Complainant

Respondent

Parties

Nester  Changunda

Cowper Care Centre Dac

Representatives

  Self-represented

Barry O’Mahony B.L. instructed by ARAG Legal Protection

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040184-001

30/09/2020

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

CA-00040184-002

30/09/2020

The complainant was employed by the respondent as a staff nurse from January 2018 until her resignation on 31st August 2020. The complainant claims that she was discriminated against in contravention of the Employment Equality Acts, 1998 on the Age and Race grounds and also claims to have been discriminated against in relation to promotional opportunities. The complaints also relate to an alleged constructive unfair dismissal referred in accordance with the provisions of the Unfair Dismissals Act, 1977.

The complaints were submitted to the Workplace Relations Commission on 30th September 2020. The cognisable period of the complaints in relation to the alleged discrimination is 31st March 2020 – 30th September 2020.

Counsel for the respondent raised a preliminary point in relation to the complaints as submitted. Counsel contends that in circumstances where the complainant has submitted two claims arising from the same set of facts, she must elect under which piece of legislation she wishes to pursue her complaints. In circumstances where no election has taken place, Counsel contends that the Employment Equality complaint in its entirety must be deemed to have been withdrawn and the matter heard under the Unfair Dismissals Act, 1977. Counsel referred to Sections 101(2), 101(4) and 101(4A) of the Employment Equality Act, 1998 in support of its preliminary point.

Decision on preliminary Point

The complainant alleges discrimination on the race and age grounds and in relation to promotion. The complainant has not submitted a complaint that she was dismissed for discriminatory reasons. On that basis, I am satisfied that no election is required in relation to the dismissal as the only complaint in relation to dismissal has been referred under the Unfair Dismissals Act, 1977. Therefore, I do not accept the respondent’s position that the entire employment equality complaint is deemed withdrawn. Accordingly, I will address the stand-alone complaints of discrimination under the Employment Equality Acts, 1998 -2015 and will address the issue of dismissal under the Unfair Dismissals Act, 1977 by reference to the applicable legal tests in cases of alleged constructive unfair dismissal under that piece of legislation.

The complainant contends that she was subject to discrimination on three separate occasions during her employment in relation to promotional opportunities. The complaint contends that her race and age were the reasons for her less favourable treatment.

The first incident of discrimination allegedly occurred on or about 11th November 2019 after the complainant had been acting up in the role of Clinical Nurse Manager (CNM) for approximately one year. At this point in time, the complainant contends that she was not given the opportunity to apply for regularisation in the post and that a younger colleague who had less experience than her was appointed to the role. The complainant also asserts that she was discriminated against on the race ground because the person who was placed in the role was “Non-Irish but White.” 

The second alleged incident occurred in and around April 2020 when the complainant was successful at interview but not appointed to the position of Clinical Lead Nurse (Dementia) in Gascoigne House where she was based.

The third alleged incident of discrimination occurred on the complainant’s application for a CNM post in June 2020. The complainant contends that despite being successful at interview, she was not placed in the role and contends that the preferred candidate for the role was a “white and younger colleague” The complainant stated that it is well known in her employment that she was the most suitable candidate for the posts in question but was “sidelined” on racial grounds. The complainant added that despite scoring higher than her colleague at interview she was not placed in the position.

The complainant contends that as a black woman, she has to continually prove herself and that her return to the Staff Nurse grade following her period of acting in November 2019 reflects badly on her and the perception to others is that it was as a result of performance issues which continues to affect her career progression.

The complainant stated that it was the cumulation of these incidents that resulted in her notifying her employer of her resignation on 31st July 2020 and leaving her employment on 31st August 2020.

The respondent denies that the complainant was discriminated against in the course of her employment. In relation to the specific incidents raised by the complainant, the respondent contends as follows:

The first alleged incident of discrimination is said to have occurred in November 2019 and concerns the complainant’s assertions that she ceased acting in the role of CNM at that time and that a younger white colleague was placed into the role. The respondent’s position on this issue is that all acting CNM positions were discontinued in the organisation in November 2019.

In respect of the person who accepted a role in the complainant’s place of work, this person was a Clinical Nurse Specialist (CNS) in the field of Palliative Care with additional CNM responsibilities. The respondent contends that this CNS moved to the complainant’s location as she covered three facilities, and this was deemed to be the most appropriate location to be based. The respondent confirmed that the person who took on this role had the necessary health care manager qualifications to take on the role.

In relation to the second alleged incident of discrimination, the respondent contends that the complainant applied for Clinical Lead Nurse (Dementia) in April 2020. The respondent stated that the complainant had stated at the interview for the role that her aspirations were in management, and she wanted to become a Care Manager within three years. The complainant was not chosen to be placed in the role on the basis that her focus was more on the management side and having spoken with the CEO, the respondent stated that the complainant withdrew her application and did not seek further feedback on the interview. As already stated by the respondent the complainant’s race and age were completed unrelated to the conclusion of this process.

The third alleged incident of discrimination relates to an application for a CNM post in June 2020. The respondent stated that both the complainant and the other applicant performed very well at interview, their scores were very similar and both were recommended for appointment to the grade. The complainant was not appointed to the specific post applied for as the successful candidate already worked in that location, was familiar with the patients, staff and work practices and lived within minutes of the workplace. For those reasons the CEO decided that it was appropriate to place the other candidate in the post. The respondent stated that the complainant was offered the CNM grade in an acting capacity at another location as she did not get her preferred location but that this offer was refused.

The respondent outlined that in respect of the two posts in question, the complainant had not submitted applications before the closing date but that the CEO reopened the application process so that her applications could be considered. This was done in circumstances where the complainant had previously outlined that she wished to focus on the management side of her career and the respondent wished to facilitate her in this regard.

Legal submissions

The respondent denies that the complainant was subject to any discrimination whatsoever. The respondent referred to Section 85A of the Employment Equality Act, 1998 in relation to the burden of proof that the complainant bears in establishing facts from which it can be inferred that she was discriminated against by her employer. The respondent cited the Labour Court Determinations of DPP v Sheehan EDA0416 and Southern Health Board v Mitchell [2001] 1 ELR 201 in support of its position in that regard.

The respondent submitted that the complainant has not established any facts from which an inference of discrimination can be drawn. The respondent stated that it is farcical to suggest that it would recruit the complainant, subsequently place her in a senior role albeit in an acting capacity, only to subsequently remove her from the role for discriminatory reasons and continue to discriminate against her with regard to future promotions. The respondent further contends that if there was any intention to discriminate against the complainant, she would not have been placed in the acting role at all or supported in the way she was throughout her employment. The respondent concluded by stating that the complaints lack any credibility and should fail.

The complainant asserts that she has been discriminated against by her employer on the rac and age grounds in relation to promotional opportunities within her employment.

Applicable Law

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

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

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a complainant must satisfy:

85A(1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Assertions

The complainant bears the burden of proof in relation to her complaints. If the burden of proof is met and a prima facie case of discrimination is made out, it will be for the respondent to prove that no discrimination has taken place in relation to the complainant.

In Labour Court Determination EDA0917 Valpeters v Melbury Developments, the Court states as follows:

Section 85A of the Act 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.

Conclusions

I have given careful consideration to the verbal and written submissions of the parties and the documentation submitted in relation to this complaint. The complainant feels that it is her race and age that are the reasons she claims to have been discriminated against. However, as mentioned above, these are assertions and in my view are not supported by any evidence that would lead me to conclude that the complainant has met the burden of proof in establishing a prima facie case of discrimination.

For the reasons stated above, I find that the complainant has not established facts from which an inference of discrimination can be drawn. Accordingly, a prima facie case of discrimination has not been made out. On that basis I find that the complaint fails.

The complainant stated that she resigned in frustration as a result of the way that she felt she was being treated by her employer in respect of promotional opportunities on a number of different occasions. The complainant is claiming constructive unfair dismissal in accordance with the Unfair Dismissals Act, 1977.

 The respondent stated that the complainant resigned voluntarily and without influence from the employer. The respondent’s position is that it supported the complainant throughout her employment, and it was not the case that the complainant had no other option but to resign as a result of the respondent’s conduct.

The respondent cited the Labour Court Determination of Paris Bakery and Pastry Ltd v Mrzljak DWT 68/2014 which summarises the applicable legal tests in cases of alleged constructive unfair dismissal, namely the “contract” and “reasonableness” tests. The respondent also cited the EAT case of Conway v Ulster Bank Ltd UD/474/1981 in support of its position that the complainant did not act reasonably by not utilising the grievance procedure prior to resigning from her employment.

The respondent further contends that the complainant was a valued employee who had a proven track record in the organisation and that it had asked her to reconsider her resignation and had made offers of alternative work locations to her in an attempt to retain her in employment. Unfortunately, the complainant would not reconsider her position and left the employment on 31st August 2020.

The respondent concluded by stating that the complaint is without merit and should fail.

The complainant is claiming a constructive unfair dismissal when she resigned from her position with the respondent after a number of unsuccessful attempts on her part to achieve promotion in the respondent organisation. 

The Applicable Law:

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

 “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

 “whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to substantially utilise internal procedures is also an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Mitigation of Loss

I note that the complainant commenced a new job almost immediately in September 2020 and with a very small difference in the hourly rate of pay at that time (approximately 58 cents less per hour). The Sunday premium payable to her was also less in the new position falling from 50% to 10%. I further note that the complainant is now employed as an Assistant Director of Nursing and has held that grade since 10th January 2022.

Conclusions

Having considered the submissions of the parties, the legal precedent cited above and the realities of the employment relationship between the complainant and the respondent, I do not find that the complainant had no option but to resign from her employment. It is also the case that, in my view, the complainant did not act reasonably in resigning without giving the respondent an opportunity to address her grievances by utilising the established procedures in place. For those reasons, I find that the complaint of constructive dismissal cannot succeed.

Having considered the submissions of both parties, and for the reasons stated, I find that the complaint of alleged constructive unfair dismissal is not well founded.

Discrimination, Burden of Proof, Prima facie case, Constructive Dismissal