Complainant

Respondent

Anonymised Parties

A Care Assistant

A Nursing Home

Representatives

Declan Weir Tuam CIC

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-00029743-001

17/07/2019

The Complainant commenced employment with the Respondent, a nursing home, on 7 February 2018, in the role of Care Assistant.

An incident which occurred with a colleague on 15 January 2019. As a result of this incident the Complainant commenced a period of certified sick leave. The Complainant remained on sick leave while the Respondent conducted an investigation into the incident. As the Complainant was dissatisfied with the subsequent outcome of the Investigation into her complaint, she submitted her resignation on 26 July 2019.

The Complainant then submitted a complaint to the Workplace Relations Commission on 17 July 2019, under Section 77 of the Employment Equality Act, 1998 claiming discrimination on the grounds of race.

That complaint, having been duly delegated to me by the Director General of the WRC, is the subject matter of this adjudication.

Background:

In her submission, the Complainant stated that while at work, on 15 January 2019, a colleague, (Ms A) referred to her as a “monkey”. The Complainant stated that she was too upset to report the incident herself, however, another colleague immediately reported the incident to the manager (Ms B).

In her evidence, the Complainant stated that the manager then invited Ms A to the office and spoke with her. The manager then called the Complainant, Ms A and an Administrator to a meeting.

According to the Complainant’s submission, the manager then asked her to explain what happened. The Complainant stated that when she said that Ms A had called her a “monkey”, the manager suggested that Ms A should apologise, which she (Ms A) then did.

The Complainant further stated that, she then referred to other occasions when Ms A had not treated her with respect in the workplace. According to the Complainant, the Administrator then advised that Ms A was her supervisor and had been employed for many years and consequently, the Complainant was obliged to take orders and instructions from her.

According to the Complainant’s evidence, she advised the Administrator that she had no issue taking instructions or orders but that she was not prepared to be verbally abused on the basis of her race. The Complainant further stated that she was very upset by the abuse she had been subjected to. According to the Complainant, the Manager then told her to accept the apology offered by Ms A and to shake hands.

The Complainant stated that the Respondent’s Dignity at Work Policy, as set out in the employee handbook, stated that where the informal approach to resolving complaints is used, it needs to be accepted by both parties. According to the Complainant's submission, she did not consider that the informal approach used by the Respondent had resolved the issue and, having sought advice from Citizens’ Information Service, she wrote to the Respondent requesting a formal procedure be undertaken in relation to her complaint.

According to the Complainant's submission, the investigation, which took place over a number of months, included an investigatory hearing held on 10 April 2019, interviews with witnesses and the taking of statements. The Complainant further stated that during the investigation process she was on certified sick leave, on the advice of her GP.

The Complainant further stated that, on 16 April 2019, the Respondent issued the minutes of the investigatory meeting and she responded with her comments. According to the Complainant, at this point, she felt the formal investigation remained unsatisfactory and did not address the issue of racial abuse. In addition, the Complainant stated that no further action was taken against miss A nor were any lessons learned.

In conclusion, the Complainant submitted that, as she was expected to continue working with Ms A and, given the Respondent's failure to protect her, she felt she had no option but to resign her position and make a complaint to the WRC.

Background:

It was submitted that the Respondent is a family owned and run Nursing home, which was established in 2002. It is further submitted that the Nursing home is managed by the owner along with her team of nurses, care assistants, catering and administration staff.

According to the Respondent’s submission, the Complainant was employed as a Care Assistant, on a temporary contract of employment, from 7 February 2018 to 26 February 2019.

The Respondent submitted that, on 15 January 2019, an incident occurred between the Complainant and a colleague, Ms A, who is also a Care Assistant. According to the Respondent, the Complainant alleged that Ms A had referred to her as a “monkey”.

According to the Respondent's submission, when the incident was brought to the Respondent's attention by a colleague of the Complainant, management took immediate action and met all parties involved. It was further stated that management initially tried to resolve the incident through the informal process, in line with the Dignity at Work Policy.

The Respondent submitted that, when the Complainant subsequently requested that the matter be addressed through the formal process, this request was duly complied with and the Company issued the final report of the investigation to the Complainant on 14 May 2019. However, according to the Respondent as the Complainant was out of the country at the time the correspondence was returned undelivered, It was re-issued to the Complainant on 29 May 2019.

Preliminary Point:

The Respondent made a preliminary point in relation to time frames. In this regard, the Respondent referred to the Employment Equality Act where it states that “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of a period of six months from the date of the occurrence or as the case may require the most recent occurrence of the act of discrimination or victimisation to which the case relates”

According to the Respondent’s submission, the Complainant had sufficient time, after the date the report issued, to lodge her claim and, as a result, that the WRC did not have jurisdiction to hear the case at this time.

Respondent’s submission:

Without prejudice to the preliminary point raised above, the Respondent's representative proceeded to make a substantive submission in reply to the Complainant’s complaint.

With regard to the incident at the centre of the Complainant’s complaint, the Respondent submitted that, sometime prior to the incident, the top of a stairs had been blocked off, for health and safety reasons, and all personnel were required to use a ramp instead. According to the Respondent's evidence, when Ms A was questioned, as part of the informal process, by the Manager (Ms B) she stated that the incident occurred while she was taking a resident up the ramp. It was stated that the Complainant was at the top of the stairs and commented to Ms A that it would be quicker to go down the steps, to which Ms A replied: “well if we were monkeys, it would be good, we could get over it.”

It was further stated that Ms A informed Ms B that she had not meant to cause the Complainant any upset and that she would apologise to her immediately.

According to the Respondent’s submission, Ms B then asked the Complainant to come to the office to discuss the matter. It was further stated that the Complainant was initially reluctant to come to the meeting, as she was still upset, but then she agreed to do so, as she was informed that Ms A wished to apologise to her.

The Respondent submitted that during this meeting, Ms A apologised to the Complainant and explained that she did not mean to cause her upset, that it was a poor choice of words on her part and she extended her hand as an offer of apology. According to the Respondent's submission, while the Complainant shook Ms A’s hand, she did not wish to acknowledge her. It was further stated that Ms B then requested that the parties make eye contact on this occasion, in attempt to resolve the issue between them.

According to the Respondent's submission, the Complainant then claimed that there were other occasions when Ms A had not treated her with respect. It was further submitted by the Respondent, that the Complainant did not provide any information in relation to these other occasions where she alleged Ms A had been disrespectful towards her. The Respondent further pointed out that the Complainant did not provide any additional information regarding this allegation in her complaint to the WRC. Consequently, the Respondent stated that they were not aware of any other issue with the exception of the incidents that took place on 15 January 2019

According to the Respondent’s submission, if they had been made aware of the other incidents/ issues between the Complainant and Ms A, they would have been thoroughly investigated similar to the incident of 15 January 2019.

The Respondent stated that, on 23 January 2019, the Complainant requested the incident be addressed through the formal procedures, as she was unhappy with the resolution through the informal process. According to the Respondent, the matter was taken extremely seriously and an immediate investigation commenced on 4 February 2019. This investigation was carried out by director of the business, Ms C.

According to the Respondent, due to the Complainant’s absence on sick leave, from 17 January 2019, the investigation process was delayed, with the result that the earliest Ms C could meet with the Complainant was 10 April 2019. It was further submitted by the Respondent that the Complainant had been written to on many occasions requesting to meet with her, but she continued to issue additional medical certificates. According to the Respondent’s submission, they did not receive a fitness to engage certificate from the Complainant until 20 March 2019. Subsequently, a further delay occurred when the Complainant requested that her meeting with Ms C take place outside of the Nursing home. This request was complied with and the investigation meeting with the Complainant finally took place on 10 April 2019 at an offsite venue.

The Respondent submitted that the investigation was concluded on 14 May 2019 and the Complainant was provided with a copy of the investigation report. However, the Respondent further stated that, as the Complainant was out of the country at the time, the correspondence containing the investigation report was returned undelivered to the Respondent. The Respondent stated that the report was resent on 29 May 2019. 

According to their submission, the Complainant wrote to the Respondent on 6 June 2019 advising that she would respond to the investigation report within 10 days but also requested to know what further action was going to be taken on the matter. The Respondent submitted that, having replied to the Complainant on 10 June 2019, they received further communication from her on 14 June 2019. It was further stated that this correspondence was responded to in detail by Ms C on 28 June 2019.

Conclusion:

In conclusion, the Respondent stated that when they received the Complainant’s resignation letter, they offered to meet with her on a number of occasions and also sent her a copy of the grievance procedures. According to the Respondent's submission, the Complainant did not wish to meet them and declined the offer to try and resolve the outstanding concerns she had in relation to the process.

According to the Respondent's submission, it was their opinion that the Complainant never intended to have the matter resolved or to return work with their Respondent. In this regard, the Respondent submitted evidence in relation to a reference request they received, on 6 March 2019, from another Nursing home, for whom the Complainant was completing hours. It was further submitted that this request came at a time when the Complainant was on sick leave from the Respondent.

In addition, the Respondent stated that they followed the policy regarding the incident on 15 January 2019, having initially dealt with the matter under the informal process and then, at the request of the Complainant, who was dissatisfied with the outcome of that process, conducted a formal investigation. The result of this investigation was that it was not possible to establish the exact context in which the offensive word was used. However, while establishing that the incident did occur, it was considered to be a once off incident, which was unlikely to be repeated.

In conclusion, the Respondent referred to Section 6 of the Employment Equality Act which denotes discrimination as: “one person is treated less favorably than another is, has been or would be treated”. The Respondent submitted that in all the circumstances, the Complainant had not been treated any differently to any other employee on the grounds of her race while employed by the Respondent.

The Respondent further stated, in conclusion, that while it understands the Complainant was upset by the comment, the Company did take immediate action on the date the incident occurred and the matter was fully investigated in line with the Company's policy. It was further stated that the employee who made the comment apologised to the Complainant and, as a result, the policy was applied fairly.

In summary, the Respondent submitted that the Complainant was not treated any less favorably in comparison to any other employee of the company.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence and submissions adduced in this regard in reaching my determinations as set out below.

Preliminary Point:

The first aspect of the complaint to be considered is the preliminary point raised by the Respondent. It is submitted that while the incident, on which the Complainant’s complaint is based, took place on 15 January 2019, her complaint to the Workplace Relations Commission, in this regard, was not submitted until 17 July 2019. As this represents a period of time longer than the six months referenced in the Act, the Respondent submits that the WRC does not have the jurisdiction to hear the case.

In considering this aspect of the Respondent submission, I reviewed the relevant legislation applying in this particular situation.

With regard to timeframes, Section 41 (6) of the Workplace Relations Act 2015 Act states as follows:

(6) “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

On the basis of the evidence adduced, I am satisfied that by submitting her complaint on 17 July 2019, the Complainant’s complaint was submitted after the expiration of the period of six months beginning with the last date of the contravention being alleged, which was 15 January 2019.

Notwithstanding the above, I must consider the implications of subsection 8 of the 2015 Act, as referred to in subsection 41 (6) above, which states as follows:

41 (8) “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 issue arising in the within case, is whether reasonable cause has been shown for an extension of time.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by the Labour Court in the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll [DWT0338], where the test was set out in the following terms: -

“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”.

The test formulated in the above case relies on the decision of the High Court case Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. where Costello J. stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

It clear from the above authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and her failure to present the complaint in time. Thirdly, the Complainant must establish, as a matter of probability, that they would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. Consequently, it is the actual delay that must be explained and justified.

Having carefully reviewed all of the evidence adduced in this case, it is clear that while the incident at the centre of the Complainant's claim took place on 15 January 2019, the Respondent’s application of the process, as contained in their Dignity at Work Policy, which included invoking both the informal and formal stages, did not conclude until 28 June 2019, when the final communication in this regard issued to the Complainant.

According to the Complainant’s submission, it was only at this point she concluded that the Respondent's handling of the matter was unsatisfactory from her perspective and, as a result, in being required to return to work with the colleague against whom she had made the complaint, she was not being protected by the Respondent. Consequently, the Complainant concluded that she had no option but to resign her position and make a complaint to the Workplace Relations Commission.

Taking all of the above into consideration, I am satisfied that it would be unreasonable to have expected the Complainant to submit a complaint to the WRC in advance of the internal procedures having concluded. Consequently, in that regard it would be equally unreasonable to penalise her for not doing so.

Therefore, I find there is reasonable cause as to why the Complainant’s complaint was not submitted prior to the expiry of the six-month period specified in Section 41 (6), to the extent that I exercise my discretion as set out under Section 41 (8) of the 2015 Act and thereby entertain the Complainant’s claim as submitted on 17 July 2019.

On that basis, I now proceed to consider the substantive element of the Complainant’s complaint.

Substantive Complaint:

Section 6 (1) of the Employment Equality Acts, 1998 – 2007 states that:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated”.

In support of her complaint, the Complainant, in the within case, is inferring that she was discriminated against by reason of her race and by way of the manner the Respondent responded to the incident which occurred between her and a colleague, which resulted in her concluding that she had no option but to terminate her employment with the Respondent.

Section 6 (1) (h) of the Acts states that: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

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

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he/she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Employment Equality Acts 1998 to 2008.

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 inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "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".

Having carefully reviewed all of the evidence submitted, I am satisfied that the Respondent acted in a reasonable and responsible manner once the incident of 15 January 2019 involving the Complainant and her colleague was brought to their attention. I am further satisfied that the Respondent appropriately followed the procedures as set out in the Dignity at Work Policy.

In the circumstances, I am satisfied that it was an appropriate initial response on the Respondent’s behalf to seek to resolve the matter through the informal process. This process established that the Complainant’s colleague did use the offensive word during their interaction, albeit there was some disagreement between the parties as to the exact context in which the comment was made. However, it is clear that the Complainant's colleague apologised, in the presence of management for the comment.

The evidence shows that when the Complainant advised that she was dissatisfied with the outcome of the informal process and required the matter to be formally investigated, the Respondent immediately complied with this request and conducted a formal investigation.

Having carefully reviewed the investigation process, including the final report, as submitted in evidence, I can only conclude that the process conducted by the Respondent was thorough and fair in its application. On that basis, I find that the outcome of the process was, in all the circumstance fair and balanced. I am further satisfied that there was little more that the Respondent might have been required to do into circumstances.

I am also satisfied that no evidence was submitted to the Respondent by the Complainant in support of her allegations that Ms A had previously behaved inappropriately towards her. Consequently, I am satisfied that there was nothing further that the Respondent could have done in this regard. Therefore, I find the Respondent’s conclusion that they were dealing with a single incident was reasonable in the circumstances.

It is clear, from the evidence submitted by the Complainant, that she was dissatisfied with the outcome of the process. Notwithstanding the fact that they had already conducted a thorough investigation into the matter, the evidence clearly indicates that the Respondent was willing to engage further with the Complainant in an effort to address her remaining concerns. However, it is clear, from the evidence, that the Complainant failed to engage with the Respondent in this regard and submitted her resignation.

Taking all of the above into consideration and having carefully reviewed all of the evidence, I can find nothing to suggest that the Respondent would have acted differently and/or more favorably had the incident involved an employee of a different race, colour, nationality or ethnic/national origin.

Based on this finding, I conclude that the Complainant has failed to establish a prima facie case of discrimination, such that the burden would have shifted to the Respondent to prove the contrary, as set out in Section 85 A (1) of the Employment Equality Acts, 1998 – 2007.

Having carefully considered all of the evidence adduced and based on the conclusions/findings as detailed above, I find that the Complainant’s claim of discrimination on the grounds of race is not well founded and is, therefore, rejected.

In issuing this decision I exercise my discretion to anonymise the identities of the parties involved.

Employment Equality Act

Race