EDA2328

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00026583 CA-00039813-002

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 31 August 2022. Labour Court hearings took place on 14 and 15 February 2023 and on 21 June 2023. The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

This is an appeal on behalf of SEDA (Skills & Enterprise Development Academy) Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00026853/ CA-00039813-002, dated 2 August 2022) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received on 31 August 2022. The Court heard the appeal along with five other related appeals over three days: 14 and 15 February 2023 and on 21 June 2023.

The originating complaint under the Act was received by the Workplace Relations Commission on 14 September 2020. It follows that the period comprehended by the complaint is 15 April 2020 to 14 September 2020.

Factual Matrix

The Complainant is a Colombian national. In 2016 she came to study English at the Respondent language school. On completion of her course, she undertook an internship with the Respondent and commenced employment there on a part-time basis in October 2016. The Complainant’s initial appointment was in the marketing and sales department. She was paid an hourly rate of €9.15 plus commission on sales. The commission element only became payable when a student had paid in full for their course.

The Complainant assumed a full-time role with the Respondent as a Receptionist in September 2018. She continued to perform sales for a number of months thereafter also. The marketing element of her role was discontinued in September 2019 when the Respondent hired a full-time employee in that role.

On 2 February 2020, the Complainant submitted a number of statutory complaints against the Respondent to the Workplace Relations Commission. She initiated complaints under the Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994, the Employment Equality Act 1998 and the Protection of Employees (Fixed-term Work) Act 2003. The Respondent was notified by the Workplace Relations Commission of those complaints on 7 February 2020.

The Complaint was on a period certified sick leave in February 2020. On her return to work on 12 February, the Complainant discovered that she no longer had access to her marketing email account. The Respondent’s explanation for this is that it had been unable to make contact with the Complainant during her sick-leave; as Receptionist, the Complainant had unique access to certain information systems linked to her email address that was password protected; the Respondent was forced to request IT to change the access details to her email account in order to obtain information that was urgently required to assist students in their application to extend their visas etc

Separately, the Respondent had a number of concerns arising from the reasons given by the Complainant for her certified sick leave. It had been indicated on the Complainant’s medical certificates that she was suffering from work-related stress. Management, therefore, considered that it would be appropriate to engage with the Complainant on her return to work in relation to her workload to determine if she needed additional supports. The Head of Operations, Mr Stephen Murphy sent the Complainant an email at approximately mid-day on 12 February 2020 inviting her to a meeting on 18 February 2020 to review her workload.

It is common case that the Complainant printed a considerable volume of documents on a small printer behind the reception desk throughout the day on 12 February 2020. This was observed by a colleague in the finance department who had reason to go to the stationery store which is behind the reception desk. He told members of management about the level of printing that the Complainant was doing. It appears most large printing jobs in the college were done on heavy duty printers on the second floor. Mr Murphy and Mr Mascarhenas, the Respondent’s CEO, were able to observe this activity from a balcony overlooking the atrium in which the reception area was located. Later that day, Mr Murphy and Mr Mascarhenas approached the Complainant at the reception desk and asked her what she was printing off and placing in her handbag. She gave them permission to look at the printed documents and it was apparent that the documents contained a significant amount of personal data in relation to many of the Respondent’s students. In his evidence, Mr Mascarhenas told the Court that given the unusual nature of what he had observed he felt it necessary to obtain legal advice before deciding what to do next. Having got that advice, he requested Mr Murphy to organise a meeting with the Complainant for 4.15 pm that afternoon to discuss why she had printed off the Respondent’s information and placed it in an envelope in her handbag. Another colleague, Ms Jane Langley was requested to ask the Complainant to attend a meeting at that time with Mr Murphy and Mr Mascarhenas. The Complainant declined to attend the meeting and left her workstation to go outside to make a telephone call. She returned at approximately 4.35 pm and went to see Mr Mascarhenas on the second floor of the building to advise him that she would not be attending the meeting because she hadn’t been given the agenda for it, wasn’t advised of her right to be accompanied and it was by that stage outside her working time. Later that evening, Mr Murphy wrote to the Complainant by email advising her that her employment had been suspended pending an investigation.

A disciplinary meeting was held on 9 March 2020 to consider whether or not the Complainant had, unlawfully and without prior permission, accessed and removed for her own use, students’ personal data held by the Respondent. This disciplinary process was not concluded on 9 March 2020. The Covid-19 pandemic then intervened and the Complainant remained under suspension until she was put on lay-off, along with all staff from 6 April 2020. The Complainant resigned her employment in July 2021.

Submissions

The Complainant submits that she was treated less favourably on grounds of her nationality during the period of lay-off that followed the outbreak of the Covid-19 pandemic in so far as other employees, of a different nationality to hers, appear to have been permitted to resume working at different points in time before the college re-opened for face-to-face classes. It is her submission, for example, that a named Brazilian colleague (also a member of the administrative team) continued to work during the lockdown and that Mr Murphy (who is Irish) did likewise. The Complainant does not accept that there was no requirement for a Receptionist during the period that the Respondent’s building was closed because, in her submission, the role involved a considerable amount of administrative duties also that are often handled by email. The Complainant is also of the belief that she was treated less favourably on grounds of nationality in so far as named colleagues from Brazil and Venezuela in the marketing department were permitted to continue selling courses but she wasn’t.

It is submitted on behalf of the Respondent that the entire business was closed between April 2020 and June 2020 but that senior members of management, including the CEO and Mr Murphy – albeit not in receipt of a salary – continued to work behind the scenes, in so far as they could, to ensure the ongoing viability of the business and the welfare of its students. It is further submitted that the Respondent commenced offering online courses from June 2020. According to the Respondent, no sales were being conducted during this period as it had been agreed within the language school sector and with the Department of Justice that no students would be permitted to enter the country because of the pandemic.

The Respondent submits that it carried on limited operations as described above until January 2022 with a skeleton staff of no more than twenty employees (out of a total of one hundred). The Respondent accepts that some members of the marketing department were involved in selling courses during the lockdown period. It is also its submission that the Complainant’s sales role had been a temporary add on to her main job of Receptionist and that this had been wound down following the recruitment by Mr Ricardo Tello Gomes of a full-time member of staff to the Latin American Marketing Department in late 2019.

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “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.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Decision

Having regard to the submissions of the Parties in this case, and the oral evidence adduced, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. It is clear to the Court that some 80% of the Respondent’s staff remained on lay-off for the entire period between the commencement of the lock-down in March 2020 and the date on which the College re-opened for face-to-face business in January 2022. Members of the management team worked behind the scenes continuously – without receiving a salary for much of the time – throughout the entire period to ensure that the business had a future. On-line classes commenced in or around June 2020. Teachers were engaged to deliver those on-line classes and skeleton administrative staff were brought back to support them. However, the vast majority of the Respondent’s staff remained on lay-off – only those whose role was directly connected to the core essential but limited business that was being conducted were taken back from lay-off. The Complainant’s role as receptionist was not deemed to be one that it was necessary to reactive at that time because the building was not physically open and there were no students present there.

For the foregoing reasons, the Respondent’s appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CO'R	______________________
19 July 2023	Deputy Chairman