EDA2424

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036772 (CA-00048058-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 26th September 2023. A Labour Court hearing took place on 27th June 2024.  The following is the Decision of the Court:-

DETERMINATION:

This is an appeal by Vanessa Corral Fernandez, the Complainant against Adjudication Officer Decision             ADJ-00036772 -CA-00048058-001 in a claim of discrimination on the ground of race. The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts).

The Adjudication Officer held that the complaint was not well founded. This complaint is linked to ADE/23/123

Background.

The Complainant submits that she was discriminated against on the race ground when she was dismissed. The Respondent submits the Complainant was let go as she did not successfully complete her probation period.  The complaint was lodged with the WRC on the 8th January 2022. Therefore, the cognisable period for the purpose of the Act is the 9th July 2021 to 8th January 2022.  The Complainant was employed by the Respondent from the 22nd June 2021 until 22nd December 2021. As the Complaint is a lay litigant the Court talked her through the requirement under the Act to have a comparator and to identify what she alleges is a breach of the Act during the cognisable period, and how that was linked to her race.  The Court took a short recess to allow the Complainant time to prepare to address these issues as they were not addressed in her written submission.

Summary of Complainants submission.

 The Complainant, who is of Spanish nationality, was employed by the Respondent as a Massage Therapist in the Spa centre. It is her submission that she was the only Spanish person working in the   Spa area. There were many nationalities working in the Hotel and there may have been other Spaniards working in areas other than the Spa. The Complainant identified her comparators as all other staff who were different nationalities.  The Complainant submitted that she believed that the Respondent had used complaint’s they received about her as an excuse to dismiss her. It was her submission that they were unhappy with issues of concern that she was raising.

 She was invited by email of 14th December 2021 to attend a probationary review meeting. The email stated that no preparation was required so she was taken by surprise that there were issues and that she had not successfully passed her probation.   By email of 17th December2021, the Complainant was informed that she had not successfully completed he probationary period. The letter went on to say, “There are fundamental difference in culture, approach and values between you and the company and the team we employee.” The Complainant submitted that the reference in that sentence to culture showed that the dismissal was linked to her Nationality/ Race. There were no other Spanish people on the Spa team.

Summary of Respondents submission

The Respondent submitted that the Complainant had failed to identify a comparator or link her dismissal to her race.  The Respondent received numerous complaints about the Complainant from other staff members and clients. Despite discussions with the Complaint there was no change to the behaviours complained of and no attempt to engage with the values and expectations of the Respondent.

The Complainant was unsuccessful in completing her probationary period.  The Complainant received a detailed letter on the 17th December 2021, setting out that while there was “no implicant of any wrongdoing on her part, there is clearly a serious team dynamic issue within the Department.”. It highlighted that they had many conversations with her to try and address the relationship difficulties but to not avail. The letter noted that there was a fundamental difference between her values, and expectations, and those of the rest of the team and the Respondent. This was the reason her probation was terminated, and it was in no way related to her race.  The Respondent employs 185 staff from 25 different nationalities some of whom are Spanish. 

 Relevant applicable Law

Section 6 of the Act states,

[(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”)

Discussion  

 It is not disputed that the Complainant’s employment was terminated. However, the Complainant has failed to identify a comparator and to link the dismissal to the ground of race. On that basis her complaint must fail.

Determination

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.   

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
15th July 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.