Complainant

Respondent

Parties

Josipa Akinradewo

St. Teresas Nursing Home t/a Sundyp Ltd.

Representatives

Self represented

Leah Smith Adare Human Resource Management

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-00034417-001

04/02/2020

The Complainant contends that she was discriminated against by the Respondent on grounds of race.   She further contends victimisation, harassment and discrimination in conditions of employment.

The narrative in the complainant’s complaint form is summarised as follows:

After a verbal incident involving a colleague, the colleague was brought into the kitchen with the director of Nursing to give her version of events. The Complainant was not in attendence. Twenty minutes later she was asked to give her version of events while the colleague attended. She was not given a chance to say what happened. She believes the process was unfair as both were treated differently. The other colleague was raising her voice and the Complainant did not get a chance to say what had happened. After she left the office the colleague continued to talk with the director of nursing. The Complainant also stated that she felt harassed and victimized by the Matron and felt she was being picked on. On a few occasions she has said she did not trust the Complainant because she was from another country. She told the Complainant that she does not believe what she wrote in the reports when she was on a night shift. The Matron has gone to other staff members including care assistants to check to see what the Complainant was doing on the night shift instead of asking her directly. At one meeting she had with the Matron and the director of nursing she was told she could go (leave her job) as they had another nurse to work the shifts.

The incident referred to involved an altercation between the Complainant and a Healthcare Assistant (HCA) where the HCA stated to the Complainant   “Hey Missy, you didn’t attend to the bell” after a bell rang for one of the residents and the Complainant had been administering medication. The Complainant replied, “don’t speak to me like that, and I am attending to this when I have finished” (medication administration.)

The day after the incident, the Complainant’s colleague, who is employed as a Healthcare assistant was observed by the Complainant at the break time sitting in the dining room where she called another nurse on the phone and was telling her what have happened. The Complainant felt she was being treated unfairly based on the fact that the HCA colleague had private time to raise her concerns about the incident that have happened the night before, and the Complainant was questioned in her presence where she did not allow her to talk.

The Complainant also had difficulties around taking annual leave in October 2019.

The Respondent deemed the leave as being unauthorised. The Complainant thinks it was not dealt in a fair way as after meeting with her after the email she sent to the Complainant, she verbally agreed on those dates and also confirmed on 24th September 2019. Prior to her annual leave the Complainant went to her GP on 4th October 2019 and he checked her blood pressure. He said she was not fit to work. She submitted the medical certificate not realising that he put her on an˝open˝certificate and that she should close it before going on holidays. The Complainant was contacted by the Administrator while on holidays to ask if she wanted accumulated hours to be paid and contacted by the Management on 30th October 2019 while she was boarding the plane back to Ireland to provide fit to work certificate before commencing back to work. It resulted in her not being able to work three shifts although she was advised by an Authorised body that by paying her holiday hours they were acknowledging her as being on holidays, not sick leave.

An incident occurred on 27th January 2020 between the day nurse and the Matron during the morning handover. The Matron came out of her room while nurses had handover together with healthcare assistants in front of the Nursing station and she complained that one of the resident was too loud during the night. The Matron asked the nurse what was the Complainant doing during the night and that she believed the Complainant did not attend to the resident and suggested that his GP be contacted to prescribe sedation for him. The Matron asked the nurse if she thought if the Complainant was giving the residents their night medications. The nurse explained to her that she doesnt feel that is the right approach and that we should give the resident day or two to settle in as he newly came to the Nursing home. The day nurse also mentioned that she overheard the conversation the Matron had the day before with a member of a family of another resident which the nurse believed was not said in a kind way. The Matron stated she is a nurse for 62 years and that no one should tell her what should she do which result in day nurse leaving the building. The Complainant told the Matron that she did everything possible to assist the resident and that she always reported and wrote everything that is of matter in the nursing documentation where she stated she does not believe what the Complainant wrote there and she does not believe what the Complainant was doing. The Complainant had to stay overtime and inform the DON who suggested she leave the keys to the Matron and go home as   the Matron is still active on nursing register and that she will be on her way.

On 31st January 2020 the Complainant sent a letter which the Employer had requested and she used the opportunity to express other concerns that were bothering her at that time thinking they can all be disscussed in the meeting.

The Complainant was not able to attend proposed meeting as she did not feel comfortable to do it on her own with DON and the Matron based on the experience she had in a previous meeting on 5th November 2019, where the Matron stated:˝ You can go as the Indian nurse is coming˝and where DON was trying to warn her not to talk like that as was inappropriate, refering to the Organisation's policies.

A number of other issues were referred to by the Complainant in her letter to the Employer on 31st January 2020, including hours of work, resident(s) smoking, the Matron being on the premises 24/7.

The Complainant stated that the Organisation represents itself as being an equal opportunities employer promoting diversity and equality. In 3 years that she has been there, she is aware of 12 people, mostly non-national and mostly nurses, that have left because of the working atmosphere between employees and how the things were handled by the Organisation when concerns had occured. Most of them were characterised as unfit by the Matron herself as they were non-national and she was saying it in front of other employees. Christmas bonus was not equal for all employees, which is fine as she did not have to give anything but at the same time, it pointed out who were her favourite employees.   The Complainant also alleged that the DON made sarcastic remarks about speaking English, which the Complainant took as a remark on her language skills.

The Complainant's concluding remarks are summarised as follows:

As an EU citizen, who has legal right to reside and work in the member countries and as a human being, I do believe that, although I do not expect to accomplish anything with this complaint, I have right to reach out to the Authorities where I feel I need assistance. I did not ask anyone to be a witness or support me through this process as I do understand that people’s own employment status would be at risk. I do understand that, trying to provide supporting documents where I will prove discrimination and unequal treatment is my word against their word as most of the time, that is exactly what it is- a word, no one can take away those feelings of anxiety, sadness and low self-esteem I have felt during those times where you question yourself as a person and as a professional. I know I am going against a Company that has a long operational history but I just wanted to be heard and point out that the way of treating people in certain way should be changed.

The Respondent refutes the claims taken by the Complainant. The following is a summary of the written and verbal submissions given by the Respondent:

The Complainant commenced employment with the Respondent on 1st January 2017 as a Staff Nurse, contracted to work 78 hours per fortnight, and most recently received €20 per hour Monday to Saturday and €25 per hour on Sundays.  

The Complainant worked a night shift on 27/28 January 2020. At approximately 10.30pm the Respondent received a phone call from an employee, the HCA mentioned in the Complainant’s submission. This employee advised the Respondent that she had been involved in an upsetting conversation with the Complainant. The Respondent asked her if she would be comfortable in continuing her night shift and that she would meet her in the morning. On the morning of 28th January 2020 the Respondent spoke to the HCA regarding the events which had occurred. The Respondent asked the HCA if the matter had been resolved and was advised that it had not, and that she would appreciate some help in doing so.   Consequently, the Respondent proceeded to speak to the Complainant and the Complainant agreed to a supervised conversation with her colleague in order to try and resolve the matter. The Complainant stated that she had other issues she wished to raise, and the Respondent asked her to confirm these issues in writing. On 31st January 2020, the Complainant responded with details of the issues pertaining to the conversation with her colleague. In this correspondence the Complainant also raised a number of additional concerns related to her employment. Upon receipt of the Complainant’s correspondence, the Respondent reverted back to the Complainant and proposed a meeting in order to discuss these concerns, in line with the Organisation’s policies and procedures. The Complainant refused to meet at the proposed time and date and subsequently submitted a medical certificate on 3rd February 2020 for 1 week. While there was no nature of illness on the certificate, the Complainant’s husband advised it was due to “blood pressure” when he handed in the certificate. The Respondent acknowledged receipt of the medical certificate, wished the Complainant a speedy recovery and stated that a meeting could be re-scheduled upon her return to work to resolve any outstanding concerns. On 6th February 2020 the Respondent was notified by the WRC that on 4th February 2020 the Complainant elected to bring forward complaints of discrimination under Section 77 of the Employment Equality Act 1998. These complaints were directly specified as “I say I have been discriminated against by reason of my race”, “I say the Respondent treated me unlawfully by discriminating against me in victimising me”, and “I say the Respondent treated me unlawfully by harassing me”. The Complainant noted on the complaint form to the WRC that the most recent date of discrimination occurred on 28th January 2020. On 11th February 2020 an updated medical certificate was received by the Respondent stating that the Complainant was unfit for work from 11th to 18th February 2020 due to “work related stress”.     The Respondent agreed to participate in mediation in an attempt to restore the employment relationship and to assist the Complainant with returning to work. However, the Complainant resigned her position on 3rd March 2020, and in response to the Respondent asking her to take time to consider, she confirmed that she wished to proceed with her resignation. It is argued that as an equal opportunities employer, the Respondent is proactive in promoting diversity and equality, and that is evident by a workforce that includes a wide variety of nationalities amongst a total workforce of 22 people.   It is argued that the Complainant has not provided evidence of sufficient significance of the primary facts that she has raised, and has thus failed to establish a prima facie case as required by the law. As cited in Apparel Supply Solutions Limited (formally Teamkit Limited) v Sundra Mullen (EDA146) the Labour Court found:

“In order to succeed in her contention that these acts amounted to acts of discrimination, the Complainant must produce some significant evidence of discrimination and not mere supposition in order to allow the Court to draw an inference that persons of a different race or nationality were or would have been treated more favourably”.

The burden of proof rests on the Complainant and is set out in Melbury Developments Limited v Arturs Valpeters (IEDA09171) as cited in Jennifer Waters v Matheson (ADJ-00019738) :

“.. 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 85 (4) 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.”

It is argued that as provided for by the Labour Court in Southern Health Board v Mitchell (ELR201) there are three tests to be met in this:

(i) The complainant must prove the primary facts which they rely in alleging discrimination;

(ii) The Court must evaluate those facts, if proved, and satisfy itself they they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination,

(iii) If the Complainant fails at stage 1 or 2, he or she cannot succeed. If the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

It is argued that the Complainant has failed to adduce sufficient evidence to discharge the burden of proof required at stage 1. Within this, the Complainant has also failed to outline, or provide evidence of a comparator for the purposes of her claim. There has been no detailed facts to support the Complainant’s evidence of discrimination nor has she provided any credible evidence. Unsupported by evidence, such facts can never form the foundations for a discrimination claim, and therefore the Complainant fails at stage 1 of the three-tier test and consequently stage 2 and stage 3 are not relevant and the claim should not succeed. It is argued that the Complainant has made sweeping allegations as a result of an informal conversation which occurred with the Director of Nursing and a fellow colleague on 28th January 2020, and the Complainant has filed this claim against the Respondent based on nothing more than her general assumption, and her complaint must fail.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found 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 claimant 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 these 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 was no infringement of the principle of equal treatment”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

In this instant case, the evidence shows that the Complainant’s colleague the HCA complained to the Respondent about the verbal altercation which occurred between the Complainant and herself during the night shift 27/28 January 2020. The Complainant was subsequently asked by the Respondent to outline her own various grievances, which she then submitted on 31st January 2020. Before the Respondent got the opportunity to consider the many grievances the Complainant had, the Complainant went on sick leave, lodged her complaint to the WRC and then resigned her employment.  

The Complainant has made generalised complaints about the attitude of the Matron, who lives on the site, and is an elderly lady and the proprietor of the establishment. The complaints are that the Matron spoke in a disrespectful manner to the Complainant. The Complainant did not adduce evidence which would allow comparative examination of such allegations. The Complainant did not cite comparators and stated that she did not wish to do so. I have concluded that the Complainant did not produce the facts and evidence to prove a prima facie case of discrimination, that she has not discharged the burden of proof and that her complaint therefore fails.

The Complainant also alleged that (a) she was treated unlawfully in being victimised and that (b) she was discriminated against in relation to her conditions of employment.     In relation to victimisation, the Act provides that victimisation occurs where dismissal or other adverse treatment of an employee occurs as a reaction to complaint of discrimination or proceedings by a complainant and related issues. In relation to discrimination in conditions of employment, the Complainant did not adduce any evidence in support of this contention.

I have concluded that the Complainant did not produce the facts and evidence to prove a prima facie case of discrimination, that she has not discharged the burden of proof and that her complaint therefore fails.

Discrimination on race ground. Complaint fails. No prima facie case.