Complainant

Respondent

Parties

Abdel Hakim  Mousli

N3 Results Ireland Limited

Complainant

Respondent

Anonymised Parties

Business Advisor

Inside Sales Services Provider

Representatives

Harriet Meagher BL

Therese Chambers Solr

Frys Solicitors

Louise Harrison

Ronan Holohan

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-00034582-001

12/02/2020

This matter was heard by way of a remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the  Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.

I am satisfied that I was able to fully exercise my functions and I made all relevant inquiries in the usual way.

I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard I have explained that emergency legislation is pending (at the time of hearing) which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of an Oath and/or Affirmation. This in no way diminishes the truth and integrity of what I heard in evidence.

The Complainant comprehensively set out his position in the Workplace relations complaint form dated the 12th of February 2020. He believes he was discriminated against in the course of his employment. I got an additional submission from the Complainant on the 12th of March 2021. The Complainant gave evidence on his own account. A work colleague also came as a witness on behalf of the Complainant.

The Respondent was legally represented at the remote hearing. I was additionally provided with two sets of submission prepared on behalf of the Respondent. These are dated March 16th 2020 and  April 1st 2021. The Respondent has invited me to find the within claim as frivolous and vexatious in circumstances where the Complainant has contrived allegations of discrimination where he has insufficient service to bring a claim for Unfair Dismissals. The Respondent asserts that it dismissed the Complainant for poor performance. Three witnesses gave evidence on the Complainant’s account.

I have carefully considered the evidence adduced in the course of this hearing.  The Respondent is a provider of technical services, selling tech products to an international market. As I understand it the Respondent recruits personnel for placement with clients and the personnel then provide services in sales. The Complainant was engaged as an Account Manager/Business Advisor handling the Arabic clients. There were four rounds of interviews before the Complainant was taken on in July of 2019. In his evidence the Complainant said that he understood that he would be in charge of the Lebanon and Jordan markets. The Complainant was also given the North African markets on an interim basis as someone had left the workplace. I understand that the Complainant worked primarily with one client (C). This client is a huge client for the Respondent company. As stated, the Respondent company places people on-site in the client company and then bills the client company for the hours and days worked by the employees placed on the client’s site. The Respondent personnel sell (or convert opportunity into sales) equipment and/or technology manufactured by C to potential clients across the designated territories.  I understand that the client dictates how many people it will engage on it’s behalf for any territory into which it’s product would be sold. Any pitch for extra personnel has to be sanctioned by the client. There was a lot of dialogue around the so-called “pipeline” and I note from the company website that the Respondent provides a “pipeline Management Service” where tele-sales deliver sales ready opportunity for the client.

It was clear, in the course of evidence, that the Respondent is very much beholden to this major client (C). No doubt the Respondent seeks to provide excellent service to C. One of the important arrangements between the respondent company and the client in question was the way in which the Christmas period was approached. As this understanding became an issue for the Complainant, I will set it out. It had long been an established practice that the company known as C, which is based in the United States of America implemented a full shut down for six days from the 25th of December to the 1st of January inclusive. I understand that C uses this time to carry out some necessary Maintenance work  and that there is a full systems update conducted over the period. The impact that this has on the Respondent company is that it cannot bill the client for those dates. It should be noted that this arrangement is not referenced in the Contract of Employment. The Contract references 20 days annual leave. However I do accept that the  Complainant was included in an email sent by GC the Sales Ops Program Manager in and around October 2019 which confirmed the usual arrangement for this annual shutdown. The email is a reminder to people to ensure that have annual leave set aside for any of this e dates which would be normal working days had client not shut down completely.  In his oral evidence CG stated that the shut-down period is deemed necessary by C and it just so happens that it coincides with Christmas as a matter of expediency for C (a company based in the States). As I have noted, it is not the policy of the Respondent company to question the client and it simply falls into line. The difficulty from the Complainant’s perspective is that his markets (which are primarily Muslim) remain open over that period. He does not celebrate the Christian festival and objected to being forced to take leave at this time. In addition, his work related bonus would be effected for this month (December). I do understand that the client could be applied to if there was a need to continue working through any part of that period. It seems that this did not apply to the Complainant who was still establishing his ability within the company.

Alongside this upcoming issue of the Christmas period it seems clear from the evidence ( including the Complainant’s own evidence) that by the October of 2019 he was not able to keep on top of all the countries he was overseeing. He explained his difficulty to his immediate Manager Sk who indicated that there was an intention to hire someone else into this specialised area. In the meantime, both Sk and a colleague ZH helped out. I understand from the evidence adduced that the Respondent company would only ever take on an extra member of staff (as per the Complainant’s wish) if the client to whom the Complainant was primarily working (C) was willing to sanction that budget increase. A strong case would have to be made by the Respondent company by a member of the Respondents Management team. C would only be persuaded to tale on someone new if there was evidence of increased sales.

The Complainant gave evidence that despite the enormous workload in the first few months of his employment he had had worked hard and was getting on top.  He had hit his targets and was getting his monthly bonus. However, the Respondent witnesses ZH and GC both contradicted this version of events. ZH worked in sales alongside the Complainant whilst GC was in charge of the Team development in Ireland. ZH said that she had spent a lot of time training the Complainant in. This often involved extending her own time at work and she very often worked late with him and on Saturdays and Sundays. She says she really emphasised the need to close off the pipelines and very often she constructed emails for him and to be sent out in his name. This witness said in evidence that the Complainant didn’t follow the training and didn’t follow the instruction. She admitted that sales is not easy and all persons who work in sales feel somewhat overwhelmed. With the Respondent company the target was to convert the pipeline opportunities. As the Manager overseeing the Complainant’s probationary period, this witness was asked about the Complainant’s performance (by the HR Manager with the Respondent Company Mr. McG) and the outcome of that request was opened to me. In the email back to Management (dated 22nd January 2022) the witness ZH says that the Complainant has had more training and shadowing sessions than any other team member. She said he had one to one training sessions with both her and Sk. Every effort has been made to help him convert and approve deals. The last line of the review reads

“All I can say is that if our latest efforts don’t help him catch up with the market and his bookings, I don’t see any reason training him further”

The significance of this review is clear when the Complainant’s performance comes under review in January 2020.

The Complainant was challenged in cross-examination on his abilities. It was put to him that he got more support than anyone else in the business. He was asked to confirm that he got a full training experience but was never able to manage and/or refused to operate the recommended method of “clearing the pipeline”. ZH gave evidence that clearing the pipeline was a constant issue with the Complainant and was one of the client C primary (if not only) demands.

GC the Sales Ops Program Manager gave further evidence on behalf of the Respondent company, He explained that he was in charge of developing the sales team in Ireland to deal exclusively with the products and technology manufactured and developed by C. There is a team up to 180 people worldwide. It is a highly multicultural workforce. He believes that the workplace for the Complainant was fair and transparent. There was a “dashboard” system in operation. Everyone can see how they are doing. Everyone knows therefore exactly how they are performing. There are weekly meetings and one to ones if there are problems. CG stated that whilst the complainant unexpectedly taken over the North Africa Territory, the volume of work there was quite low. He said that in his view that the Complainant was quite overwhelmed and had to have more intensive one to ones with Sk then would be usual.

In support of his case, the Complainant had a witness R give an account of his employment with the Respondent company. He, R, confirmed that he too believed the amount of work to be covered in the Arab Markets was overwhelming. It was impossible to get deals approved in 24 hours he said. He was never on top of the workload. He too, he said, had been forced to take a shut down at Christmas and that was the first time he had missed his bonus

Things came to something of a head when, on the 21st of January 2020 a Ms. SV (an in-house Business Development Manager with the Client C) wrote an email to the Complainant pointing out that the Complainant had failed to approve several deals assigned to him on the 15th of January in the 24 hours given (by the client C) to complete such a task. This email was also CC’d to a number of members of Management within the Respondent group.

Significantly, the email from SV goes on to say “please action today”. From the Respondent perspective this was a direction given by the client to the Complainant to complete a task.

Instead of following the direction given, the Complainant replies to SV stating that his workload is six times that of any other member which gives rise to delays in approving deals. The Complainant stated that he was feeling overwhelmed and working

“neither on quality or quantity”

He requests that SV should escalate his predicament to Sk – presumably to get financial sanction for a new employee to come to his assistance. The Complainant’s response was CC’d again to members of his own Management team

The Line Manager ZH indicated that this response should never have happened. It was seen as a challenge to a member of the staff of the most valuable client of the Respondent. The Complainant should have gone back to the line Manager seeking assistance and perhaps intervention if that had been appropriate. The way that the Complainant had complained to the client was not an exposure the Respondent was happy with. She said it created issues for the Respondent company as a Contractor. GC echoed this sentiment stating that the Complainant should have come to hm (GC) and not gone back to the client directly. The client pays for our service not our excuses was what he said.

It is true that in and around this time in January 2020 the issue of a Probation Performance Review came into focus. Officially the complainant was to achieve the six month marker on the 14th or 15th of January but the HR Manager Mr McG indicated in evidence that the first date he would be available to conduct the meeting was the 23rd of January 2020. I am satisfied that emails confirm this and that the Complainant knew that there was to be a probationary review before the end of the month and that this was known before the incident with SV and before the final feedback from ZH had been communicated to Management.

Mr McG is HR Manager for the Respondent company across Europe. He says he would have met the Complainant at the induction stage but there would not have been much interaction thereafter. He is based in the Respondent headquarters in Dublin and visits the C site as and when he can. He travels a great deal. He says he was aware that the Complainant had been getting additional support and in particular over the weekends. Mr. McG asks line Managers to prepare performance reviews annually and as Probation periods come to pass. The feedback was that the Complainant was frustrated with the established methods and procedures. I have previously referenced the line Manager ZH’s view that she didn’t see any reason to train him further.   Mr MCG confirmed that  he  knew when he was meeting with the Complainant, that the Management reviews had not been great and there would either have to be an extension or a termination.

However, what really had the greatest impact (for MrMcG) was the incident with SV. There can be no doubt that the prevailing ethos in this workplace was not to rock the boat with the client. There was an expectation to provide the best service without challenge or confrontation. The Complainant’s somewhat belligerent response to SV’s direction was seen as provocative and unacceptable.

I accept there was some early confusion about when the Probation meeting should have taken place and that one had been missed on the 15th of January.  I also accept that a Probation meeting was held on the 23rd of January 2020 with MrMcG and Sk present. There is no doubt in my mind that this meeting turned out to be acrimonious.  The Complainant attended this meeting without support and seems to have been genuinely amazed that his employment was being terminated. It seems that in reacting to the news of his dismissal, the Complainant called the HR Manager a racist. This caused the Manager to abruptly end the meeting as he felt it was getting personal. I am told that the Complainant needed to be escorted off the premises. The Complainant denies he was as voluble as has been suggested. The evidence is that the Complainant caused a commotion by putting comments up on the internet for the client to see – on the WebEx page. The HR Manager says that the Complainant was shouting that this was a discrimination and that he would make him (the Manager) pay by going the legal route.

In his evidence, the HR Manager is adamant that  this was an evidence based performance dismissal. After six months on the job the Manager was satisfied that the Complainant was not a good fit for the work expected of him, nor did he seem to understand the sensitivities of the relationship with the client C. The Manager went on to state that  the allegation of discrimination subsequently made were a complete shock to the HR Manager.  For example, the Complainant made an allegation that he was discriminated against on the grounds of his disability. The disability he asserted was an eating disorder and depression. I am satisfied that neither of these conditions had ever been disclosed in the workplace - they were unknown and unknowable before the termination of the employment. It is to my mind a coincidence that the Complainant had a medical appointment the day before the 23rd of January and I accept that the HR Manager had no idea of any medical meeting  when he conducted the probation meeting set up to dismiss the Complainant. I accept the Respondent makes a valid point in asserting that there was no medical evidence adduced even in the course of the hearing that  could objectively allow me to accept the Complainant’s own classification of having a disability. The Grievance he lodged against a Mr. SK after the dismissal was spurious at best and to my mind was handled well by the Respondent company who conducted an investigation into the Grievance post termination.

The Respondent representative went to considerable trouble to open up the  extensive policies  in operation in this workplace in the course of evidence. There is no doubt that this Respondent company is fully aware of the need to have a workplace that allows for all its multicultural staff feel safe and welcome

The Complainant asserted that the requirement to take Christmas off was an act of discrimination against him as a Muslim (on the grounds of race and religion) and it tended to  treat him less favourably than his non-Muslim Comparators. However, the Complainant failed to take into account that the Respondent was beholden to it’s client in this regard and if the case could not be made to keep the Complainant working over this period then he had to take the holiday along with most of the workforce – which included other Muslim employees (for example ZH who gave evidence of this fact).

Having considered all aspects of this matter, I am satisfied that the Complainant has not proven on the balance of probabilities, the primary facts on which he must rely in seeking to raise a presumption of unlawful discrimination against the employer. That is to say, the Complainant has not made out a Prima facie case of discrimination on any of the three grounds he has indicated.

In the circumstances, there is no presumption of discrimination such that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.

I understand that the Complainant was disappointed to have his employment summarily terminated after a six-month period, and seemingly without any forewarning. Had the Complainant been in the employment of the Respondent for twelve months his options might have been different. However, I can find no contravention of the Employment Equality legislation.

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

CA-00034582-001 – The Complaint herein fails as the Complainant has failed to show that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Disability, Religion and Race.