ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046303

Parties:

	Complainant	Respondent
Parties	Chris Murray	Coolebridge Ltd

	Complainant	Respondent
Anonymised Parties

Representatives

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00056744-001	18/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00056744-003	18/05/2023

Date of Adjudication Hearing: 04/10/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally (and where appropriate) hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

In circumstances where the fact of dismissal is not in issue, the evidential burden of proof rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).

In this particular instance, the Complainant herein did not complete 52 weeks of employment with the Respondent company. The Employment commenced in July of 2022 and ended in May of 2023. In these circumstances, I do not have the jurisdiction to hear the complaint under the Unfair Dismissals legislation. The issue of dismissal will instead be dealt with under the Industrial Relations legislation.

A second complaint has been brought by the Complainant under the Employment Equality legislation. Any complaint being made under the Employment Equality Acts concerning discrimination, victimisation, discriminatory dismissal, unequal remuneration etc., is brought before the Workplace Relations Commission following a referral to the Director General per Section 77. In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has already been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. Following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).

In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-

“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated 18th of May 2023) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Race (as detailed in Section 6 of the 1998 Act (as amended)).

The Operative Section is Section 6 of the Employment Equality Act 1998 where :-

Sub Section 6 (1) For the purpose of this Act…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) …...(the “discriminatory grounds”).

Section 6 (2) As between any 2 persons the discriminatory grounds .. are…

(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),

In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the victimisation experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

Section 85A of the Employment Equality Act states:

(1) Where in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This amounts to the Prima Facie obligation on the Complainant. 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.

Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

In addition to this, the Complainant has said that he has also suffered victimisation in the workplace. Victimisation is defined in Section 74(2)of the Act –

“as adverse treatment of an employee by his or her employer” as a reaction to a complaint of discrimination having been made by the employee to the employer.

The Acts specifically protect a person against dismissal or other adverse treatment by their employer because they have made a complaint to their employer about possible discrimination or taken proceedings under the Equality Legislation or opposed by lawful means an act which is unlawful under these Acts etc. Penalising a person for any of these reasons is defined as victimisation. The Acts provide for complaints about victimisation to be made to the Workplace Relations Commission in the same away as for complaints of discrimination and with the same provision for redress. Per Section 74 of the Act.

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 18th of May 2023.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the narrative already outlined in the Workplace relations complaint form. A number of documents already provided to the WRC were opened to me – these primarily consisted of medical certificates. The Complainant additionally read through a number of letters from the Employer to himself and which were made available to me in the course of the hearing. This included his letters of termination and warning.

The Complainant alleges that he was Unfairly dismissed and was discriminated against on the grounds of his race.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 7th day of September 2023. This letter was sent to the Complainant’s Line Manager at the registered address of the company which also happened to be the place of work of the Complainant.

Findings and Conclusions:

I have carefully listened to the Complainant’s evidence adduced in the course of this hearing. This evidence was not challenged by the Respondent nor by any witness on behalf of the Respondent. That said, where I needed clarification, I made my own inquiries so as to ensure I had the fullest possible picture of what transpired in this workplace.

The Complainant was employed as a General Assistant at a Centre providing housing for international refugees seeking protection and asylum from within the state. The Complainant enjoyed the work and felt rewarded by his interactions with the service users. The Complainant worked twelve-hour shifts at a rate of €12.00 per hour.

The employment commenced in July of 2023.

The Complainant is an Irish national though by reason of his upbringing has an English accent.

The Complainant says that his work colleagues took pleasure in teasing him about his English accent and more particularly they referred to him as the Protestant. This was a continuous running joke amongst staff members. The Complainant felt that this was intended to belittle and disparage him. The Complainant was repeatedly asked what he was doing in the predominantly Catholic area of Inchicore. The Complainant believed his national identity was being deliberately denied and that another identity was being imposed.

The Complainant became annoyed by the constant reference to him as a Protestant (which included wall signage/office notices which he showed to me) and he raised the issue with his Line Manager CG. CG failed to address the issue with the co-employees and instead advised the Complainant not to take offence.

The mocking of the Complainant continued until the employment terminated in May of 2023.

On balance, I am satisfied that the Complainant has demonstrated that he has been treated less favourably than his co-workers on the ground of race and in particular in the imputation by his colleagues of a national origin and religion which were designed to strip him of his identity.

The Complainant has made out Prima Facie case of discrimination which the Employer has failed to rebut.

The Complainant was further victimised by reason of the failure of the Employer (in the person of the Complainant’s Line Manager) to address the issue, when the Complainant asked him to.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056744-001 - The Complainant did not have 52 weeks of employment with this Respondent Employer and is therefore not entitled to claim relief under this Act. I do not have the requisite jurisdiction.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056744-003 – The Complainant herein is well founded as the Complainant was clearly discriminated against. I uphold the claim and make an award of compensation for the effects of the discrimination in the amount t of €3,500.00.

Dated: 26th October 2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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