Complainant

Respondent

Anonymised Parties

Production Planner

Medical Device manufacturer

Representatives

Conor Hannaway SHRC Limited

John Brennan Ibec, Michael McCallig, Carol O’Doherty

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-00035474-001

27/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00035474-002

27/03/2020

The Complainant was employed as a Principal Production Planner from 18th February 2019 to 5th February 2020. He was paid €6,500 per month. He has claimed that he was victimised because of alleged racism and he was treated less favourably than a permanent staff member regarding his redundancy.

The Complainant joined the company on February 18th 2019, as Principal Planner on a fixed

term contract of 2 years. He accepted the contract in the belief that he would obtain a further permanent contract provided his performance was acceptable. His probation reports and all feedback received from his manager indicated that he was meeting all his objectives.

In September 2020, he was concerned and upset at inappropriate comments being made by his manager, on 10th September 2019 at a Materials Management Team Meeting. These included unusual comments around seeking out LBGT employees to find out what life was like for them. When discussing Black Lives Matter at that meeting, the manager enquired about who speaks up for

white people. The Complainant was particularly concerned about these comments on account

of his own family situation. At that time, the Chairman and Chief Executive Officer had asked employees in the business to speak up if any words or actions are used which are not in keeping with the Company’s values in relation to equality and diversity. The Complainant sent an email to his manager on 29th September expressing his concern about what he had said and he arranged a meeting with his manager. At the meeting his manager said that there were “career damaging consequences for making accusations like that” and he was asked to withdraw the comments.

He later clarified the comments but did not withdraw them. From then on, his manager sought to question and find fault in all aspects of his work and employment. On 20th November, the Company announced that an operation in the US supported by his team would be closing. He worked as a Senior Planner in that team. Employees were advised that there would be a re-organisation. However, they were reassured that there would not be job losses and that other work would be coming into the plant. On 8th January 2020, his manager arranged to meet with him by way of follow-up to an earlier meeting. However, at that meeting, he was advised that they were invoking a notice clause in his contract that allowed the Company to terminate his employment. His manger said that his role was redundant. He had a termination letter with him which stated that as a result of an assessment against business needs his role of Principal Planner would no longer be required and his position would cease effective 5th February 2020. There was no suggestion of

consultation, support from HR or the availability of alternative roles. The pretext given for his dismissal was that his role was no longer required. However, usual protocols for a no-fault termination of employment were not followed. Instead, he was misled by his manager with regard to the reason for a meeting at which he was told that he was being let go. He was shocked and dismayed at what had happened. He asked whether there were any other roles he could be considered for. He was initially told that there were none. When he persisted in asking whether there were any other roles, he was told that there was one role, a Senior Buyer, which would be

closing in two days. His manager’s tone made it clear that there would be no point in applying for the role. In fact, he was aware that on-going continuing work in the US would require his function. All other roles in his team remained in place and over the following months recruitment continued in many other roles in the company. He has maintained the position that there was no redundancy. However, it is clear that there was a targeted redundancy. None of the markers of a genuine redundancy existed including a consultation process, a search for alternatives e.g. short-time working, layoff, voluntary redundancy etc.

The threatening words used in September – that accusations of racist type behaviour is career damaging – had been realised. He raised a grievance which was heard by a senior line manager and a senior HR Manager. The grievance process did not consider the unusual process followed in this case and it side-stepped the reasons why he had been singled out. It did not ask to see the analysis which had been used; it did not enquire why there had been no consultation or search for alternative solutions. By way of preparation for the grievance process, he asked for copies of all paperwork associated with the decision. The report of the investigation into his grievance confirmed that there was no paperwork. The investigators of his grievance accepted the proposition that employees on fixed term contracts can be terminated mid-contract with the consequence that part-time

employees can now be targeted in ways that employees on contracts of indefinite duration are not. They also accepted without questioning a number of assertions made by his manager regarding support and availability of roles for which there was no evidence and which were at variance with the contents of the letter of termination.

Complaint regarding Discrimination/Equality/Equal Status CA-00035474 - 001

In the absence of any objective information to the contrary, it is clear that he was targeted by his manager who wanted him out of the company. The evidence of the targeting is clear from the fact that he was the only person in the team and in the plant who was made redundant. The denial of redundancy by his manager and the acceptance of same by the grievance investigators is perverse.

Even if they had accepted that there was a redundancy, the lack of the elements which would be evidence of authenticity in the process including the continuation of the work for which he was employed, the lack of objective criteria for selection, the fact that there was no consultation, the fact that alternatives to compulsory redundancy were not considered etc, leaves only the issue of the reason for the targeting him.

In September 2019, he was warned by his manager that his allegations were career threatening so much so that he found it necessary to write to his manager to say that he was not calling him a racist but maintained that he was concerned about the language he had used. In January, he was arbitrarily selected for redundancy. There is a strong prima facie case that he was penalised contrary to Section 74, Employment Equality Act 1998.

On account of the strong legal issues relating to the case (victimisation/discriminatory dismissal/redundancy/fixed-term employment issue), he requested that he be legally represented at the grievance. This request was denied and so the grievance hearing was not conducted fairly. Critical issues included in his grievance were not addressed by the investigators. For example, his manager was not asked to explain his view in relation to matters central to his grievance including “not a redundancy”, due process in relation to redundancies and the unfair treatment of Fixed Term employees. He was not questioned about the fact that he was called to a meeting about one matter when the real intent of the meeting was to hand him a notice of termination of employment. The investigators did not challenge any of his statements and it is clear that they acted merely as note-takers for his point of view.

Section 74, Employment Equality Act 1998 as amended by Section 29 of the 2004 Act provides that employees must not be victimised for having opposed by lawful means an act which is unlawful under this legislation. The legislation states that victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs.

When a prima facie case has been made, the onus of proof in relation to victimisation moves to the employer. Kristina Kukstaite v Shedan Ltd – DEC-E2013-193. A failure to provide a fair process for hearing a grievance has been held to be a form of victimisation of itself A University Lecturer v A University, ADJ-00002790.

He believes that he was discriminated /victimised by the Respondent in terminating his employment. He has sought compensation.

The Complainant was employed on a fixed term contract to support his base and the US base. On 20th November 2019 the Respondent announced the closure of the US base due to decline in its products. This had the effect of reducing the Complainant’s workload significantly. By December the 2019 volumes had dropped by 50 %. Vs budget. A rereview was carried out and it was decided to reduce the headcount from 7 to 6. There was also a reduction of 22 % in direct labour. On 8th January 2020 the Complainant was advised that his employment would cease on 5th February 2020. A review of suitable alternative positions was carried out and the Complainant was advised of a Senior Buyer position and how to express an interest. He did not apply for this position or any other roles in the company. His manager arranged a further meeting with him, but he declined stating that he wished to speak with HR. This was arranged. On 13th January he raised a formal grievance in respect of the proposal to terminate his employment. A Senior HR Partner and a Director Project Management were appointed to investigate the grievance. The outcome was not to uphold the grievance. He went out sick and left the company on 5th February 2020. The Complainant’s Representative requested an appeal of the outcome of the grievance. This was heard by the Total Rewards Senior Manager and the Operations VP. The appeal was not upheld. His employment was terminated because of the decline in his work and not related to any possible challenge to his manager in September. This was not a formal statutory redundancy, so his fixed term contract was terminated.

In response to the Complainant’s claims to the Workplace Relations Commission (WRC) they stated that the company needs to be able to adjust to the demands of the business and fixed term contracts are terminated where volumes decreases or comes to an end. Performance is not a factor in determining his fixed term contract termination. The termination had nothing to do with the alleged challenge to his manager in September 2019. His manager had only joined his group on 16th September 2019. The Company had launched PRIDE programme with the objective of supporting an open diverse welcoming organisation. This had no bearing on the termination of his employment.

The reference to “career damaging consequences for making accusations, the Respondent stated that the Manager had not made the statement “who speaks up for white people” and furthermore the Complainant had obviously misunderstood the accusation of ‘career damaging consequences’. The manager was referring to himself not the Complainant. This was a statement where the manager expressed his serious concerns that an employee should make such an unfounded allegation and that it could have serious career damaging effects on him. It was not a threat against the Complainant. The Respondent stated that his manager role was to protect employees from racism. It should be noted that in an e-mail to his manager the Complainant stated, “I would like to make it explicit and restate that I was not accusing you of being a racist”. Again, they stated that this matter had nothing to do with the decision to terminate his employment. The Complainant has claimed that the employees involved were assured that there would be no job losses. The Company carried out a review following the closure of the US operation. This review resulted in the decision that the role that the Complainant held was no longer required. That was why his employment was terminated. They stated that the Complainant was advised that his termination was an early cessation of his fixed term contract. Because he did not qualify for statutory redundancy it was not deemed redundancy per se, as in a collective redundancy, but his position had become redundant the normal consultation was not required. He was informed of alternative positions. It was pointed out that the Complainant was the sole Principal Planner in the team. They manner in which they handled the termination was to reduce worry for him. There was no causal link between the alleged accusation of a racist comment and the termination of his employment. The Complainant raised a grievance, but it was not upheld. As this was the cessation of a fixed term contract, formal consultation was not required. His contract of employment stated, “after successful completion of the probationary period, your employment may be terminated either by you or by the Company at any time at one month’s notices”. Employees on fixed term contracts can be terminated earlier than the expiry of the original contract as is provided for in the contract. They further stated that Sec 85a of this Act requires the Complainant to establish a prima facie case of discrimination or victimisation. He has claimed less favourable treatment and withdrew discrimination / victimisation on racial grounds. They cited the Labour Court cases Southern Health Board v Teresa Mitchell DEE11 [23001] ELR 201 in support. Also, Margetts v Graham Anthony & Company Ltd EDA038 in support. There was no evidence of less favourable treatment provided. His allegations were grounded on incorrect facts and are unfounded. The sole reason why he lost his job was because the role ceased to exist. He has failed to establish a prima facie case of discrimination and as such the burden does not shift to the Respondent in this instance.

I note that the claim for discrimination on grounds of race was withdrawn at this hearing.

I find then that the Complainant is not relying upon discrimination on one of the stipulated grounds rather it is a claim of victimisation and so doesn’t have to rely upon one of those grounds.

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the court stated in respect of the provision in S 85A that; “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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 complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”2.4     The College submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the College to rebut the inference of discrimination raised. The College submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination/victimisation. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination/victimisation may be inferred, it shall be for the Respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court as set out above and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination/victimisation. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination/victimisation, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the complainantdoes not discharge the initial probative burden required, his case cannot succeed.    

I note that the Complainant has alleged that the reason why his contract of employment was terminated was because he confronted his manager about alleged racist comments about ‘who supports white people in the context of white lives matter’ discussion. He alleged that these were racist comments and were offensive to him.

I note that there was a further matter whereby the Complainant believed that as a result of these alleged racist comments, he was threatened by his manager for making these comments.

I find that there was a complete conflict of evidence regarding who was referred to in “career damaging consequences for making accusations like that”.

On the balance of probability, I find that this comment was made by the Complainant’s manager concerning himself and could not be construed as referring to the Complainant, why else would the manager ask the Complainant to withdraw the comment?

Therefore, I find that the reason for the termination of his employment could not be in respect of those comments.

I find that the Complainant could not ground a claim based on an alleged discrimination on grounds of race.

I have found no evidence that the Complainant was victimised within the meaning of this Act.

I have founded that a genuine redundancy existed and that was the reason why the Complainant’s employment was terminated.

Therefore, I find that the Complainant has not established a prima facie case of discrimination/ victimisation and so the burden does not switch to the Respondent.

I find that this claim is not well founded.

2) Protection of Employees (Fixed Term Work) Act   CA 35474-002

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

I find that a comparable employee is a full-time permanent person in this same employment.

I find that Sec 6(1) states, “a fixed term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”, unless it can be justified on objective grounds.

I note that it is the Complainant’s position that he was treated less favourably than a permanent employee because he was a fixed term worker, in the manner in which he had his contract of employment terminated.

I find that the position of Principal Production Planner became redundant due to the closure of the US plant. This was decided by management after carrying out a review of its operation.

I find that a genuine redundancy existed.

I find that the Respondent identified the Complainant as the sole holder of that post and so they identified him as the person holding this position that was now deemed to be redundant.

I find that they then called him to a meeting and terminated his employment by giving one month’s notice.

I find that the Respondent’s management mistakenly understood that this was not a redundancy situation because he did not qualify for statutory redundancy.

I find that they subsequently changed their position and accepted this this was a redundancy situation.

I find that they identified the Complainant as the person to be made redundant and relied upon his contract of employment to terminate his fixed term contract earlier than the stated end date.

I find that the Respondent subsequently treated the Complainant differently than a permanent employee in the manner in which they informed him of his termination and his exit from the company.

I find that the Respondent called the Complainant to a meeting, did not advise him in advance of the purpose of the meeting and he left that meeting having lost his job.

I find that that is not an acceptable way to treat an employee and I find that they would not have treated a permanent employee in that manner.

I do not accept that they were doing it this way so as not to upset the Complainant.

I find that he was entitled to be advised in advance of the purpose of the meeting.

I find that he was entitled to be accompanied by a “willing colleague”.

I find that he was entitled to the right to defend himself.

I find that he was entitled to be advised in advance and to proper consultation.

I find that alternatives to his redundancy should have been explored, such as a voluntary redundancy operation should have been considered, part time working, temporary lay-offs etc, alternative positions.

I find that he should have been given the right of appeal.

Therefore, I find that he was treated differently to a permanent employee in the company.

I find that he was treated less favourably than a permanent employee.

I find that there were no objective reasons put forward to justify these actions.

However, I find that there was a genuine redundancy and the Respondent’s failures lay in the non-application of best practice in the implementation of the redundancy.

I find that this complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that this complaint is well founded.

I have decided that the Respondent has breached this Act and compensation is warranted.

I have decided that the Respondent should pay the Complainant compensation of €10,000.