Complainant

Respondent

Parties

Gireesh  Palickal Rajasekharan Nair

Beechwood House Nursing Home

Complainant

Respondent

Anonymised Parties

Representatives

In person.

David Gaffney ,Gaffney Solicitors

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-00038698-001

18/05/2020

The Complainant commenced employment with the Respondent on the 9th September 2019 as a Chef. Employment ended on 6th May 2020.

This complaint, submitted under section 77 of the Employment Equality Act, 1998, was received by the Workplace Relations Commission on 18th May 2020.

The Complainant was employed as a Senior Chef by Beechwood Nursing Home, Newcastle West, Co. Limerick and his wife was working as a Staff Nurse in in a Care Centre in Co. Limerick.

The Complainant contends that the actions of his employer (the Respondent) affected him very badly and that he had never suffered such treatment at the hands of an employer.

The Complainant contends that he was a hardworking, trustworthy employee who suffered discrimination at the hands of his employer who have dismissed him.

On 6th April 2020 the Director of Care, and the Home Owner, called the Complainant to the office where they offered a job to his wife as a Staff Nurse in Beechwood Nursing Home. The Complainant informed them that it was his wife’s decision and also said that he would talk to his wife and let them know her answer later.

Initially the Complainant thought that it was a general enquiry but then things changed when the Complainant informed them that his wife was happy where she was and had said no to their offer.

On 8th April 2020 the Director of Care called the Complainant on the phone and informed the Complainant that he would have to go into isolation as his wife’s work place had a case of positive Covid 19. The Complainant agreed to this and went home to isolate for 2 weeks.

Both the Complainant and his wife underwent testing for Covid 19 on 11th April 2020 and after a few days the result showed that they were both negative.

The Complainant telephoned the Director of Care and informed her of the test result. She

asked the Complainant to return to work on 22/04/2020.

At this point the Complainant thought everything was going to be settled on their side.

On 22nd April 2020 the Complainant returned to work.

On 27th April 2020 both the home owner and the Director of Care started questioning the Complainant about his wife’s decision not to accept the offer of a job with them. The reason this time was that there was a case of covid 19 previously at her work place. The Complainant repeatedly said it was his wife’s decision and she is currently happy in her job and had no desire to resign.

From this point onwards, the Complainant contends that the manner in which he was being treated by the Director of Care and the home owner changed and it became quite visible to him that they were given him no consideration whatsoever. They appeared not to value his rights and they ignored his requests of re-consideration.

On 1st May 2020 the Complainant contends that both the Director of Care and the home owner threatened and questioned him rudely about his decision. The Complainant informed them that he could not do anything, and he was not a person who interferes with his wife’s choices. It was up to her whether she accepted the job or not.

At this point the Complainant felt that both the Director of Care and the home owner were stereotyping his ethnicity on decision making which he found to be very painful for both him and his wife.

On 5th May 2020 the Director of Care and the home owner called the Complainant on the telephone and questioned him again whether she (the wife) was coming or not. The Complainant, yet again said that he will let them know the next day as he claims he was horrified at this point not knowing what to do next.

On 6th May 2020 the Complainant sent a text to the Director of Care informing her that his wife would not be accepting a job and repeated to her that it was his wife’s personal decision regarding her career and choices. The Complainant went onto inform the Director of Care that he was unwilling to interfere in it. The Complainant contends that he begged her (the Director of Care) to understand his situation.

On the same day the home owner, called the Complainant from his mobile phone. The Complainant missed the call and when he (the Complainant) called the owner back he was asked by the owner to take two weeks’ vacation. The Complainant asked the owner what would happen after two weeks he was informed by the owner “We can’t keep you here”.

The Complainant asked the home owner why it was only him and pointed out that there are many people who are working in different Nursing homes and why was he specifically targeting him. The answer from the home owner was that Beechwood nursing home is different.

The Complainant then states that without any other options, he requested them to give him a letter explaining the reasons why they cannot employ him and also asked for reconsideration again.

The Complainant then states that a letter was provided that did not reflect their ‘dark side’.

The Complainant stated that he felt threatened, he had been discriminated against and that the Respondent has achieved their objective by dismissing him

The Complainant states that he is still stunned by the situation he found himself in and that even his wife’s employer showed sympathy toward their plight.

Background:

The Complainant commenced employment with the Respondent on the 9th September 2019 as a Chef and signed a Statement of Terms and Conditions in relation thereto on the 28th August 2019.

Summary of Complainant’s Case:

The Complainant alleges that he was the subject of a discriminatory dismissal on the 4th May 2020 on the grounds of family status and/or race.

Respondent’s Position:

The Respondent operates a Nursing Home. On the 6th April 2020, the Respondent became aware that there was a positive case of Covid-19 in Abbot Close where the Complainant’s Spouse works as a Nurse. This gave rise to significant concerns for the Respondent and as a precautionary measure, the Respondent contacted the Public Health Agency on the 6th April 2020 in such regard and their advice that the Complainant should self-isolate for a period of 14 days. The Complainant was advised that he would be provided with a letter in order to facilitate any payment associated with such leave and it is important to point out that in April 2020 Covid-19 was very much an unknown phenomenon notwithstanding that almost 2 years later this particular case requires a reminder of the global uncertainty and concern that existed at such time but which is, nonetheless, very different to the global uncertainty and the global continued uncertainty and continued concern that currently exists. In this regard it is important to note that on the 11th March 2020 the World Health Organisation declared Covid-19 to be a pandemic and the first confirmed case of Covid-19 in Ireland was made on the 26th February 2020 it is of paramount importance that in the context of the Complainant’s case that the Adjudicator is mindful of the significant lack of understanding of what exactly Covid-19 was outside of the fact that the World Health Organisation had stated it to be of a pandemic nature.

On the 12th March 2020 St. Patrick’s Day was cancelled and large celebrations were included. Schools and childcare facilities were closed. On the 27th March 2020 a “stay at home order” was issued by the Government and all non-essential travel was banned. Those most at risk were advised the “cocoon” and which included those with an underlying med condition and the elderly. By mid-April 2020, half of the world was in some form of lockdown. It is during this time that the Respondent was concerned that the Complainant’s wife was employed in another healthcare facility, specifically Abbot Close, and which necessarily required attention and consideration. Alternative accommodation was offered to the Complainant so that there would not potentially be any risk of cross contamination to either healthcare facility, in this case two nursing homes in circumstances where such situation was applicable to the Complainant and his Spouse.

Numerous discussions were had with the Complainant and indeed his Spouse. It was also proposed, as an alternative, that the Respondent would employ the Complainant’s Spouse as a Nurse, despite having a full complement of nursing staff, but which would nonetheless serve to reduce any cross-contamination issues of both the Complainant and his Spouse living in the same house but working separately in two nursing homes. This proposal was based on a temporary arrangement whereby the Complainant’s spouse would work for the Respondent until such time as she were to secure a contract of employment with the HSE. The Complainant’s spouse ultimately was not agreeable to such a proposal.

The Complainant’s position as Chef is an important one. The Respondent carried out a Risk Assessment on the instructions of the Public Health Agency and the HSE and ultimately guidelines were issued in respect of expectations that such entities have of nursing homes in times of the newly-designated global pandemic.

The Booklet of documentation attached hereto sets out clearly the Guidelines in such regard. Such Guidelines necessitated on-going training and direction of nursing home staff in order to ensure adherence to such guidelines and also in order to reduce and/or eliminate any situations that may serve to compromise the health, safety and welfare of its residents and staff.

It would appear that the Complainant did not, for some reason, fully appreciate the significance of the situation that had started to unfold and, for some reason, believed that the enquiries made of him, arising from the cumulative infection concerns of two individuals living in the same house and working in nursing homes, the residents of which during which Covi-19 are the most vulnerable element of society, but instead appears to believe that he was in some way singled out and that such treatment ultimately led to him being dismissed on discriminatory grounds.

To be clear, the Respondent at no stage had any issue with the Complainant’s performance and his absence, for any reason, only served to effect the operations of the nursing home, so much so that during the Complaint’s period of absence, the Respondent had to make alternative arrangements which required the engagement of an external caterer that prepared and cooked lunch and dinner for residents and delivered such food to the nursing home at the appropriate times and whereby the Respondent paid significant sums for such service.

The Complainant has failed to identify a comparator in respect of a discrimination alleged by him that resulted in his dismissal. In this regard, it is submitted that there is no such comparator as there was no discrimination and the Respondent did not terminate the Complaint’s employment. The Complainant, during his period of absence secured alternative employment and confirms that to be the case in his Submission to The Workplace Relations Commission and which he states occurred on the 19/05/2020, despite not advising the Respondent of same.

The Complaint has not made a prima facia case for discriminatory dismissal. It is submitted that the Complainant’s claim in such regard is spurious and vexatious in nature and arising from anything other than what he states it to be. In such regard, it is submitted that the Complaint’s case should be dismissed in its entirety and it is noteworthy that all of what is contained in the Submission made by the Complainant makes little or no appropriate reference to Covid-19 during the period of communications between the Complainant and the Respondent as regards Covid-19 and which it is submitted is quite remarkable, most unusual and continues to lack any full appreciation and consideration for the circumstances in which every nursing home in the country found itself in at that point in time during a pandemic.

Equality Law is based on comparison; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator must be employed by the same employer as the complainant or by an associated employer.

A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon.

In the instant case the complainant has failed to identify a comparator.

The decision of the Labour Court in Valpeters v Melbury Developments Limited [2010] E.L.R. 64 has become a leading case on the issue of burden of proof for cases concerning discrimination on the grounds of race. The Labour Court stated:

“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 the instant case the Complainant has not provided any evidence that would suggest that he was discriminated against on the grounds of his race.

The Respondent’s representative has clearly pointed out that It would appear that the Complainant did not, for some reason, fully appreciate the significance of the situation that had started to unfold and, for some reason, believed that the enquiries made of him, arising from the cumulative infection concerns of two individuals living in the same house and working in nursing homes, the residents of which during which Covi-19 are the most vulnerable element of society, but instead appears to believe that he was in some way singled out and that such treatment ultimately led to him being dismissed on discriminatory grounds.

Risk assessments were carried out by the Respondent and the Complainant was deemed to be in the High Risk category.

By letter dated 8th May 2020 and addressed to the Complainant the Respondent has stated:

•  Staff should only work in one RCF and not move across settings (RFC: Residential care Facility)

Thedefinitionusedisthatafamilyunitcohabitingtogether isconsidered ONEUNIT,inthat whatever one party may do it is considered done by the other parties also.

The advice given it that the affected parties should not live together if they continue to work in different RFC's, and if this cannot happen, then we must consider what is best for the home.

We did discuss these options with you on a number of occasions over the past three weeks, which you were not infavour ofandwealsoofferedemploymenttoyourspouse atBeechwoodHouse,to enable you both to work in the same RFC, and for our protocols on COVID-19 this is acceptable.

As you are aware, this pandemic is very serious and transmits between people very easily and therefore your situation poses a very serious risk to the residents and staff at Beechwood House.

It is on this basis that we ask you to not attend work at Beechwood House for the duration of the pandemic or while your spouse continues to work in another healthcare setting.

We also arevery disappointed with this outcome, and would welcome you back to Beechwood House, as you have been a great asset to the home with your culinary skills and both residents and staff have enjoyed every meal that you have cooked for them.

If you require any further information, please do not hesitate to contact either of us directly and we will do our best to facilitate you.

We do of course understand if you decide to seek alternative employment away from Beechwood House, as in in these difficult times good Chefs are being sought after.

In the meantime, whilst you are considering this, you can let us know if you wish to be paid any accrued holiday hours and this will be arranged in due course.

I am satisfied that the Respondent has followed the advice obtained from the Authorities to safeguard the health and safety of residents and staff alike.

The actions of the Respondent were, in my opinion, not discriminatory and it is on this basis that I must conclude that the complaint of discrimination is not well founded.

The actions of the Respondent were, in my opinion, not discriminatory and it is on this basis that I must conclude that the complaint of discrimination is not well founded.