Complainant

Respondent

Parties

Hong Yen  Foh

Wakely Engineering Limited

Representatives

  Self

Ms Dorothy Donovan BL instructed by Rory O'Neill , Mallon 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-00044439-001

01/06/2021

The Complainant was employed by the Respondent from 26th March 2018 until 14th April 2021, he was employed in the design office.

This complaint was received by the Workplace Relations Commission on 1st June 2021.

Any witnesses providing evidence swore an affirmation prior to giving evidence.

The Complainant received his first disciplinary meeting / warning in November 2020. This warning was issued after the Complainant had ordered the wrong mud flaps for a machine. The Complainant thought this to be unfair but did not appeal the issue of such a warning.

When the Complainant refused to sign the aforementioned warning, he contends that he was threatened that things would get worse in the future.

Following this the Complainant contends that he received invitations to several disciplinary hearings over mistakes that he had made. The Complainant accepts that he did make some mistakes in his work but not all accusations are true.

The Complainant mentions some technical date regarding a pin holder.

After receiving invitations to four disciplinary hearings and receiving two disciplinary warnings the Complainant decided to ‘quit my job’ as he did not want to work in a negative environment created by management. The Complainant goes onto say that he did not feel appreciated by management for what he had done during his 3 years of employment. The Complainant states that he had been depressed for a few months before his decision to resign. The Complainant did not attend his doctor with this feeling of depression.

Some time after his resignation the complainant received an anonymous email in relation to a conversation between one of the management team and an external consultant. The Complainant contends that in this conversation it was stated that management were of the opinion that the complainant was no longer wanted in the company and there were plans to get rid of him from the company. These alleged plans included two different routes that could be used to achieve this objective. One would be through the immigration department and his visa renewal. If that was unsuccessful management would use the disciplinary procedure.

The Complainant thinks that the disciplinary meetings were held with the purpose of removing him from his job. He believes that management knew they had failed to approach him in relation to his visa renewal, so they started to issue him with disciplinary meetings and warnings. He believes that management have successfully forced him to quit his job because he could not take the pressure and made-up accusations which were happening on a monthly basis.

The Complainant also contends that management expected him to know everything. The Complainant stated that he would always request management to double check his work because he wanted them to be happy that his work was right.

The Complainant was now at a stage where he felt that no matter what he done it would not be right in management’s view.

The Background:

The Complainant commenced working with the Respondent as a design office engineer on 26th March 2018.   The Complainant’s employment ended when he resigned from his employment by letter of resignation dated the 31st March 2021

The Complainant’s gross weekly salary was €615.42.

The Complainant being a non-eu national worked on foot of an Employment Permit with an expiry date of February 2022.

After the retirement of Mr Feilim Wakely, Snr, the younger generation of the Wakely family, being the said Feilim Wakely Jnr and the said Cian Wakely, sought to enhance efficiency and reliability in all walks of the company and not just its products.   They started to update company policies and procedures, paying particular attention to employee relations, health & safety issues, compliance issues and to do what is necessary to meet the challenges brought by Brexit.   Towards this end various reviews were carried out and it came to light that the Complainant and other employees were not adequately fulfilling their roles.

Despite this being brought to the attention of the Complainant, matters did not improve and it was decided to invoke the disciplinary procedure.   The said disciplinary procedure was also invoked against the other relevant employees, who are Irish nationals and names will be furnished at the hearing.  

In the interests of clarity, it was the Complainant’s incompetence in carrying out his role that was the sole purpose of the invocation of the disciplinary procedure. The failures of the Complainant were raised informally by identifying to the Complainant his mistakes and by putting in resources for improvement.   However, the Complainant refused to accept any responsibility, nor would he accept any feedback and he did not improve.   This was the sole reason for progressing the matter to the formal stage of the disciplinary procedure which was by way of two disciplinary meetings held on 29th January 2021 and on 1st April 2021. The matter was progressed into the formal procedure due to the Complainant’s failure to accept any responsibility and had nothing whatsoever or howsoever to do with his race.

The Complainant alleges that the latest date of alleged discrimination was 1st April 2021 which was the date of the latest disciplinary hearing.

In the Special Facilities Details Section of the WRC Complaint Form the Complainant states as follows:-

I am a foreigner from Malaysia and my current visa is valid until 12 February 2022.   My employer intended to use my visa to dismiss me from the workplace just because he doesn’t like me.  Last November I was told that my Employment Permit was ‘missing’ which should be kept safely by the company.   I’ve decided to leave Ireland by 30th June after this incident as there are a lot of uncertainties on renewing a new Employment Permit during the Covid-19 period.   I might need to do the hearing using video call applications if that’s possible. Thank you.

It appears from the Specific Detail Section of the WRC Complaint Form that the alleged act of ‘victimisation’ is the use of the disciplinary procedure.   However, it has to be said that the narrative of the Complainant in the said Section clearly details a catalogue and a litany of issues that required investigation.   The Complainant lays the blame for some of the failings at the feet of Mr Seamus McMahon, his supervisor.   Nowhere is it alleged that there are other employees who would not have been treated in like manner in like situation.   In the interests of fullness the said Mr McMahon, in common with the Complainant and other Irish employees, was disciplined by the Respondent; Mr McMahon resigned from his employment and currently has a claim for constructive unfair dismissal pending before the WRC.

In the Complaint Specific Detail the Complainant admits that he is in possession of documentation of the Respondent obtained nefariously and which he alleges was anonymously received by him.   This matter was referred by the Respondent to An Garda Siochána and is currently under investigation.

This nefariously obtained documentation was received by the Complainant after he resigned his employment.

The Complainant refers to the fact that his contract and his immigration file have gone missing from the Respondent’s files.   The Complainant appears to be inferring that the Respondent deliberately removed his files in order to ‘get rid of him’ from the company.   The Respondent is outraged by this suggestion which is defamatory.   This assertion or inference by the Complainant is unsustainable in circumstances whereby the Complainant’s visa and work permit is stamped into his passport and the loss of the copy held by the Respondent does not affect the Complainant whatsoever or howsoever.  The Respondent accepts that some papers have been removed from the Complainant’s file but it is clear from the document obtained nefariously by the Complainant and furnished to the WRC that the documentation was not removed by the Company.

It is abundantly clear from the said nefariously obtained documentation that the reasons for deciding to dismiss the Complainant had nothing to do with his race whatsoever or howsoever and nowhere, save for ticking the ‘race’ box, has the Complainant alleged so or narrated anything that so infers or suggests.   The said documentation clearly sets out the reasons for the said decision.   It is reiterated that the Complainant was not dismissed and nor has he claimed a constructive unfair dismissal or a discriminatory dismissal.

LEGAL SUBMISSIONS

Preliminary Issue:

The Complainant alleges race discrimination and, as noted above, this is a mere assertion by him.   The burden of proof rests with the Complainant and is not shifted by his mere assertion and will not be shifted unless and until the Complainant satisfied the Adjudication Officer that he has a prima facie case.

As noted above, the Complainant whilst referring a complainant pursuant to the Act of 1998, has not referenced or mentioned, whatsoever or howsoever, in the extensive specific detail of his Complaint Form any conduct being as a result of his race.

In the circumstances the Respondent respectfully submits that the within complaints should be dismissed pursuant to s.42 of the Act of 2015 on the basis that they are not well founded/are frivolous and vexatious within the meaning of s.42 or in the alternative that the claim should be dismissed on the basis that the Complainant has not made out a prima facie case of discrimination or any case at all.

The Burden of Proof:

Section 38 of the Equality Act, 2004, inserting a new section into s.85, s.85A, of the Act of 1998 sets out the burden of proof in discrimination cases.   See s.85A set out hereunder:-

85A.—(1) Where in any proceedings 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.

Accordingly, the  burden of proof rests on the Employee in the first instance.See Melbury Developments Limited v Arturs Valpeters (EDA09171),  which is the established authority on the said burden of proof and which said as follows:-

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 85 (4) places the burden of establishing the primary facts fairly and squarely on the Employee and the language of this provision admits of no exceptions to that evidential rule.

It is important to highlight that it is only after the Complainant establishes a prima facie claim of discrimination that the burden of proof will shift to the Respondent to establish on the balance of probabilities that the Complainant was not discriminated on the grounds of racial origin (see Dr. Munck v National University of Ireland, Maynooth (DEC-E2005/030, at paragraph 17).

The Causal Connection:

It is necessary to establish a causal connection between the alleged impugned act and the Complainant’s race. If the invocation of the disciplinary procedure is the alleged discriminatory act, and again the Complainant has not so asserted, the Complainant has failed absolutely to show any necessary causal connection between the said act and his race or nationality and indeed there is none.

The Comparator:

Discrimination has a specific meaning in equality law. In the Employment Equality Acts the definition of discrimination focuses on whether a person has been treated less favourably in the workplace than another person in a similar situation on any of the nine grounds.   Whereas the principle of the ‘hypothetical’ comparator is accepted this is not a case whereby this principle applies as there is an ample workforce of Irish employees in the Respondent company from which to choose a real comparator.

The Complainant has not pointed to any comparator who has been treated more favourably than him in a similar situation or at all and in fact the Respondent will point to some Irish employees who were put through the disciplinary process at the same time as the Complainant for similar failings.

In this regard the Adjudication Officer is directed to the case of Power City v Edel Whelan (EDA194) where the Labour Court made it clear that in equality law “it is 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.”  

As already noted, in paragraph 4 of his Complaint Specific Detail to the WRC, the Complainant in effect blames another employee, his supervisor for some of the subject matters of the disciplinary process.   That other employee, who is Irish, went through the disciplinary process, had verbal and written warnings, and currently has a complaint pending in the WRC for constructive unfair dismissal because he was put through the disciplinary process.   Accordingly, the Complainant was not treated less favourably in the workplace by virtue of his race or at all.

In Apparel Supply solutions Limited (formerly Teamkit Limited) v Sandra Mullenthe Labour Court held that it is not enough “to reach conclusions of fact based upon mere supposition or speculation” and that in order to succeed “in her contention that these acts amounted to acts of discrimination, the Complainant must produce some significant evidence of discrimination and not mere supposition in order to allow the Court to draw an inference that persons of a different race or nationality were or would have been treated more favourably.

Race Discrimination

1.      Section 31 of the Act, which prohibits indirect discrimination inter alia on the race ground, states as follows: -

31.— (1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment—

(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8(1),(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and(d) cannot be justified as being reasonable in all the circumstances of the case, then, subject to subsections (4) and (5), for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8, on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).

Victimisation:

It is reiterated that the Complainant has not set out the acts that are the acts alleged to constitute victimisation but in any event the Complainant has misconstrued what constitutes victimisation for the purpose of the Act of 1998.   Section 74(2) of the Act of 1998, as amended by s.29 of the Equality Act 2004, defines victimisation occurring as follows: -

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

a)      a complaint of discrimination made by the employee to the employer,

b)      any proceedings by a complainant,

c)       an employee having represented or otherwise supported a complainant,

d)       the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

e)        an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

f)         an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

g)       an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Complainant in the complaint referred by him to the WRC does not allege any of the above occurred; for the avoidance of doubt none of the above did occur and are thus not applicable.   In these circumstances the Complainant’s claim of victimisation must fail.

Other:

As the Complainant has failed to particularise what is meant by ‘other’ the Respondent is not a position to submit on same save to reiterate that the Complainant was not discriminated against by reason of race, was not victimised and was not treated adversely by reason of any other act constituting discrimination.

Discriminatory Dismissal:

The Complainant was not dismissed but rather to use his own words: -

“Last November I was told that my Employment Permit was ‘missing’ which should be kept safely by the company.   I’ve decided to leave Ireland by 30th June after this incident as there are a lot of uncertainties on renewing a new Employment Permit during the Covid-19 period”.

The Complainant has not referred a complaint of discriminatory dismissal albeit in his Complaint Specific Detail he states that he has been “successfully forced to quit my job because I could not take the pressure and the made-up accusations”.  

It is accepted that the Act of 1998 recognises the concept of a constructive dismissal.   See s.2(1) of the Act, set out hereunder: -

s.2 (1) “dismissal” includes the termination of a contract of employment by the employee (whether prior notice of 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 to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

However, this is not a complaint of constructive unfair dismissal simpliciter or any dismissal at all and if there is a dismissal complaint is it a discriminatory dismissal complaint and if so, the Complainant must establish a causal connection between any such dismissal and his race.  

It is beyond doubt but that the Complainant does not make a connection between any alleged impugned conduct and his race but rather he resigned because of difficulties he perceived with getting his employment permit renewed and because of issues regarding the disciplinary procedure.

It is submitted that there no facts, whatsoever or howsoever, expressly, or implicitly, from which an inference of discrimination on the grounds of race can be reached.   See again Dr. Munck v National University of Ireland, Maynooth (DEC-E2005/030) where the Labour Court noted in paragraph 22 of the judgment said that it is recognised that a decision must be made if an inference of discrimination on the grounds of race can be determined on the facts.”

As regards any reliance by the Complainant on the nefariously obtained documentation, this cannot have any bearing on the Complainant’s decision to resign coming ex post facto his resignation.   It is submitted that it is not open to the Complainant to seek to rely on ex post facto matters to ground his complaint as such action being ex post facto could not have been in the contemplation of the Complainant at the material time being the time he took the decision to resign.   In this regard, see Health Service Executive v Patricia Cullen Killoran [EDA 1830] where the Labour Court said as follows: -

“incidents which occurred after the complaint had been presented [after the decision to resign] could not have been comprehended by the claim [complainant] and could not be relied upon for the purpose of obtaining redress”.

SUMMARY:

Race Discrimination Complaint:  Other than ticking the box for ‘race discrimination’ on the WRC Complaint Form the Complainant has not referenced his race as being a factor in any alleged impugned conduct.   Neither are there any facts put forward by the Complainant, or otherwise, as would allow the Adjudication Officer to make an inference of discrimination on the grounds of race.   Rather the Complainant has put forward facts as rule out that any alleged impugned conduct occurring based on his race.    There is ample evidence that the Complainant was not treated less favourably than Irish employees in about the disciplinary process.   Neither are there any facts which, expressly or impliedly, establish a nexus between the Complainant’s race and the invocation of the disciplinary procedure against the Complainant or the imposition of sanctions. Neither does the Complainant assert that his race was the reason for any alleged impugned conduct.     Accordingly, this complaint must fail.

Complaint of Victimisation:   The Complainant has not pointed, expressly or impliedly, to any of the grounds in s.74(2) of the Act of 1998 (as amended by s.29 of the Act of 2004) founding a complaint of victimisation for the purpose of the Act of 1998 and neither do any of the grounds exist viz-a-viz the Complainant.   Accordingly, this complaint must fail.

Complaint of ‘Other’:   The Complainant has not specified or particularised what the ‘other’ grounds are but in any event there are no facts put forward by the Complainant such as founds a prima facie claim of discrimination on other grounds or on any grounds at all.

Complaint of Discriminatory Dismissal:   Strictly without prejudice as to whether there is a complaint for a constructive discriminatory dismissal before the WRC, it is submitted that there are no facts which, expressly or impliedly, establish a nexus between the race of the Complainant and any said alleged constructive discriminatory dismissal.   Rather the facts put forward by the Complainant establish that he left his job for reasons other than discriminatory reasons.   Neither does he assert that his race was the reason he was allegedly forced to leave his employment.  Accordingly, this complaint must fail.

All Complaints:  Regarding all complaints the Respondent disputes that there was any impugned conduct but rather the Respondent was simply utilising the disciplinary procedure in a proper manner.

In any complaint under the Employment Equality Act, 1998 the burden of proof initially sits with the Complainant until such time as a prima facie case is established. Section 85A of the Acts provides that where a complainant in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

Section 6(1) of the Employment Equality Acts 1998 to 2015 (the Employment Equality Acts) defines discrimination as follows: -

 “…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,

(iv)          is imputed to the person concerned.

Section 74(2) of the Act of 1998, as amended by s.29 of the Equality Act 2004, defines victimisation occurring as follows: -

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

h)      a complaint of discrimination made by the employee to the employer,

i)        any proceedings by a complainant,

j)        an employee having represented or otherwise supported a complainant,

k)        the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

l)         an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

m)     an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

n)       an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

In the instant case the Complainant cannot say that he suffered any adverse treatment in any area listed above. The Complainant was not victimised.

In the instant case I find it somewhat strange that the Complainant resigned from his position prior to receiving an email from an anonymous sender. The Legal representative for the Respondent spoke about the wording of the letter of resignation and was quite complimentary in relation to the way it was worded – it does not suggest that the Complainant had any grievance with his employer at that time.

In considering this complaint I have looked at some case law and would now mention one case from the UK – Glasgow City Council -v- Zafar ([1998] I.R.L.R. 36) in which the House of Lords developed a test that a difference in race merely indicates a possibility of discrimination. Prima facie evidence of racial discrimination requires the employee to adduce additional evidence, such as a difference in status or treatment and the reason for the differential treatment. The evidence of the Respondent contesting the complaint would also have to be considered. The discriminatory reasons need not be the principal reason for the discrimination provided that they are a significant influence. Therefore, a link must be demonstrated between the ground and the less favourable treatment; mere different status and a difference in the treatment is not sufficient. (This decision was endorsed by the Irish High Court in Davis -v- Dublin Institute of Technology, unreported, High Court, Quirke J in June 2000).

In relation to the instant case the Complainant has been unable to show additional evidence such as a difference in status or treatment. The Complainant has failed to discharge the burden of proof and it is for this reason I conclude that the complaint is not well-founded.

In relation to the instant case the Complainant has been unable to show additional evidence such as a difference in status or treatment. The Complainant has failed to discharge the burden of proof and it is for this reason I conclude that the complaint is not well-founded.

Employment Equality Act, 1998.