Complainant

Respondent

Anonymised Parties

IT support engineer

Staffing Agency

Representatives

Connect Trade Union

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-00027712-001

12/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00027712-002

12/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00027712-003

12/04/2019

The complainant claims that the respondent breached its obligations to him under the Employment Equality Act 1998, on the grounds of race, the Parental Leave Act 1998 and the Criminal Justice Act 2011.

The complainant commenced employment with the respondent on 7/8/2018. His employment terminated on 7/12/2018. He worked 40 hours a week. He earned an annual salary of €35,000.

He submitted his complaint to the WRC on 12/4/2019.

The respondent raised the preliminary issue of the incorrectly named respondent. The respondent maintains that the adjudicator has no jurisdiction to hear the complaint.

The complainant’s payslips, contract of employment and letter of termination clearly disclose the employer’s correct name.

The respondent requests that the adjudicator decide on the preliminary point at the outset of the hearing. The respondent relies in this regard on the decision of the High Court in the Minister for Finance v The Civil and Public Service Union (2006) IEHC 14 concerning the adviseability of deciding on a preliminary point and thus obviating the need for a hearing on the substantive claim.            

The complainant asked to be permitted to amend the respondent’s name. All his dealings were with the named respondent. The complainant’s representative stated that the complainant had no advice to hand when he submitted his complaint. Advice came later.

I undertook to address the preliminary issue in my decision and not at the outset of the hearing.

I accept that the correct name of the respondent was on the complainant’s pay slip and contract.

The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922. While the circumstances of the instant case differ somewhat from those pertaining in the appeal before the Labour Court what they have in common are the following elements which were set out in DWT 1922:

“The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter…….”

In arriving at this conclusion, the Court was also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held

: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)” ….

“In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

The Labour Court continued

“Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response “as envisaged in O’Higgins. Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’.

For the reasons cited above, I agree to the complainant’s request to correct the name of the respondent to reflect its correct legal title. It is corrected in this decision.

CA-00027712-001.Complaint under the Employment Equality Acts 1998-2015.

The complainant worked as an IT Lab Analyst with the respondent from 7 August 2018 until his employment was terminated on 7 December 2018.

The complainant maintains that the respondent discriminated against him on grounds of race. The last act of discrimination occurred on 13/11/2018 which consisted of accusations of poor performance made against him after his return from force majeure leave.

Instances of alleged discrimination on grounds of race.

The complainant cites the failure of the employer to provide him with what is called Empower training. His two Irish colleagues doing the same job were sent on this training within a few weeks of taking up employment.

The respondent advised him that his low salary of €35,000 per annum was reasonable because the company planned to invest around €10,000 in his training like they had already done for his two Irish colleagues. The complainant states that this training was critical to his advancement and ability to access certain IT programmes and perform certain tasks. The company to whom he was deployed, the Hirer, told the complainant that they would provide him with training but failed to do so. He submitted an email from the Hirer’s IT Regional lead advising him that he could not undertake types of work because he wasn’t Empower trained but that he was exploring training opportunities for him.

The complainant states that he did an excellent job and that he was frequently ahead of target.

Despite many requests and promises he has not received the training.

Discriminating against the complainant in dismissing him because he opposed discrimination.

The complainant maintains that the dismissal on 7 December was an act of discrimination on the grounds of race. In an email of the 14 November the complainant accused the respondent of discriminatory action in notifying the complainant on the 13 November of underperformance issues which the complaint states are baseless, and evidence of less favourable treatment as compared to that meted out to Irish colleagues. The complainant maintains that Irish employees were treated differently. The respondent gave him written notice of dismissal on 26 November.

Complaint of harassment on the grounds of Race.

The complainant states that the respondent account manager and respondent general manager called to his house on the 15 November seeking a return of a laptop and a phone which was not their property but the property of one of the Hirer’s clients. They behaved in a loud and intimidating manner.

CA-00027712-002. Complaint under the Parental Leave Acts, 1998-2019.

The complainant states that he took force majeure leave on 5,6,7 November 2018. Upon returning to work on 13 November he was called to a meeting with the respondent’s account manager with responsibility for the Hirer. He was not given advance notice of the content of the meeting. The account manager put baseless concerns and accusations of underperformance about his work.

He considers this to be penalisation for having taken the leave because as far as he is concerned the accusations are undated and false.

CA-00027712-003. Complaint under Schedule 2 of The Criminal Justice Act,2011.

The complainant states that he reported a breach of the Act of 2011 to the Hirer’s IT Lead and to the respondent account manager. The particular breach was the fact that a director of one of the Hirer’s clients gave him a pass key to do work on server installations. This was strictly against company policy. The Hirer’s IT lead told him it was ok and to carry on. He reported it to the respondent account manager whose only response was to identify concerns to the complainant about his performance.

The complainant maintains the respondent’s document dated 13 November, setting out baseless criticisms of his performance and the subsequent dismissal were the retaliatory acts of penalisation for having made a type of complaint about an offence which the complainant maintains is covered by The Criminal Justice Act,2011.

CA-00027712-001.Complaint under the Employment Equality Acts 1998-2015.

Without prejudice to their preliminary point the respondent denies that they discriminated against the complainant.

The respondent is a staffing agency supplying IT engineers to various clients to work on IT projects. The complainant was deployed as a Lab IT Analyst with one of the respondent’s clients.

The respondent submits that the complainant has failed to make out a prima facie case of discrimination as required by section 85A of the Acts.

Alleged denial of training opportunities.

The Regional IT lead with the Hirer gave evidence that the training sought by the complainant was not essential for the performance of the job for which he was engaged. Neither was it provided for in his contract of employment.

The Hirer and not the respondent assumed responsibility for this complaint. The evidence submitted is contained in a separate decision numbered ADJ 21267.

Complaint of discriminatory dismissal for having opposed discrimination.

The respondent denies that he was dismissed for discriminatory reasons or because he opposed discrimination. The person employed to replace him is Nigerian. The replacement employee has not been given Empower training.

His contract stated that he was on a probationary period for the first 6 months of his employment. His contract allowed for an ongoing assessment of his performance after a period of 3 months and an opportunity to improve where problems arose. It further allowed for termination of his employment during or at the end of his probationary period where his performance fell below an acceptable level. He was dismissed in accordance with his contract.

The respondent set out concerns about his performance to the complainant on the 13 November 2018. These concerns included his line manager’s and colleagues’ observations about his failure to follow instructions and advice, periods of inattention and failure to engage with telephone calls. The respondent account manager stated in evidence that they did not view the problems as insurmountable, but it was his aggressive, steadfast resistance to examining ways of addressing performance issues which alarmed them and led them to conclude on 26 November that they should terminate his employment.

The respondent submits that the complainant failed to make out his case on this instance of alleged discrimination.

Complaint of victimisation.

The respondent denies that the complainant was victimised.

Complaint of harassment on grounds of race.

The respondent general manager stated in evidence that the complainant submitted a complaint of bullying and harassment on grounds of race against his line manager in the Hirer’s workplace. The respondent General manager and Account manager arranged a meeting. He failed to turn up. Meetings in the office had been cancelled to allow him to attend. They called to his house as the employee’s wellbeing is their responsibility. It was clear that the complainant did not wish to engage with them. They left immediately. There was no loud voices or intimidation.

CA-00027712-002. Complaint under the Parental Leave Act 1998-2019.

The respondent denies that any penalisation occurred following the complainant’s return from force majeure leave. The respondent provided him with more than the statutory entitlement.

The manager with responsibility for the account with the Hirer and for whom the complainant was working gave evidence that the regional IT lead in the Hirer had raised concerns with him about the complainant’s performance and that was why the meeting was arranged for the 13 November 2018 upon his return from leave. The respondent submitted documentary evidence of performance concerns passing between the complainant’s colleagues and the Hirer’s IT Lead at the end of October and onward to the respondent account manager before the complainant took the force majeure leave on 5 November.

The manager stated that the complainant behaved in a very aggressive manner towards him when he presented him with performance issues on 13 November. At that stage he merely wanted to explore how to resolve the problems, but the complainant wouldn’t countenance the existence of any problems and was completely resistant to dialogue. The respondent sent a follow-on document to the complainant. The complainant responded denying that there was any cause for concern and accusing the respondent manager of discrimination, abuse and slander. On 15 November the complainant lodged a complaint of bullying and harassment against the regional IT lead in the Hirer company. The respondent immediately offered to meet the complainant on two occasions. The complainant refused to engage in the process and failed to attend meetings set up for him to lay out his complaints.

On the 26 November, the account manager made the decision to dismiss the complainant.

On 6 December the complainant lodged a complaint of bullying on racial and harassment on racial grounds.

He was dismissed because of his outright refusal to engage with the respondent’s named concerns about performance issues. The decision was totally unconnected to his decision to take force majeure leave.

CA-00027712. Complaint under Schedule 2 of The Criminal Justice Act,2011.

The alleged breach is the submission of a pass key to him by one of the Directors of a client company of the Hirer. The complainant states that it was against “company policy” to use another person’s pass key. The respondent stated that It was a general practice ofthat client that pass keys should not be handed around from employee to employee. Therespondent is unaware of any written policy on this. It was however a practice that at thetime in question was not enforced, nor closely monitored. The Hirer has norecollection of this issue having been raised with him by the complainant and he has norecord of such a report having been made to him. It is noted that the complainant has not referred to any record of his alleged reporting of this issue.

The respondent states that no relevant offence as set out in schedule 1 of the Act has been identified by the complainant.

The complaint should be dismissed.

CA-00027712-001.Complaint under the Employment Equality Acts 1998-2015.

The matter for adjudication is whether the respondent discriminated against the complainant, and contrary to Section 6 (2)(h) of the Employment Equality Act, 1998 in failing to provide him with Empower training, in discriminatorily dismissing him because of his opposition to discrimination, in victimising him and in harassing him on the grounds of race.

The statutory provisions guiding the examination of this complaint of discrimination are contained in Section 6 of the Acts which defines discrimination as occurring where

(a)          “one person is treated less favourable than another is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) of this Act”.

The complainant being of Polish nationality is within the protected class as set out on section 6(2)(h) of the Act which prohibits discrimination

“where a person is of a different race, nationality or ethnic or national origin”.

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

One of the facts on which the complainant relies to raise an inference of discrimination include the fact that he is a Polish national and that the Hirer denied him training opportunities which locked him out of certain professional experiences in contrast to two Irish colleagues, offered training within weeks of starting work with the respondent. A decision in respect of this element of his complaint is contained in ADJ 21267.

Complaint of discriminatory dismissal for having opposed discrimination.

The complainant linked his nationality to his dismissal. The precursor to his dismissal was the list of performance concerns put to him by the respondent on 13 November and his response to same on 14 November which characterised the criticism of his performance as unjustified and as being fuelled by discriminatory intent. While the complainant made assertions, he was unable to demonstrate how a person of a different race to him facing the same set of circumstances would have been treated any differently. He was therefore unable to unable to demonstrate that he was treated less favourably because of his race.

The determination of Graham Anthony and Co Ltd v Mary Margretts, EDA 038 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’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”.

Considering the uncontested evidence of the complainant’s unwillingness to countenance engagement with performance issues, I find that the respondent’s evidence demonstrates that however difficult their decision is for the complainant, a prima facie case of discrimination on grounds of race has not been made out.

I find that the decision to dismiss him was not based on the fact that he opposed discrimination on the grounds of race.

A complaint of victimisation

I find that the complainant did not make out a case of victimisation.

A complaint of harassment on grounds of race

I find that the complainant did not make out a case of harassment on grounds of race.  

I have decided to anonymise the complaint as it is one of three complaints, two of which are taken under different statutes.

CA -00027712 -002.Complaint under the Parental Leave Acts, 1998-2019.

I am obliged to establish if the complainant was penalised contrary to section 16 A of the Parental Leave Acts, 1998-2019.

The complainant states that he was penalised by being presented with baseless complaints on 13 November 2019 about his performance after his return from force majeure leave. He was dismissed on 26 November.

The complainant did not demonstrate how the concerns were baseless nor did he attempt to reverse his employer’s opinions by activating a procedure. He merely characterised the concerns as abusive, discriminatory and slanderous.

The evidence submitted at the hearing demonstrates that these same concerns put to him on the 13 November had been put to him prior to him taking his force majeure leave

The evidence fails to disclose that he was penalised on foot of taking force majeure leave. I do not find this complaint to be well – founded.

CA-00027712-003. Complaint under Schedule 2 of The Criminal Justice Act,2011

I am obliged to establish if the complainant was penalised contrary to section 20 of the Act of 2011 which states

“— (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee

(a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or

(b) for giving notice of his or her intention to do so”

The relevant offence which the complainant reported was the delivery of a pass key to him by one of the Hirer’s clients in order to access servers.

I do not find this action to be specified in the list of “relevant offences” contained in Schedule 1 of the Act of 2011. More importantly the act of penalisation which was the respondent’s notification to him on the 13 November of their concerns regarding his performance preceded his report of the act which he believes is covered by the Ac t of 2011. A report of a “relevant offence” is a condition precedent for penalisation to occur.

I do not find this complaint to be well founded.

CA-00027712-001.Complaint under the Employment Equality Act 1998.

I do not find that the complainant was discriminated against on the grounds of race.

CA-00027712-002. Complaint under the Parental Leave Act,1998.                                                                            

I do not find this complaint to be well founded.

CA-00027712-003. Complaint under Schedule 2 of The Criminal Justice Act,2011.

I do not find this complaint to be well founded