Complainant

Respondent

Anonymised Parties

A Pharmacy Assistant

A Pharmacy

Representatives

  N/A

Michael McGrath. IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039639-001

07/09/2020

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

CA-00039639-002

07/09/2020

The Complainant started work with the Respondent in the position of Pharmacy Assistant on 4 August 2020. He asserted that his employment was terminated on 1 September 2020 as a result of a protected disclosure he made on 28 August 2020. He also claimed that he was discriminated against by the Respondent on the grounds of his Indian nationality.

The Complainant stated that he was interviewed for the role of Pharmacy Assistant on 23 July, 2020, and began in the position on 04 August 2020.

He asserted that a number of events culminated in his decision to file this complaint:

1.      He was attending a patient, and all of a sudden, the Managing Pharmacist came and snatched the prescription from his hand and started giving him awful looks in front of a patient. He was also asked to attend to another patient and the Managing Pharmacist made the situation awkward for him by intervening and talking to the patient about his work and experience.

2.      The Managing Pharmacist asked him to compromise with a patient’s life by instructing him to give sustained release medication to the patient

3.      He stated that from the beginning of his job he was not even informed how the paperwork was done in the dispensary, how to gather medication against the labels that are processed, how to collect medications or how to perform any task. Despite that, when he asked for instructions on how to perform certain tasks, the staff and the Managing Pharmacist used to yell at him in front of patients.

4.      He also stated that he was not provided with the appropriate training upon commencement of his job at the company and no additional training with the company pharmacy trainer was also provided to him. Furthermore, he denied that he was given any opportunity to train with another Pharmacy Technician who is also a pharmacist from India to support him.

He stated that on 20 August, 2020, without even teaching and instructing him about the tasks involved in his role, he was called to a meeting where a number of concerns and issues were raised. He stated that the purpose of this meeting was to discuss his performance to date and to ensure that he understood the role as per the job description and the expectations from the manager and management team in terms of his performance. After this meeting, on 21 August, 2020, he sent an email to the Managing Pharmacist whereby he stated his seriousness about his work and his desire to learn.

Further to this, on 26 August 2020, the Regional Manager arranged a meeting with the Complainant, the Managing Pharmacist as well as the HR Rep to discuss the multitude of issues arising at that point. During the meeting, the Regional Manager was extremely angry, argumentative, aggressive and frustrated and said that he was creating a toxic work environment in the store. After the meeting, on 28 August 2020, he mailed the Regional Manager again, stating inter alia that there was expired medicine sitting on the shelves,

On 1 September 2020, the Territory Manager came to the pharmacy when the Complainant was on his break, asked him to come into a room and told him that he was terminating his employment. The Complainant asked for reasons behind the decision and was told by the Territory Manager that he did not know anything about it. The Complainant therefore asked him for the termination letter. Although he was informed that this would be issued, he never received it.

The Complainant was interviewed for the role on 23 July 2020. The Complainant acknowledged that he had no experience in Irish pharmacy. On 30 July 2020, the Complainant was contacted and offered the role. This was followed up by an e-mail of same date by the Regional Manager. It was outlined to the Complainant that he would commence his employment on a six-month probationary period. On 4 August 2020, the Complainant started his employment. From the commencement of employment, there were performance and behavioural issues with the Complainant in the course of his work.

Over the first week, the Managing Pharmacist began showing the Complainant the paperwork in dispensary as all aspects of dispensary revolve around knowing the schemes and understanding prescriptions. The Complainant was given the task of putting the GMS scripts in numerical order so they could be verified. This is a time consuming but important task carried out in every pharmacy. Upon review, the scripts were not in order and two months were mixed up. When the process was explained to the Complainant, he insisted he had done it correctly and refused to take further instruction on how to carry out this task correctly, resulting in another technician having to rectify this.

The Complainant was also shown how to carry out blister packs and how to gather medication against the labels that were processed. The Complainant however, failed to adhere to this instruction. The Complainant was also tasked with collecting medications for a blister pack but there was a set of labels missing. The Complainant said this was a dispensing error and needed to be recorded on Pharmapod.  As it was not a dispensing error this was not done and it was explained to the Complainant that there were many reasons why the previous technician may have not printed the labels, namely that medication could be stopped, medication may no longer go into the blister or the label machine ran out of labels. The Complainant refused to accept this explanation and demanded it was logged on Pharmapod however.

In respect of the Complainant’s refusal to take direction, the Complainant was asked do the date checking on medications as it was due and would be a good opportunity to get familiar with the medications. Instead of completing the date checking the Complainant reorganised the layout of the dispensary which had massive consequences to its functioning. The Complainant then needed to undo what he had done to enable the rest of the team could work efficiently. At a later date, it was then discovered that the date checking was not carried correctly resulting in out-of-date products on the shelf.

The Complainant continually questioned the instructions he received from his manager and was also the subject of a customer complaint from a regular patient. Specifically, the patient who collected medicine daily from the store, was shouted at by the Complainant.

On 19 August, the Complainant put away an order which contained a control drug. The Complainant signed off the invoice to verify the full order was received. However, the control drug went missing. The Complainant stated the drug was not in the order despite having signed and verified the order to state he had received it. The control drug was never recovered.

On 20 August, the Complainant was called to a meeting where a number of concerns and issues were raised. The purpose of this meeting was to discuss his performance to date and ensure that he understood the role as per the job description and the expectation from his manager and management team in terms of his performance. In this meeting the following was discussed

·         What the role of Technician is, the need to support the Pharmacist in daily dispensing and put together blister packs. The Complainant insisted despite having commenced under three weeks previously, that his role was to improve / change pharmacy processes in the Pharmacy and to spot weaknesses in system and improve.

·         The Complainant had not been adhering to the Respondent’s uniform policy.

·         Failure to adhere to HSE guidelines and wear a face covering when working. The Complainant refused to wear a mask, he was then offered a visor and refused. The Complainant then agreed to wear the mask, however would constantly have it down under his chin.

·         The Complainant was given a hard copy of the Respondent’s Induction Programme as he had not been following the company guidelines that had been sent out via email with his contract.

·         The Complainant suggested that he wasn’t made feel part of the team however it was highlighted to him that

-He was added to the Store WhatsApp group where everyone welcomed him to while he did not respond and never engaged with anyone in the group.

-When he left his personal belongings in the store, some members of the team gave up their personal time to open the store so he could get them.

-The dispensary is very busy but the team always tried to make conversation with him.

-The Complainant isolated himself on lunch breaks by watching his phone.

On 21 August, following the meeting of 20 August, the Complainant e-mailed the Regional Manager with issues he had surrounding his role. On 26 August, the Regional Manager arranged a meeting with the managing pharmacist, a HR rep and the Complainant to discuss the multitude of issues arising at that point. This meeting was earlier than the standard 4-week review, but it reflected the concern at his performance and behaviour which existed at that point. During the meeting the Complainant would not take feedback, was argumentative as well as aggressive and told the Regional Manager to stop talking about certain topics which he did not wish to discuss or believe were relevant.

Following the meeting, the Regional Manager was of the opinion that the Complainant was creating a toxic work environment in the store. On 29 August 2020, the Managing Pharmacist e-mailed the Regional Manager outlining her serious and genuine concerns regarding the Complainant s behaviour.  As the situation with the Complainant had deteriorated since the meeting on the 26 August and further incidents had been brought to light, the Regional Manager made the decision to terminate the Complainant’s contract as per the letter of offer. The reason for terminating the contract was:

·         Hindering the workflow of the dispensary

·         Not following instruction

·         Inability to accept the role in which he was employed to carry out

·         No change in behaviour after been given constructive feedback.

·         Not willing to work as part of a team.

On 1 September, the Territory Manager held a meeting with the Complainant in the pharmacy (The Regional Manager was unavailable due to an absence at that time) and informed the Complainant that the decision had been made to terminate his contract of employment.  The Territory Manager outlined the reasons for the termination of employment. On 3 September 2020, the Complainant received a letter confirming his termination of employment and outlining the reasons for the termination.

CA-00039639-001:

THE LAW

The Protected Disclosures Act at section 2 clarifies that information is relevant information if

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

The Act defines a protected disclosure at Section 5 as follows: 5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .(2) For the purposes of this Act information is “relevant information” if—

·       (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

·       a)that an offence has been, is being or is likely to be committed, b)that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, c)that a miscarriage of justice has occurred, is occurring or is likely to occur, d)that the health or safety of any individual has been, is being or is likely to be endangered, e)that the environment has been, is being or is likely to be damaged, f)that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, g)that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or h)that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Section 12(1) of the Act provides :-

12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

While Section 2 (1) (a) of the Unfair Dismissals Act 1977 states that the Act shall not apply in relation to:

I also note that section 11 ( c ) of the Protected Disclosures Acts 2014 states that the Unfair Dismissals Act 1977 is amended in section 6 by inserting the following subsection after subsection (2C):

ANALYSIS

Having regard to the legislation cited above, I must establish firstly if the Complainant in the instant case made a protected disclosure and secondly if the making of this protected disclosure caused the Respondent to dismiss him, as he asserts.

I note the Complainant’s assertion that he made a protected disclosure when he outlined in a mail to the Regional Manager on 28 August 2020 that there were products on the shelves past their expiry date. Specifically, he stated in the correspondence that “There was medicine sitting on shelves which was well expired and it was rolled under the carpet”

Notwithstanding the lack of specifics, including the dates and nature of the medicines, surrounding this allegation, which caused me some concerns about its credibility, I am satisfied that this represented a protected disclosure, within the meaning of Section 5(3)(a) of the Act, because the Complainant believed that the health and safety of the customers was being endangered as a result of expired medicines.

I must now decide if the Complainant was dismissed because be made the aforementioned protected disclosure. In making this decision, I note that the Labour Court held in the matter of Aidan & Henrietta McGrath Partnership & Anna Monaghan (PDD162);

“… the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”  

The Respondent highlighted that the Complainant was dismissed because there had been ongoing issues with his performance since he began his employment, as outlined in the summary of the respondent’s case above, prior to him having made a protected disclosure. Crucially, this was accepted by the Complainant, who in his own written submission stated that, on 20 August 2020, less than three weeks after starting employment, he “was called to a meeting where a number of concerns and issues were raised. The purpose of this meeting was to discuss my performance till(sic) date and to ensure that I understood the role as per the job description and the expectations from the manager and management team in terms of my performance”. In addition, the Complainant stated in his submission that the Regional Manager called a further meeting with him on 26 August along with the Managing Pharmacist and the HR Rep to discuss “the multitude of issues arising at that point”.

As previously stated, it is for the Complainant to show that he was dismissed because be made a protected disclosure. I find however, based on his own written submissions outlined above, and on the compelling evidence of the Respondent’s witness, who I found to be more credible than the Complainant, that he was on prior notice of ongoing difficulties with his performance and that he was dismissed as a result of these issues and not because he had made a protected disclosure.

FINDINGS

CA-00039639-002:

Discrimination

Discrimination in accordance with the Acts is set out in section 6 and states:

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to 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 ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”),

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

Findings

Given that the Complainant claims to have been discriminated against on grounds of his nationality, there are essentially two fundamental questions which must be answered before a complaint of direct discrimination can be successful. Firstly, I must be satisfied that the Complainant was treated differently, and less favourably, than another person in comparable circumstances is, was or would be treated. This is often referred to as “the less favourable treatment” question and involves consideration of the treatment afforded in similar circumstances to a comparator. Secondly, I must be satisfied that the treatment complained of was on one of the proscribed grounds referred to at s.6 of the Act above, in this case nationality at s 6 (2) (h). This is often referred to as “the reason why” question. The answer to both questions must be found in the evidence adduced by the parties and by the application of s.85A of the Act, cited above, which allocates the probative burden as between the Complainant and the Respondent. The use of a comparator in equality law is, essentially, an evidential tool designed to answer the “less favourable treatment” question. If the Complainant shows that the treatment which he or she was afforded was less favourable than that afforded to a comparator whose circumstances are similar, other than in respect to a protected characteristic, the first question is resolved in his or her favour. I must then proceed to consider if the alleged treatment was on one of the proscribed grounds. This means that a reason for the less favourable treatment must be the protected characteristic relied upon, such as the Complainant’s race, disability gender, etc. I note firstly that although section 85A of the Act provides that it is for the Complainant to establish the primary facts upon which his complaint is based, he did not present a comparator. The requirement of this section is that the Complainant adduce some credible evidence from which it might be inferred that he was afforded the treatment complained of because he is of Indian nationality. An analysis can, however, only be undertaken on presentation of a comparator and it is for the Complainant to present such evidence.

As the Labour Court has stated in Arturs Valpeters v Melbury Developments[2010] EDA 0917, mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Given the absence of a comparator, I cannot engage in speculation as to how a person of a different nationality to the Complainant would have been treated in a comparable situation.

The responsibility to establish a prima facie case of discrimination rests on the Complainant and given that he has failed to discharge this, I find that he was not discriminated against.

CA-00039639-001: I find that the Complainant was not unfairly dismissed for the reasons set out above.

CA-00039639-002: I find that the Complainant was not discriminated against for the reasons set out above.

NOTE: Given the sensitivity of the protected disclosure and my concerns about the  credibility of the Complainant’s evidence, I exercised my discretion and decided to anonymise the identities of the parties, having reached my final decision, out of concern for any fears that its customers would have for the safety of any products purchased from the Respondent.