Complainant

Respondent

Parties

Yuqing  Yang

QuantumClean Global Technologies Ireland Limited

Representatives

  Self

Melanie Mullins The HR Suite

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-00058896-002

19/09/2023

The Complainant commenced employment with the Respondent on 05/09/2022 as a Process Engineer with the Respondent.  She was paid €4,281.25 gross per month and worked approximately 39 hours per week.  She was dismissed by reason of gross misconduct on 28/7/2023 following a disciplinary process.  She submitted her complaint to the Workplace Relations Commission (WRC) on 19/09/2023.  The Complainant believes that she was discriminated against by reason of her race and in relation to her terms and conditions of employment.  The Respondent refutes the allegations in their entirety and submits that the Complainant did not raise any such issues during her employment.

The Complainant gave evidence on affirmation.  She outlined that when she commenced employment there was no production until January 2023 and the site reached full capacity in June 2023.  The Complainant had regular 1:1 meeting with her manager and in June 2023 he spoke to her about her timekeeping.  Shortly after this she submitted a complaint of bullying, harassment, and discrimination.  At a subsequent meeting with her manager, she  was told that she would be the subject of disciplinary action arising from her timekeeping and her disrespectful attitude towards him.  She attended an investigation meeting and a disciplinary meeting.  On 27/7/2023 she was informed of the decision to dismiss her.  Her appeal was not upheld, and she submitted her complaint to the WRC on 19/09/2023.

The Complainant gave evidence that during three 1:1 meetings, in June 2023 she believes that her manager discriminated against her because of her race.   The Complainant stated that when she mentioned to her manager that her salary was low, he replied that she was probably in the wrong country.  On another occasion she requested to go to an appointment with her solicitor and her manager stated that the way she told him was disrespectful and it is her position that he also stated that she was in the wrong company.

In response to questions from the Adjudication Officer the Complainant stated that she was discriminated against in terms of her conditions of employment by virtue of the fact that her manager stated that she may be in the wrong country.

The Complainant was cross examined on behalf of the Respondent.  She was asked if she raised any concerns about discrimination with the Respondent.  She stated that she submitted a complaint on 15/06/2023 and she had a meeting with HR on 26/06/2023.  It was put to the Complainant that in that complaint she did not specifically raise an issue of race discrimination.  The Complainant stated that it should be obvious from her complaint.   It was put to the Complainant that her managers evidence would be that he used the word “company” but not the word “country”.  The Complainant stated that he used the word company at a later stage.

The Complainant was asked how she was treated less favourably than any other employee.  The Complainant stated that her manager carried out disciplinary action due to his misunderstanding of her behaviour.  She stated that his attitude towards her was discriminatory.  The Complainant stated that the notes of her managers meeting with the investigator stated that  eye contact was a matter of concern, and it may be a cultural thing.    It was put to the Complainant that her manager stated that this was not a concern for him.                           

It was submitted on behalf of the Respondent that any complaints raised by the Complainant were never dismissed and were always responded to promptly and the evidence provided confirm this.  The first the Respondent knew of her discrimination complaint was when she submitted her complaint form to the WRC on 29/09/2023.  The Respondent refutes that she was ever told that she was in the wrong country and submits that he was told that she may be in the wrong company when she outlined her salary expectations.

Mr Robert Buchannan, Engineering Director gave evidence on affirmation on behalf of the Respondent.  He outlined that on 07/06/2023 he had a 1:1 meeting with the Complainant.  She had booked the previous Thursday off and did not plan to be on site on the Friday.  She contacted him at midnight on the Thursday to let him know that she would not be on site, but she had told other colleagues much earlier in the day that she did not intend to be on site.  As the Monday was a public holiday she returned on the Tuesday and was late.  He met with her on the Wednesday and despite his reminder to her of the meeting she only attended when he contacted her again. Mr Buchannan gave evidence that there was a lot to discuss at this meeting and this included the issue of her timekeeping. He was not happy that the Complainant stated that as she was an efficient worker she could leave when she had finished her work.  There was always other work to be done and he reminded the Complainant that she was required to work 39 hours per week.  The meeting moved to a discussion in relation to her salary and he outlined that her performance was graded as “meets expectations” and in order to qualify for a salary increase she required a grading of “exceeds expectations”.  Mr Buchannan stated that the Complainant stated that she should be earning €100,000 and he stated that she was in the wrong company if she wanted that level of salary.

Mr Buchannan confirmed that the Complainant was given a salary increase when she completed her initial training in Scotland.   Mr Buchannan was asked to clarify what he meant by the statement “it’s a cultural thing” which was noted in the meeting with the investigation officer.   Mr Buchannan stated that he lived in China for two years and he received extensive cultural training when he arrived here.  He outlined that hierarchy in important in China and in meeting it is not uncommon that Chinese people may not talk directly to you.  Mr Buchannan stated that when the Complainant’s lack of eye contact was noted he thought that it was a cultural thing.  He also clarified that he had no problem with it.

Mr Buchannan also gave evidence that he held 1:1 meetings with his team members on a weekly basis where feasible.  These meetings were intended to review the main tasks on hand and deal with any concerns he or the employee may have.  At various stages throughout the year these meetings would also focus on the company goals and objectives and how the employee was engaging with those.

Mr Buchannan was asked if there were any discussions with the Complainant prior to June 2023 in relation to her attendance.  Mr Buchannan outlined that here was an occasion where she did not work her 39 hours as she was in Cork for three days.  She finished early on another occasion, and he addressed these issues with her and why she was regularly late in the mornings.  Mr Buchannan outlined that he had a flexible approach and would expect employees to work late some evenings due the crossover time with the company in the USA.  Mr Buchannan confirmed that the Complainant was paid her full salary on any occasion she was late or did not work her 39-hour week.

The Complainant had no questions by way of cross examination.

In a written submission on behalf of the Respondent it was noted that the evidential burden was established by the Labour Court  in Southern Health Board v Mitchell (2001) E.L.R. 201 which held:

“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 Respondent also noted that the Labour Court in HSE North Eastern Area v SheridanEDA08020 described the formulation of the test as having a three-step process of analysis:

First, the Complainant must prove the primary facts upon which she relies in alleging discrimination.

Second, these facts must be of significant significance in the context of the case as a whole to raise a presumption of discrimination.

If the Complainant falls at stage 1 or 2 she cannot succeed.  It is the Respondent’s position that she has failed at stages 1 and 2 and cannot succeed as she has not put forward any material facts that would meet the requirement of establishing a presumption of discrimination.

This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. 

The Law

Section 6 of the Employment Equality Act, 1998, states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of her race. 

The Employment Equality Act, Section 85a (1) provides as follows:

“(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”.

To demonstrate that the Complainant has received less favourable treatment and that the less favourable treatment arose by virtue of her race, the Complainant must first establish a prima facie case of discrimination.  Prima facie has been held by the Labour Court in Rotunda Hospital v Gleeson [DEE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The Respondent notes that this requires that a Complainant has to not only establish the primary facts upon which she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.  The Labour Court in Southern Health Board v Mitchell (2001) E.L.R. 201 established the extent of this evidential burden and is quoted above.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can 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 be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

In Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Labour Court elaborated on the interpretation of Section 85A stating:

“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”.

The Complainant contends that she has been discriminated against because of her race.  The facts are that the Complainant was attending meetings with her manager to address the escalating concerns in relation to her attendance and her attitude to being managed. I do not accept that the limited evidence provided by the Complainant  as being discriminatory because of her race.

On the facts of this case, I must determine whether a prima facie case has been established and if so, has the rebuttal been sufficient.  In applying the test in Melbury above I am satisfied that the Complainant has not demonstrated sufficient facts that she was discriminated against because of her race.

I find that the Respondent has not discriminated against the Complainant on the grounds of race contrary to the Acts and her complaint fails.

Discrimination.  Race.  Complaint.