Complainant

Respondent

Parties

Jonas Oscar  Folgado De La Rosa

BAE Systems Applied Intelligence

Representatives

  self

Rosemary Mallon, BL, instructed by McCann Fitzgerald Solicitors

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-00038906-001

27/07/2020

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

CA-00038906-002

27/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00038906-003

27/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038906-004

27/07/2020

The complainant is employed as a software engineer with the respondent.  He commenced employment  in October 2006 and is still employed by the respondent. He is paid €57,000 per annum and works 37.5 hours per week. He submitted a number of complaints to the Workplace Relations Commission on 27/07/2020.

The complainant submitted a total of four complaints and did not provide detailed particulars in relation to these complaints. He alleges that he has been discriminated against on the grounds of gender, family status and civil status.  He also made a complaint alleging that he did not receive equal pay on the grounds of gender, civil status and race.  The complainant also submitted a complaint under the Equal Status Act against the respondent alleging discrimination on the grounds of gender, civil status and race.

At the hearing on 09/09/2021 the complainant outlined the difficulties he had in obtaining legal representation.  He confirmed that he did not understand the legislation under which he submitted the complaints.  He withdrew the complaint under the Equal Status Act, CA-00038906-003, after it was explained to him that as he is still an employee of the respondents this Act does not govern or apply to the employment relationship.

The hearing was adjourned to facilitate the complainant engage with a legal advisor.  He undertook to confirm details of his legal representative to the respondent’s HR Manager. It was agreed that this would be done no later than 23/09/2021. 

In the event that the complainant did not obtain legal advice or representation he consented to, and confirmed his understanding, that his remaining complaints dealt with on the basis of his written submissions and the written submission of the respondent.  The respondent also confirmed its consent to this approach.   The WRC confirmed these details to the complainant by way of letter dated 09/09/2021.  The complainant contacted the WRC by e-mail on 20/09/2021 and outlined that he continued to have difficulties in obtaining a legal representative and provided details of the various firms he had been in contact with. 

Following this the respondent’s legal advisors put he complainant in touch with a firm of solicitors and I was advised by the respondent on 22/09/2021 that discussions had commenced between the parties on a without prejudice basis and with the intention of resolving this matter.

I was advised by the respondent’s representative on 28/10/2021 that the engagement had ceased and confirmed that they were requesting the WRC to proceed on the basis outlined the letter to the complainant from the WRC dated 09/09/2021.

For the sake of completeness, the WRC wrote to the complainant on 11/09/2021 and invited any final comments or submissions to be received no later than close business on 19/11/2021.  The complainant was advised that if there was no response the Adjudication Officer would proceed on the basis that he was not making any further submissions.

The complainant contacted the WRC by e-mail on 15/11/2021 in which he sought to clarify some points.  He submitted that he did not have access to the servers where he thought that he could obtain “some proofs of the penalisation and harassment suffered during March/April 2020”.  The complainant also noted that he has always been open to speak openly with the respondent as because he did not get any reason for his lack of promotion he submitted his complaints to the WRC.  There were not further documents included with this e-mail.  There was also no correspondence from the complainant’s legal advisor who was copied on these e-mails.

The WRC received a copy of another e-mail from the complainant to the respondent on 18/11/2021.  This e mail contained a number of attachments relating to medical certification which was requested by the respondent.  The complainant confirmed that these were intended to clarify the certification of his medical consultations.  None of these were relevant to the within complaints and in the absence of any further submission I proceed to issue a decision on the basis of what was agreed by both parties at the hearing on 09/09/2021.

CA-00038906-001: This is a complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.  The complainant alleges that he has not been promoted for a number of years.  He never had a bad review from his managers.  He also made various suggestions for improvements to the design, implementation and testing of new functionality.  These were accepted but he never received the recognition of promotion as a result of this.  On his complaint form the complainant indicated that he believes he was discriminated against on the grounds of gender, civil status and race.  He indicated that the most recent date of this alleged discrimination was 04/2020.

CA-00038906-002: The complainant alleges that his manager “started a penalisation against me” and outlined some examples.  He was required to attend the office before any of the other team members, increased pressure for every fix or solution he was working on, he was required to send a daily e-mail with updates on the progress of his work and his manager also “acted cocky with me in several meetings we had”.

CA-00038906-003:  This is a complaint seeking adjudication under section 21 of the Equal Status Act 2000.  This complaint was withdrawn by the complainant at the hearing on 09/09/2021.

CA-00038906-004:  The complainant alleges that he did not receive equal pay and mentioned the names of some colleagues as comparators.  No further details were provided on the complaint form on in any other documentation submitted by the complainant.

CA-00038906-001: This is a complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.  The complainant has either failed, refused or neglected to provide any particulars of how he was discriminated against on the grounds of his “race”, “gender” and/or “civil status”.  While the respondent is aware of his gender and race it is not aware of his “civil status”.  The complainant has also failed to provide any causal link showing how the alleged discrimination and/or harassment were due to his race, gender or civil status.

In relation to the complainant’s allegation that he was discriminated against in relation to promotion the respondent notes that he has failed to provide any documentation to identify any job/position that was advertised either internally or externally that would have been a promotion and for which he applied.  Internal promotions within the team are conducted by way of an initial review by a person’s manager who makes a submission to a designated person and this is then presented to a Review Board for a final decision.  In cases where a promotion is refused the respondent has a process to help employees achieve a promotion at a later date.  In the complainant’s case his manager provided him with details of what he needed to do in order to obtain a promotion, the process involved and the relevant document template.

The complainant did not provide any particulars in relation to what roles or grades that he should have been promoted to.  It would appear from the complaint form that his claims are statute barred or out of time.

CA-00038906-002: The complainant alleges that his manager harassed him and that the most recent date was April 2020.  The complainant has not provided any link with these alleged acts to his gender, civil status and/or race.  There is a body of case law which states that the complainant has to raise a prima facia case of discrimination under these headings.  The respondent refers to a number of cases in relation to this matter and the following are some examples: Mitchell v Southern Health Board [2001] ELR 201; Galway Mayo Institute of Technology v Vlad Teleanca, Labour Court EDA 1835; Roscon v Scanlan, Labour Court EDA 085/2008,

CA-00038906-003:  This is a complaint seeking adjudication under section 21 of the Equal Status Act 2000.  The complainant did not have the locus standi to bring a claim under the Equal Status Acts.  It is noted that this complaint was withdrawn at the hearing on 09/09/2021.

CA-00038906-004:  The complainant has failed to particularise his equal pay claim.  He named three comparators alleging that he has not received equal pay in relation to these individuals.  The complainant has the same gender as two of these alleged comparators, but he failed to provide any detail in relation to their race or how their race is different to him.  He also provided no details in relation to the civil status of these individuals and how this is different to his own.

The complainant provided no particulars in relation to how he is doing “like work” within the meaning of the Employment Equality Act in relation to the named comparators or how he is alleging that he is doing “like work”.

The complainant submitted his complaints to the WRC on 27/07/2020.  He confirmed that he did not have the benefit of trade union or legal representation.  While he instituted these claims the respondent is entitled to be made aware of the case against it under each of the complaints. This is a basic requirement in the administration of justice and it is necessary to provide the respondent with an opportunity o prepare a defence to the complaints.  The hearing was adjourned to allow the complainant an opportunity to obtain legal or other advice and to also provide further information in relation to his claims.  I am satisfied that the WRC has provided significant latitude to the complainant in relation to this.  With the consent of all parties my decisions in this case are based on careful consideration of all the written submissions received from the complainant and the respondent. 

CA-00038906-001: This is a complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.  The complainant has failed to provide any details in relation to his complaint.  In that context I have to conclude that he did not have any evidence and I find that this complaint is not well founded.

CA-00038906-002: The complainant did not provide any particulars in relation to what roles or grades that he should have been promoted to.  It would appear from the complaint form that his claims are related to dates in 2011 to 2020.  In the absence of any further particulars I find that this complaint is statute barred and of time.  I do not have jurisdiction to hear this complaint.

CA-00038906-003:  This is a complaint seeking adjudication under section 21 of the Equal Status Act 2000.  This complaint was withdrawn by the complainant at the hearing on 09/09/2021.

CA-00038906-004:  The complainant is required to provide detailed particulars of this claim.  In the absence of such particulars and considering the opportunities the complainant was given to furnish such information I find that this complaint is not well founded.

CA-00038906-001: I find this complaint is not well-founded.

CA-00038906-002: I find that this complaint is statute barred and of time.  I do not have jurisdiction to hear this complaint

CA-00038906-003:  This complaint was withdrawn by the complainant at the hearing on 09/09/2021.

CA-00038906-004:  I find this complaint is not well-founded.

Discrimination.  Representation.