Complainant

Respondent

Parties

Imran Molvi

Grafton College of Management Sciences

Representatives

Imran Molvi

Harman Murtagh Smith & Williamson

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-00028773-001

30/05/2019

The complainant worked with the respondent from 5 November 2013 until the college was placed in liquidation on the 3 December 2018. His final role was student support services officer.

He worked 37.5 hours a week and his monthly gross salary was €2333.

He is a native of India. His complaint is that the respondent discriminated against him on the basis of his race and in terms of section 6(2)(h) of the Acts of 1998-2015.

The last act of discrimination occurred on 3 December 2018.

He submitted his complaint to the WRC on 30 May 2019.

The complainant is an Irish citizen of Indian origin. He came to Ireland to develop his career. He possesses a master’s degree in IT studies from India and a master’s degree in software engineering from the University of Limerick.

The complainant commenced work in November 2013 as an IT teacher in a private third level college which was predominantly concerned with the provision of English language courses. He was assigned the role of programme assistant / assessor on the 9 July 2014 and student support services administrator in 4 October 2016. His final assignment was to the position of student support services manager on 9 May 2017. His salary remained static throughout all the role changes. He signed contracts for the second (2014), third (2016), and fourth roles (2017).

The college was placed with the liquidator and closed suddenly on 3 December 2018.

At the time of the closure the complainant managed the student support services section which was made up of 5 staff comprised of 2 Irish, the complainant, an Italian and a Brazilian.

He states he was discriminated against and singled out in a number of ways on the basis of his race.

Less favourable treatment than non -Indian colleagues.

More extensive workload.

The complainant submits that during his five years of employment with the respondent, he was exploited, discriminated against and given an unfair workload.

He was asked to take on facilities management in January 2017.

He was frequently required to work outside of his contracted hours without additional remuneration unlike staff of non – Indian nationality. The respondent emailed the complainant on 06/01/2017 directing him to move the contents (furniture, computer equipment’s, etc.) of the college to a new location. He sustained a back injury during the moving for which he is still undergoing physiotherapy. Following this he was still asked to do various physical tasks for e.g. installing internet cables around the building, setting up classrooms and other tasks which required a lot of physical effort. The vast majority of staff are native Irish people, and such challenging physical tasks were not asked of them. His contract did not include these tasks, but he felt under terrible pressure to do these extra tasks, as Mr R, the CEO of the company contacted him at weekends and outside of office hours when he was with his family and he felt compelled to go into work. It was not possible for him to follow the official grievance procedure as the person discriminating against him was the CEO himself.

He was asked to help in sourcing alternative premises in January 2017.

He was obliged to take on student attendance (the college had 600 students) – in July 2018.This job had been previously done by a person of a lower grade.

Victimisation.

After the complainant objected to taking on student attendance in July 2018, he was forced to vacate the office where he had worked and to move to the reception which he shared with 3 colleagues. He was the only manager asked to move out to the reception area.

Training.

In late 2017/ early 2018 the complainant asked the college manager, Mr K, to provide him with training in marketing as marketing the college for purposes of attracting English language students from South America was part of his job. Mr K never returned to him on this matter. In contrast, English language teachers received training in 2018. The complainant states that no training was provided to the staff in the Student Support Services section. The complainant did not complain as he believed the respondent’s promises to him would materialise.

Failure to promote the complainant

The complainant states the respondent failed to promote him contrary to promises made to him by the respondent CEO.

Harassment.

Disciplinary proceedings were instituted against him in January 2018 for being 10 minutes late. The college manager later admitted that was a mistake and apologised to him. No non-Indian staff were subject to such proceeding for being unpunctual.

All staff were asked in 2017 to ensure that toilet facilities were clean. He was the only member of the administrative staff who did not object as he felt that being an Indian, he was more prey to adverse consequences should he refuse.

Failure to provide the complainant with equal pay.

His job title changed in July 2014 to Programme Assistant/Assessor. The salary was €28,000 per annum. The respondent changed his title to that of Academic Administration Manager on 4 October 2017. The respondent once again changed his title to Student Support Services and to Student Support Services Manager on 9 May 2018. None of these changes attracted a salary increase. The senior management always adjusted his job title as per their needs, especially during inspection times. These titles also came with additional teaching duties including submission of academic related documents which required extra hours of work for which he was never paid. He accepted these titles because the respondent told him that the college was performing well, would soon be financially viable and a salary increase would follow for him.

The complainant never received any increments.

The English language teachers as a group received a pay rise due to their consistent lobbying for same.

Last Act of discrimination on 3/12/2018

The respondent director telephoned the complainant seeking information about the staff’s response to the feared closure. This placed the complainant in a difficult situation with colleagues who believed that he knew what was to come and had withheld this information from them. No non- Indian member of staff was placed in this conflictual situation with colleagues.

The complainant asks the adjudicator to uphold his complaint.

The respondent was represented by the liquidator at the hearing. Neither the respondent CEO of the college or the former manager chose to attend.

The respondent ran a third level college which originally offered IT training but latterly concentrated on providing Teaching English as a Foreign Language courses. The college was placed in liquidation on the 3 December 2018.

The respondent liquidator accepted that the respondent CEO had behaved in a less than admirable way towards the complainant but denies that such behaviour amounts to discrimination against the complainant on the grounds of race.

The complainant had a closer relationship with the respondent CEO than other staff as they both spoke Hindi and Urdu.

Alleged less favourable treatment in terms of workload.

Concerning the request to help with the relocation of the premises which the complainant advances as an instance of a heavier workload than non- Indian colleagues, the respondent submits that the move from one part of Dublin to another involved a number of staff members, of different nationalities, packing and clearing out their workspaces at different times during December 2016 & January 2017.Extra staff were hired on a temporary basis to load and unload bulky items from a van. Salaried staff, including the complainant, were required to direct where office items should be stored once they arrived at the new location

The CEO worked together with the complainant to install WIFI points throughout the building. The complainant’s duties included IT support including networking computers.

The respondent disputes the complainant’s complaint that he was given an extra job to find a new premises for the college. The respondent hired a professional estate agent to acquire a building. It is denied that the complainant was required to work outside of working hours.

The respondent states that the request to the complainant to take on student attendance arose because the student support services administrator resigned in June 2018 and as tasks had fallen behind all staff were at times required to fill the gap. The complainant was responsible for overseeing the work of the student support services administrator.

Alleged discriminatory treatment in failing to provide the complainant with training.

This complaint is denied. The complainant received training within the limits of available resources. Circa September 2015, the college stopped offering a number of courses to students. All teaching staff associated with these courses were made redundant. The complainant was offered redeployment into an administrative role so that redundancy could be avoided.

Less favourable treatment in not being offered promotional opportunities.

This complaint is denied. The college did not have opportunities for promotion except for those with qualifications associated with English Language Teaching which the complainant did not possess.

All appointments were advertised publicly using the Indeed website. The complainant did not apply for any of these positions.

Salary

The respondent did not discriminate on the basis of race concerning pay. Teaching rates for English language teachers were revised based on market demand and competition. The complainant was not an English language teacher. The respondent did not discriminate on the basis of race concerning pay

Victimisation

The respondent denies that he victimised the complainant in the transfer to the front office.

The complainant’s move to the front office reception area was consistent with the needs at the time. Together with other employees, he was involved with quite a lot of student interaction. The main office was no longer fit for purpose and could not have such a large volume of students coming and going. It was disruptive.

Alleged harassment

Activation of disciplinary process.

The head of the college, Mr. K, raised questions about the complainant’s late arrival. It had nothing to do with his race.

Evidence of non- discriminatory intent.

In early 2018 the respondent CEO who was London based even offered the complainant the option of him taking over the ownership of the college and offered to transfer all shares to him without paying any money. The complainant was very happy and thankful about the offer but ultimately declined the offer.

The respondent rejects the complainant’s complaint of discrimination on grounds of race.

Complaint under section 77 of the Employment Equality Act, 1998 as amended.

The matter for adjudication is whether or not the respondent discriminated against the complainant, on the grounds of race in terms of Section 6(2)(h) of the Employment Equality Acts 1998-2015, in contravention of Section 8 of the Acts in relation to his conditions of employment and in relation to his entitlement to equal pay.

Section 6(1) of the Employment Equality Acts provides:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—

(a)   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) (in this Act referred to as the ‘‘discriminatory grounds’’)

The first matter for decision is the admissibility of some or all of the instances of alleged less favourable treatment cited by the complainant to ground his complainant.

Section 77(5)(a) of the Acts provides: -

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may require the most recent occurrence.”

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

Section 77(5)(b) allows for an extension of an additional 6 months where the complainant shows reasonable cause for his failure to submit his complaints in accordance with the limits set out in section 77(5)(a) above.

In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5)

“Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. “

The complainant identified the last act of discrimination as having taken place on 3/12/2018. This was the respondent CEO’s telephone call to the complainant asking for information on the staff’s response to the imminent closure. The complainant states that this put him in a very difficult position with his colleagues. It cast him as a secret accomplice to the closure, a person who knew of its arrival and who withheld this information from his colleagues. Both he and the respondent director were Hindi and Urdu speakers and were in frequent contact with each other because of this.

Apart altogether as to whether this incident could be reasonably said to constitute prima facie evidence of discrimination on grounds of race, I must establish if this was this a separate and discrete act or if it was it linked as part of a continuum with other instances of alleged discrimination cited in evidence by the complainant, and predating the 30 November 2018 which is six months prior to the submission of the complaint to the WRC. The previous instances of alleged discrimination were the less favourable treatment; he had a greater workload than his non- Indian colleagues as exemplified in the request to the complainant to help with the relocation of premises in January 2017; he was denied training as requested in February 2018; the request for career progression put to the respondent CEO in 2016 ,2017 and in 2018.These concern conditions of employment and are separate from the telephone call which he states are actions which cast the complainant in a bad light with his non-Indian colleagues. I consider this telephone call of 2 December to be a standalone incident, insufficiently linked with the other instances cited as evidence of discrimination, instances outside the time limits and which stretch back to 2015.I do not consider the phone call of the 2 December to be part of a continuum

I do not have jurisdiction to hear his complaint of discrimination in terms of his conditions of employment.

Complaint of harassment.

The harassment which the complainant maintains occurred because of his race focuses on the initiation of disciplinary proceedings in January 2018 because of poor punctuality on one occasion is outside even the extended time limits set out in section 77 of the Act.

I find that while the respondent exploited the complainant’s cooperativeness, I do not have jurisdiction to hear this complaint.

Complaint of victimisation.

The instance of victimisation- being moved to the front office in June 2018 because he refused to take on additional work not asked of non -Indian colleagues comes within the extended time limit had reasonable cause been shown. The reason submitted by the complainant was his fear that he could lose his job. But aside from whether fear of losing his job amounts to reasonable cause, and aside from whether the action amounts to adverse treatment as required by the Acts, the complainant must- in order for his complaint of victimisation to succeed -show that he had taken an action of a type referred to at Section 74(2) of the Acts -a protected act. The complainant’s evidence demonstrated no such action.

I do not find evidence of penalisation and this element of his complaint cannot succeed.

Complaint of discrimination on grounds of race in relation to equal pay.

First element of equal pay claim; November 2013- July 2014.

The complainant maintains that he was discriminated on the grounds of race in that he was paid differently to non-Indian colleagues lecturing in the computing systems course in the college from 5 November 2013- July 2014. He was paid an hourly rate of €15. His fellow lecturers were paid €35 an hour. His contract effective from 9 July 2014 sees him take up another role -that of Programme Assistant/ Assessor -and does not specify teaching duties, nor did he provide dates of teaching assignments after July 2014

Section 29 of the Act of 1998 as amended states .”—(1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.’

2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

While I find on the basis of the uncontested evidence that the complainant was employed on like work with his non-Indian colleagues and was paid at an unjustifiably different rate, his complaint must be dealt with within the parameters of the Act of 1998. In accordance with sections 29 (1) and (11) his right to invoke his entitlement to equal pay existed for the three years after July 2014, which is July 2017. He lodged his complaint on 30 May 2019.

In interpreting the redress provisions contained in section 82(1) of the Employment Equality Act 1998, the Equality Officer held in the case of Brady and ORS v TSB ESOP Trustees Ltd, DEC-E2004-007

“that If a claim for equal pay was made in relation to a disparity which had occurred more than three years previous and which was no longer continuing the Director would not be able to award any compensation prior to the date of the disparity for example if a claim is made for equal pay in relation to a disparity which occurred some four or more years previous then the Director could not award redress under the Act.”

For the reasons cited above, I find that his complaint cannot succeed. I find that he was not discriminated against on the grounds of race

Second elementof complainant’s equal pay claim: May – December 2018

The complainant submitted that he should have received a pay increase of €2- 3 per hour from May 2018 onwards as this was the increase secured by the English language teachers.

But his job description submitted in evidence does not support his contention that he was engaged on like work as required by section 7 of the Employment Equality Acts 1998-2015.

I do not find that the complainant has identified a comparator engaged in like work, nor that his role of Student Support Services Manager in 2018 is interchangeable with the role of an English language teacher.

For the above reasons, and in relation to this specific complaint I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race in relation to equal pay.

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

I find that I do not have jurisdiction to hear the complaint of discrimination on grounds of race in relation to conditions of employment and in contravention of section 8 of the Acts of 1998-2015.

I find that the respondent did not discriminate against the complainant on the grounds of race.

Time limits in equal pay claims.