Complainant

Respondent

Parties

Chirag Vinod  Malhotra

Allergy Standards Limited

Complainant

Respondent

 Parties

Chirag Vinod Malhotra

Allergy Standards Limited

Representatives

Barry Crushell Crushell & Co Solicitors

Ger Connolly Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00053570-001

06/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00053570-003

06/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Parent’s Leave and Benefit Act, 2019

CA-00053570-004

06/11/2022

The Complainant commenced his employment on the 20th of February 2022 and was terminated on the 21st of October 2022. The Complainant was a Business Development Manager. He contends that arising from his right to avail of Parental Leave his contract was terminated. The Respondent stated that it denied the allegation and that the only reason for the termination related to poor performance.

In summary, the Complainant contends that on 30 August 2022, the Complainant emailed Jennifer Whelan and John Ryan relating to parental leave. He informed the Company that his wife was expecting a baby in mid-September, and he needed to take time off to support his family.

 On 31 August 2022, Jennifer Whelan responded and stated that she would come back to the Complainant “very soon”. On 02 September 2022, Jennifer Whelan wrote to the Complainant and explained to him that he would be entitled to paternity leave. However, she informed the Complainant that because he had not been in the company for at least a year before the birth of his child, they would not be in a position to provide a top up to the payment made by the Department of Social Protection.

  On 07 September 2022, the Complainant wrote to John Ryan his manager regarding his parent’s leave. In this email he informed Mr. Ryan that his child was due to be born on 12 September 2022. He also explained to Mr. Ryan that he and his wife were going to have no support from family after the birth of their baby as his mother-in-law had to travel home for her cancer treatment and follow ups. Therefore, the Complainant wrote:

“I am intending to take parents leave as detailed below. Splitting myself to concentrate on home and work accordingly. 3 weeks: 17 October 2022 to 04 November2022. 2 weeks: 21 November to 02 December 2022. 1 week: 12 December to 16 December 2022. 1 week: 09 January to 13 January 2023 I am hoping that this will be fully supported by you and the company. If you wish me to re organise these dates, I am happy to discuss this with you in person as per your convenience either today and tomorrow, otherwise please consider this as a six week advance notice for the same. “

The Complainant contends that after he made this request everything began to go wrong. The Complainant experienced a dramatic change in his employer’s attitude towards him.  The Complainant contends that without warning, the Respondent began to raise performance issues.

During the late evening of 08 September 2022, the Complainant received a meeting invitation for 9th September 2022, from his Line Manager, John Ryan, without an attached agenda, entitled, H1 Review.

 The email read:

“As noted in our conversation we’re concerned about your ongoing failure to achieve your agreed sales numbers; in this context we chatted about ’next step options’. I note you intend to take the weekend to reflect on our discussions and request that we meet on Monday at 11.15 to discuss and agree the best option from here.”

 At the meeting entitled H1 Review, John Ryan and John McKeon also a manager in the Company,  it is alleged asked the Complainant to resign and offered him a settlement package of six weeks’ pay.  Alternatively, they informed him that he would be placed on a Performance Improvement Plan.

 On 12 September 2022, the Complainant responded to Mr. Ryan and noted that “pursuant to my leave requests, a meeting titled H1 review was scheduled”. The Complainant went on to set out in a step-by-step fashion, why the accusations made against him were simply inaccurate and unjust. Amongst these arguments was the fact that the Complainant had only received a 48-hour notice of the meeting.

The Complainant wrote that he was confident that if they worked together as a team, they could turn things around and generate more sales.

 On 12 September 2022, John Ryan replied to the Complainant’s email. The first line states “I’d like to make it very clear that any review meetings we schedule are completely separate and not related to your leave requests”.

The Complainant argued that the sudden and unexpected review meetings, were in fact related to his leave requests. The timing of the sudden need to hold these meetings, indicated this. This allegation is supported by the fact that only a month earlier, on 04 August 2022, before any request for parental leave had been made, John McKeon his manager,  had messaged the Complainant stating ‘Great, enjoy your day off. Well deserved’.  On 21 September 2022, just 5 days after the birth of the Complainant’s son, the Complainant received an email from Mr. Ryan stating, ‘further to our meeting just now, I wish to confirm that your employment is being terminated’. This termination came a mere 12 days before the Complainant’s paternity leave was due to begin and 3 weeks and 4 days before the Complainant’s parents leave was due to begin.

The Respondent was entitled to take action to address issues with the Complainant’s work performance. The Complainant was costing the company €65,000 per year but not achieving any sales and did not have any genuine pipeline to achieve sales. This is extensively monitored by a detailed CRM system.

In direct comparison, a second salesperson was achieving his sales target who was hired only 3 months before the Complainant. The failure to meet sales targets was separate to the Complainant exercising his statutory entitlements to parent’s leave and paternity leave.

The Respondent has no issue whatsoever with any employee taking statutory leave. The Respondent had no difficulty granting the Complainant paternity leave and would have granted parent’s leave. The facts are that throughout his period with the Respondent the Complainant made no sales whatsoever. The sales targets were reviewed, and the Complainant knew that he was falling way short of target sales. The sales pipeline looked healthy; however, the potential of those leads to generate sales income was low and that was communicated clearly to the Complainant.

The Complainant had not been performing satisfactorily in his role. The Complainant has not produced any evidence to demonstrate that he achieved any sales on behalf of the Respondent during the 7 months of his employment with the Company, or to demonstrate that any sales were imminent. This is despite the fact that this was a basic function of the Complainant’s role, and the Respondent was justified in having serious concerns regarding the Complainant’s performance and his suitability to his role.

Having informed the Complainant of these concerns consistently during June, July and August and having met with and spoken to the Complainant in September 2022, the Respondent was entitled to conclude that the Complainant’s performance in his role was not satisfactory and to dismiss the Complainant.

Mr Ryan on behalf of the Respondent and the Complainant gave sworn evidence.

The Complainant also called a previous employee to give evidence.

Penalisation:

Penalisation in case law has been described to have occurred where there is a direct causal link between making a complaint and a detriment that followed because of that complaint [Murphy and Regan Employment Law 2nd edition Bloomsbury 2017]:

[5.54]

The Labour Court has made it clear that there is a distinction between a detriment suffered by an employee because of an employer’s failure to fulfil a duty under the 2005 Act, and a detriment amounting to penalisation under the 2005 Act, as set out above. In the case of Patrick Kelly t/a Western Insulation v Girdsius 107 the employee’s claim for penalisation failed as he was unable to show that the detriment that he suffered was a result of, or was in retaliation for, his having made a complaint under the 2005 Act. He was a Lithuanian employee who was injured when he fell off a ladder at work that was not properly secured. He claimed that he had limited English and that he did not receive any health and safety training at work in a language that he could understand. He took a penalisation claim against his employer on the basis that this failure operated to his detriment. The Labour Court dismissed his claim due to the complete absence of a causal connection between the alleged shortcoming on the part of the employer and any act on the part of the employee. Similarly, the Labour Court, in the case of Margaret Bailey t/a Finesse Beauty Salon v Farrell, 108 found that the circumstances in which liability will be imposed are ‘very limited and circumscribed’ and that the 2005 Act ‘only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health and welfare at work. Penalisation of an employee for other reasons does not come within the scope of the [Act]’.

[5.55]

In contrast, in the Labour Court case of Toni & Guy Blackrock Ltd v Paul O’Neill, 109 the claimant successfully appealed a previous decision that he had not been unfairly dismissed by reason of penalisation under s 27 of the 2005 Act. Mr O’Neill alleged that he had made complaints about the poor quality gloves that had been provided by his employer for use when handling colouring agents and that his complaints were ignored. He also brought the matter to the attention of the HSA, and informed his employer that he had done so. He ultimately purchased his own gloves for use at work. He claimed that his employer’s attitude towards him changed after these complaints had been made. He was then dismissed for alleged poor time keeping and theft. The Labour Court found in his favour, referencing the causal link between his complaints under the 2005 Act and the treatment that he was then subjected to, which was absent in the two cases cited above. He was awarded €20,000 by way of compensation.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

 “The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

The Complainant makes out a case that all was well until he applied for parental leave.

The nature of sales work means that there is ongoing and transparent tracking of sales performance.

I am satisfied based on the evidence of Mr Ryan a director with the Company , that in fact sales underperformance was a matter of concern for some time and that it had been raised with the Complainant during regular business meetings.

The evidence provided by the Marketing Manager who was called by the Complainant gave evidence that in fact the Complainant’s sales underperformance was mentioned at a group briefing. That evidence was provided in the context of supporting the Complainant’s case that he had been badly treated by the Company.

It would also appear that the pipeline of sales leads which on the surface presented a picture of imminent sales closures were far from that and in fact had little reality as likely sales leads that would convert to sales closures.

Counsel for the Complainant argued that the process followed by the Company was unfair and lacked fairness. It was rushed and failed to provide the Complainant with an opportunity to improve. It was argued that the proximity of the leave request and the adverse treatment are so intertwined they must be viewed as penalisation. The Respondent reacted to the request for paternity and parental leave and that was the operative cause of for terminating the Complainant’s employment.

While there are many defects in how the Respondent approached the discussions about the Complainant’s sales performance, it is not the case that sales poor performance was not an issue for some time.

The operative cause or substantive cause was not the request for paternity leave or parental leave. There is an argument that the request gave rise to bringing the review forward. The Penalisation is the termination of employment. Penalisation is defined as:

19. (1) An employer shall not penalise, or threaten penalisation of, an employee for proposing to exercise or having exercised his or her entitlement to parent’s leave.

(2) For the purposes of this section, penalisation of an employee includes—

(a) dismissal, or the threat of dismissal, of the employee,

The Complainant had made no sale during his period of employment. The evidence overwhelmingly supports the Respondent that this was the reason for the dismissal.

The Complainant also is making complaints under the Employment Equality Act and in his revised submission stated:

1.11. Furthermore, it is our position that the Respondent suffers no prejudice whatsoever, in redress being sought under a different piece of legislation than the redress originally sought under the Employment Equality Act, 1998.

 1.12. Regardless of the legislative provision under which redress is sought, the factual matrix and the arguments that would have otherwise been pursued, remain identical.

Unfair Dismissal’s Act

Section 16 A of the 1998 Act states:

16A.— (1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or his or her entitlement to make a request referred to in section 13B(1) or 15A(2).

(2) Penalisation of an employee includes—

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Unfair Dismissals Acts 1977 to 2005 in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part IV.

And section 23 of the 1998 Act states:

Disputes regarding entitlements under Act

23. (1) This Part does not apply—

(a) to a dispute relating to the dismissal of an employee, or

(b) to a person who is employed as a member of the Defence Forces.

(2) In this Part, “relevant employer”, in relation to an employee, means the employee’s employer.

(3) In subsection (1), “dismissal” has the same meaning as it has in the Act of 1977 except that, in applying that definition for the purposes of that subsection, the expressions “employee”, “employer” and “contract of employment”, where used in that definition, shall be given the meanings they have in this Act.

At section  of the Unfair Dismissal Act 1977 it states:

Unfair dismissal.

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal

(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave , leave for medical care purposes, domestic violence leave or a request for a flexible working arrangementunder and in accordance with the Parental Leave Act, 1998, or carer’s leave under and in accordance with the Carer’s Leave Act, 2001,

(j) the exercise or proposed exercise by the employee of the right under the Parent’s Leave and Benefit Act 2019 to parent’s leave or transferred parent’s leave within the meaning of that Act.

The complaints for penalisation relate to an Unfair Dismissal as provided for under the 1977 Unfair Dismissal Act as amended. I therefore also consider the complaints under that Act and I determine that the Complainant was not Unfairly Dismissed.

Employment Equality:

The initial complaint alleged discrimination as follows:

•                 Gender

•                 Family Status

•                 Training

•                 Conditions of Employment

•                 Harassing

•                 Other

Prima Facie Case:

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that 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.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58).

Gender: The factual matrix as detailed relate to alleged penalisation for exercising the right to parental leave. The Complainant initially carries the burden to show that he can establish facts that are of a degree of significance where it could be presumed that discrimination may have occurred. In turn the onus then shifts to the Respondent to rebut such a presumption. The evidence presented does not establish an inference of discrimination on the ground of gender. The reason for the less favourable treatment did not arise due to the Complainant seeking parental leave, the detriment he suffered arose because he failed to achieve expected sales targets.

All the alleged discriminatory complaints must fail as the reason for the detriment or less favourable treatment was not based on a discriminatory ground rather the reason related to the failure to meet sales targets.

Arising from this conclusion it cannot be maintained that any discriminatory act has taken place having regard to the factual matrix of this case.

Penalisation:

I have determined that the Complainant was not penalised and  unfairly dismissed from his employment arising from exercising his right to parental leave under the following Acts:

(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave , leave for medical care purposes, domestic violence leave or a request for a flexible working arrangementunder and in accordance with the Parental Leave Act, 1998, or carer’s leave under and in accordance with the Carer’s Leave Act, 2001,

(j) the exercise or proposed exercise by the employee of the right under the Parent’s Leave and Benefit Act 2019 to parent’s leave or transferred parent’s leave within the meaning of that Act.

His complaint is not well founded, and I find that he was not penalised and unfairly dismissed for exercising his right to parental leave; the reason for dismissal related to his failure to achieve sales targets.

Discrimination:

The Complainant alleges discrimination as follows:

•                 Gender

•                 Family Status

•                 Training

•                 Conditions of Employment

•                 Harassing

•                 Other

The factual matrix as detailed relate to alleged penalisation for exercising the right to parental leave. The Complainant initially carries the burden to show that he can establish facts that are of a degree of significance where it could be presumed that discrimination may have occurred. In turn the onus then shifts to the Respondent to rebut such a presumption. The evidence presented does not establish an inference of discrimination on the ground of gender or relating to the other alleged discriminatory claims as detailed.  The reason for the less favourable treatment did not arise due to the Complainant seeking parental leave, the detriment he suffered arose because he failed to achieve expected sales targets.

All the alleged discriminatory complaints must fail as the reason for the detriment or less favourable treatment was not based on a discriminatory ground rather the reason related to the failure to meet sales targets. No prima facie case has been made out by the Complainant to support any of the following complaints:

•                 Gender

•                 Family Status

•                 Training

•                 Conditions of Employment

•                 Harassing

•                 Other

Arising from this conclusion it cannot be maintained that any discriminatory act has taken place having regard to the factual matrix of this case. As no prima facie case has been made out, I dismiss all complaints and find that the Complainant was not discriminated against.

Penalisation-Discrimination