ADJ-00022930

Complainant

Respondent

Anonymised Parties

Student/Volunteer

A Charity

Representatives

Maria Watson BL instructed by Hussey Fraser Solicitors

Peter Flood 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-00029416-001

02/07/2019

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

CA-00029418-001

02/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00029418-002

02/07/2019

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

CA-00029419-001

02/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00029419-002

02/07/2019

The complainant is a college student studying for a Diploma in Applied Social Studies. She described her position with the respondent as “student placement/volunteer”. Her placement commenced on 18 January 2019 and ended on 27 June 2019. The work placement position was unpaid. Three complaints under the Employment Equality Acts were received by the Workplace Relations Commission on 02 July 2019. The three complaints are identical and therefore were merged together. The complaint concerns discrimination on the grounds of race. The complainant claims she was discriminated against during her work placement on the grounds of race in relation to not receiving equal treatment with other work colleagues and in relation to other grounds. The complaint form indicates the most recent date of discrimination as 04 June 2019. The complainant sent supporting documents to the Workplace Relations Commission on 15 July 2019 and 25 November 2019. At the hearing it was submitted that the complainant was sexually harassed as a consequence of her being targeted because of her race and victimised for raising a grievance about discrimination and sexual harassment.

CA-00029416-001, CA-00029418-001, CA-000419-001

The complainant is a college student. Her course of study requires her to complete 800 hours of work experience in a social care setting. She applied to the respondent for work placement and entered a Contract of Placement on 18 January 2019. During her placement the complainant worked 37.5 hours per week for 22 weeks. The work placement ended on 27 June 2019. The complainant submitted her claim to the Workplace Relations Commission on 02 July 2019.   She later sent supporting documents which were received on 15 July and 25 November 2019. A written submission was presented at the hearing. The complainant’s claim is that the respondent discriminated against her by reason of her race, did not give equal treatment with other work colleagues and treated her unlawfully by discriminating against her in other grounds. The complainant states that she experienced discrimination during her work placement on several occasions where she was referred to as black and other discriminatory statements were made against her. At the hearing it was submitted that the complainant was sexually harassed as a consequence of being targeted because of her race and victimised when her work placement was terminated.

First Supporting Document

The first document supporting the complaint was received on 15 July 2019. It is dated 07/06/2019. In this document the complainant sets out her complaints of discriminatory treatment as follows:

Constantly being told that she would not pass her work experience, being told she should get out as she had failed her work experience. The complainant found this embarrassing and saw it as unwarranted harassment based on her skin colour. On another occasion she told a colleague she was involved with a registered charity in Ireland and her colleague responded that she did not know that black people were allowed to register a charity organisation in Ireland. She reported this comment to another member of staff who brought it to the attention of the supervisor, but nothing was done about it. The complainant states that a false allegation was made against her. It was alleged she had paid for a service user to have her hair done. She stated this false allegation was an attempt to get rid of her to cover up an incident which exposed her to severe risk. The breaking point for the complainant was when her supervisor, in collaboration with the manager, refused to sign all required documents relating to her work placement.   She states that she was constantly threatened that she would fail her placement and that her manager, for no reason, prevented her college supervisor from grading her after a three-way meeting. The complainant states that she was unfairly dismissed from her work placement by her manager and her work placement manager on 27 June 2019 when they realised that a staff member had put her at risk on 25 June 2019. The complainant’s gives examples of treatment that she found humiliating. She states that she noticed efforts to frustrate her, she overheard conversations about her referring to her dress and physical appearance. When left alone in the office other staff would rush to count the money in the safe when they returned. Other staff opened the windows when she came into the office. Her supervisor spoke to her in a demeaning way and asked her to pick up rubbish and sweep the area. The complainant concludes this document stating her experience with the respondent was the most humiliating experience of her life.

Second Supporting Document

The second document was received on 25 November 2019, the day before the adjudication hearing.   In this document the complainant repeats the alleged discriminatory treatment. However, this submission includes names of staff and some dates on which she alleges discriminatory statements were made. In addition, the complainant states that on 04 April 2019 she made a written complaint to a key worker about the discrimination she was experiencing. That key worker said she would inform the manager. The complainant states that the following day the manager met with her and said she would pretend she wasn’t informed as she didn’t want to be involved with anything relating to discrimination. The manager transferred to another position at the start of May 2019 and the key worker was appointed as manager. The complainant states that the new manager told her she had no time to supervise black people. Another manager took over in May and he agreed to be the supervisor for the complainant’s work experience. The new manager met with the complainant in May 2019. The complainant told him about the alleged discriminatory treatment. He made an appointment for the complainant to meet with the student placement manager at Head Office. That meeting took place towards the end of May 2019. The complainant states that the student placement manager offered to give her a form to fill out explaining her experience. When the complainant said she would like to fill out the form she was then threatened with having her work placement stopped. The complainant was scheduled to have a three-way meeting with her supervisor, college supervisor and herself on 04 June 2019. She states that the manager reluctantly agreed to sit at the meeting but stopped her college supervisor from grading her at the end of it. On 25 June 2019 she states she was exposed to risk by another member of staff when he asked her to lone work in residential apartments where some service users suffer severe mental health, drug and alcohol issues. She states she had a very bad and serious encounter with one resident who approached her naked and made inappropriate advances toward her.   She states she was sexually harassed and narrowly escaped being raped. Her manager and the student placement manager arranged to meet with her at 09.30 on 27 June 2019.   She alleges that the manager and the student placement manager had been liaising with her college supervisor prior to the meeting and that they had come to an agreement that she would have to repeat her work placement.

Submission

At the hearing counsel for the complainant presented a written submission. This submission includes the allegations of discriminatory treatment set out in the earlier documents. In addition, it is submitted that subsequent to the complainant raising a grievance she was victimised when her placement was terminated with immediate effect

Race/Sexual Harassment/Victimisation

On or about 25 June 2019 the complainant was asked to go to a service user’s residential apartment to see if the master key would open the door. The service user was known to suffer from severe mental health, drug and alcohol issues. As the complainant put the key in the door of the apartment the service user suddenly opened the door. He was completely naked and made sexually inappropriate remarks and gestures.   The complainant suffered unwarranted sexual advances and narrowly escaped a sexual assault. On or about 27 June 2019 the complainant was invited to a meeting with her manager, the student placement manager and college supervisor. It had been decided prior to this meeting that the complainant had to repeat her work placement. The complainant’s work placement report would be sent to the college supervisor directly. Counsel submitted that the complainant was discriminated against on the ground of race, pursuant to Section 6 of the Act, when she received less favourable treatment in respect of working conditions and disciplinary measures. Further it was submitted that she was sexually harassed as a consequence of being targeted because of her race and victimised when her work placement was terminated.

Legal Submission

The complainant asserts that her work placement is within the definition of “vocational training” as set out in Section 12 of the Employment Equality Acts 1998-2015. In presenting the claim on the grounds of race discrimination counsel relied on the following cases: A Complainant and A Health Board DEC-E2004-010, A Company and A Worker EED024 and Campbell Catering Ltd v Rasaq [2004] 15 E.L.R. 310. In presenting the claim on the grounds of race/sexual harassment counsel submitted that the complainant was sexually harassed and victimised in terms of the Act as a consequence of being targeted because of her race. Counsel relied on the following cases: Nail Zone Ltd and A Worker EDA1023, A Store and A Worker EDA163 and A Worker and A Hotel DEC-E2009-062.

The respondent rejected the allegation that the complainant was discriminated against on the grounds of her race. The respondent’s submission also rejected the allegation of unfair dismissal but as that claim, brought under the Industrial Relations Act, was withdrawn by the complainant at the commencement of the hearing it is not necessary to deal further with that claim.

Submission

The complainant was not an employee. She came to the respondent organisation as a volunteer through her course of study.   A requirement of her course was that students acquire 800 hours of work experience in a social care organisation. In the previous year the respondent organisation had taken students on placement from the same college the complainant was attending. As part of the work placement arrangement the complainant had a manager/supervisor and a student placement/volunteer manager who regularly consulted her college supervisor about her progress. The complainant’s college follows the CORU guidelines for social care placements and there is a list of criteria and professional competencies on which each student is assessed. The respondent agreed to supervise the complainant during her work placement and assess her performance on various areas of five different domains. She commenced her placement on 18 January 2019 and left on 27 June 2019. Her work placement was due to finish on 05 July 2019. The respondent acknowledges the complainant made an allegation of discrimination (although there was no mention of discrimination on grounds of race) to management, but she did not provide any details when requested. She was made aware of the respondent’s Dignity at Work policy, but she did not follow up on her complainant. She was issued with a Volunteer Handbook which contains reference to several policies including the respondent’s Dignity at Work and Equal Opportunities policies, both of which state that less favourable treatment connected to race is unacceptable. The complainant’s work placement was in a supported temporary accommodation service providing low threshold support to people experiencing homelessness. The term “low threshold” means that the conditions to access the service are low. Users of the service present with a wide range of complex issues, including addiction and substance misuse, mental and physical health issues. For this reason, the professionalism of staff and volunteers are of paramount importance regarding upholding professional boundaries.

Race Discrimination Allegations

During the work placement the complainant had two different manger/supervisors. The first from January to the end of April 2019 and the second from early May to end of June 2019. Mr A, the manager who gave evidence at the hearing, took over supervision of the complainant’s work placement in early May 2019. He met with the complainant at least every two weeks’ and later in the placement every week. At a meeting on 27 May 2019 the complainant told Mr A that she had experienced discrimination.   She did not state that the discrimination was connected to her race. Mr A told the complainant that discrimination was not tolerated in the organisation. The complainant was unable to give him any concrete examples of the alleged discrimination. Mr A referred her to the Dignity at Work Policy and after the meeting followed up with an e-mail, on 29 May 2019, again asking for examples of the discrimination.   The complainant did not respond to this email. The complainant met with the student placement manager, Ms B, on 28 May 2019. They discussed several issues to do with performance, including punctuality, interaction with other staff and excessive use of her mobile phone on duty. The complainant alleged that staff at the service were discriminating against her.   Ms B told her that discrimination was not tolerated and asked for examples of the discrimination. The complainant stated that someone had said “you have finished your placement, get out” but she could not remember who said that and she could not think of any other examples of alleged discrimination. Ms B referred to the Dignity at Work Policy and told the complainant that she could make a formal complaint. The complainant did not follow up with any further details of the allegations and did not make a formal complaint.

Training & Support

Mr A took up the role of manager in May 2019. He also became the complainant’s supervisor for her work placement. During the work placement several issues arose about the complainant’s time management and her interactions with staff. These issues were discussed with the complainant on several occasions during her placement. On 03 June 2019 a review meeting, attended by the complainant, her college tutor and Mr A, took place. Mr A was of the view that the complainant displayed a lack of knowledge of the service (e.g. she did not know how many clients the service had at that location and could not explain what services were provided to the clients) and could not reflect on her work experience time. Even though he had invested significant time in working with the complainant Mr A stated he had concerns about her performance and he could not stand over signing that she had successfully completed her placement. However, he told the college tutor that he was prepared to give the complainant a chance to improve her performance between then and the scheduled end date of her placement on 05 July 2019. On 12 June 2019 Mr A and Ms B, the student placement manager, met with the complainant.   They discussed the complainant’s time management, her interaction with staff, mobile phone use and no proactive client interaction. The complainant raised the question of a possible extension to her work placement.   She was told that an extension would only be considered if she demonstrated a significant improvement in performance and attitude during the remainder of her placement. Mr A met with the complainant again on 14 June to discuss carrying out an intervention with a client.   The complainant offered no feedback or ideas. Her time management was again discussed.

Breach of Professional Boundaries

On 21 June 2019 Mr A and the complainant met again. Time management, college commitments and the previous week’s placement were discussed.   Mr A noted some improvement in the complainant’s interaction with staff. After the meeting on 21 June 2019 Mr A was approached by a client of the service who alleged that the complainant had paid €60 for the client to have her hair done. Mr A asked the complainant about this allegation and she admitted that she had paid €60 of her own money to her hairdresser friend. Mr A explained that this was a breach of professional boundaries and why this was wrong. He also told the complainant that he would follow up on this incident. An explanation of professional boundaries is set out in the Volunteer Handbook, a copy of which the complainant received and signed for at the commencement of her placement.   Understanding professional boundaries and the need for such boundaries is part of the social care student’s course.    

Incident of 25 June 2019

The complainant was sent over to the apartment block of the service to check if the master key would open the door to an apartment. She did not knock or call out before putting the key in the door to the apartment.   When she put the key into the door a client opened the door. He was naked and allegedly said inappropriate words to the complainant.   She did not say anything to the client but walked away and reported the incident. An incident report form was completed by the complainant the following day when she attended for work as normal.

Follow Up on Breach of Professional Boundaries.

The follow-up meeting took place on 27 June 2019. Mr A and Ms B met with the complainant. The complainant was 30 minutes late for the meeting. The issue of professional boundaries was discussed. When questioned the complainant admitted that she had paid for the client’s hair dressing as the client could not afford to pay herself. The complainant failed to see why there was an issue with her actions or see the risk involved. Her response to the issue was a major concern in the context of working with vulnerable clients. During the meeting Mr A and Ms B explained to the complainant that her actions had put herself and others at risk. They also noted that clients of the service were talking about this issue. Mr A and Ms B informed the complainant that they were ending her work placement. They told the complainant that all the relevant paperwork would be passed to her college tutor and it was highlighted that they would be honest in their assessment of her. The following day, 28 June 2019, the complainant sent an e-mail to Mr A. She stated that she had misunderstood the question in relation to the incident involving the hairdresser, due Mr A’s accent. The complainant stated she never paid money to the hairstylist, but that the client had paid a reduced price to the hairstylist. The e-mail had an attachment which was a note, allegedly from the hairstylist, dated 26 June 2019, stating that she had reduced the charge from €80 to €20 and the client paid her after her hair was done. The complainant stated that she had not broken any boundaries and she was aware of boundaries in a social care setting from her studies.

Manager’s Evaluation

Mr A submitted his evaluation of the complainant to her college tutor on 11 July 2019. He prepared the required document and gave his evaluation under all five domains. In his final comments he included the following comment “The basic skills required for a social care setting are not evident in (Complainant) work”

Legal Submission

The respondent submitted that the complainant failed to provide any details of the alleged discrimination to her managers at meetings on 27 and 28 May 2019. When made aware that she could submit a formal complainant she declined to do so. The complainant could not give examples of the alleged discrimination apart from saying an unnamed person told her “X you have finished your placement, get out”. The respondent submitted that even if any comment connected to race was made to the complainant the organisation had done what was “reasonably practicable” to prevent this from happening. The respondent had a Dignity at Work Policy in place, the complainant was aware of the policy and her manager followed up with her seeking details of her complaint.   The complainant did not respond to his email request. The respondent, relying on Section 85A (1) of the Employment Equality Act, submits that it is for the complainant to substantiate her case that she was discriminated against on the grounds of race. The complainant never made an allegation of discrimination on grounds of race during her placement. A complaint of alleged discrimination was made but it was never followed up by the complainant. The respondent relied on the test set down by the Labour Court in Southern Health Board v Mitchell [2001] 12 E.L.R. 201 to establish proof of discrimination under the legislation.   The respondent further relied on Melbury Developments v Valpeters EDA 0917 and EME Ltd T/A SPAR Clarehall v Dickson Ugwunnayan EDA 1218. The respondent submitted that no discrimination on the grounds of race occurred in this case.   The complainant’s poor performance, despite the support provided, was the reason her work placement was terminated.   No complaints of harassment on the grounds of race were made. The respondent submitted that the complainant had not established a prima facie case of discrimination on the grounds of race.

CA-00029416-001, CA-00029418-001, CA-00029419-001

The complainant, a college student, claims she was discriminated against during her work placement on the grounds of race in relation to not receiving equal treatment with other work colleagues and in relation to other grounds, pursuant to Section 6 of the Employment Equality Act 1998-2015. At the hearing counsel for the complainant submitted that the complainant was also sexually harassed and victimised pursuant to Section 14A (7) and Section 74(2) of the Employment Equality Act 1998 – 2015 as a consequence of her being targeted because of her race. The respondent rejects the claim stating that no discrimination on the ground of race occurred. Further no complaints of harassment on the ground of race were made to the respondent.   The complainant was provided with support and had access to a manager, a volunteer & student placement manager and to her college tutor. She was aware of the respondent’s position on harassment and was also aware of the organisation’s Dignity at Work policy, the complaints procedure for volunteers and the Equal Opportunities Policy.

Vocational Training

The respondent had accepted students for the complainant’s college in previous years and it is submitted by counsel for the complainant that the student placement arrangement comes within the definition of “vocational training” as contained in Section 12 of the Employment Equality Act:

12.— (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility,

(c) in the manner in which any such course or facility is provided, or

(d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

The respondent did not dispute this.

Burden of Proof

Section 85A of the Act provides as follows in relation to the allocation of the burden of proof between complainant and respondent:

85A.— (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. This requires the complainant to establish, on the balance of probabilities, the primary facts upon which she relies in seeking to raise an inference of discrimination. Only when that initial burden is discharged, and the facts established are of sufficient significance to raise a presumption of discrimination does the burden of proving the contrary pass to the respondent.

Evidence

Complainant

The complainant in her evidence at the hearing restated the allegations of discriminatory treatment set out in her written documents. The complainant stated that she had made a complainant in writing on 04 April 2019 to a key worker.   She was unable to provide a copy of the complaint and the respondent had no record of the complaint. The complainant stated that she was treated differently to another work placement student. She stated that she was not supported in her duties with the respondent. Mr A took over as the complainants’ supervisor in May 2019. The complainant stated she made a verbal complaint of discrimination to Mr A at a meeting. She stated that Mr A said she had experienced racial discrimination at the service and he arranged for her to meet with Ms B the student/work placement manager. The complainant stated that at the meeting with Ms B she was told discrimination is very serious.   There was a form she could fill out.   She said Ms B got angry with her and she felt threatened and thought her work placement would not be completed. The complainant denied that she had admitted paying to have a service user’s hair done. In relation to the incident of 25 June 2019 the complainant stated that she was sent to check if the master key worked in the door of an apartment. She thought the apartment was unoccupied. She put the key in the door and the service user opened the door.   She said he was naked and there was a struggle when he tried to pull her into the apartment. She stated that he said to her “lets have sex” and she ran away. She was devastated and was happy he didn’t have a knife. The person who had sent her to the apartment contacted the manager about the incident. The following day she was asked to make a report. She stated that she was told what to write in the report. This incident was not mentioned by her supervisor/manager or the work placement manager when they met two days later. The complainant stated that she was late for the meeting on 27 June 2019 because she had a flat tyre.   At the meeting Mr A and Ms B said she had breached boundaries with a client. She felt ambushed at the meeting and was not given an opportunity to respond. She stated she was told the placement had ended and she was asked to leave the service.   The following day she e-mailed Mr A to say she didn’t pay for the client to have her hair done and that she had misunderstood the question. She attached a letter from the hairdresser. She stated that the hairdresser had made a mistake by dating the letter 26 June 2019, the day before the meeting with Mr A and Ms B. The complainant stated that Mr A refused to sign off on her work placement and that he had been told what to write by another person who had been a key worker during her placement. The complainant stated that she had not followed up on her verbal complaint because Ms B uses such complaints to stop students from work placement.

Respondent – Mr A

Mr A stated that when he took over supervision of the complainant he tried to support her as much as possible. He was concerned about her level of knowledge and her engagement. He met with the complainant on a regular basis.   He confirmed the complainant had said she was being discriminated against when they met on 27 May 2019, but she had not mentioned race and she had not given any examples of discriminatory treatment. He had discussed the Dignity at Work policy with her and followed up by email on 29 May 2019. Mr A stated that there was no reference to discriminatory treatment in the handover to him from the previous supervisor. At a meeting on 03 June 2019 Mr A had expressed his concern that the complainant was not up to the required standard as she showed a lack of understanding of the service. That meeting was with the complainant and her college supervisor. The college supervisor indicated the placement could not go on. However, Mr A agreed to continue with the placement to allow the complainant time to improve her performance before 05 July 2019. Mr A met with the complainant again on 12 June, 14 June and 21 June 2019. Ms B also attended the meeting on 12 June 2019. They discussed time management, interaction with other staff and actions she needed to take to pass her work placement. Just after the meeting on 21 June 2019 Mr A stated he was approached by a client who told him that the complainant had paid her own money for a client to have her hair done.   He asked the complainant about the payment and she admitted to him that she had made the payment. This he considered to be a breach of professional boundaries. He told her he would follow up on this issue with her. In cross examination Mr A confirmed this allegation was made verbally and was not in writing. The follow-up meeting took place on 27 June 2019. The complainant, Mr A and Ms B were present. Mr A stated that the complainant was aware of the purpose of the meeting. When asked about paying for the client to have her hair done the complainant admitted she had made the payment. Mr A stated that the complainant had breached professional boundaries and in addition there were performance and time management issues during her work placement. His assessment of her placement had to take account of these issues. In relation to the incident of 25 June 2019 Mr A received an e-mail from the complainant setting out what had happened. He replied and asked her to fill in an incident report form. He said he spoke with her at work the following day and asked her how she was. In cross examination Mr A confirmed that he did not speak with the service user and did not investigate the incident as he had not received a complainant.

Respondent Ms B

Ms B was on maternity leave to January 2019 and she first met the complainant in March 2019. She recalled meeting with the complainant on 28 May 2019 to address time keeping issues and interaction with staff members.   Ms B confirmed that at that meeting the complainant told her she felt discriminated against. The only example given was that an unnamed person had said “you have finished your placement, get out”. Ms B stated that she had discussed the Dignity at Work Policy. The complainant had been unable to give any other example of discriminatory treatment, racial discrimination was never brought to her attention. The complainant did not want to make a complaint. The complainant had a mentor and no complainant had made to the mentor. Ms B said it was untrue that she got angry and she never threatened to end the complainant’s work placement. Ms B attended the meeting of 27 June 2019 and she confirmed that the complainant admitted paying for the client to have her hair done. Ms B said the complainant did not understand the issue with breaching professional boundaries. Ms B confirmed that she had been in contact with the complainant’s college supervisor before the meeting and it had been agreed that the work placement would be ended. Ms B stated that she was not aware of the incident of 25 June 2019 either on that day it occurred or when she attended the meeting on 27 June 2019. The decision to end the work placement was based on the complainant’s breach of professional boundaries, her lack of understanding of the issue and her performance.

Conclusion

I must first consider whether the complainant has established a prima facie case of discriminatory treatment on the ground of race. I have carefully considered the complaint, the supporting documents and the evidence presented at the hearing. Section 6(1) of the Employment Equality Acts provides:

6.—(1) For the purposes of this Act and without prejudice to its provisions relating

to discrimination occurring in particular circumstances discrimination shall be takento 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 discriminatory ground of race is defined in Section 6(2)(h) as between any two persons:

(h) that they are of different race, colour, nationality or ethnic or national origins

(in this Act referred to as “the ground of race”),

I note the complaint claims she didn’t receive equal treatment with other work colleagues. There was at least one other work placement student working for the respondent. I note that the complainant did complete the 800 hours work experience required for her course of study but was asked to leave one week before the official end date of the placement on 05 July 2019. The complainant stated she made a written complaint on 04 April 2019. There is no record of this complaint and the complainant does not have a copy. The complainant stated that this complaint was made to a key worker. That key worker was not her manager. At her induction the complainant received a copy of the Volunteer Handbook. On 18 January 2019 she signed a statement confirming she had received the handbook and that she had read and understood the contents. The statement included the following: “I have been instructed to discuss all questions regarding service policies and procedures pertaining to my placement with my line manager.”   The complainant, on her own evidence, did not follow this procedure in April 2019. I note that the complainant had a college tutor throughout her work placement and no complaint of racial discrimination was made to her tutor. I also note that the complainant was assigned a mentor with the respondent and no complaint of racial discrimination was made to her mentor. It is accepted that the complainant told Mr A on 27 May 2019 that she had experienced discrimination.   I note that the complainant did not provide details of the alleged discriminatory treatment and did not mention racial discrimination. Mr A sent an e-mail to the complainant two days after the meeting in which he stated: “During the meeting you mentioned that you feel you may have previously experienced discrimination within the service. According to you this occurred before I began as service manager. As previously explained any form of discrimination is not acceptable and will not be tolerated by myself or by (organisation). During this conversation you explained that this was never reported to the service Manager at the time. You also offered me no concrete examples of when this occurred during this conversation, which I would still invite you to do. It is also important to reiterate the support that is available to you. As your service Manager I will support you in any way that I can. This has been highlighted in our agreement to meet weekly going forward as an extra support for you. You also have the support of the Volunteer office, the Volunteer manager (name) and your assigned Mentor. I would recommend that you use all the support available to you within the organisation. Please do not hesitate to contact me if you want to discuss this further or have any other queries.” The complainant did not respond to Mr A’s email. No further complaint or details of the alleged discriminatory treatment were provided to her manager. I note that the complainant had another opportunity to provide details of the alleged discriminatory treatment when she met with Ms B on 28 May 2019. It was accepted that the complainant told Ms B that someone had said “you have finished your placement, get out” but no further details were provided. Although given the opportunity the complainant did not make a complaint. There is a conflict of evidence about what took place at this meeting. I find the complainant has not been consistent in her statements and evidence and I prefer the evidence of Ms B who was consistent. I do not accept that the complainant was threatened with having her work placement ended at this meeting. The first time the complainant gave details of alleged discriminatory statements was in the document submitted to the WRC the day before the hearing. The respondent had not received the details of names and dates contained in that document until then. It was perhaps unfortunate for the complainant that her supervisor/manager changed during her placement, but It appears to me that Mr A offered her significant support in May and June 2019 to assist her in completing her work placement. Mr A as a supervisor of a student was responsible for providing his honest assessment of the complainant to her college. It was clear from Mr A’s evidence and written assessment form completed on 11 July 2019 that he had concerns about the complainant’s performance, understanding of the role and her readiness to work in a social care setting. Counsel submitted that the respondent did not follow fair procedures in dealing with the breach of professional boundaries allegation. This was not a disciplinary matter but rather an issue of a student’s knowledge and understanding of the professional boundaries to be observed in a social care setting. When the allegation was first put to the complainant on 21 June I accept she may have been unprepared. However, I am satisfied that she was aware of the purpose of the meeting of 27 June 2019 and had the opportunity to clarify the issue of payment. As is evident from the email sent the following day she had taken steps to obtain a letter, dated 26 June 2019, from the hairdresser concerning the payment. I accept the evidence of Mr A and Ms B that the complainant confirmed that she had made the payment. Her response was an indication to them of her lack of understanding of the issue with breaching professional boundaries. There is no evidence that the complainant was treated differently to the other student in how her work placement was assessed. Mr A completed a comprehensive assessment document on 11 July 2019 in which he gave his professional opinion of the complainant in each of five domains. The complainant’s college follows the CORU guidelines for social care placements and there is a list of criteria and professional competencies on which each student is assessed. Whether a student successfully completes their course of study is a matter for the relevant educational establishment to decide. In Melbury Developments Limited v Valpeters EDA0917 the Labour Court held “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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 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” The complainant made allegations about discrimination but did not provide the respondent with evidence to support those allegations. The respondent has in place relevant policies which the complainant did not use to address the alleged discrimination. The complainant is a student and had a college tutor and there was no evidence that any complaint was raised with her college. The complainant has been unable to provide evidence at the hearing to support the alleged discriminatory treatment. I am satisfied that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to her on the ground of race.

Race/Sexual Harassment/Victimisation

The complainant was subjected to a very unpleasant incident on 25 June 2019. She was sent to check if the master key worked in the door and a service user’s apartment. She was sent to do this task alone. This was in breach of the normal policy and should not have occurred.   I note the different descriptions of this event provided by the complainant in her email of 25 June, the incident report of 26 June, the documents submitted to the Workplace Relations Commission on 15 July 2019 and 25 November 2019 and the evidence given at the hearing. There are significant differences in these descriptions. Within an hour of the incident the complainant sent an e-mail giving her account as follows:” (Name) asked me this evening to go to (name) apartments and check if the key to apartment (number) is ok. On getting there and as I was checking the door, the resident occupying the apartment suddenly opened the door, standing right in front of me completely naked and he said some inappropriate words to me, which I didn’t engage in and walked away quickly.” I accept this as an accurate account of what happened as it was written just after the incident. It was submitted that the complainant was sexually harassed and victimised as a consequence of her being targeted because of her race. I find the complainant has not established that she was targeted because of her race. She should not have been placed in a position where she was sent to the apartment alone as this was in breach of the respondent’s procedure. However, there was no evidence to support the submission that this breach of procedure was based on the complainant being targeted because of her race. I find that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to her on the ground of race. It was submitted that the complainant was victimised in having her vocational training terminated. The complainant herself stated that she had completed the 800 hours work experience required for her course when the work placement was ended on 27 June 2019. The work placement was ended one week early. I am satisfied that the decision to end the placement was made, in consultation with her college, because of her supervisor’s concern at her lack of understanding of the importance of maintaining professional boundaries. Her supervisor, Mr A, completed his assessment on 11 July 2019 and submitted it to the college. He was required to give his professional opinion of the complainant under five domains. It was then for the college to decide on the student’s course outcome. I find that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to her on the ground of race and there was no evidence of victimisation.

CA-00029416-001, CA-00029418-001, CA-000419-001

I find that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to her on the ground of race. I find that complaint is not well founded and the complainant was not discriminated against on the ground of race or victimised.

Race discrimination

Race / Sexual Harassment

Race / Victimisation

Student

Work Placement