Complainant

Respondent

Parties

Halima  Vickers

PLR Worldwide Sales Limited

Representatives

  In person

MP Guinness B.L. instructed by Phillip Lee Solicitors

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-00056791-001

22/05/2023

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

CA-00056791-002

22/05/2023

The complainant was employed by the respondent from 30th May 2018 as a Customer Support Agent. The complainant contends that she was dismissed unfairly on 23rd November 2022. The respondent’s position on this issue is that no dismissal took place as it was rescinded prior to the dismissal date. The complainant was paid her salary for November and December 2022 but did not return to work. The respondent contends that the complainant’s refusal to return to work led to a disciplinary process which resulted in the termination of the complainant’s employment in March 2023.

The within complaints also relate to alleged discrimination on the grounds of race, in conditions of employment, in respect of getting a job, in respect of promotion and in respect of other. The complainant also alleges that she was victimized and harassed by the respondent.

 The complaints were lodged to the Workplace Relations Commission on 22nd May 2023. The cognisable period of the complaint pursuant to the Employment Equality Acts, 1998-2015 is 23rd November 2022 – 22nd May 2023.

Preliminary point

The respondent raised a preliminary point that the dismissal which forms the basis of the complaint is the dismissal that allegedly occurred on 23rd November 2022 and not the alleged dismissal of March 2023. In relation to the alleged dismissal of November 2022, the respondent contends that no dismissal took place as the dismissal was rescinded in advance of the dismissal date, albeit that the complainant refused to return to work which ultimately led to a disciplinary process which resulted in her dismissal in March 2023.

In respect of the dismissal of March 2023, counsel for the respondent contends that the WRC does not have jurisdiction to consider that issue as there is no complaint in relation to that dismissal.

Preliminary point

The complainant maintains her position that she was dismissed on 23rd November 2022 and is claiming unfair dismissal in respect of the termination of her employment on that date.

Preliminary point

I have reviewed the documentation in respect of the dismissal that is alleged to have occurred on 23rd November 2022 for performance reasons. The correspondence between the parties shows that the dismissal was rescinded, and the complainant was willing to return to work following the issues that arose in October/November 2022, however, the complainant sought compensation of €7,000 prior to doing so. The respondent did not accede to the request for compensation and the complainant did not return. The complainant stated that her last day of work was 23rd November 2022. The continued absence of the complainant from her employment thereafter resulted in a disciplinary process that culminated in the termination of her employment in March 2023, which was not appealed by the complainant as she said she had always considered herself to have been dismissed in November 2022.

The Applicable Law

Section 1 of the Unfair Dismissals Act, 1977, states as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Conclusions

Having considered the submissions and documentation on this complaint, I find that the complainant was not dismissed on 23rd November 2022 as she has claimed. The alleged dismissal of March 2023 was not before me at adjudication and the complainant herself always maintained that the complaint related to the dismissal that she claims occurred on 23rd November 2022.

For the reasons stated above, I find that, as no dismissal occurred on 23rd November 2022, the complaint is not well founded.

The complainant contends that she was discriminated against, harassed and victimised by the respondent. The complaint relates to the assertion that the complainant as a non-russian speaking member of staff was treated less favourably than russian speakers and staff from other Slavic countries.

Evidence

The complainant gave evidence by affirmation at the adjudication hearing. The complainant stated in evidence that there were no promotions for non-russian speaking staff members. The complainant also stated that she had wished to work full time, but this had not been permitted. The complainant also stated that, despite being promised opportunities for advancement and promotion, there were no such opportunities. The complainant further stated that she was harassed by being micromanaged which resulted in her experiencing a lack of confidence despite having been a very strong performer while employed by the respondent.

In cross examination, counsel for the respondent asked the complainant if she had applied for any promotions. The complainant stated that she did not as she had not seen any links to the relevant portal that were in English, and she did not speak russian. Counsel confirmed with the complainant that she was a French citizen of Arabic origin, and that the basis of her complaint was that she was discriminated against based on not speaking russian. Counsel put it to the complainant that the fact that she did not speak russian was not a ground upon which to base a complaint of discrimination.

Submissions

The respondent stated that the complainant has not established that she was treated less favourably within the cognisable period of the complaint or at all. The respondent contends that the complainant has not discharged the burden of proof that she bears in respect of her complaints and the assertions she has made are not supported by evidence from which an inference of discrimination can be drawn. The respondent stated that the complainant was not discriminated against, victimised or harassed in the employment and her complaints are without merit and should be dismissed.

Evidence

A staff member of the respondent gave evidence by affirmation. The witness stated that the respondent employs approximately 120 people which is divided almost equally in respect of European and non-European employees. The witness stated that it is untrue to say that only russian speakers achieve promotions as some departments are only English speaking and promotions are achievable by submitting applications through the portal or by speaking with management. The witness confirmed that training requests can also be applied for through the portal, but the witness was unaware if the complainant had applied for training. The witness also stated in evidence that all staff employed in Ireland are in receipt of Health Insurance and Pensions.

In cross examination, the complainant put it to the witness that training in russian may have been provided but the complainant was required to pay for the training and claim a refund yet the process for claiming a refund was not available in the English language on the portal. The complainant re-iterated her view that russian speakers were treated more favourably than non-russian speakers in relation to terms and conditions of employment and promotional opportunities.

The discrimination complaint was submitted on 22nd May 2023. The cognisable period of the complaint is 23rd November 2022 – 22nd May 2023.

The complainant must establish that she was treated less favourably within the cognisable period of the complaint. It is not disputed that the complainant’s last day of work was 23rd November 2022. On that basis the complainant must first establish that she was treated less favourably due to her race on 23rd November 2022.

The complainant also sought an extension of time on the basis that she had raised issues locally and was waiting to see the outcome of that prior to submitting her complaints.

The Applicable Law

Discrimination

Sections 6 (1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

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—

(a) - (g) not relevant…… 

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

Harassment

Section 14 7(a) of the Employment Equality Acts, 1998-2015 defines harassment as follows:

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.]

Victimisation

Section 74(2) of the Employment Equality Acts, 1998- 2015 defines victimisation as follows:

74(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Time Limits

Section 77(5)(a) and (b) of the Employment Equality Act, 1998 provides as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period 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.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Extension of time

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

Internal processes

I note the reasons put forward by the complainant in relation to not submitting a complaint to the WRC until 22nd May 2023. The complainant had hoped that an internal process would have resolved the issues. This did not happen.

In relation to the request to extend time by a further six months to 23rd May 2022, I note Labour Court Determination No:EDA177 Brothers of Charity Services Galway v Kieran O’Toole where the Court held that:

“the Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limits provided under the Act.

Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC, such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

I also note Labour Court Determination No: EDA1621 Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy in relation to utilising internal grievance procedures which states:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.

The Complainant, in the alternative sought an extension of time. He relies on the same arguments as set out above and in addition submits that he meets the tests set out by the Court in the settled case law. In particular he submits that he has explained reason for the delay and submits that it was commensurate with the duration of the grievance procedure. He submits that he acted immediately after the outcome of the process was available to him.

The Respondent submits that the Complainant is effectively seeking to second guess his decision not to proceed through the statutory procedures available to him and that his delay no more justifies an extension of time that it did the delay itself.

For the reasons set out above the Court finds that the Complainant opted not to present a complaint under the Act and belatedly changed his mind when his chosen alternative course of action did not avail him. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that would justify the delay in bringing proceedings under the Act. Accordingly, the Court rejects the application to extend time.”

Conclusions

I have considered the complainant’s application to extend time so that the twelve months prior to submitting the complaint can be considered. The delay in submitting the complaint arose because of the complainant waiting to see if matters that were being addressed locally would resolve her issues. Having considered the matter, and based on the precedent cases quoted above, I do not grant the extension of time. As the complainant has not established that she was subject to less favourable treatment within the cognisable period of the complaint, I find that she has failed to establish a prima facie case of discrimination.

For the reasons stated above, I find that the complaint is not well founded.