Complainant

Respondent

Anonymised Parties

An accounts assistant

A not for profit organisation

Representatives

self

Mr Derek McKay, Adare HRM.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029571-001

08/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029571-002

08/07/2019

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

CA-00029571-003

08/07/2019

The Complainant was employed as an Accounts Assistant from 7th May 2019 until 10th May 2019, a total employment period of 4 days. The purpose of the employment was to provide cover for another employee during a period of maternity leave.

The Complaint commenced employment on 7th May 2019 on a salary of €32,058 per annum and was contracted to work 37 hours per week.

This complaint was received by the Workplace Relations Commission on 8th July 2019 and is made as three individual complaints, these are as follows:

CA -00029751 – 001 – A complaint submitted under the Industrial Relations Acts. This complaint relates to the dismissal of the Complainant.

CA -00029751 – 002 – A complaint submitted under section 13 of the Industrial Relations Act, 1969. This complaint relates to Bullying and Harassment procedures.

CA – 00029751 – 003 – A complaint submitted under section 77 of the Employment Equality Act, 1998. This complaint relates to alleged Discrimination of the Complainant on the grounds of Gender, Civil Status, Religion, Age and Race.

The hearing of this complaint took place in the Workplace Relations Commission, Dublin on 14th August 2020.

The Complainant submitted a significant volume of paper outlining her complaint. The complaints in relation to her dismissal relate to a contract of employment, her hours of work, a training plan and her perception of her supervisor’s attitude towards her.

The Complainant stated that she was met on the morning of 7th May and advised that induction and her contract would be held the following day and that she would receive her contract then. On the evening of the 7th May the Complainant emailed the Senior HR Co-ordinator asking could she be issued with the contract prior to the meeting planned for the following morning. This did not happen and the following morning the Senior HR Co-ordinator went through the contract line by line.

At the meeting on 8th May the Senior HR Co-ordinator went through the contract and the Complainant felt it was inappropriate to do this in such detail. The complainant highlighted two points of the contract that she was not clear on. The first point related to hours of work and the second point related to a training plan.

On the morning of 9th May the Complainant emailed all signed documents to the Senior HR Co-ordinator and not having heard back emailed the Senior HR Co-ordinator and Deputy CEO asking when the contract would be issued, this email was sent at 8.58 am on the morning of 10th May 2019.

On the 10th May the Complainant was asked by the Finance Operations Supervisor to meet with her in a meeting room away from the work area, the Complainant declined this invitation and suggested that the meeting could proceed in the open plan work area. When the Finance Operations Supervisor insisted on going to a meeting room the Complainant asked could a colleague accompany her to the meeting. The Complainant was not comfortable with the prospect of going to the meeting on her own due to the Finance Operations Supervisor’s attitude towards her during the three days since her commencement of employment.

The Complainant was accompanied to the meeting by Mr X, a colleague from the Finance Department. The Finance Operations Supervisor was accompanied by the Finance Operations Supervisor. It was at this meeting that the Complainant formed the opinion that she had been employed for the wrong reasons.

At the meeting the Complainant was asked how she was getting on. The Complainant raised the subject of her contract and feels it was at this point that the Finance Operations Manager and Supervisor became uncomfortable and wanted to end the meeting.

In the Complainant’s own words she was “I was removed from the office and the company in an unprofessional way, without procedure, explanation or witness. This was done by intimidation, bullying and harassment aiming to create unpleasant scene in front of my colleagues and to humiliate me.”

The Complainant believes the Respondent, acting in conjunction with other companies are keeping her unemployed, without income and to minimise her prospects of finding another job.

The Claimant commenced employment on a fixed term basis (maternity cover) on 7th May

2019 as outlined in her statement of terms and conditions of employment.

The Claimant was inducted on the 7th and 8th of May 2019 initially, aligned to the standard induction checklist.

During the Claimant's brief employment within the not for profit organisation, and as part of the normal management/employee induction and follow up, a meeting with the Claimant and the Finance Operation Supervisor was to be held on Friday 10th May.

The meeting was requested with the Claimant on Friday 10th May, to which the Claimant refused this reasonable request to attend in a meeting room and wanted the employee/manager meeting to be held at her desk in the open plan office, whilst other colleagues were present.

The Claimant spoke loudly in front of other colleagues back to the Finance Operations Supervisor further requesting the meeting to be held in the meeting room as would be more appropriate and suitable.

The Claimant refused to attend and sought another colleague to attend and subsequently left her desk seeking this particular colleague. Due to the Claimant's actions, attitude and tone, the Finance Operations Supervisor requested her manager, the Finance Manager to attend also as she did not feel safe meeting with the Claimant.

The Claimant's attitude towards her colleagues in this meeting, her tone including her raised voice towards both manager and supervisor was of serious concern and her prompt return to her desk raised further concerns for the managers involved, specifically the safety and wellbeing of other colleagues, including a pregnant employee within the team.

Based on the inappropriate conduct of the Claimant, their duty of care and the safety and wellbeing of their employees within the organisation, a decision was then taken to request the Claimant to leave the building that morning.

The Claimant was invited to a meeting with shortly thereafter and asked to leave the building to which she responded by refusing to leave whilst becoming aggressive.

Again, in line with the duty of care and the safety and wellbeing of employees within the organisation, attempts were made to persuade the Claimant to leave the building.

The Claimant called the Gardai and the Claimant was invited to wait in a meeting room for their arrival. She then decided to leave the building.

The Gardai arrived some 3+ hours later and enquired if the organisation wished to press charges against the Claimant which they confirmed that they had no intention of doing so.

Post the Claimant leaving the building, the Senior HR Co-Ordinator, arrived in work and was made aware of the incident. She then reviewed what had occurred and informed the Deputy CEO and the Finance Director of her conclusions surrounding the incident. A decision was taken by the Deputy CEO and the Finance Director that based on the conduct of the Claimant that it was not feasible or appropriate to retain her in employment and her employment was terminated, as confirmed in the correspondence dated 10th May 2019.

Subsequently on the same afternoon of 10th May, the Claimant emailed a number of staff members requesting them to be witnesses for legal proceedings.

The Law

Section 6 (1) of the Employment Equality Acts provides that discrimination shall be taken to occur where" 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 Gaelscoil Chill Dara — and — Bernadette Moore the Labour Court stated:

It is well settled that the practical application of this principle requires the Complainant to first prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. The Complainant must then satisfy the Court that the facts so proved are of sufficient significance to raise an inference of discrimination. If the Complainant fails to prove the primary facts relied upon or to satisfy the Court that they are sufficiently significant to establish a prima facie case of discrimination his or her case cannot succeed.

In Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court, set out how the probative burden operates vis a vis a complainant..."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.... the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule".

The Claimant has failed to establish any facts whatsoever to give rise to a prima facie case of discrimination. The burden of proof has not been shifted by the Claimant as is the requirement of the legislation and respectfully her claim in relation to discrimination must fail.

Respondent's Position

The Respondent denies the Claimant's allegation that she was unfairly dismissed or was subject to discriminatory treatment by the Respondent in relation Gender, Civil Status, Age, Race and Religion and that the respondent treated the claimant unlawfully by discriminating against her in 'giving me training' / 'harassing' / 'other'.

The Respondent, due to the inappropriate conduct of the Claimant and in line with their duty of care and the safety and wellbeing of their employees within the organisation, made the appropriate decision to terminate the Claimant's employment during their probationary period, post reviewing the serious incident on the 10th May.

In relation to any claim of discrimination, it has been consistently held by the Labour Court that an essential proof in any claim under the Acts is that the Complainant was treated less favourably than another person of a different characteristic (i.e., in this case Gender, Civil Status, Age, Race and Religion) is, was or would be treated.

The Respondent respectfully submits that the information relied on by the Claimant in this case is not of sufficient significance to establish a prima facie case of discrimination, that she has failed to demonstrate that she was treated less favourably than another person of comparison was treated and, therefore, that she has failed to shift the probative burden to the Respondent.

On this basis, and in accordance with the test set out by the Labour Court, the Claimant's case cannot succeed.

Conclusion

The Respondent, due to the inappropriate conduct of the Claimant and in line with their duty of care and the safety and wellbeing of their employees within the organisation, made the appropriate decision to terminate the Claimant's employment during their probationary period.

The Labour Court has established a number of tests which a discrimination claim must satisfy in order to satisfy the question as to whether or not an inference of discrimination could arise. For the reasons outlined and presented, the Respondent submits that as the Claimant has not satisfied these tests, she has not discharged the probative burden which she bears in order to ground a discrimination claim. On this basis, the Respondent contends that the claim is manifestly ill—founded and that the case cannot succeed.

CA – 00029751 – 001.

The Complainant commenced employment on 7th May 2019. Having been interviewed for the position on 2nd May 2019 the Complainant received a written offer of employment for a fixed period of 12 months. The Complainant accepted this offer and confirmed her acceptance in writing on 3rd May 2019. On the 7th May 2019, the first day of employment, the Complainant was issued with a Statement of Terms and Conditions of Employment which was signed by the Employer and Employee on 7th May 2019, this statement complies with the provisions of section 3 of the Terms of Employment (Information) Act, 1994. This statement clearly states that the Complainant’s employment is subject to a six month probationary period.

The Complainant underwent some induction training during 7th and 8th May, this was normal for new hires and she, the Complainant, signed off the induction checklist.

A meeting with the Complainant was scheduled for 10th May by her line manager, the purpose of this meeting was to establish how she was settling into the new position. On the day the Complainant refused to attend in a meeting room and instead wanted this meeting to take place at her desk in an open plan office whilst other employees were nearby. The Complainant spoke in a loud tone to her supervisor who again requested they move to a meeting room close by. The Complainant refused this request and asked another colleague to attend the meeting with her. Due to the Complainant’s attitude, actions and tone the Supervisor requested the manager to attend the meeting with her.

When the meeting eventually started the Supervisor and Manager were both present with the Complainant and another employee accompanying the Complainant. At the meeting the Supervisor and Manager were concerned about the tone and raised voice of the Complainant and her prompt return to her desk raised further concerns for the managers involved. Based on this inappropriate conduct from the Complainant the Line manager and supervisor asked the Complainant to leave the building. The Complainant refused to leave whilst, in the opinion of management, becoming aggressive.

The Complainant called the Gardai and was asked to await their arrival in a meeting room, she did this but left the premises before their arrival at 9.55am.

After the Complainant’s departure the Senior HR Co-ordinator arrived into work and was informed of the events in relation to the Complainant. The Senior HR Co-ordinator reviewed what had occurred and informed the Deputy CEO and the Finance Director. A decision was taken that based on the Complainant’s conduct it was not feasible or appropriate to retain her in employment and her employment was terminated with effect from 10th May 2019. The Complainant was notified of this decision on the same date.

In making a recommendation in relation to the dismissal I have considered Grant Thornton v A Worker (LCR 21543) in which the Complainant submitted a complaint to the Labour Court under s.20(1) of the Industrial Relations Acts 1946 – 2015 in respect of the decision of the respondent to dismiss her during a probationary period. The respondent submitted it was entitled dismiss her under her contract of employment as she had not satisfactorily completed her probationary period. The Court found that the Respondent had failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures (Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration Order 2000 (SI 146 of 2000) before the decision to dismiss the claimant was taken. In coming to that conclusion, the Court had regard to the following: while the claimant was invited to attend a probation meeting the decision to dismiss had had been taken prior to the meeting; the claimant was not advised in advance that the purpose of the meeting was to effect her dismissal; the claimant was not afforded an opportunity to be accompanied at the meeting; and no appeal procedure was available to the claimant in respect of the decision to dismiss her. The Court was also critical of the fact that the claimant’s contract of employment purported to provide that normal disciplinary procedures did not apply during the probationary period, noting that the Code of Practice applied in all circumstances where an employee was at risk of having his/her employment terminated. The Court recommended that the claimant be paid €1,500 in compensation in full and final settlement of the claim before it.

In the instant case the decision to dismiss was taken and communicated to the Complainant, she was denied the right to be heard and provided with no opportunity to appeal the decision to dismiss. I consider that the process was flawed and recommend that the Respondent pay a sum of €1,233 (2 weeks’ pay) in compensation to the Complainant in full and final settlement of the claim numbered CA – 00029751 – 001.

CA -00029751 – 002

The Health & Safety Authority define bullying as “repeated inappropriate behaviour, direct or indirect, whether verbal physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.”

I have read the submission submitted by the Complainant and listened to her verbal summary and can find no bullying and harassment targeted at the Complainant. This complaint is dismissed.

CA – 00029751 – 003

The Complainant asserts that she was subjected to discrimination on the grounds of Gender, Civil Status, Religion, Age and Race.

These are all assertions. The Complainant failed to provide any information that would turn these assertions into facts.

In Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court set out how the probative burden operates vis a vis a complainant …”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 … the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. The claimant has failed to establish any facts whatsoever to give rise to a prima facia case of discrimination. The burden of proof has not been shifted by the claimant as is the requirement of the legislation and respectfully her claim in relation to discrimination must fail.

The Complainant has made assertions – these are not facts. The Complainant has failed to establish a prima facie case. This complaint as submitted under section 77 of the Employment Equality Act, 1998 fails.

The Complainant was denied the right to be heard and provided with no opportunity to appeal the decision to dismiss. I consider that the process was flawed and recommend that the Respondent pay a sum of €1,233 (2 weeks’ pay) in compensation to the Complainant in full and final settlement of the claim numbered CA – 00029751 – 001.

Complaints numbered CA – 00029751 – 002 and CA – 00029751 – 003 both fail.