ADJUDICATION OFFICER DECISIONS & RECOMMENDATION
Adjudication Reference: ADJ-00019149
Parties:
| Complainant | Respondent |
Anonymised Parties | A Finance Assistant | A Charity |
Representatives | None | Mary Fay BL, instructed by Pembroke Solicitors |
Complaints and dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025005-001 | 14/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00025005-002 | 14/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00025005-003 | 14/01/2019 |
Date of Adjudication Hearing: 30/05/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 14th January 2019, the complainant referred a dispute and complaints to the Workplace Relations Commission. They were scheduled for adjudication on the 30th May 2019. The complainant made post-hearing submissions, which are considered in this decision.
The complainant attended the adjudication accompanied by a friend. The respondent was represented by Mary Fay, BL, instructed by Pembroke Solicitors. Two witnesses attended for the respondent; they are referred to in this decision as the Chief Executive and the manager.
The complainant asked that nine named individuals attend the hearing. Having considered the evidence and submissions in their totality, I find that there is no reason to require the attendance of the named individuals. First, I heard evidence from the key individuals in this case – the complainant, the manager and the Chief Executive. Second, where the complainant states that something occurred and where the respondent does not present direct evidence to counter this statement, I find that the event occurred as described by the complainant. For example, I find that the CE supervisor mentioned at the interview that the respondent had signed off on paperwork for another staff member doing finance-related exams. I find that the coffee morning conversation took place (but not that it amounted to discrimination and nor was it derogatory). For these reasons, it is not necessary to reconvene the hearing or to require their attendance.
In accordance with section 41 of the Workplace Relations Act, 2015, section 79 of the Employment Equality Acts, 1998 - 2015, and section 13 of the Industrial Relations Acts 1969following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
Background:
The complainant worked for the respondent between the 2nd April and the 5th October 2018. Her role was finance assistant and this was part of a CE placement. She worked 19.5 hours and was paid €215.50 per week. The complainant asserts that she was unfairly dismissed by the respondent. She states that she was bullied by management and discriminated against on grounds of race and gender. She states that she was not notified of a change in the terms of her employment. The respondent is a charity providing childcare and other services. It denies the complaints or that it treated the complainant unfairly. |
Summary of Complainant’s Case:
At the outset of the hearing, the complainant outlined that she had emailed documentation to the Workplace Relations Commission in advance of the hearing. She also requested that named individuals attend to give evidence. The complainant made post-hearing submissions. The complainant said that she signed the year-long contract of employment on the 4th April 2018, which stated that her employment commenced the 2nd April 2018. The role was that of Finance Assistant on a Community Employment scheme. She worked in a named office of the respondent, sharing a small cubicle with the Marketing Assistant. The complainant’s line manager was in an adjacent office. There had been a second finance assistant who moved to a different office when the complainant joined. The complainant said that when she interviewed for the role in February 2018, she told the CE supervisor and the manager that she would like the respondent to sign off on a workbook. She needed this for accreditation with two finance-related professional bodies. She was required to submit two years of relevant professional experience. The complainant said that her previous employers had signed off on her hours. While the CE supervisor mentioned doing this for a previous CE participant, the manager had a huge problem with this. The complainant submitted that as she had informed the respondent of this at the interview, it became a term of the contract of employment. The complainant said that she was paid €215.50 per week. The contract provided for reimbursement of reasonable travel expenses, on the provision of receipts. She raised the issue of getting travel expenses and the CE Supervisor said that they would talk about this later. In submissions, the complainant asserted that Irish employees were treated differently, referring to the bike-to-work scheme availed of by the comparator. The complainant outlined that the contract stipulated 56 hours of paid sick leave. She had taken sick leave in a previous CE role so had exhausted this entitlement. The complainant was told that she had to use annual leave for any day she was sick. The complainant said that she attended a WRC hearing on the 20th June 2018 relating to this previous role and told the respondent of this. She requested annual leave for this day and asked whether she could avail of the jury leave provision for this day. She also took an additional three days of annual leave in July. The complainant said that in April, the manager informed her that she was talking too loudly. Also in April, the manager shouted at the complainant, telling her to lower her voice. The manager also said that she was speaking in a strong Eastern European accent. In an incident in July, the complainant was on a break and speaking with staff. They had a neutral conversation, but the line manager criticised her for talking too long. The complainant said that this made her feel isolated and she did not speak to staff after this. The complainant said that atmosphere changed in August 2018 and she attributed this to her attendance at the WRC hearing regarding a previous employment. The respondent knew of this because the complainant had told the CE supervisor. The complainant said that the respondent took the view that she was a “complainer”, and this led to her being bullied. The complainant outlined that the manager said she was making many errors and that her work had to improve. They met on the 7th June and the manager assured her that if she showed willingness, the respondent would prolong her contract. Including her time on the other CE schemes, the complainant now had to apply for an extension of two years. The complainant said that the CEO’s comment of their effort to secure an extension was not included in the minute of the grievance meeting. She did not know whether they made such a request. She submitted an FOI request to the Department to see if there was such a request. The complainant said that she is trained on one finance package, but the respondent used another. The complainant told the respondent that this software was new to her and asked for training. The manager said that they would incorporate training into her role, but this never occurred. The complainant said that the contract of employment required that her skills be assessed through an individual learning plan, but the respondent never filled in the required document. The contract also provided that there would be health and safety training, but this also did not take place. In respect of the Terms of Employment (Information) claim, the complainant said she had signed the contract and what changed is that she was dismissed after six months. There was the hidden issue of the other WRC case pointing to her as a “complainer” who talked too loud with an Eastern European accent. The complainant said that she wanted to finish the year and to gain experience and time on her CV. In respect of the Employment Equality claim, the complainant said that two people made references to her nationality. In April, the manager spoke to the complainant about her tone and specifically her accent. The complainant said that the manager did not speak to others like this. The second occasion was at a company coffee event for staff from all the organisation. She had been speaking with a supervisor, who was due to go on maternity leave and who told another Irish colleague ‘look, she is another Czech girl, and we have another Czech girl, [name].’ The complainant said that they noticed that they have someone else who was Czech. The complainant said that she selected comparator who is an Irish male. This was her predecessor, who was given a full-time permanent contract for 27 hours per week. The difference was that he was given a contract and she was not. The manager told her that if she showed willingness to learn, she would be employed. In respect of staff in the respondent workplace, the complainant said that she shared a cubicle with a Latvian man and there were also Polish, Hungarian and Pakistani staff. This latter colleague had transferred from the same CE scheme but had started before her. She said that as far as she knew, his contract was extended. The complainant submitted that her Employment Equality claim related to unfair treatment and her dismissal. She said that her comparator did not have an accounting qualification, while she was qualifying as an accountant. In respect of the bullying complaint, the complainant said that she met the manager in May, who said that the complainant was making errors. The manager referred to procedure of reporting errors by email. The complainant said that she had sought to follow this procedure. She was learning so would make mistakes. She said that she improved and was able to deal with her own errors. The complainant said that in August, the manager raised an issue with two credit notes and the complainant had not entered credit notes. The manager showed her how to do this and the complainant entered the credit notes. The problem was solved. The complainant referred to the email chain in this regard. The complainant said that she was not aware of other errors or what loss the respondent incurred. The respondent did not refer to exact errors or any loss in their letters to her. The complainant said that she was not given time to improve. In the letter to the CE Supervisor of the 23rd August 2018, the complainant stated that she is overwhelmed with work on Tuesdays and Wednesdays but does not have enough to do on Thursdays. The complainant stated that she wished to advance in the accountancy profession and referred to the two professional bodies. The complainant said that she invoked the grievance procedure because the respondent had broken a contractual term in not signing her professional qualification documentation. The complainant said that the manager refused to sign the document, for example in July and August. The manager asked the complainant angrily whether she wanted to grow in the company. The complainant described the manager as being bullying. When the complainant raised this with the CEO, she was told that she could not prove anything. The complainant outlined that she was dismissed on the 5th October 2018. This disappointing end caused her to incur bad insomnia. She was now in receipt of jobseeker’s allowance but would not be able to continue her studies because she could not afford the fees. This arose from the manager’s refusal to sign the documentation, where she was unable to avail of a discounted rate, and from her nationality. She submitted that the Irish do not want Eastern Europeans to progress. She outlined that she was waiting for counselling. She said that she was bullied because she did not get the signatures she required. The complainant outlined that she wanted witnesses to attend the hearing to give evidence. She referred to another Czech employee of the respondent, who had told the complainant she was concerned how long the complainant’s interview had been. This Czech colleague was only given 10 hours per week and was unhappy. She should have been a permanent member of staff and seems no longer to be employed by the respondent. In reply to the respondent, the complainant said that the errors were exaggerated, and she felt that the manager was seeking to block her progress by not signing the document. She asked the accrediting body to intervene and they promised to contact the manager. On the 20th July 2019, the complainant made additional submissions to the Workplace Relations Commission. She said that she was looking for the respondent to sign off on 468 hours of work experience. She had not asked the respondent to sign off on payroll tasks as it had stated. She also asked for a reference with original signatures, as the copy had been deemed unacceptable by one professional body. The complainant rejected the manager’s statement that the complainant had not previously raised her need for signatures. She said that the CE supervisor had mentioned in the interview that a previous participant had made the same request as the complainant had, and the respondent arranged for a bank official to overlook this participant’s performance. The complainant acknowledged that the other professional body approved the respondent’s submission on the second attempt. The complainant denied talking openly about work issues. The complainant quoted City and Westminster Properties (1934) v Mudd [1959] Ch. 129 regarding a verbal assertion representing a collateral contract. The complainant referred to her previous manager agreeing to sign off on her hours. The complainant also said that the respondent manager had undertaken to consider extending her contract or the option of a full-time role. The complainant stated that she was not given training in a software package and that health and safety training was cancelled. She outlined that the three mistakes made using the software could be explained by the lack of training. The complainant stated that the warning was given to her because of excess internet usage, which included accessing professional resources and personal emails. She stated that the internet usage policy was only applied to CE participants and not staff generally. The complainant asserts that she had a 12-month contract with the respondent and this ended during the term of the contract. The respondent was not entitled to summarily dismiss her. In respect of the Terms of Employment (Information) claim, the complainant refers to UK case law regarding rectification of a contract and the doctrine of mistake. In respect of the bullying complaint, the complainant asserted that the manager repeatedly told her to reduce or change her ‘strong Eastern European accent’. The complainant said that she answered that this was her accent and the manager said she should lower her voice. She referred to the other manager who commented on the complainant’s nationality. The complainant said that false criticisms had been made of her performance and there was no written record of her performance. The respondent failed to complete the employment feedback documentation in this contract. The complainant asserted that she should have been given feedback and the opportunity to improve in certain areas, but she did not receive this. The complainant relied on the Supreme Court authority to Ruffley v Board of Manager of St Anne’s School [2017] IESC on the employer’s obligation to address workplace bullying. The complainant exhibits the professional body learning outcomes document. The complainant fills in 18 criteria. The complainant has written in an outline of each learning outcome, but this is crowded, handwritten text as each criteria asks further questions. The complainant writes to ask the manager to ‘X’ each criteria. |
Summary of Respondent’s Case:
In submissions, the respondent stated that it was an error for the contract of employment to state that the complainant’s contract was for a year. This was an error as it did not take account of the complainant’s time with another CE scheme. The respondent submitted that the complainant was subject to a 12-month maximum applied by Community Employment rules and she transferred to the respondent with the same end-date (5th October 2018). The respondent outlined that there were performance issues with the complainant, which were addressed at the meeting of the 29th May. The respondent issued the warning on the 22nd August 2018. On the 23rd August 2018, the complainant asked the respondent to sign a workbook. On the 29th August, the CE supervisor informed the complainant that her contract would end in October. The respondent outlined that the complainant raised grievances on the 6th September 2018, including task allocation, access to a password, being mocked for her accent, not being thanked for her work and being undermined by the manager. The grievance also raised the issue of the manager not signing documentation. The respondent submitted that it had not agreed to mentor the complainant or to certify her work. The respondent outlined that the complainant’s last day of work was the 3rd October 2018 and her employment ended on the 5th October 2018. It stated that the complainant did not attend the exit interview. On the 16th October 2018, the respondent gave the complainant a letter to present to the professional body. The manager had consulted with one professional body and agreed to set out in writing that the complainant had worked on a CE scheme for 19.5 hours per week and what her tasks were. The complainant wrote back to say that one professional body would not accept a written document and needed the information online. The respondent uploaded the necessary information as it soon as it had the correct link. The second professional body was meeting to see if the document was acceptable. The respondent CEO made decisions regarding the complainant’s grievances against the CE supervisor and the manager. The CEO held that the complainant was given notice in line with her contract. In respect of the grievance involving the manager, the CEO held that mistakes were still being made and the complainant could not progress to other tasks. The CEO concluded that there was no formal agreement to supervise her work. In December 2018, the complainant forwarded correspondence from a professional body, asking for the information to be resubmitted. The respondent stated that while the complainant threatened legal proceedings regarding the workbook, she does not allude to discrimination or race. The respondent submitted that the complainant’s application for admission to the professional body was declined because the body deemed 1,260 of the complainant’s hours as inadmissible, i.e. time spent with a different employer (the complainant had worked 468 hours with the respondent). In respect of the Terms of Employment (Information) complaint, the respondent submits that the reference to one-year was clearly an error and the complainant acknowledged in the grievance that the CE placement was subject to a 12-month term and that she had completed six months elsewhere. In respect of the Employment Equality complaint, the respondent submitted that the complainant had not established a prima facie case of discrimination. It submitted that the basis of the claim of discrimination was the refusal to sign off on the work experience book to two professional bodies. The manager refused to certify this as it included items the complainant did not do (for example, related to pay roll) and the manager was not an accountant (as required by one professional body). The respondent also sought to assist in certifying hours with the professional body. The respondent submitted that CE placements are for one year with the possibility of an extension of up to two years if the participant is working towards a major award. The sponsor must obtain approval of the Department. The respondent understood that the complainant was not interested in this as she was studying with a professional body, whose course would not meet the criteria. It submitted that an application for an extension would have been futile. The respondent detailed the circumstances where one staff member was given an extension in a housekeeping role from a maintenance role, which he had not been able to do. The Czech colleague cited by the complainant ended her CE placement and continued to work on a short fixed-term contract. Such additional work was available in childcare and on reception, but the complainant was not qualified for either. The respondent outlined that the manager spoke to the complainant about raising her voice and about discussing work in public. The complainant denied she was shouting and referred to this as ‘just my accent’. The manager denied referring to the complainant’s accent, nor undermining her. In respect of access to a software system, the respondent outlines that this was restricted to two people who dealt with parents and the system related to recording invoices issued for childcare. It outlined that while the complainant was not one of the two people, she was facilitated with access. The respondent outlined that manager was not trained in the software the complainant said she ought to have been. It submitted that no comparable employee was trained in the software; the comparator cited by the complainant was a staff member in a different department and this had to be approved by line management. The respondent submitted that it was not aware of the complainant’s WRC case against the other CE scheme. The complainant had not referred to this in the request for annual leave, which had been approved. In respect of the victimisation allegation, the respondent submitted that this training was cancelled because a senior manager was absent. The respondent states that it had 64 employees at the material time, including 20 CE participants at this time. Its workforce is diverse, and it rejected the claim of discrimination. At the hearing, the respondent outlined the complainant’s employment commenced on the 4th April. It submitted that this was a yearly contract of employment and the complainant’s time with the other CE scheme should be taken into account. The respondent stated that it had interviewed the complainant and other candidates for the role. Her interview was normal and not too long. The colleague had rung in to see if they wanted coffee. The respondent accepted that the complainant mentioned at interview that she was studying with a named accrediting body but did not mention any obligation to fill in a mentoring workbook. The respondent said that even if signing the document became a contractual term, the complainant had not followed the requirements of the accrediting body in attending a course. The respondent outlined the complainant was trained for the role. It stated that the errors arose because of lack of attention to detail. It referred to the email of the 28th August setting out issues arising from data entry and other issues. In respect of the comment made at the coffee morning, the respondent said that the complainant had never raised this comment in the bullying complaint. In respect of the comparator, the respondent outlined that it had two full-time posts, consisting of a Finance Manager (3 days per week) and the Finance Assistant (23 hours per week). The comparator applied for the role and was successful in obtaining it. The respondent submitted that it was not the case that every single CE participant would be offered a full-time contract. It stated that the comparator had prior finance experience. The evidence of the manager The manager said that she never made the comment about the complainant’s accent but did raise with her speaking loudly and discussing work issues publicly. The complainant had mentioned at interview that she was doing training. The manager said that she told that complainant that she could not sign any documentation as she was not licensed to. The manager said that she next heard about the workbook at the end of the summer. She agreed to look at the workbook, but there was no way she could agree to sign off on the tasks the complainant said she could do. The manager said that her role was to help CE participants acquire skills and to help them progress. She refuted that she had been aggressive or used bad language. The evidence of the CEO The CEO outlined that she explained the process for signing off books to assess work and to record progress. She explained to the complainant that the respondent could not sign off on the information especially as the complainant had not done the tasks set out in the workbook. |
Findings and Conclusions:
The complaints and dispute were lodged with the Workplace Relations Commission on the 14th January 2019. The complainant made submissions and submitted documentation in advance of the adjudication, but they were not circulated in time for the hearing. The respondent presented detailed submissions and documentation to the adjudication. I gave time for the complainant to make additional submissions after the hearing, in order that she have the opportunity to reply to the respondent. I have considered all the documentation and submissions in reaching these findings. CA-00025005-001 This is a complaint pursuant to the Terms of Employment (Information) Act. The substance of the complaint is that the statement of employment provided by the respondent incorrectly refers to the term of the complainant’s employment. The statement refers to the employment starting on the 2nd April and being for a year, while it ended on the 5th October. The respondent submits that this is an error as did not take account of the complainant’s time on another CE scheme (which had folded). Section 3 of the Terms of Employment (Information) Act requires the employer to give to the employee a written statement of the terms of their employment. This includes the obligation ‘if the contract of employment is for a fixed term, the date on which the contract expires’. Section 5 requires the employer to notify the employee in writing of any change within one month after the change comes into effect. The requirement to inform the fixed-term employee of the duration of their contract is transposed from EU law (Directive 91/533/EC and see also, Directive 2019/1152). Obviously, this is important information for such an employee, especially for someone in the complainant’s position, who is seeking to build up professional work experience in order to gain specialist accreditation from professional bodies. It is vital that people working on atypical working arrangements, such as fixed term contracts, are given this information early in the relationship and in clear terms. This allows them to seek and avail of other opportunities. I accept the respondent’s explanation of why the statement provided to the complainant is incorrect. It is a pro forma document and refers to the term being ‘yearly’. It states the date of commencement, but does not give the end date, as required by section 3. Had the pro forma document required the person presenting the document on behalf of the employer to insert the date, the error might not have occurred. I accept the respondent’s explanation that the complainant’s placement was subject to Community Employment rules. It was, therefore, a placement of one year, inclusive of the previous placement and the short interim one. The placement was to end on the 5th October 2018. Section 5 does not prevent an employer changing the terms of employment but requires the employer to inform the employee of this in writing one month after the change comes into effect. The complainant was given verbal notice on the 28th August (the CE supervisor) and was sent a detailed letter of explanation regarding the dismissal on the 23rd October (the CEO). The letter of the 23rd October meets the requirement of section 5 in relation to the notifying the complainant of the change to the term. As set out above, there has been a contravention of the Terms of Employment (Information) Act in respect of section 3(1)(f) and the absence of notification of the complainant’s end date of employment. The complaint is, therefore, well-founded. In assessing redress, I note that the complainant worked under an atypical working arrangement and was looking for opportunities to build up her hours and experience. Section 3 of the Act transposes the Written Terms Directive, including the essential aspects covered by Article 2. EU law is engaged so redress should be ‘effective, dissuasive and proportionate’. For the reasons set out above, I award the complainant €862, which is compensation for a breach of the statute and is not remuneration. CA-00025005-002 This is a dispute pursuant to the Industrial Relations Act. The complainant raised how she was treated in the workplace and the manner her employment ended. She said that her dismissal was unfair; she had less than one year’s service with the respondent. A dispute pursuant to the Industrial Relations Act relates to whether the worker was treated fairly and whether the employer acted in accordance with policies and procedures. I am to make a recommendation setting forth my opinion on the merits of the dispute. I have considered all the issues raised by the parties. At the hearing, the complainant referred to another WRC case against a different CE employer (which folded). The complainant expressed the fear that the respondent singled her out as a complainer because of this other case. I do not see how the complainant was treated in any way differently because of this other case. First, there is a great deal of paperwork in this case and none discusses this other case. It does not feature at all. Even if the complainant mentioned it in conversation, it did not register with the respondent. The complainant submitted that it became a term of employment that the respondent would sign the paperwork associated with the professional bodies. I appreciate that the complainant wished to progress her professional development and for her hours on the CE scheme to contribute towards the hours she needed for accreditation. I accept that the complainant mentioned this at the interview and that the CE supervisor referred to someone doing the same before. Given that this was stated during the course of an interview (from which the complainant was appointed), it is a stretch to say that it was incorporated as a term of employment. This would ordinarily require a separate process of offer and acceptance, where it was clear what was being asked of the respondent. Professional training contracts generally set out clear rights and obligations for the parties. There was none of that detail in this instance, even agreed verbally. I find that it was not a term of the contract that the respondent would mentor or otherwise certify the complainant. This situation differs from the Mudd case cited by the complainant; this involved a verbal agreement between a tenant and a landlord that the tenant could also reside in the business premises. The circumstances raised an estoppel, in particular arising from the conduct of the parties over the course of two decades. One would expect an employer to facilitate in whatever way an employee partaking in professional development, for example in setting out the tasks completed by the worker which would go towards this professional development. Having considered the evidence, I find that the manager and the respondent acted fairly in assisting the complainant. It was not formally the complainant’s mentor but wrote references to both professional bodies, explaining what the complainant did at work. It resubmitted one document online. While the manager would not mark ‘X’ on the sections of one particular return, I note the sheer volume of information sought in this return and the complainant’s attempt to squeeze in this information in handwriting. Ultimately, the respondent provided the information to both professional bodies in order to help the complainant. In respect of the allegation of bullying, I find that the complainant has not shown that she was bullied in the workplace. She asked for less work on two days and more work on the third. She sought more finance-related tasks rather than filing. She disagreed that she had made errors. While the complainant may have been unhappy, the respondent’s action on these issues was normal line management. I accept the respondent’s explanation why the health and safety training was cancelled and that people were generally not trained on the software package. Even if they ought to have been, this was not an element of unfairness or singling out the complainant. In any event, the warning was issued for excessive internet use and not related to the errors using the software. I find that the complainant was not entitled to travel expenses for travelling from home to work and that the expenses clause only relates to travel for work. The bike to work scheme is tax relief and not remuneration. I also note that additional hours were not available in the finance section, but only available in childcare and on reception. I accept the respondent’s explanation as to which passwords the complainant had and how access was restricted to certain information. The complainant outlines that she was subject to aggressive behaviour and shouting at the hands of the manager. In the Employment Equality complaint, I have addressed the reference to the complainant’s nationality (I find that the manager did not refer to the complainant’s nationality). Having heard directly from both the complainant and the manager, I find that the manager was not aggressive or shouted at the complainant. The complainant submitted a detailed grievance. This led to the minuted grievance meeting of the 25th September 2018 and the grievance outcome on the 5th November 2018. Separately, the respondent set out the reasons for the complainant’s dismissal in the letter of the 23rd October 2018. I find that the respondent fairly considered the issues raised by the complainant in accordance with the grievance procedure. It is not clear why the minutes and the letter of the 5th November 2018 refer to any grievance outcome possibly leading to a disciplinary process against the manager, the CE supervisor or even the complainant – the policy does not allow a grievance to migrate to a disciplinary process (this would also be undesirable and stymie a grievance process). It is also not clear why the complainant was asked to write two grievances when the policy does not provide for separate grievances where the worker cites more than one member of staff. However, there was no disciplinary process and the Chief Executive’s report is a fair and thorough consideration of the issues raised by the worker. In respect of the dismissal, I find that the complainant’s employment ended because the year-long CE placement finished. The respondent was obliged to factor in the time spent with the two other CE schemes. This could not be extended within the terms of the CE rules. While the statement of terms was incorrect (and dealt with above), the complainant’s employment was ended for the reasons set out in the letter of the 23rd October 2018. I find that the complainant’s employment was fairly terminated. I find that the respondent treated the complainant fairly and, on this basis, I conclude that I cannot make a recommendation in the complainant’s favour. CA-00025005-003 This is a complaint pursuant to the Employment Equality Act. Applying section 85A of the Act, the complainant must first establish facts of such significance from which an inference of discrimination can be drawn (the prima facie case). Once this happens, the burden is squarely on the respondent to rebut the inference of discrimination. The complainant advances that she was discriminated against on grounds of race/nationality and gender. She cites a named male, Irish comparator, her predecessor in the Finance Assistant role. She outlines that she was subjected to less favourable treatment in being dismissed while the comparator obtained a directly employed role with the respondent. She refers the respondent refusing to sign off on the workbook. She cites that she was not able to do all the tasks associated with a finance assistant, for example payroll. She cites not receiving training. She cites not being able to work additional hours. She refers to the interview being overlong. She cites that her travel expenses to work were not paid, while the comparator obtained support through the bike-to-work scheme. The parties differed whether the above elements could be attributed to discrimination. There was significant conflict in evidence between the parties regarding whether the manager mentioned the complainant’s nationality in the April discussion regarding the tone and volume of her voice. The complainant said that the manager shouted at her and referred to her Czech accent in criticising how the complainant spoke. On the other hand, the manager said she was speaking with the complainant about her tone of voice, but it was complainant who referred to her accent as being Czech. The manager denies being aggressive or commenting on nationality. The complainant cites another incident where a different manager commented that the respondent had another Czech colleague. The respondent denied that this was discriminatory and pointed to the many nationalities who work for it. Having considered the evidence and submissions of the parties, I find that the complainant has not established a prima facie case of discrimination. In respect of whether the manager referred to the complainant’s nationality in the April conversation, I note that this incident took place in the early part of the complainant’s time with the respondent. Certainly, there was a conversation about the complainant’s tone of voice and someone mentioned the complainant’s nationality. If it was said to the complainant in such a derogatory way, I would expect an immediate response from the complainant. I note that there was a great deal of correspondence and emails between the parties; most authored by the complainant. This issue is first raised in the grievance of the 6th September 2018. On the balance of probabilities, I find that the complainant mis-remembered this aspect of the conversation. I note that the conversation took place some months before it was recorded in writing and it would have been a fast-moving and difficult conversation. Even if the conversation occurred as stated at the coffee morning, this was not an act of discrimination; it was a comment about a colleague and in no way negative. In respect of the other elements set out above, I find that the complainant has not shown that any of how she was treated was associated with her nationality or gender. Taking the issues in sequence, while the complainant may have found that the interview was long, she was successful in obtaining the role. She began the role and the respondent concluded that she was not able for all tasks. Even if the respondent was wrong in this assessment, there is nothing to show that it was an act of discrimination. Even if the Irish colleague did the full role, there is nothing to show this treatment was related in any way to nationality or gender. Simply falling within a category (say on grounds of nationality) is not enough to raise an inference of discrimination. The respondent outlined that the health and safety training was cancelled as a senior manager was ill. It explained that no-one did training in the software package, except for a member of the fitness team who had to be accredited in this. Perhaps staff should have been trained in the package, but the fact that the complainant was not trained does not constitute less favourable treatment as people were generally not trained. The respondent outlined that additional hours were only available in childcare and reception, roles that the complainant did not do. There is no inference of discrimination to be drawn. In respect of travel expenses, I note that the contractual term is limited to expenses, including travel expenses, incurred while at work (for example travelling between the two sites operated by the respondent). It was not a contractual term that the respondent would pay for the complainant’s commuting expenses, i.e. getting from home to work. The complainant worked from one place of work, so there is no question of this travel time being working time. The bike-to-work scheme is a tax incentive scheme to encourage people to cycle to work. It is tax relief and not additional remuneration. There is, therefore, no discrimination in this aspect of the case. I appreciate that the complainant was most anxious to have her hours certified with the two professional bodies. I accept that she mentioned this at the interview, although I have found that it goes too far to find that mentoring became a contractual term as one would see in a professional training contract. While the respondent may have taken time to consider their position, ultimately, the respondent did file the necessary information, first in writing and then online. The respondent’s actions in this regard could not raise an inference of discrimination. The complainant’s employment ended at the expiry of the CE placement. There is insufficient evidence to show that this was in any way related to the complainant’s nationality or gender. For these reasons, I find that the complainant has not established a prima facie case of discrimination. |
Decisions and Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00025005-001 I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €862. CA-00025005-002 Having considered the merits of the case, I decide that the employer treated the employee fairly and in line with policy and I therefore make no recommendation in the worker’s favour. CA-00025005-003 I decide that the complainant has not established a prima facie case of discrimination on grounds of race or gender and there is, therefore, no contravention of the Employment Equality Act. |
Dated: 12/08/2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Terms of Employment (Information) Act Section 3 / Article 2 of the Directive Industrial Relations Act / fair treatment Employment Equality Act / prima face case of discrimination |