Complainant

Respondent

Parties

Melissa  Angarita Cardenas

Seda College

Representatives

Complainant’s sister

Jason Murphy BL instructed by M.P. Moloney Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034130-001

02/02/2020

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

CA-00034130-002

02/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00034130-003

02/02/2020

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

CA-00034130-005

02/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00034130-006

02/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00034794-002

23/02/2020

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

CA-00034794-003

23/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034794-004

23/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039813-001

14/09/2020

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

CA-00039813-002

14/09/2020

The Complainant worked in a number of roles with the Respondent, an English language college, from 3 October 2016 until she resigned on 21 July 2021.   She has submitted ten complaints to the WRC on three separate complaint referral forms on three separate dates.  Accordingly, her complaints fall within different cognisable periods.

Preliminary Issue

The Complainant’s complaint referral form in respect of this complaint was received by the WRC on 2 February 2020.  In accordance with Section 41 (6) of the Workplace Relations Act 2018, the period that can be taken into account (the cognisable period) in relation to this complaint is six months from the date the complaint was submitted to the WRC which gives a cognisable period from 3 August 2019 to 2 February 2020.

The Complainant is seeking to extend the cognisable period to twelve months from 3 February 2019 until 2 February 2020 on the grounds that she is not a native English speaker, this was her first job in Ireland and she was not aware of the time limits in relation to complaints to the WRC.   

Substantive Issue

The Complainant submits as follows:

On 3 October 2016, the Complainant started working in marketing and student support in the marketing department of the Respondent organisation on a part-time contract.  The contract provided that the Complainant’s rate of commission was 10% of sales. However, on 21 of November 2018, when the Complainant requested payment of commission in respect of her 2016 sales, the Finance Director, Saiful Islam, and the CEO, Tiago Mascarenhas, said that her contract was incorrect and that her rate of commission was not 10% of sales. The Finance Director alleged that it was not his signature on the Complainant’s contract of employment.  The Complainant submits that she did not receive her commission of 10% after waiting for 2 years.

On 11 September 2018, the Complainant started working as a receptionist. Her promotion was conditional on her continuing to work in the Latin American marketing department. On 26 November 2018, she received a copy of her new contract. At a meeting on 13 of December 2018, her line manager changed her commission rate from 10% of sales to €100 euro for course renewals and €150 for new courses.  The Complainant was told that if she did not accept the change in her rate of commission, the Respondent would only pay commission on new courses and would not pay any commission on renewals.

The Complainant received the first cheque in payment of her sales commission after over two years. The Complainant sent an email to the CEO and the Finance Director confirming that she had received €2,000 on 31 January 2019; €2,433 on 4 March 2019 and €1,100 on 16 April 2019.   The Complaint contends that she is entitled to payment of commission of €5,599 in the respect of the six month period from 3 August 2019 until 2 February 2020.

Preliminary Issue

The Respondent opposes the Complainant’s application for an extension of time and disputes the reasons put forward by the Complainant.

Substantive Issue

The Complainant commenced her employment with the Respondent under a contract of employment on 16 November 2016. Her position was in the Department of Marketing and Student Support. It was a part time contract of employment of 20 hours per week.  In 2018 the Complainant applied for, and was granted, a full-time contract of employment to work as a receptionist.  As a result, the Complainant's salary increased to €21,000 per annum.

The Complainant was given the opportunity to generate sales for the Respondent on a commission-based arrangement. The commission-based arrangement was on the basis of a 10% commission for direct sales on any course sales procured by the Complainant from Latin America. The Complainant was authorised to sell courses and receive commission from Spanish speaking Latin American and South American countries which had not been allocated to other marketing team members. Essentially, the Complainant was tasked with selling English language courses to students from Columbia, Panama and Chile.  Other countries such as Brazil, Mexico and Bolivia were not covered by this commission arrangement because the Respondent already had marketing team members to deal with them.

The Complainant signed a contract of employment in May 2019 for the position of administrative assistant in the marketing department. Prior to signing the contract, she received payments of commission for January, February and March 2019.

Concerns arose for the Respondent from May-September 2019 when it became evident that the Complainant was not only seeking commission on her direct sales but was also seeking commission for students who had sought to renew their courses at reception and had not been persuaded to do so by the Complainant.  The Respondent asserts that this was outside the terms of the commission arrangement in place for the Complainant which was for new sales or renewals that she had procured in her own right. In addition, the Complainant sought commission for the renewal of a course by a student from Bolivia, a geographical area assigned to another marketing executive.

The Respondent denies the claim as set out by the Complainant.   The Respondent asserts that the Complainant did  not submit a claim in writing for commissions or a calculation of her commissions until November 2018.  These payments were part paid in January 2019. The balance was paid in March 2019. The Complainant further submitted claims on a monthly basis in 2019 up to and including December 2019 and was paid intermittently.  The Respondent submits that the Complainant has been paid in full.

Preliminary Issue

The first matter I must decide is if reasonable cause has been shown to empower me to extend the cognisable period (i.e. the length of time that can be taken into account) for this complaint as requested by the Complainant.  In making my decision, I must take account of both the relevant legislation and the legal precedent (e.g. Labour Court determinations) in this area. The Complainant has requested that the cognisable period be extended to cover the twelve months from 3 February 2019 until 2 February 2020.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and give a reason for the delay.

The Complainant attributed the delay in submitting a complaint to the WRC to a number of factors including to that fact that English is not her first language, this was her first job in Ireland and she was not aware what to do if she believed that her employment rights had been breached.   

However, I note that, in relation to another one of her complaints, the Complainant told the hearing that she had contacted Citizens Information for advice.  I am, therefore, of the view that the Complainant was well able to source whatever information she needed to enable her to submit a complaint to the WRC.

Accordingly, I find that no reasonable cause was shown to empower me to extend the cognisable period in relation to this case and, therefore, I find that the cognisable period is the six month period from 3 August 2019 until 2 February 2020.

Substantive Issue

Section 1(1) of the Payment of Wages Act 1991 provides the following definition of wages.

““wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, …”

The Complaint has submitted that she is entitled to payment of commission of €5,599 in the respect of the six month period from 3 August 2019 until 2 February 2020 – the cognisable period of this complaint per my findings above in relation to the preliminary issue.   The Complainant provided credible calculations of the outstanding commission that was due to her.

The Complainant’s assertion is disputed by the Respondent.  At the hearing on 13 June 2022, the Respondent submitted a spreadsheet which purported to show the amount of commission due to the Complainant and the dates on which it was paid.  In my opinion, which I shared with the Respondent at the hearing, this spreadsheet is a complete work of fiction.  Amongst the errors that are apparent from even the most cursory appraisal are the following: (i) the spreadsheet shows entries in relation to the years 1900, 1902 and 1904; (ii) there is no consistency between the column headings and the data contained within the columns; and (iii) there are handwritten entries on the spreadsheets.

In the absence of any credible evidence from the Respondent, I find in favour of the Complainant.

I wish to confirm that, as explained to the parties are the hearing, matters relating to taxation do not fall within my remit. 

I find that this complaint is well founded and I direct the Respondent to pay the Complainant the sum of €5,599.

The Complainant submits as follows:

On 5 December 2019, the HR Director emailed the Complainant indicating that she had a private agreement with her line manager to work non-paid extra hours after her work at the reception was finished.  The Complainant submits that this is not correct.  The Complainant submits that her line manager had verbally required her to work extra hours in the office after working at reception, which she did not agree to as she was already working 8 hours per day. However, the Complainant was required to answer students and staff queries after office hours (8.30 am – 4.30 pm) without any prior notice.

The Respondent submits that this complaint is unclear and it is not clear as to the date on which the Complainant alleges she was asked to work additional hours. It is denied that the Complainant was asked to work any extra hours.

Section 17(2) of the Organisation of Working Time Act 1997, provides as follows in relation to working time:

“If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.”

The Complainant submitted credible evidence to show that she was required to work additional hours on behalf of the Respondent to deal with staff and student queries outside of her normal scheduled hours without prior notification. In the absence of any evidence from the Respondent, I find that this case is well founded.

I find that this complaint is well founded and I direct the Respondent to pay the Complainant compensation of €1,000.

The Complainant submits as follows in relation to events which occurred within the cognisable period as determined above:

The Complainant asserts that on 26 September 2019, her Line Manager, Ricardo Tello, contacted her to tell her that a new employee would take on her duties from 30 September 2019. The Complainant submits that she did not receive any prior notice of this decision nor was she given any reason for it.

The Complainant submits that her contract had already been updated by Stephen Murphy, HR to show that she worked in both reception and the marketing department.   The Complainant submits that the unilateral change to her terms and conditions resulted in a loss of commission payments.  

The Respondent submits that there was no change to the Complainant’s terms and conditions. The changes reflected the already agreed terms of the commission-based arrangement by letter of the 17 April 2019. The Respondent submits that the Complainant executed her consent to this arrangement on the face of the document.

Pursuant to section 5(1) of the Terms of Employment (Information) Act, 1994, an employer is required to notify the employee of the nature and the date of the change of the particulars of the employee’s terms of employment within one month of the change taking effect.

A change in terms and conditions of employment must be agreed in advance between the parties and cannot simply be unilaterally imposed by one side on the other without due discussion and agreement. Furthermore, any such changes must be clearly set out in writing.

The absence of due notice setting out clearly the nature of any changes in the terms and conditions of employment within the obligatory period is a major omission on the part of the Respondent.  I, therefore, find this claim to be well founded.

I find the complaint to be well founded. I order the Respondent pay the Complainant the sum of €1,750 in compensation for a breach of the Act which equates to approximately four weeks gross pay, the maximum award payable.

The Complainant submits as follows:

On the 26 September 2019, the Complainant’s Line Manager, Ricardo Tello informed her that from 30 September 2019 only fours days later, she was no longer part of the Latin American marketing department.  The Complainant submits that her Line Manager removed her from the Latin American marketing department to hire a new employee from Venezuela who was the same nationality as he was and who, according to her LinkedIn profile, had no previous experience in marketing and sales.  The Complainant submits that this decision had a drastic impact on her salary as she would lose the half of her income which was generated through commission.

On 29 September 2019, the Complainant sent an email to her Line Manager to let him know that she objected to him notifying her of her removal from the Latin American marketing department by WhatsApp.  She pointed out that she had been working in a loyal and professional manner at SEDA College for almost three years at that time and during that period, no issues had been raised about her performance.  Furthermore, she had not been subjected to any disciplinary procedures by the Respondent. The Complainant requested a formal meeting to clarify the situation.

On 1 October 2019, her Line Manager, Ricardo Tello, replied to her saying that it was not his priority to explain his decisions. The Complainant alleges that he threatened her that if she did not want to work anymore she did not have to worry about it as someone else would do it.

The Complainant contends that her Line Manager never set any clear goals for her as a Marketing Agent; there was no follow up in regard to her performance; and, no training or support was ever provided to her.   The Complainant submits that every Friday she had to send an email to the Treasurer confirming her sales, which the Treasure then reported to the CEO, the Finance Director and her Line Manager. The Complainant submits that she had never received feedback from any of them.

The Complainant submits that her Line Manager removed her from the Marketing Department and hired a new employee of the same nationality as him in her place without giving her any opportunity to improve her performance or to make representations.

As her Line Manager denied her an opportunity to resolve the matter, on 7 October 2019, the Complainant decided to send an email to the HR Director, Stephen Murphy, the CEO, Tiago Mascarenhas, the Finance Director, Saiful Islam and the Finance Assistant. In this email, she explained what had happened and mentioned that her salary will be drastically affected by her Line Manager’s decision as she would no longer be able to earn commission on sales.  

The Complainant did not get any reply until 22 November 2019, when the HR Director, Stephen Murphy, asked her to resend the complaint email to him.  On 26 November 2019, she had the first meeting with the HR Director.  During this meeting, she mentioned that her responsibilities and duties were less every day.   The Complainant presented Mr Murphy with some emails which showed that she had achieved targets every month so there was no reason for her removal. 

The Complainant submits that since she made her complaint to her managers for being unfairly removed from the Latin American marketing department, the unfair treatment increased on a daily basis thereby creating a hostile, degrading and offensive environment for her which she believed was an attempt by SEDA College to force her to quit her job.

Victimisation

The Complainant submitted a list of acts of victimisation which she alleges occurred since she made her first complainant on 29 September to her Line Manager and on 7 October 2019 to the HR Director,  the CEO and the Finance Director for being unfairly removed from the Latin American Department.  According to the Complainant’s submission, these alleged acts of victimisation occurred between 4 November 2019 and 30 January 2020.

Discrimination on the grounds of age and gender

The Complainant feels that her employer would not have treated her in the same way if she were a man and that they also took advantage of her young age and her lack of working experience by constantly changing her working conditions as they pleased.

The Respondent submits as follows:

This complaint is not clear and the basis for the discrimination and/or comparator is not clear such that the Respondent is not in a position to deal with this claim.

The Respondent submits that the Complainant is relying on the same set of facts as those she submitted in support of her claim under the Terms of Employment (Information) Act above.

The Respondent submits that the Complainant has not established a prima facie case of discrimination and the burden of proof has not shifted to the Respondent. 

This complaint was submitted on 2 February 2020 and, therefore, the cognisable period is from 3 August 2019  to 2 February 2020.  Accordingly, my jurisdiction is limited to events which occurred during that period.

The first matter for me to address is the Respondent’s contention that the same set of facts have been used by the Complainant to ground both this complaint and the complaint under the Terms of Employment (Information) Act above.  I am of the view that the complaint under the Terms of Employment (Information) Act concerns an alleged deficiency in the manner in which a change in the Complainant’s terms and conditions was communicated to her.  The Complaint under the Employment Equality, however, concerns the Complainant’s assertion that a change in her role occurred for discriminatory reasons.  I am of the view that, contrary to the Respondent’s assertion, the same set of fact do not ground the two complaints.  Accordingly, I am of the view that I have the jurisdiction to hear both complaints.

The Complainant has submitted complaints of discrimination on the grounds of race, age and gender. 

I will investigate each complaint in turn.  Before I do so, I will set out a brief explanation of the burden of proof applicable to complaints made pursuant to the provisions of the Employment Equality Acts.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“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.”

There are two components to a valid prima facie case.  The first component of a valid prima facie case is the requirement to identify a comparator who received more favourable treatment than the Complainant did.  I will deal with the issue of a comparator separately in relation to each complaint.

The second component of a valid prima facie case is that the Complainant is required to establish the facts from which less favourable treatment could be inferred.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. 

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:

 “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”.

Further, in Determination EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows:-

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires 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. Section 85A 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.

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

Discrimination on the race ground

The issue for decision with regard to the herein compliant is whether or not, the Respondent discriminated against the Complainant on the race ground in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. 

I must, therefore, assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination on the race ground has been established.

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different race who received more favourable treatment than she did.   This is specified in section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person 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)”, which includes the ground of race on which the complaint was brought.  Thus, the Complainant must be the subject of less favourable treatment in comparison to another person who is of a different race.

I find that the Complainant has identified Nilka Albomoz who is Venezuelan as a comparator who was in a “comparable situation” to the Complainant to serve as a valid comparator within the meaning of section 6(1) of the Acts.  It is clear from the evidence adduced by the Complainant that Ms Albomoz, who is the same nationality as the Line Manager, was hired to replace the Complainant when she was removed from her role in the Latin American marketing department with effect from 30 September 2019 even though Ms Albomoz had no previous experience in marketing and sales.  The Complainant has demonstrated that she was treated less favourably than Ms Albomoz had been when Ms Albomoz was in a “comparable situation” to the Complainant within the meaning of the Acts.  The only difference between the Complainant and Ms Albomoz was that Ms Albomoz was of a different race.

In normal circumstances, where a Complainant has established a prima facie case that discrimination took place due to her race, as is the situation here, the next step for me would be to decide whether the Respondent has adduced sufficient evidence to rebut the claim of discrimination.  However, as the Respondent has chosen not to adduce any evidence in relation to this complaint, the only conclusion open to me is that the Complainant has established a prima facie case of discrimination on the grounds of race which has not been rebutted by the Respondent.   I find, therefore, that this complaint is well founded.

In relation to the age and gender ground, I find that the Complainant did not adduce any evidence in respect of comparators to support her claim that she was treated less favourably than a person who is of a different age or gender is, has been or would be.  Accordingly, I find that the Complainant did not establish a prima facie case of discrimination of the grounds age or gender.  I find, therefore, that these complaints are not well founded.

Victimisation

Section 74(2) of the Employment Equality Acts, 1998-2015 defines victimisation as follows:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out.   It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

I must now decide if the Complainant was victimised for having committed an act that was protected by section 74(2) of the Employment Equality Acts.  In order to maintain a claim of victimisation within the meaning of the Employment Equality Acts, the Complainant must first show that she took one or more of the actions listed under section 74(2) of the Acts.  It is only when she shows that she took such an action, that she can then seek to establish a  connection between her actions and the adverse treatment complained of.

From the evidence adduced by the Complainant, it is clear that she made a complaint of unfair treatment to the Respondent by email dated 7 October 2019.  Section 74(2)(a) of the Acts is very specific.  In order to come within the protections of the section, the Complainant is required to have made a complaint of discrimination.   I find that, while the Complainant did make a complaint of unfair treatment to the Respondent she did not make a complaint of discrimination and, therefore, is not covered by section 74(2)(a). 

Section 74(2)(b) relates to adverse treatment which occurs in reaction to proceedings initiated by the Complainant.  The Complainant submitted her complaint form to the WRC on 2 February 2020.  The adverse treatment she complains of occurred on dates between 4 November 2019 and 27 January 2020.  Given that the alleged adverse treatment complained of occurred prior to the submission of the Complainant’s complaint form to the WRC, I must find that there is no causal connection between the submission of the complaint form and the alleged adverse treatment.

Based on the evidence adduced, I am of the view that the Complainant does not come within the protections of remaining sub clauses of section 74(2).  I find, therefore, that this complaint of victimisation is not well founded.

In addition to her complaints of discrimination and victimisation, the Complainant submitted that she was discriminated against during the cognisable period in her conditions of employment.  The Complaint did not adduce any evidence to support these complaints.

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that:

·       The Complainant has established a prima facie case of discrimination on the ground of race within the meaning of the Acts which has not been rebutted by the Respondent.  I find that this complaint is well founded and I direct the Respondent to pay the Complainant the sum of €10,000.

·       The Complainant has not established a prima facie case of discrimination on the grounds of age or gender within the meaning of the Acts.  I find, therefore, that these complaints are not well founded.

·       The Complainant as failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts. I find, therefore, that this complaint is not well founded.

·       The Complainant has failed to establish a prima facie case of discrimination in her conditions of employment.  I find, therefore, that this complaint is not well founded.

The Complainant submits as follows:

The Complainant submits that her permanent colleague, Fernanda Moraes, covered for her at reception during her daily breaks, sick leave and holidays, as they both performed similar tasks in the Respondent organisation.  The Complainant asserts that on 6 April 2020 she was placed on lay off by the Respondent but the rest of her colleagues, including Ms Moraes, were still working from home.  The Complainant submits that she was treated less favourably than her permanent colleague.

The Complainant submits that since she started working for the Respondent, she was not provided with any training that would enable her to progress in her career with the Respondent organisation contrary to the provisions of section 10(3) of the Protection of Employees (Fixed-Term Work) Act 2003. 

The Complainant submits that, in December 2019, a Finance Assistant position became available in the Respondent organisation but the Respondent did not inform her of the vacancy contrary to section 10 (1) of the Protection of Employees (Fixed-Term Work) Act 2003 which requires an employer to inform a fixed-term employee of any vacancies that become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

The Complainant submits that on 3 October 2020, she completed 4 years of continuous employment at SEDA College bit she did not receive any notification or intention from SEDA College to update her contract of employment to a permanent position even though she remained as a SEDA College employee until the 30th of July 2021 contrary to section 9 of the Protection of Employees (Fixed-Term Work) Act 2003.

The Respondent submits as follows:

The Respondent submits that Ms Moraes is not a valid comparator as she was on a fixed term contract during the cognisable period of this complaint.  Furthermore, the Respondent asserts that Ms Moraes is not a valid comparator as she was responsible for academic affairs within the Respondent organisation whereas the Complainant was a receptionist. 

The Respondent submits that the Finance Assistant vacancy was advertised on jobs.ie and that the Complainant could have applied for it.  The Respondent further submits that the Complainant does not have the requisite qualifications for the vacancy.

The first matter for me to decide is if I have jurisdiction to hear this complainant.  As explained earlier in this decision, the cognisable period for this complaint is 3 August 2019 until 2 February 2020. Therefore, I find that I have no jurisdiction to hear the Complainant’s claim concerning the completion of 4 years of continuous employment on 3 October 2020 and her submission that her contract should be updated to a permanent position as it is outside of the cognisable period.

Accordingly, I find that the elements of this complaint which fall within my jurisdiction are the Complainant’s submission that she was treated less favourably than her permanent colleague; that she was not informed of a permanent vacancy within the Respondent organisation; and, that she was not provided with any training contrary to section 10 of the Protection of Employees (Fixed-Term Work) Act 2003 to enable her to take up this opportunity.

I note the Respondent’s submission that the nominated comparator, Ms Moraes, was employed under a fixed term contract during the cognisable period of this complaint.  The Complainant has not adduced any evidence to the contrary.  Accordingly, I find that Ms Moraes is not a valid comparator for the purpose of this complaint and, therefore, I find that this element of the complaint is not well founded.

Section 10 of the Act makes provision in relation to information on employment and training opportunities as follows:

“(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.”

I note the Respondent’s assertion that the Financial Assistant vacancy was advertised on the internet and that this was sufficient to meet the requirements of section 10(1).  In making my decision on the adequacy of the Respondent’s position I am guided by the findings in Scoil Iosagain v Henderson FTD 5/2005 (reported at [2005] E.L.R. 271), where the Labour Court held that this section required that information on relevant vacancies “be imparted personally to fixed-term employees or that a notice be placed in the workplace”.   Following the dicta of the Labour Court, I find that simply posting the job vacancy on the internet without any communication with the Complainant did not meet the requirements of the Act.  Accordingly, I find that this element of the complaint is well founded.

As the Respondent did not adduce any evidence to counter the complaint concerning the absence of training opportunities, I find that this element of the complaint is also well founded.

I find that the complaint is well founded in part and I require the Respondent to pay to the Complainant compensation of €2,000 which I consider just and equitable having regard to all of the circumstances.

The Complainant submits as follows:

The Complainant submits that, after invoking her rights under the Terms of Employment (Information) Act, 1994, by submitting a complaint to the WRC, the Respondent penalised her in contravention of Section 6C of the Terms of Employment (Information) Act, 1994 which provides that an employee may not be penalised for exercising a right under the Act. 

On 12 February 2020, the Complainant came back to her workplace after a period of sick leave and received an email from Stephen Murphy, HR Director at 19:29 notifying her that she was suspended from work due to a very serious action pending the outcome of an investigation.

The reasons for her suspension were:

•      During the Complainant’s absence on sick leave, despite numerous attempts to contact her, the Respondent was unable to access her email. The Respondent requested the Complainant’s login and access details for the business email address and Apprentysis system via email, WhatsApp messages and phone calls but the Complainant did not reply. This caused significant disruption.

•      The Complainant  attended work on 12 February 2020 and proceeded to complete tasks that were not related to her employment.

•      The Complainant  printed and attempted to remove sensitive company information exposing the Respondent to the loss of this information.

•      The Complainant’s actions exposed the Respondent to a potential breach of its data protection and GDPR obligations which could potentially result in financial loss, costs and reputational damage.

•      The Complainant  was requested to attend a meeting with the Director of Studies, Jane Langley at 16.10. The Complainant  refused. The Complainant  attended at 16.40 after her employment ended and insisted that no matter could be discussed with her outside of her working hours.

The Complainant submits that she was willing to participate in an investigation hearing. Also, she sought clarification as to why she was being accused of completing tasks that were not related to her employment when there are no duties specified in her contract.  Furthermore, she provided proof to the Respondent that her colleagues had access to the IT systems during her sick leave.  She also confirmed that she did not remove, nor did she intend to remove, any sensitive data from the Respondent organisation.

The Complainant contends that her reputation in the Respondent organisation has been damaged, as, prior to the difficulties she experienced, she was recognised for her performance and was offered various promotions and additional responsibilities within the Respondent organisation.

The Respondent submits as follows:

The basis for this claim of penalisation under the Terms of Employment (Information) Act 1994 is not clear in circumstances where no protected act has been taken by the Complainant for the purpose of the 1994 Act and no penalisation of the Complainant has taken place.

Section 6C of the Terms of Employment (Information) Act 1994 provides protection against penalisation.

Section 6C(1) of the Act provides that “An employer shall not penalise or threaten penalisation of a employee for —

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

Section 6C(5) of the Act defines penalisation in the following manner:

In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

I note the Respondent’s contention that the Complainant did not invoke any right conferred on her by the Act.  I am of the view that this contention is misplaced as it is clear from elsewhere in this decision that the Complainant took a claim against the Respondent under section 5 of the Act and, therefore, falls within the protections of section 6C.

I note that the Complainant returned from sick leave on 12 March 2020 and was suspended from work on the same day. During the Complainant’s absence from her workplace, the WRC notified the Respondent of six complaints, including a complaint under the Terms of Employment (Information) Act, 1994.  The Complainant has suggested that there was a causal connection between her submission of a complaint to the WRC and her suspension.  The Respondent has not adduced any evidence to counter the Complainant’s position.  Accordingly, I find that this complaint is well founded.

I find this complaint to be well founded. I order the Respondent pay the Complainant the sum of €1,750 in compensation for breaches of the Act which equates to approximately four weeks gross pay, the maximum award payable.

The Complainant submits as follows:

On 7 February 2020, the Complainant received a letter from the WRC confirming that her complaint referral form had been received and that a copy of her complaint referral form had been sent to the Respondent.  The Complainant submits that after SEDA College was notified about her complaints to the WRC, she was repeatedly victimised contrary to section 74(2) of the Employment Equality Acts.

On 12 February 2020, when the Complainant returned to SEDA College after her sick leave, her email account had been blocked and it remained blocked until she left the Respondent organisation.  The Complainant submits that this was a way for the Respondent to obstruct her case to the WRC.  The Complainant submits that the Respondent’s actions impacted negatively on her ability to prepare for her WRC hearing.

The Complainant submits that on 12 February 2020, the HR Director mentioned to her that he had notified her via email that she was required to attend a meeting with him, the Quality Enhancement Director, Paul Brown and the Director of Studies, Jane Langley on 18 February 2020 to discuss the disruption caused by her absence.

On the same day at around 15.30  while she was alone at the reception desk, the HR Director, Stephen Murphy and the CEO, Tiago Mascarenhas approached her when she had finished printing some documents and had put them in her personal bag, as she did not have a locker at her workplace.  The Complainant submits that they both approached her in a very intimidating and threatening manner.  The CEO stood very close to her, blocking her only exit.  The HR Director asked her if she had printed documentation that belonged to the Respondent.  The Complainant replied that she was printing documentation for the meeting on 18 February 2020 which would assist her in responding to the allegations against her and that she would be able to prove that no disruption was caused during her sick leave because her colleagues and other departments had the same access to the IT system and shared data as she had.

The Complainant submits that the HR Director informed her in a hostile manner that she was not allowed to print any data from the Respondent organisation and remove it from the building.  The Complainant submits that she was not given an opportunity to explain herself.  She tried to tell them that she always printed emails in the past and that she was never told not to do so.  She also tried to explain that it was never her intention to remove any data from the Respondent organisation, but again, they did not listen to her.   The Complainant also submits that the HR Director and the CEO threatened her saying that she would be penalised as she was committing a crime under GDPR legislation.

The Complainant submits that she asked the HR Director if he could send her an email with all the information that he had told her about data protection and how she could be penalised.   The CEO responded to say that the HR Director did not have to send any such email and she should speak to her legal advisor about the matter.

The  CEO then pointed to her personal bag and said that the envelope that she had in her personal bag belonged to SEDA.  He made her take the envelope from her bag and open it to see what documents were inside.  The Complainant felt that they had been spying on her because as soon as she had printed the emails and put them in her bag, the CEO and HR Director came down to reception to ask her to hand over the envelope.

The Complainant submits that she asked the CEO and HR Director to return the documents to her so that she could use them as evidence for her complaint to the WRC but the CEO and the HR Director refused to do so.

The Complainant submits that at 16.15, while she was attending to students at the reception, the Director of Studies approached her to say that the HR Director and the CEO had asked her to bring the Complainant to a meeting with them.   The Complainant asked the Director of Studies for the reason for the meeting but the Director of Studies responded that she did not know.  The Complainant informed the Director of Studies that if the HR Director and the CEO wished to have a formal meeting with her, they should have sent her an email putting her on notice of the meeting.  The Complainant submits that the Director of Studies told her that she could not refuse to go to the meeting as the CEO and Director of HR were her superiors.

The Complainant submits that she politely asked the Director of Studies to give her a few minutes because she needed to make a few phone calls.  She first called her husband and then called Citizens Information to get advice from them.  According to the Complainant, Citizens information informed her that if the meeting was after work, she did not have to attend. Also, if it was a formal meeting, she should receive prior notice from the Respondent to inform her what that meeting was about.  The Complainant submits that the Director of Studies stood beside her while she made the phone calls, continuously urging her go to the meeting.   The Complainant submits that she asked the Director of Studies for privacy to make the phone calls, after which she would go to the meeting.  Because the Director of Studies did not give her any privacy to make the phone calls, the Complainant had to go outside the building to speak with Citizens Information.  The Complainant submits that, even while she was outside the building, the HR Director stood at the front door to check where she was.  Finally, she went to the meeting at 16.35. 

The Complainant submits that she asked the HR Director if the meeting was formal or informal. When he responded that it was a formal meeting, she mentioned to the HR Director that in that case, he would need to send her an email informing her what the meeting was about so that she would have an opportunity to prepare for it. The Complainant informed the HR Director that she was not able to attend the meeting at that time as she had other commitments after work. In response, the HR Director informed her that he had already written an email. In fact, she received an email at 17:17 notifying her that she was suspended from work.   The Complainant submits that the actions of the HR Director confirm that the Respondent had already made the decision to suspend her regardless of her explanation during that scheduled meeting.

The Complainant submits that all the above events which occurred on the day she came back from her sick leave, were extremely stressful and made her feel very intimidated by senior management of the Respondent organisation. 

The Respondent submits as follows:

The Respondent submits that it was entitled to investigate the sending of information, in particular sensitive data for the purpose of the Data Protection Act and GDPR and/or printing of same by the Complainant. The Complainant was suspended with pay and there was no detriment as alleged.

The Respondent submits that it is also not clear, what if any, protected act the Complainant alleges she took as is necessary to ground a claim of victimisation for the purposes of s. 74(2) of the Acts.

Victimisation

Section 74(2) of the Employment Equality Acts, 1998-2015 defines victimisation as follows:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out.   It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

I must now decide if the Complainant was victimised for having committed an act that was protected by section 74(2) of the Employment Equality Acts.  In order to maintain a claim of victimisation within the meaning of the Employment Equality Acts, the Complainant must first show that she took one or more of the actions listed under section 74(2) of the Acts.  It is only when she shows that she took such an action, that she can then seek to establish a  connection between her actions and the adverse treatment complained of.

From the evidence adduced by the Complainant, it is clear that she submitted a complaint to the WRC of discrimination by the Respondent on a number of grounds contrary to the provisions of the Employment Equality Act.  Section 74(2)(b) of the Acts relates to adverse treatment which occurs in reaction to proceedings by an employee.  The Complainant submitted her complaint form to the WRC on 2 February 2020 and the Respondent was notified of the complaint by the WRC while the Complainant was on sick leave.  I find that, by making a complaint of discrimination against the Respondent to the WRC, the Complainant comes within the ambit of section 74(2)(a). 

The Complainant submits that she was subjected to adverse treatment by the Respondent which left her feeling stressed and intimidated because she had submitted a complaint of discrimination to the WRC.

In the absence of any persuasive evidence from the Respondent, is not possible for me to determine if there was another reason for the adverse treatment other than the reason proposed by the Complainant.  Accordingly, I find that there is a causal connection between the submission of the complaint referral form to the WRC by the Complainant and the alleged adverse treatment.

In Dublin City Council v McCarthy EDA 2/2002, the Labour Court agreed with the view expressed by the Equality Officer that “the victimisation of a person for having in good faith taken a claim under the equality legislation is very serious as it could have the impact of undermining the effectiveness of the legislation and is completely unacceptable”. The Court has also been confirmed in A Female Teacher v Board of Management of a Secondary School DEC-E2012-103 (reported at [2013] E.L.R. 16) that section 74 “not only protects those who make allegations [of discrimination] which are upheld; it also protects those who make allegations which are not upheld”.

I find that this complaint of victimisation is well founded and I direct the Respondent to pay the Complainant €20,000.

The Complainant submits as follows:

On 27 January 2020, the Complainant sent an email to the Finance Assistant indicating that she was due payment of €1,000 in commission as a result of the number of courses that she had sold in January 2020.  However, the Complainant did not receive any commission payment in respect of her January 2020 sales.

This complaint is denied and there are no wages properly payable to the Complainant as alleged or at all for the purpose of section 5(6) of the Payment of Wages Act 1991.

The Respondent submits that the Complainant sought commission in excess of that to which she was entitled and no wages are properly payable to her.

Section 1(1) of the Payment of Wages Act 1991 provides the following definition of wages.

““wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, …”

The Complaint has submitted that she is entitled to payment of commission of €1,000 in the respect of sales that she made in January 2020.

The Complainant’s assertion is rejected by the Respondent.  As mentioned elsewhere in this decision, at the hearing on 13 June 2022, the Respondent submitted a spreadsheet which purported to show the amount of commission due to the Complainant and the dates on which it was paid.  In my opinion, which I shared with the Respondent at the hearing, this spreadsheet is a complete work of fiction.  Amongst the errors that are apparent from even the most cursory appraisal are the following: (i) the spreadsheet shows entries in relation to the years 1900, 1902 and 1904; (ii) there is no consistency between the column headings and the data contained within the columns; and (iii) there are handwritten entries on the spreadsheets.

In the absence of any credible evidence from the Respondent, I find in favour of the Complainant.

I find that this complaint is well founded and I direct the Respondent to pay the Complainant the sum of €1,000.

The Complainant submits as follows:

On 3 October 2016, the Complainant started working in marketing and student support in the Latin America marketing department on a part-time probationary contract which did not have a specific finish date.

On 11 September 2018, she started working as a receptionist while continuing to work in marketing and student support in the Latin American department. She was issued with a probationary contract for 8 months finishing on 8 March 2019. On 21 May 2020, she received her last contract, a fixed-term contract from 11 March 2019 to 7 March 2020.

The Complainant contends that her employment contract should have been renewed by 7 March 2020.  However, this was not done and she was left without a contract of employment until she resigned on 30 July 2021, a period of one year and four months.  The Complainant submits that the Respondent has not complied with its statutory obligation in this regard.

The Respondent submits that the Complainant was issued with her terms and conditions within two months of the commencement of her employment.  The Respondent submits that the Complainant was fully aware of her terms of employment and that any breach of the Act was merely a technical breach.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

The Complainant adduced evidence that she was without a current statement of her terms and conditions for the final 16 months of her employment with the Respondent after the expiry of her fixed term contract.  I note that the Respondent does not contest the Complainants’ submission in this regard but argues that it is merely a technical breach.

Frankly, I fail to see how the Complainant being left in a situation where she is not aware of the nature or duration of her contract can be viewed as a technical breach.

I find that the Complainant was not provided with a written statement of her terms and conditions of employment to cover the final 16 months of her employment with the Respondent when her previous fixed term contract had expired. In the circumstances, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

I find the complaint to be well founded. I order the Respondent pay the Complainant the sum of €1,750 in compensation for breaches of the Act which equates to approximately four weeks gross pay, the maximum award payable.

The Complainant submits as follows:

The Complainant submits that she was discriminated against on the race ground, that she was victimised and that she was subjected to discrimination in her conditions of employment.

The Complainant submits that on 2 March 2020, the HR Director, Stephen Murphy, invited her to a disciplinary hearing on 9 March with him, the CEO, Tiago Mascarenhas, and the Quality Standards Director, Paul Brown.

The Complainant submits that the purpose of the meeting  was supposed to be:

·       Printing and removing sensitive data from SEDA files containing personal data of students.

·       Transferring sensitive data from her SEDA email account to her personal email account for her own personal use.

·       Breaching company policy in relation to data protection which was deemed to be gross misconduct.

On 9 March 2022, the Complainant attended the disciplinary hearing with her brother-in-law. The Complainant contends that during the meeting, many of the Respondent’s questions related to information about her complaint to the WRC.

The Complainant submits that the Respondent created an aggressive and intimidating environment and that her brother-in- law was not allowed to speak at the beginning of the meeting. However, after her brother-in-law said that he was permitted to speak on the Complainant’s behalf in accordance the Respondent’s procedures, he was permitted to speak on my behalf.

The Complainant also submits that the CEO stated that he was seeking monetary compensation due to what he called a “very serious breach of company policy”. The CEO stated that SEDA would be looking for the return of all data removed and, if necessary, they would take legal steps to retrieve such data, up to and including an interlocutory injunction and would seek relief for such an injunction.   

The Complainant submits that the CEO then said, in a menacing and hostile manner,  that she should look for a solicitor because she was in very serious trouble and that the CEO would seek compensation that could be in the region of €20,000 to €30,000.

On 6 April 2020, the Complainant received a letter from the CEO informing her that her suspension from employment was lifted with immediate effect as the Respondent was not in a position to continue the disciplinary process as the management team was working from home due to the Covid-19 restrictions.  In the letter, the CEO mentioned that all administrative staff had been placed on lay off. However, on 28 April 2020, the CEO emailed SEDA staff confirming a number of the Respondent’s employees continued to work. 

The Complainant submits that on 8 July 2020 Nilka Albornoz (from Venezuela, reporting to Ricardo Tello a Venezuelan Manager) was selling courses, and on 23 July 2020 Valeria Moreira (from Brazil, and reporting to Tiago Mascarenhas a Brazilian CEO) was replying to emails regarding sales to students.  The Complainant submits that other members of staff were also working during the closure of the school. In response to the Respondent’s assertion that her skills were not required during lockdown, the Complainant submits that, as part of her reception duties, she was required to deal with student visas, insurance and payments.

In support of her complaint discrimination on the race ground, the Complainant submitted an email dated 28 April 2020 from the CEO, Tiago Mascarenhas in which he named a number of staff who continued to work during the Covid lockdown. 

The Complainant submits that even though her suspension had been lifted on 6 April 2020, she was subjected to less favourable treatment than her colleagues who were working from home selling courses to students while she had no access to her business email or the Respondent’s IT system.   The Complainant submits that this unfair treatment negatively affected her income as the unemployment payment she received from the State was much lower than her monthly salary.

The Respondent submits as follows:

The Complainant alleges that employees with less experience in the Respondent organisation were working from home and selling courses and she was not provided with the same opportunity.  The foregoing is denied.  All employees of the Respondent were placed on a period of layoff in March 2020 in circumstances where the Respondent was forced to close due to the Covid-19 pandemic.

The Respondent contends that the Complainant’s skills as a receptionist were not required while the workplace was closed due to Covid-19 and that it did not fully reopen until October 2021. 

This complaint was submitted on 14 September 2020 and, therefore, the cognisable period is the six month period from 15 March 2020 to 14 September 2020.  Accordingly, my jurisdiction is limited to events which occurred during that period.

The Complainant has submitted complaints of discrimination on the grounds of race, victimisation and discrimination in her conditions of employment.

I will investigate each complaint in turn.  As mentioned elsewhere in this decision, before I do so, I must first consider whether the Complainant has established a prima facie case pursuant to section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“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.”

Discrimination on the race ground

The issue for decision with regard to the herein compliant is whether or not, the Respondent discriminated against the Complainant on the race ground in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. 

I must, therefore, assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination on the race ground has been established.

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different race who received more favourable treatment than she did.   This is specified in section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person 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)”, which includes the ground of race on which the complaint was brought. 

Thus, the Complainant must be the subject of less favourable treatment in comparison to another person on grounds of race i.e. because she is Colombian.

I find that the Complainant has identified Nilka Albomoz who is Venezuelan and Valeria Moreira who is Brazilian as comparators who were in a “comparable situation” to the Complainant to serve as a valid comparators within the meaning of section 6(1) of the Acts. 

It is clear from the evidence adduced by the Complainant that Ms Albomoz and Ms Moreira who were the same nationality as members of senior management continued to work during lockdown, whereas the Complainant, who was of a different nationality did not.  The Complainant has demonstrated that she was treated less favourably than Ms Albomoz and Ms Moreira had been when they were in a “comparable situation” to the Complainant within the meaning of the Acts.  The only difference between the Complainant and the comparators was that the comparators were of a different race.

In normal circumstances, where a Complainant has established a prima facie case that discrimination took place due to her race, as is the situation here, the next step for me would be to decide whether the Respondent has adduced sufficient evidence to rebut the claim of discrimination.  However, as the Respondent has chosen not to adduce any evidence in relation to this complaint, the only conclusion open to me is that the Complainant has established a prima facie case of discrimination on the grounds of race which has not been rebutted by the Respondent.   I find, therefore, that this complaint is well founded.

Victimisation

The alleged act of victimisation occurred on 9 March 2020 and is, therefore, outside the cognisable period of this complaint which, as explained above, is the six month period from 15 March 2020 to 14 September 2020.

In addition to her complaints of discrimination and victimisation, the Complainant submitted that she was discriminated against during the cognisable period in her conditions of employment.  The Complaint contends that she was not given access to her work email or to the Respondent’s IT systems.  I find that the Complainant did not adduce any evidence in respect of comparators to support her claim.  Accordingly, I find that the Complainant did not establish a prima facie case of discrimination in her conditions of employment.  I find, therefore, that this complaint is not well founded.

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that:

·       The Complainant has established a prima facie case of discrimination on the ground of race within the meaning of the Acts which has not been rebutted by the Respondent.  I find that this complaint is well founded and I direct the Respondent to pay the Complainant the sum of €10,000.

·       The complainant of victimisation contrary to Section 74(2) of the Acts falls outside the cognisable period of this complainant. I find, therefore, that I do not have the jurisdiction to investigate this complaint.

·       The Complainant has not established a prima facie case of discrimination in her conditions of employment within the meaning of the Acts.  I find, therefore, that this complaint is not well founded.

Discrimination – Payment of Wages – Terms and Conditions – Fixed Term