on the ground of race and victimisation submitted by the complainant on the 23rd of March 2018 (Adj-00013621) and another claim of discrimination on the ground of race submitted on the 23rd of December 2016 (Adj-00006549).

I proceeded to a hearing of these matters on the 24th of January 2018.   Final correspondence in respect of these matters took place on the 5th of April 2019.

The complainant submits that

The management in Beaumont Hospital have failed to adhere to normal industrial relations processes and their own Grievance Procedure by continually refusing to respond to correspondence sent on behalf of the claimant or to engage with the employee or the INMO on her behalf.

The INMO has issued correspondence and has sought a meeting under the Hospital’s Grievance Procedure, however, management ignored this request and their own Procedure.

In addition, in correspondence dated 23rd February 2018, the INMO requested that an agreed independent/external IR expert review the issues raised which have been outstanding for a considerable period as the claimant has lost all trust and confidence in Beaumont Hospital. This request has been ignored.

The claimant has been out of work on certified sick leave since 12th January 2018 due to the manner in which she has been treated by management in terms of their failure to deal with any of the issues she has raised.   She has also had previous periods of sick leave relating to these workplace issues. The manner in which she has and continues to be treated by management has greatly impacted upon her health and wellbeing. As a result of these absences, the claimant has exhausted her full pay under the sick leave policy. The complainant is seeking that her sick leave entitlement for absences relating to her ongoing grievances be reinstated and that payments deducted be reimbursed.

The respondent submits that

In relation to claim under section 13 of the Industrial Relations Act 1969 the claimant alleges that the respondent failed to adhere to normal industrial relations processes and their own Grievance Procedure by continually refusing to respond to correspondence sent on behalf of the claimant or to engage with the employee or the INMO on her behalf,

they received a complaint from the complainant in the 12th of April 2016 claiming discrimination on race grounds in respect of her numerous unsuccessful attempts to get promoted,

she submitted an addendum to that letter on the 12th of July 2016 following further unsuccessful attempt at interview on 24th of June 2016,

A meeting took place tween the complainant and the respondent on the 14th of July 2016 to discuss her complaint,

The respondent issued a reply to the claimant setting out their findings on the 9th of September 2016. That response deals comprehensively with the matters raised by the claimant and included undertakings to review practices such as the advertising of roles internally and the overall number of non-Irish nurses in managerial roles – even though on this measure the Respondent is in line with the ratios demonstrated in other large hospitals in the area.   In addition, the respondent found no evidence to support the Claimant’s allegations of discrimination.

The respondent has continued to engage with the complainant on issues raised by her,

In particular the respondent ensures that and has demonstrated through the correspondence with the claimant that they comply with and acknowledge the importance of the general principles of natural justice and fair procedures.

The dispute relates to an allegation that the management in the respondent Hospital failed to adhere to normal industrial relations processes and their own Grievance Procedure by continually refusing to respond to correspondence sent on behalf of the claimant in regard to a number of issues affecting her employment.

The claimant has separately pursued an equality claim in respect of discrimination on the grounds of race, however, this claim under the Industrial Relations Acts relates to the alleged failure of management to engage with the employee or the INMO on her behalf.

The INMO has issued correspondence on a number of dates during 2017 and 2018 which it states have not been responded to by the respondent.

On 10th January 2018, the INMO wrote to management to seek a meeting under the Hospital’s Grievance Procedure, however, management ignored this request and their own Procedure. In addition, in correspondence dated 23rd February 2018, the INMO requested that an agreed independent/external IR expert review the issues raised which have been outstanding for a considerable period as the claimant has lost all trust and confidence in the respondent Hospital. This request has been ignored.

In addition to the above alleged procedural deficiencies, the complainant also raised issues in respect of the following: Temporary rehabilitation remuneration, her entitlement to sponsorship for her MSc in Respiratory Nursing, as well as an entitlement to a specialist qualification allowance in respiratory nursing.  

The respondent advised the hearing that the claim in relation to temporary rehabilitation renumeration has already been addressed by the respondent hospital in extensive communication with the complainant’s trade union in line with the respondent’s policy on the matter and the complainant has been advised that she has no entitlement to this payment.   In relation to the claim for payment of university fees again the respondent states that it has provided the complainant with reasons as to why she did not qualify for the payment and the respondent states that it can bring this matter no further. The respondent also advised the hearing that the respondents reply to the complainant’s claim for a qualification allowance has already been clearly communicated to the complainant and reiterates that the complainant does not and has never qualified as eligible for this allowance.  

The claimant advised the hearing that she has been out of work on certified sick leave since 12th January 2018 due to the manner in which she has been treated by the respondent’s management in terms of their failure to deal with any of the issues she has raised. She has also had previous periods of sick leave relating to these workplace issues and as a result of these absences, the claimant has exhausted her full pay under the sick leave policy. The complainant in this regard is seeking that her sick leave entitlement for absences relating to her ongoing grievances be reinstated and that payments deducted be reimbursed.

The complainant advised the hearing that she submitted a complaint to the respondent on 12th of April 2016 alleging discrimination on the race ground in respect of her numerous unsuccessful attempts to get promoted. The complainant submitted an addendum to that letter on the 12th of July 2016 following a further unsuccessful attempt at interview on 24th of June 2016.

A meeting took place tween the complainant and the respondent on the 14th of July 2016 to discuss her complaint and management committed to investigate the matter and respond by August 2016 however the response was not received until the 9th of September 2016.

The respondent in reply to the industrial relations claim submits that they issued a reply to the claimant’s grievance setting out their findings on the 9th of September 2016.  The respondent states that that response deals comprehensively with the matters raised by the claimant and included undertakings to review practices such as the advertising of roles internally and the overall number of non-Irish nurses in managerial roles – even though on this measure the Respondent is in line with the ratios demonstrated in other large hospitals in the area.     In addition, the respondent found no evidence to support the Claimant’s allegations of discrimination.    

The respondent advised the hearing that the respondent has complied with its grievance procedure and that they have discharged the claimant’s grievances in accordance with their grievance procedure which is line with SI 146/2000.     The respondent has continued to engage with the complainant on issues raised by her.

It appears from the documentation submitted that further correspondence took place between the parties post September 2016 after the complainant had expressed her dissatisfaction with the respondents reply to the issues raised by her, a further meeting also took place between the complainant and respondent on the 20th of December 2016 and this is referenced in a letter of 22nd of December from the respondent to the complainant. These discussions appear to have continued into January 2017 culminating in a letter dated 27th of January 2017 from the complainant seeking clarification in respect of certain resolutions proposed by the respondent. In addition to this the complainant had at this stage raised her complaint of discrimination with the WRC firstly in December 2016 which was part heard in July 2017 and on which a decision issued in April 2018. The complainant later lodged additional complaints with the WRC in March and April 2018. I also note that there is a chain of correspondence between the complainant and the respondent regarding the complainant’s requests for marking sheets and interview notes in respect of various competitions and the replies from the respondent indicate that these were provided.

Thus, having regard to all of the circumstances of this case and given that the allegations of discrimination have been dealt with in my decision in respect of CA-00018112-001 above and also previously in my decision in respect of Adj-00006549 I do not recommend in favour of the complainant in respect of this matter.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I do not recommend in favour of the complainant.

Discrimination, Race, Promotion, Industrial Relations, Procedures