Complainant

Respondent

Parties

Ogheneyoma  Ughwubrusi

Access Nursing Ltd.

Complainant

Respondent

Anonymised Parties

Representatives

  In person

Ryan O’Flaherty, Managing Director of Respondent

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-00048811-001

26/02/2022

The Complaint is one of race based discriminatory conduct and a race-based dismissal.

No application was made that the Adjudication hearing be heard other than in public.

The Complainant gave evidence under oath.

The Complainant was employed as a health care assistant by the Respondent on 1 July 2021. The Respondent is a Nursing Agency which places its staff with clients, which are hospitals and other health care providers.

The Complainant gave evidence that the Respondent discriminated against her in three respects. These are:

1.       Mr. Ryan O’Flaherty, the managing director of the Respondent during a telephone conversation with the Complainant on 25 January 2021 asked her which country she came from and told her that he preferred to book Irish staff.

2.       After completing a series of shifts in the Daughters of Charity facility Blanchardstown, on 13 July 2021 the Complainant was removed from that roster. Following this the Respondent was obliged, in accordance with her contract, to provide her with alternative work hours in another health care facility within two weeks, but they failed to do so.

3.       The Complainant was dismissed by letter dated 25 January 2022 because of issues that arose as a result of her work placement in Beaumont Hospital. The Complainant alleges that the reason she was dismissed was because she is a person of colour.

The Complainant takes issue with the Respondent or their clients taking issue with her for using an alias or shorter name, which was Lauren or Laurie. She accepts that Lauren or Laurie is not the name that appears on her passport, however it is quite usual for a person who is not Irish-born to use an alias if the people who she meets or works with have a difficulty pronouncing her own (long) name. There should be nothing problematic about the use of an alias when it is done only to assist people who are unable to pronounce her actual name. The Respondent made this issue into something sinister, which it was not.

The Complainant said that Mr. O’Flaherty treated her with disrespect.

The Complainant disputes that Beaumont Hospital had a problem with her working there. This can be proven by the fact that since her dismissal, she has been placed – by other nursing agencies – in Beaumont Hospital on a number of occasions and no issue has arisen.

Health care settings are continually short of staff and the Complainant stepped in and did shifts whenever she was asked, whenever she was needed but she was criticised and was ultimately dismissed for doing so.

The Complainant was not cross-examined although the option to cross-examine the Complainant was given to the Respondent.

The Complainant stated she did not receive the Respondent’s email dated 10 January 2021, advising her not to attend Beaumont Hospital although she accepts that the email address that the Respondent used to email her on this date, was correct.

Ryan O’Flaherty, the managing director of the Respondent gave evidence under affirmation as follows:

Mr. O’Flaherty denies the veracity of the Complainant’s evidence. He has never asked any member of staff where they come from and nor did he ever say that he prefers to book Irish staff, because that is not the case. 70% of the staff on the Respondent agency books are non-Irish workers. The whole business of the Respondent depends on health care workers from outside the State. The health care system in Ireland could not function without these workers.

He asserted that this is not a case about whether the Complainant’s name or an alias was used or not. Rather it is about the Complainant’s serious misconduct, whereby she attended health care facilities purportedly to do night shifts that had not been rostered to do so and persisted doing this even after she was excluded from a facility. He asserted that this case has nothing to do with race.

He stated that he has written minutes of every conversation that he had with the Complainant and none of these reflect the version of conversations given by the Complainant at the Adjudication hearing.

He stated that the Complainant was dismissed on 25 January 2021 arising out a serious situation that had arisen in Beaumont Hospital when the Complainant attended and sent in time-sheets for night shifts that she had not been rostered for. When this came to light and also when the hospital became aware that the Complainant was visiting a patient at the facility the Complainant was escorted off the premises by Beaumont staff and the Respondent was asked to ensure that the Complainant would never be rostered to work in Beaumont Hospital again. This was communicated by Beaumont Hospital management to the Respondent by email on 9 January 2021.  The Respondent was advised by Beaumont Hospital that the facility had over 900 vulnerable patients and only those who were legally entitled to be on site, should be on site. Beaumont also raised a concern that the Complainant was registering her work under an alias name. The Respondent was asked to ensure that the Complainant would not attend the hospital premises in the future for any reason other than if she is admitted as a patient. The Respondent wrote to the Complainant on 10 January 2021 by email to inform her that she would no longer be rostered to work at Beaumont Hospital.  Following this the Complainant was placed by the Respondent to work in other health care facilities.

On 21 January 2021 Beaumont Hospital Management again informed the Respondent that the previous night the Complainant had again attended Beaumont hospital purportedly to work even though she had not been rostered to work. Mr. O’Flaherty advised them that he would discuss the matter with the Complainant.

Mr. O’Flaherty telephoned the Complainant on 21 January 2021 and asked if she had attended Beaumont Hospital the night before. The Complainant accepted that she had but that this had been to visit a friend who had cancer, not to work. She denied that she had brought alcohol to this friend but said that her friend had asked her to do so. The minutes show that she accepted that she knew she had been excluded from the hospital premises.  Mr. O’Flaherty informed her that arising from this incident, which was extremely serious, that he had no option other that to dismiss her.

In terms of the three incidents of alleged discrimination Mr. O’Flaherty stated:

1.       He never said anything pertaining to the Complainant’s race or indeed anything about race during the telephone conversation with the Complainant on 21 January 2021 and the minutes reflect that.

2.       Despite what the Complainant alleges about not being rostered following her exclusion from the Daughters of Charity on 13 July 2020, the Complainant was rostered to work in other facilities on 14th, 15th, 16th and 17th of July in a number of other health care facilities.  

3.       The dismissal of the Complainant was reasonable in all the circumstances particularly in light of the serious matters that had been raised by Beaumont Hospital and the fact that the Complainant admitted attending Beaumont Hospital during the night even though she knew she was not rostered to work and even though she knew that she had been barred.

The Respondent was not cross examined by the Complainant

In a discrimination case, a Complainant is required to prove facts from which a prima facie case of discrimination (in this case on grounds of race) may be found.

The Complainant asserts that she was discriminated against by the Respondent and that there were three separate alleged discriminatory acts.

Taking these three allegations in turn

Firstly I find (unlike as the Complainant asserts) that the evidence shows that she was rostered following her exclusion from the Daughters of Charity facility in 13 July 2020.  So I find that claim that she was not rostered for more than 2 weeks, which is contrary to her contract, is unfounded.

Secondly, with respect to her dismissal, the Complainant has not proven that this occurred as a result of her race. I find that the Respondent was entitled to dismiss the Complainant arising from what was very serious misconduct, which the Complainant accepted occurred when she was questioned, although she denies that now. The Complainant accepted that she attended a hospital premises purportedly to work a night shift, even though she was not rostered to do so. Furthermore she did so in circumstances where she knew that she had been excluded from ever attending this hospital ten days previously and when asked by Mr. O’Flaherty to explain her attendance at the hospital during the night, she said that she was visiting a friend. The Complainant asserts but has not provided any evidence, that her dismissal was due to her race.

Thirdly, in relation to the telephone conversation on 25 January 2021, I do not find the Complainant’s evidence to be credible, given that Beaumont Hospital had just raised the serious concerns that they had and given that the purpose of the phone call by Mr O’Flaherty was to allow the Complainant to give her version of what had happened. Given this context I do not find it likley that during this conversation Mr. O’Flaherty would have asked her which country she came from or said that he preferred to book Irish employees. I find rather that account as set out in the Respondent’s minutes is a more likely version of the telephone conversation.

The Complainant did not identify a comparator during this inquiry.. I do not find the evidence of the Complainant to be credible. I find the evidence of Mr. O’Flaherty to be credible. I do not consider this complaint to be well-founded and I find that no prima facie proof of race discrimination has been discharged by the Complainant. 

I find this complaint is not well founded. I find that the Complainant was not discriminated against.

Discrimination – Race