ADJ-00031565

Complainant

Respondent

Parties

Cristina  Giurgiu

Awbeg Function Recreation Scheme ltd, amended on consent at hearing

Representatives

  Appeared In Person

Sharon Brookes BL instructed by  Brooks and Company Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00042013-001

16/01/2021

On January 16, 2021, the Complainant, a Romanian Administrator filed a complaint under the Equal Status Act 2000. On February 10, 2021, the WRC clarified that “Discrimination at work is covered by the Employment Equality Acts “and “Discrimination outside the workplace is covered by the Equal Status Acts “The Complainant was requested to clarify which legislation she wished to pursue her complaint under?

 On February 10, 2021, the complainant clarified that she was making a complaint under the Employment Equality Act, 1998, as she had been discriminated against by her employer on grounds of her race, in relation to her promotion and in relation to discriminatory dismissal, where the most recent date of discrimination was listed as December 1, 2020. The Complainant sought adjudication. The complaint was shared with the Respondent on 16 February 2021.

The Respondent informed the WRC that the Recreation scheme is a limited company run by volunteers for the sole reason of overseeing Community Employment, (CE) funded by the Dept of Social Protection and supplementary sponsorship.  The participants on the scheme are employed by various clubs and charities in the local community.

The Complainant worked as an administrator for the Respondent from 21 January 2020 to 22 January 2021. This date was amended at hearing from 15 October 2020 She worked 19.5 hrs per week in return for a gross pay of €225.50.

The Complainant submitted that as a Romanian, she had been discriminated against on race grounds from 17 June 2020 to the most recent date of discrimination cited as December 1, 2020, she submitted that she had also been discriminated against in terms of promotion, training, conditions of employment and discriminatory dismissal.

While this was her employer in strict legal terms, she was a participant of a CE scheme, funded by DSP, Department of Social Protection and based at Ballyhoura Development CLG, a community led initiative.

Ms M and Ms N co ordinated her employment for the Respondent.

The Complainant submitted that she based in the Ballyhoura premises as one of 4 workers spread across 3 CE schemes., Rural Social Scheme (RSS, Ms A and Ms B) and Tus (the comparator), Ms C.

The Ballyhoura enterprise was led by a Corporate Manager and Supervisor, Ms X, neither of whom were present at hearing.

The Complainant outlined that the terms of the CE scheme had changed to enable participants aged 21-55 years old, avail of one year on the programme, with scope on approval by the Department by up to 2 more years, if the candidate is working towards a major award /industry equivalent to support their progression.

The Complainant inserted an extract from the Minister for Dept of Social Protection in her complaint form but did not expand on this detail at hearing.

I find it fair to the Complainant to insert this attributed quote. Unfortunately, she has not identified the source or dateline of this quote. I had cause to return to this post hearing to seek clarification.

“Deputy Heather said

In general, the period of participation on community employment is for one year. However, CE participants who are working towards a major award or industry qualification can seek to extend participation for up to a further two years. During the current covid 19 emergencies, my Dept continued to provide the necessary funding for CE schemes while also introducing a number of contingency measures. These measures included the extension of all existing community employment participant contracts for the duration of the emergency …….”

The complainant outlined and expressed a dissatisfaction that her supervisor, Ms M had not sought to extend her contract to demonstrate her “equality between me and other employees “

The complainant submitted that she had been discriminated against on grounds of her race and treated less favourably than Ms C.

She had been denied an Investigation under the grievance procedure and report on her area of dissatisfaction and sought an outcome of an application of an extension of 2 years on her position.

The Complainant also outlined making another complaint to Bally houra as Ms X had sent her home, while allowing her comparator to remain in the office. The Complainant contended that the discrimination had commenced on the return of another worker from maternity leave, causing her to be displaced.

Evidence under affirmation:

The Complainant outlined that she was actively building her career and wanted more office experience when she commenced work on the CE scheme in January 2020. She worked from home during the Covid 19 pandemic.

In June 2020, she was informed by Ms M that she would have to leave the CE scheme, as she had difficulties in organising childcare. She sought the intervention of her course supervisor and the matter resolved with her return to work on June 2. She did not receive an official letter on this; However, she had received a job description at this time. The Complainant said she felt vulnerable at work as she understood she was a locum for another worker of Ballyhoura on maternity leave

She submitted a large volume of emails as accompanying documents. These detailed interparty communication in addition to a chronology of the courses she had undertaken.

29 June to 1 December 2020   QQI level 4 office skills

October 2020 to November 2020                     English course

23 October                                    Office procedures

On 30 November 2020, the Complainant sought to extend her tenure on the CE scheme as she was in the process of taking courses. She understood that once Ms M, as her supervisor sanctioned the extension, then automatic sanction would be applied from the funder.

“I hope all is well with you, I have asked you a lot of times what will happen in January when my contract ends, but I still failed to ask you a question if that is ok for you. What conditions a participant in the CE scheme should meet, or if there are certain exceptions to continue training in placement after the end of the first year “

She received notification in response that staff were working remotely, the CE scheme was no longer viable, and she would finish on 21 January 2021 “as there is no meaningful work currently for you in the Ballyhoo Office. “

The Complainant said that she felt abandoned as she was seeking to expand her skills. She said that her completed courses were not visibly logged by the Respondent and this served to disadvantage her extension. She expressed some concern as Ballyhoura were protecting their long serving staff and she had been sent home, which she attributed to her race as the remaining 3 workers were Irish.

She said that her colleagues in the office Ms A and Ms B were both 6 years on the scheme, while her comparator was one year and had been granted an extension. she had been provided with mixed messages in her contracts as an initial 1-year contract had been amended from June 8, 2020.

The Complainant said she had chased details of the other workers renewal of contract but had not been provided with this. She had also sought to raise a grievance, but nothing occurred.

During cross examination, the complainant accepted that she had been assisted by the Respondent at the commencement of her placement and that she had not raised issues regarding her contract when redeployed at Ballyhoura. She re-affirmed that the Placement supervisor had intervened in her childcare issue in. June as she knew that she held the power.

She confirmed that she had accepted a contract of 1 year duration, where a job description was changed in June 2020 to include reception duties.

The complainant accepted that during the pandemic, only essential workers were permitted to remain in an office. she contended that she should have been facilitated to complete the courses she started. She also expressed a concern that her individual learner plan was not properly populated by the Respondent.

She did not accept that the government body held the sole authority to extend her tenure, and not the respondent. She had approached the DSP Supervisor on 27 November 2020 and accepted that she could grant an extension. She qualified this by saying that she just wanted to remain in the scheme. She understood that all CE schemes were extended for the duration of the emergency period around the pandemic but did not expand on this assertion.

In conclusion, the Complainant contended that she was entitled to secure an extension to her CE scheme to allow her to complete her courses. The Complainant clarified that she had in fact completed the courses.

She felt diminished when she assessed her record of achievements as the Respondent had not included her most recently completed courses, which in turn, did not place her in a best light for the DSP. She contended that if these courses had been accurately recorded, she would have stood a better chance of an extension of her tenure.

She told the hearing that she had not worked since leaving the Respondent employment. The Complainant said that she had worked on a CE scheme previously, which lasted for 1 year.

On the conclusion of the hearing, I identified a lack of clarity in the chronology around the complainants’ attempts to extend her tenure on the CE scheme. I read her complaint form once again and was drawn to a paragraph attributed to a Statement by the Minister for Social Protection, which was undated or not contextualised in terms of the case.  In light of the Complainants omission to include this in hearing, I wrote to the Complainant and requested clarification.

This states that” … those measures included the extension of all exiting Community Employment Participant contracts for the duration of the Emergency “  

You did not address this point during the hearing by way of documents or by direct evidence and I require urgent clarification from you to assist in making my decision in the case.  

I am to invite you to submit documentary evidence of this within 7 days please.

I received a response some two days later from the Complainant, which allowed me to safely conclude that the Complainant appeared to have applied directly to the Department in or around 1 December 2020, for an extension of her tenure on the CE scheme

. She did not exhibit this document, but did include a response attributed to the Department which indicated that she had expressed a “wish to extend your CE scheme “The response reflected

Enquiries are being made and a further letter will issue to you as soon as possible

The Complainant then clarified that she did not receive a response from this source.

The Respondent, in response replied that on consideration of the “statement “they accepted that there was an organisational acceptance that the complainant was entitled to secure a covid related extension, however nobody in the Parent body of DSP had alerted the respondent to this in January 2021. The failure to apply that extension was not the respondent’s fault, nor was it linked to the complainant’s race.

On 24 August 2020, the Respondent, while operating a CE scheme, furnished a written outline submission in the case. The Respondent sought the complaint lodged under Equal Status Act, 2000, should be struck out.

In addressing the claim in accordance with the Employment Equality Act, 1998, the Respondent representative pointed to the date line associated with the allegations surrounding the change of contract on 8 June 2020. They contended that this was outside of the cognisable period for the claim, i.e., 6 months before 16 January 2021 and should be struck out.

The Respondent has denied all allegations of discrimination in respect of alleged failure to provide the complainant with a statement of terms of employment and all other allegations of discrimination.

The Respondent is an entity that manages a community employment scheme at a local level, (C. E.) administered by the Department of Social Protection.

Ms M is an employee and supervisor. The course participants are mobile and “day to day “instruction issues from the active base location.

The participants on the CE scheme facilitated by the Respondent are engaged for 12 months June to June annually. If a candidate joins outside that timeline a contract is issued to June and a termination of the following June applied. They noted that it was possible to extend tenure as demonstrated by a Russian National renewal, but it is not a universal practice and needs to be linked to a defined role.

The Respondent placed the complainant in Ballyhoura work location and she was under the supervision of Ms X. she was the sole person in Ballyhoura linked to the respondent entity.

Ballyhoura interviewed the complainant.

It was the Respondent case that the covid 19 pandemic had a detrimental effect on organisations such as Awbeg as they were informed that the complainant’s position could not be extended beyond the agreed termination date of 22 January 2021 as per contract. They experienced three locks down periods.

The Respondent accepted that the complainant had sought to meet the Senior Managers at Awbeg during December 2020. Ms N was not available due to cocooning and sought to explain that all scheme participants were home based due to the pandemic. The Complainant was based at home and in receipt of full pay with the exception of travel abroad related quarantine in August 2020.

The Respondent was unable to facilitate an extension on the Complainants tenure. The Complainant did not make an application to extend her tenure and as far as the Respondent was aware, she was actively seeking to extend that tenure via Ms X at DSP. The Respondent has not replaced the Complainant

Evidence of Ms M, by Oath

Ms M outlined the genesis of CE schemes per se. That participants were taken from the live register of unemployment. From 2017, every Participant availed of 1 year tenure on the scheme. She was aware of the potential for an extension.

She told the hearing that the complainant was based in Ballyhoura, and she had first met her in December 2019. The Complainant had replaced a named Russian worker.

She made it clear that the company had not presented to WRC previously and she very personally hurt by the charges.

Ms M outlined that Awbeg, the Respondent entity “shut its doors during the covid pandemic” She did not hold the power to dismiss anyone. The office in Ballyhoura was closed also. She said “they were working in the dark “

She had been in touch with the complainant via text during her time spent at home and Ms M’s priority was to look after the Participants

She recalled June 2020 on the childcare issued raised by the complainant. This was a 20-minute meeting between the complainant, Ms M and Ms X which concluded in an agreed way forward.

By October 2020, 18-20 of the CE Participants were being paid to stay at home during the Emergency Period. This included the cadre from charity shops and GAA facilities.

The CE contract runs from June to June and includes a flexibility clause with mobility. The power to extend a contract rested solely in Ms X and she denied that the complainant had been discriminated against when the contract was not extended. Ms M did not input into contract extensions.

The Complainant had gone over her head to Ms X and Ms M retired in September 2021. The Complainant had not requested a contract extension from her.

The management process around the complainant’s exit was processed via an exit form.

She was aware that Ms C, the Complainants’ submitted comparator had secured a “covid extension “of one year at the hands of Ballyhoura.

During cross examination,

Ms M accepted that the complainant was subject to a mobility clause in her terms of employment, but qualified that she had no where to move her to.

She reflected that the complainant’s period of employment was managed by quarterly review and audit. She said that courses were updated online and endorsed the complainant’s motivation in undertaking courses.

In addressing the complainant’s direct question as to why the Respondent had not acceded to her request to meet during December? she replied that she could not organise a meeting as she did not make decisions. Instead, she contacted the Respondent Chairperson, Ms N and Ms X and she could not move the matter any further forward.

The Complainant had delayed in signing her work sheets but had dropped them to the office eventually.

Ms M clarified that the Complainant did not serve probation. She confirmed that Ms C had secured a one-year extension, but this was not a training scheme vis a vis the Complainants CE scheme.

Ms M confirmed that the meeting of June 2020 had lasted 20 minutes during which time, the complainant became irate and aggressive.

She re-affirmed that the Complainant had not made an application to extend her tenure with the Respondent.

Evidence of Ms N, Chairperson of the Board 

Ms N was very strong in her denial of discrimination against the complainant. She was familiar with the June Childcare issue and knew that it had been resolved.

She recalled the run up to Christmas, 2020, when she was not available to hold a meeting as she was on call 24 hrs on family matters and just could not take any more on.  

She submitted that any extension of contract needed Ms X’s permission.

She recalls a number of years previously seeking to secure an extension for a Participant, who was a builder. Ms X denied the request.

Ms N echoed that Ms C was a Participant in a different scheme to the complainant.

She said that there was no point in meeting as the contract was due to end and a grievance was not necessary in that situation.

Ms N confirmed that she did not have training in Equality. she added that no extensions of Participants tenure occurred in 2020 or 2021.

In conclusion, Counsel for the Respondent submitted that the complainant had not met the burden of proof in her case. she had not taken account of the overarching negative impact of covid 19 on the respondent and the satellite areas, one of which, where the complainant was based had closed its office. People were working from home

She argued that the June 2020 childcare issue had resolved.

The Respondent was not racially motivated towards the complainant. she had not applied to them for an extension in her tenure.

On 9 February, 2 days post hearing, the Respondent responded to my request for contemporaneous records of the June 2020 Childcare issue. The Respondent confirmed that a specific record of the meeting was not in existence but submitted two emails which were relied on as record of the communication between the parties at that time.

I have been asked to decide where the Complainant was discriminated against on the grounds of her Race pursuant to Section 8 of the Employment Equality Act, 1998 and contrary to that Act?

The Complainant has submitted that she was discriminated against in respect of promotion, provision of training, conditions of employment and discriminatory dismissal. She submitted that a named comparator employed by Ballyhoura received a Covid extension and she did not. 

All claims were rejected by the Respondent, who sought to contextualise the employment and the background to the Community employment scheme, which in turn was hampered by the overarching Covid 19 pandemic and separateness of the respondent from both Ballyhoura and the Department of Social Protection.

In reaching my decision, I have had regard for all oral evidence, written submissions, and legal arguments. 

My jurisdiction in this case rests on the following passages of the Employment Equality Act 1998-2015.The Race Directive 2000/43/ EC prohibits direct discrimination based on racial or ethnic origin 

 In particular, I propose to address this claim through Section 6(1) of the Act

Discrimination for the purposes of this Act.

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,

Section 6(2)(h) provides that the discriminatory ground

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

Section 8 provides

Discrimination by employers etc.

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(…….

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not F19[materially different, or]

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.]

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals, and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

Section 85A of the Act sets out the burden of proof necessary in the case. It requires that the Complainant must first establish facts from which discrimination may be inferred. These facts must 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 ….

Valpeters v Melbury Development ltd, 21[2010] ELR 64

Community Employment Scheme.

I intend to address the issue of the area of employment in the first instance as the Respondent was presented to me as a standalone voluntary body referred to as a Community Employment Scheme.

The Complainant presented a historical background of having completed a year long programme via this scheme in the past, but did not provide evidence of this or, more importantly, whether she had pursued an extension at that time.

The Respondent presented as a standalone entity, part funded by the DSP, whose objective was activation of participants back into the work force. It was not disputed that the complainant was an employee of the Respondent as evidenced by both contracts of employment. In this case, the Complainant was a part time worker in possession of a fixed term contract issued by the Respondent The circumstances of the operation of that contract and how it ended have become centre stage in this case.

I did not have the benefit of the input from representatives of Ballyhoura or the Department of Social Protection.

I found that I had to probe this employment to consider whether the Respondent was an associate employer for the purposes of the Act.

Section 2(2)

(2) For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control.

The issue of triangular employment has been considered most recently by Clarke CJ, in the case of Minister for Education and Skills v the Labour Court, Ann Boyle and Committee of Management of Hillside Park Pre School [2018] IESC 52

This was a case where a part time teacher claimed access to pension rights, while the only teacher in the school.

1.1 The tripartite arrangement whereby much education in Ireland is funded and controlled has given rise to a number of important and difficult legal questions over the years. The practical manner in which that system operates is not in dispute, but the legal rights and obligations which derive from it have given rise to difficult issues. While it will be necessary to refer to the facts of this case in due course and while there is one aspect of the relationship between the parties to this case which is, perhaps, somewhat different to what might be described as an entirely typical situation in the field, nonetheless the broad system applies in a very great number of situations within the State-funded educational system.

1.2 At its most basic, schools are under the management and day-to-day control of management boards or the like, although the precise structure may vary somewhat as and between primary and secondary schools. In very many cases the salaries of all teachers are, however, paid directly by the applicant/appellant (“the Minister”) with the terms and conditions of employment being agreed from time to time between the Minister and representatives of teachers, or, in the absence of such agreement, being fixed by the Minister. Even in the case of fee-paying secondary schools, a significant number of teachers' salaries are paid in that way by the Minister with the fees contributed by parents going to additional expenditure, whether relating to the employment of a larger number of teachers than governmental schemes support or additional facilities or courses.

1.3 At its simplest, the triangularor tripartite system means that, for the purposes of ordinary day-to-day control including hiring, allocation of duties and the like, teachers have their contractual relations with a board of management. The relationship of the majority of teachers (that is, those who are paid by the Minister) with their paymaster can, however, complicate matters to the extent that legal issues can arise as to how to characterise as a matter of law the relationship between a teacher whose salary is paid by the State and the Minister who is responsible for making those payments and, to a very large extent, also fixes the terms on which those payments are to be made.

The Supreme Court engaged in an elaborate analysis of this complicated employment and determined that a contract of service, direct employment did not exist.

While there can be no doubt that the unusual tripartite or triangular  relationship which exists between the Minister, a board or committee of management and a teacher in much of the Irish educational context gives rise to difficult questions concerning the proper interpretation or characterisation of that relationship for various legal purposes, I am, however, satisfied that this case comes down to one of deciding whether it can be said that the Minister is involved in a contract of service with Ms. Boyle.

10.2 For the reasons analysed in this judgment I am not satisfied that the relationship between the parties can be so characterised. There are significant differences between the 2001 Act and other legislative regimes in which the Minister has been held to have been responsible in an employment context. Even on the facts of this case Ms. Boyle is somewhat more remote from the Minister than many teachers for she was not, at the time of her initial employment and for the vast majority of her time at the school, paid directly by the Minister but rather by Hillside Park out of a grant provided by the Minister. Other employees of a different employer supported by the same grant scheme provided their employees with improved terms and conditions in the form of access to a pension scheme. To make that point is not to criticise Hillside Park for they just did not have the resources to provide enhanced terms. However, that possibility emphasises the fact that, even at the financial level, Ms. Boyle's terms and conditions were not, at the level of principle, wholly governed by the Minister.

What was so compelling in the throughput of that case, from Rights Commissioner to Supreme Court is the co-existence of so many diverse views on the proximity of a government department to an employment scenario or not.

The matter is now settled law in the Education sense in Ireland. I have had cause to consider the matter again via the unusual employment relationship, which I have been asked to consider in the instant case.

I have been requested to consider a direct employment with the named respondent. However, this employment clearly engages, at the very minimum with both Ballyhoura, in terms of the complainant’s location throughout her tenure and ultimately with the Department of Social Protection, from whom she sought “a covid extension in time “and was the ultimate Pay master

 I would have liked to understand this employment further but did not have an attendance from either of those named parties. I am therefore unable to take the matter much further outside some obiter dictum commentary

It was not disputed that the Complainant, a Romanian worker, sought an extension of her tenure on the CE scheme directly to the Minister. I am clear that she also sought an extension of her tenure from Welfare as the Complainant exhibited a copy of an email dated December 1, 2020

I have some better news I if I can call them that. I talked to K from K community office, and she said that it is someone who finishes in January and the job could be valid, she also mentioned that she will contact you to discuss the above

The Complainant followed this up with Welfare on 14 December 2020, without success.

The question of an extension of tenure was also requested by the Complainant at Ballyhoura in early December 2020 when she wrote to the Manager there

“ ….. going further from our last conversation as there is no work for me …. I would like to be specified in the letter, please why there is no work for me but for my two colleagues who are also on a different scheme there is and was  work in the office as I knew the office was not closed at all  This question is very important and helps me understand that equal human rights are not violated ……why couldn’t the office hours be shared with the 3 girls who are in the office at the moment ?

The response received directed her back to her direct employer, the Respondent.

However, the complainant has exhibited a large volume of inter party correspondence between

1 Complainant and Employer

2 Complainant and Ballyhoura

3 Complainant and Welfare / DSP

I found it difficult to attach an accurate chronology to these emails as they moved through the very mixed circumstances of the case.

1 a stated unease on being asked to return to the workplace in June 2020

2 a stated unease that Ballyhoura staff were permitted attendance at work, while the complainant remained at home at work

3 a stated unease that employment was ending

 It was that difficulty which prompted my return to the complaint form and the “amnesty “purported to the Department on a universal extension of all CE Schemes during the emergency covid period. This amnesty was not delegated to the Respondent to operationalise. I knew I needed more clarity as the complainant had not dealt with this at hearing.

I must conclude that, for me, at least, there was some confusion around the operation of the contract linked to the CE scheme and this confusion may be best resolved by the issuing of a CE scheme participant handbook going forward as I was struck by the lack of clear avenues on “just who did what “in the course of the scheme. I detected a high level of frustration from the complainant in that regard which has since turned to a deep anger following the conclusion of her employment.

It is regrettable that the complainant did not receive a response from the Department as indicated on their December 1, 2020, email to her. Perhaps, this is something those parties may decide to review and regroup on outside of this case?

Finally, perhaps the tri -partite employment would be well served by a tri partite communication forum.

But now, I must move from a consideration of the associated employers in the case to the employment relationship at the heart of this case, that of the Complainant and the Respondent.

I have taken the time to make the obiter commentary as a backdrop to my next consideration of what is discrimination.

Substantive Case:

As an opening statement, I would like to reflect on the insightful and still topical commentary on Racial Discrimination

With the increase in migration into this jurisdiction during the Celtic Tiger and the increased number of non-national employees in the workplace, employers were required to re-examine their workplaces and practices to take account of the contemporary issues which the employment of non-national employees brought. These include cultural, linguistic, and religious diversity, as well as issues facing an employee trying to integrate into a new and unfamiliar society where traditional supports such as family may not be readily available to them.

Employment Equality Law, 2012 ed, Bolger, Kimber and Bruton.

It is also of significance to recall

The European Convention on Human Rights defines “racial discrimination” as “any distinction, exclusion, restriction, or preference based on race, colour, descent or national or ethnic origin

Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV (C-54/07) [2008] E.C.R. I-5187; [2008] I.R.L.R. 732.

In 2008 involved an interesting set of circumstances where an Installer of Doors Company made it known publicly that the Company would not hire Moroccan nationals as their customers had expressed an unease “regarding immigrants “this was found to constitute direct discrimination in relation to a recruitment policy, albeit in the absence of a specific complainant.

In an earlier Labour Court case of Campbell Catering ltd v Rasaq [2004] ELR 210, the Court considered the approach an adopted by an employer who dismissed an employee following an alleged theft of 3 bananas. The Employer refused to issue a requested letter of dismissal or P45.

In such cases, applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount of discrimination.”

This was later distinguished in Wojciechowski v Tesco Ireland Limited, DEC -2011 148, as it had involved factual dispute in a disciplinary process, in contrast to Mr Wojciechowski who was well able to speak English and had a good knowledge of the disciplinary procedure he was involved with.

It is important for me to reflect that the Complainant in this case had a very high command of the English Language and a clear advocate in her case. It is also of note that she endorsed that level of competence in her Career planning document co signed by both parties on 30 January 2020.

In Ahmad v Amnesty International, [2009] I.R.L.R. 884., A UK Employment Tribunal found that a decision not to appoint a UK female citizen of Sudanese origin to that country on policy grounds, however, well intentioned, constituted direct discrimination  

 The concerns of the employer were that prejudice could be caused by the connection of the employee with the country, their effectiveness in their role could therefore be reduced and it could potentially have implications for the organisation’s reputation for neutrality”

Employment Equality Law, 2012 ed, Bolger, Kimber and Bruton.

It is of note that the Labour Court found that the practice of unequal pay was race related in St James Hospital v Eng., EDA023, where the motive of the Employer was deemed irrelevant but unequal pay was linked to the Doctors Malaysian race.

I was also in my consideration of the facts of this case, struck by the 2011 case at the Equality Tribunal of

Ritvars Bozs et al v Damoli Construction solutions Ltd [2011] 22ELR 34 

Where, the then Equality Officer, considered submissions regarding less favourable treatment at work on behalf of a body of Slovakian workers. 

Mr Robert Kocian, who is Slovakian, also stated in his evidence that discipline was unevenly enforced: when the respondent's Irish workers worked slovenly, it was tolerated by supervisors, whereas when non-national workers worked slovenly or were perceived to do so, they were disciplined. Mr Kocian stated specifically that he was “screamed at” on such occasions in a way Irish workers were not. Mr Kocian did not seek to allege that the screaming contained negative or dismissive elements related to his nationality.

I found Mr Kocian a cogent and credible witness and accept that this aggressive enforcement of discipline happened to him as described, and that the respondent's Irish workers were not disciplined in the same manner. Furthermore, the respondent's liquidator did not seek to challenge Mr Kocian's evidence. I therefore find that Mr Kocian has established a prima facie case of less favourable treatment on the ground of his nationality in the manner in which he was disciplined, which has not been rebutted.

Based on all of the foregoing, I find, pursuant to s.79(6) of the Acts, that:

(i) The respondent did not discriminate against Mr Ritvars Bozs and Mr Marius Sabaliauskas on the ground of race pursuant to s.6(2)(h) of the Acts, in respect of their terms and conditions of employment contrary to s.8(1) of the Acts, or in respect of discriminatory dismissal contrary to s.8(6) of the Acts.

(ii) The respondent did not discriminate against Mr Robertas Sabaliauskas, Mr Grazvydas Jarasius and Mr Robertas Jurelevicius on the ground of race pursuant to s.6(2)(h) of the Acts, in respect of their terms and conditions of employment contrary to s.8(1) of the Acts.

(iii) The respondent did discriminate against Mr Robert Kocian on the ground of race pursuant to s.6(2)(h) of the Acts, in respect of his terms and conditions of employment contrary to s.8(1) of the Acts, by enforcing discipline in a discriminatory manner.

(iv) The respondent did not discriminate against Mr Robert Kocian and Mr Robertas Jurelevicius on the ground of race pursuant to s.6(2)(h) of the Acts, or in respect of discriminatory dismissal contrary to s.8(6) of the Acts.

That case considered a careful analysis of submitted unequal treatment at work on grounds of race. 

In the instant case, the Complainant is a Romanian worker, who has an undisputed record of a prior one years’ service in a CE scheme, albeit, not with the current respondent. 

I accept her evidence that she was very keen to advance in her re-launch back into the workforce and that she availed of all opportunities for self-advancement placed before her through the courses she undertook at the Respondent employment.

I had some difficulty in accepting the identified comparator, Ms C, relied on by the complainant as she worked for a different organisation, albeit being located at the same base. 

I have instead, considered a hypothetical comparator, notwithstanding my obiter remarks of earlier on proximity of employments.  

Would a person of a different race to that of the Complainant be likely to be treated less favourably at the employment due to race? 

While the complainant initially claimed that she had been “ held back “ by the Respondent in their completion of her up to date course status , she fully acknowledged, on cross examination  that she was  facilitated in completing all her educational courses .I understood the complainants point that if all accomplishments were signed off for her in a timely manner , she may have been more marketable to the DSP , However , I could not identify any evidence that this delay was linked to her race .I accept that the delay emerged from the restrictions placed on the business during the Public emergency period of March 2020 onwards .

The Respondent witnesses were at one that the Respondent “had shut its doors during covid “

I found that this manifested a sense of displacement for the Complainant. I found that she experienced an early difficulty with Childcare and reconciling her return to work in June 2020. 

I accept the Respondent evidence that this matter was resolved through a new job description and an updated contract. 

The Complainant acknowledged that she accepted those changes without challenge. However, I found that she maintained a high level of mistrust in the respondent from that date in June forward to the end of her tenure.

However, her chronology of emails indicate that she made the most of a tough situation by up skilling. 

Taking all matters into consideration, I cannot establish that the complaint was denied the same opportunities or facilities for training (whether on or off the job) as prohibited in S (8)(6)

The Complainant did not apply for promotion during her tenure, therefore this claim is not well founded

I have also found that the Complainant was mistaken in her considered submission of the

Guidelines for Completing a new 3-year application form. She asked that I consider this to be a base document which directed the facility to extend tenure on a CE scheme. I found this document to be a manager’s guidebook as A9 to A14 contained the following 

“In order to be a CE, sponsor you must be set up as a company limited by guarantee with no share capital or you must be a public body “ 

Both of those commercial realities were clearly out of the grasp of the complainant who simply wanted to stay longer at CE scheme level.

The Respondent, Ms N was clear that it had corporate memory of requesting an extension of tenure once in the cases of a grounds man and being refused. 

It seemed to me that there was no readily identifiable form on which a candidate interested in seeking an extension of tenure in a CE scheme could fill in. There was no published process outside a loose reference to being actively engaged in a pursuance of a major education award.

The complainant, by her own admission was actively engaged in attaining minor and not educational awards

This goes to the root of the case and is the reason why I have probed so deeply into the facts of the case. I have not identified any inferences of discrimination in the complainants’ terms and conditions of employment. 

Discrimination, by its very nature is covert and can be unintentional. However, the tools of transparency, visibility and accountability go a long way if they are present through, for example Equality Policies, minutes of meetings, records of applications, minutes of interviews, to demonstrate a culture and an environment where everyone is treated equally irrespective of race. 

This brings me to consider whether the Complainant was dismissed due to her Romanian race? 

The Respondent submitted that nobody at their business received an extension in tenure during 2020 and 2021.

This was not disputed by the Complainant, who relied on Ms Cs “covid extension “ to support her case . She was also strident on her perceived inequity in how Ballyhoura staff were facilitated with an office base . 

I have considered the parties evidence very carefully. I must record that the complainant adopted a broad brush in seeking to extend her tenure on the CE scheme with external bodies.

She exhibited the proof of this. However, her interaction with the Respondent was different. she asked what was to happen at the end of the contract in January 2020? She did not articulate a formal request to remain .  

The Respondent said that there was no more work due to covid. The Complainant sought to meet with the Respondent separate to her attempts to meet the external bodies.

She said that she felt discriminated by the practice of the Bally houra employees being office based, whilst she was based at her home to work. 

I have no difficulty in finding that it was a cardinal error on the respondent side that the respondent did not meet with the complainant in accordance with the grievance procedure. I fully accept the Respondent evidence at Ms N and Ms M level that there was an overwhelming fear around holding meetings. However, it would have been responsible for them to host a conversation via zoom or another platform on a topic as live as “discrimination “This omission fell far short of best practice.

I noted that neither witness for the Respondent had Equality training. This should be addressed for Ms N immediately. 

However, I have not found that this was less favourable treatment due to race. It was a universal practice, void of best practice adopted by the Respondent at that time, informed by fear of contagion. I accept that they did not meet any employee of the company at that time. Therefore, I have not identified less favourable treatment due to the Complainants race. 

Instead, I have found that the Complainant approached the end of her tenure in the CE scheme, which she was keen to extend. However, in this, I found that she chased an alternative employer when she neglected to apply to extend her tenure directly with the respondent and instead unsuccessfully petitioned the external bodies to this end.

Ms M was a very cogent witness, when she submitted that the Complainant had gone over her head in those applications to external bodies. I agree with that pronouncement. The Respondent did not have a live application from the complainant to extend her tenure.

For me, I found that the complainant got lost in the tri partite entities at play within this employment. I empathise with her in that regard.However, my sole jurisdiction rests with the instant parties of employee and employer . 

However, I have found that the contract of employment for the CE scheme, albeit in two parts came to a natural ending in January 2021.

While there appears to have been a backdrop of “amnesty” on extension of tenure at National level. I could not establish a National  delegation or derogation  of that task to the Respondent via a universally recognised application process. 

I must find that the complainant was not dismissed due to her race, but rather the elapsing of the CE contract. 

My attention was drawn to a Labour court case UDD2149 C na g Teoranta v Cathal Mc Carthy, where in a claim for unfair Dismissal the Court addressed the topic of wanting to stay working on a CE Scheme and not being permitted to through a discretion.

The Respondent in the case did not exhibit contracts and rested the argument on discretion alone

The Complainant in the case disputed that there was no more work as he said his job had been filled and weekend cover was sought The Court the Court found for the Complainant. 

I have found that the Complainant has not met the test necessary in Sec 85 A of the Act and she has not raised facts from which I can safely infer discrimination .so as to cast the burden of rebuttal to the respondent in the case.  

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have concluded my investigation and have found that the Complainant has not reached the prima facie test in the case for me to infer discrimination on grounds of race contrary to Section 6(h) and Section 8 of the Act.

Claim for Discrimination on grounds of race