Complainant

Respondent

Parties

Rafaela Mendes

Schenker (Ireland) Ltd t/a DB Schenker

Representatives

Self-represented

Alastair Purdy & Co Solicitors

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-00061189-001

24/01/2024

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

CA-00061190-001

24/01/2024

The complainant was employed with the respondent as a customer service administrator/representative until she resigned from employment effective 9 February 2024.

The case referred to the Workplace Relations Commission concerned claims of harassment and discrimination on grounds of race.

The respondent strongly denied the claims against it and addressed each of the various matters put forward by the complainant in support of her case.  It was submitted that the complainant had failed to establish a prima facie case. 

The complainant commenced employment with the respondent in June 2021 as an agency worker.  She is Brazilian and was recruited with 2 other agency workers who were Irish.  In or around the end of 2021, the respondent offered an Irish agency worker a permanent contract and increased salary of €30,000 to stay on working with the respondent company.  The complainant indicated that she was going to leave and asked her team leader about being directly employed by the respondent on a permanent contract.  The complainant felt she was discriminated on grounds of her nationality when she was offered a temporary contract in March 2022 on the same salary of €29,000.   The complainant was told that she would be made permanent after 12 months but on expiration of the 12-month period, she was told that she would have three 12-month contracts before receiving a permanent contract.   The complainant felt that every time she was close to getting something better, the rules were changed.

Before the complainant commenced maternity leave in February 2023, she booked annual leave for December 2023 and January 2024, which was approved by management. 

The complainant returned to work from maternity leave on 16 October 2023.  In a conversation on 17 October 2023 with Ms Thara Pender, a manager who had started with the company when the complainant was on leave, Ms Pender raised an issue about the holidays booked by the complainant.  Ms Pender told the complainant that she could not take all the holidays booked as it was too much time.  Ms Pender made a comment about being “Irish and blessed” regarding childcare arrangements the complainant outlined to her.  The complainant considered this to be a very racist comment.  The complainant had already booked her flights to Brazil based on the holidays having been approved.  The complainant was subsequently told she could take the holidays, but that they would be unpaid. 

The complainant was also informed by Ms Pender on 17 October 2023 that a decision had been taken by her and the complainant’s team leader to change the complainant’s role to a cover role for everyone on the team.  The complainant had declined this change in role when asked about it by her team leader prior to her return from maternity leave. The complainant expressed her dissatisfaction about the cover role but was told it was required by the business.  As it had already been decided by the company, the complainant agreed to it.  The complainant felt that she had been prejudiced and discriminated against in this encounter and experience.   The complainant did the cover role for a week before commencing training for another role.  The role for which the complainant was trained carried more responsibility and the person who did this role in another section of the company was paid €40,000.  This person trained the complainant to assume the role he was doing.  The complainant asked her team leader to be paid similar money and was told that they would have to see as the work that the complainant was being trained on now fell within the remit of the complainant’s team.  

The complainant was uncomfortable after her exchange with the manager on 17 October 2023 and found the environment really bad and hard to work in from that day on. The complainant was made to feel less than deserved and referred to a comment by the manager at a subsequent meeting to the effect that the employees were very lucky to be there and should be grateful.  The complainant told her team leader after the first meeting with the manager that she did not know why the manager was like that with her.

The complainant complained to her team leader after the meeting about the work environment however she did not go to HR.

The complainant did not believe having to take unpaid leave was fair and raised it with HR and her team leader.  Her request to work from Brazil was declined.

On 18 October 2023, the complainant was asked not to speak Portuguese in the office.   The working language in the respondent company was English, but the complainant had always spoken Portuguese if training others who spoke the language, or amongst Portuguese speaking colleagues. 

The complainant did not feel appreciated by the respondent and submitted that it had discriminated against her for not being Irish.

Under cross-examination, the complainant was asked her role on her return from maternity leave.  The complainant said that the cover role was not because she was Brazilian but that the role change was unfair in light of everything that happened in her employment with the respondent.  Ms Pender had been very rude and disrespectful towards the complainant on 17 October 2023.  The complainant did not accept that the reference to being Irish and blessed was in relation to having a support network.  During a call, attended by Brazilian and Polish team members, Ms Pender said that they were very lucky to be in the company.  The complainant said this was a reference to not being Irish.  The complainant said that she raised the issue of race discrimination with her team leader.  She did not go to HR because she did not know how they would deal with it, and she was afraid of retaliation.  When asked about the content of her resignation letter, the complainant said she was trying to be professional.  The respondent’s changing of her approved annual leave was discrimination.  The complainant accepted that the maximum of 10 days annual leave at any one time was a policy that applied to everyone in the business. 

The complainant was asked how she was discriminated in connection with the logistics coordinator training her on certain duties.   The complainant believed she was trained for the role of logistics coordinator and therefore should have received the salary attached to that role.   The complainant accepted that the role of logistics coordinator was 100% different from what she did as customer sales representative.

In response to my question about the complainant’s role, the complainant confirmed that the job specification for customer service representative, attached to her contract of employment, accurately reflected her work with the respondent.    

The complainant commenced employment with the respondent as an agency worker on 14 June 2021.  She was successful in her application for an internal vacancy and was offered a fixed-term contract of employment as a customer service representative.

The complainant was on maternity leave from 22 February 2023 until 16 October 2023.  The complainant returned from maternity leave to her role as customer service representative. 

Before her maternity leave commenced, the complainant had submitted multiple annual leave requests for the period from 27 December 2023 to 2 February 2024.  These were authorised by a manager in error.  The complainant was informed about the approval error on her return from leave by Ms Thara Pender, second line manager, and further that the leave applied for was not in line with the respondent’s annual leave policy and that the complainant did not have sufficient accrued annual leave to cover the duration sought.  The respondent refused for security reasons the complainant’s request to work remotely in Brazil.  An arrangement was put in place whereby the complainant took accrued annual leave, parents leave and authorised unpaid leave to cover the period. 

The complainant did not return to work from authorised unpaid leave and resigned from her position effective 9 February 2024. 

The respondent strongly denied the complainant’s claim that she was discriminated and harassed by reason of her race.  It submitted that the complainant had failed to establish a prima facie case, failed to identify an appropriate comparator to support her claim of discrimination and failed to particularise her claim of harassment.  Targeted replies were made in direct response to various matters referred to by the complainant in her complaint form. 

Summary of Ms Jacinta Maher’s sworn evidence

Ms Maher is the HR Business Partner on the logistics side of the respondent’s business. 

The complainant commenced employment with the respondent through an agency.  She was directly employed by the respondent from March 2022 as a customer service representative.   There was no expectation given to agency workers that they would transition to a permanent role with the respondent after a certain period.  A permanent role was subject to there being a vacancy.  In January 2022 there were 2 customer service administrator roles advertised internally and externally.  The complainant was successful in her application for a role.  An external applicant was also successful in the competition and was hired on the same terms and conditions, including salary, as the complainant.  The external applicant was an Irish national.  Both started in March 2022.  Following a pay review, the complainant received an increase in salary and was paid €33,000 per annum from commencement of her second fixed-term contract of employment in March 2023.

In relation to the annual leave approved for the complainant, it had been approved in error by a manager who had not been aware of the full period of leave applied for as the complainant had submitted multiple block applications.  If the complainant had taken annual leave for the full period applied for over December 2023, January 2024 and February 2024, she would have had no leave for the remainder of 2024.   The complainant’s manager explained the situation to the complainant.  An agreed plan was put in place that allowed the complainant take time off to travel to Brazil through alternative leave types.  Regarding the complainant’s request to work from Brazil, the respondent did not have the IT infrastructure in place to facilitate this.  This has since changed with the respondent’s remote working policy however, due to data protection, remote working outside of the European Union is not allowed.

At the time of the complainant’s resignation letter of 12 January 2024, the complainant had not raised any issues regarding her employment.   

The complainant’s role did not change after her return from maternity leave.  There was cross-training of everyone on the complainant’s team to ensure cover of the full customer service representative role as opposed to cover of a specific area or customer.  The role of logistics coordinator, to which the complainant attributes an incorrect salary, is a very different role to that of customer service representative.  The complainant was trained by the logistics coordinator on a specific aspect of that role which was transitioning to the customer service team.  There are different skillsets, tasks and responsibilities attached to the roles of logistics coordinator and customer service representative.

Summary of sworn evidence of Ms Thara Pender

Ms Pender was the complainant’s team leader’s manager, or second line manager, at the relevant time.  She joined the respondent company when the complainant was on maternity leave.

The witness’ perception of a meeting with the complainant on 17 October 2023 was very different to that of the complainant.  The witness outlined a conversation with the complainant regarding childcare.  The complainant had referred to problems with childcare arrangements delaying her return to work from leave.  The witness had asked the complainant how she coped with the childcare issues.  In the context of the witness telling the complainant how her mother-in-law looked after her children, the witness had referred to Irish people being blessed in this regard.

A cross-training plan had been put in place to develop the team on which the complainant worked.  Up to that point, the team leader was the only person on the team who could cover every aspect of the team’s work.

The witness disputed the assertion that she would not speak with or look at the Brazilian members of the team.  The witness considered this to be rude.  She speaks with everyone on the team.  The witness had no recollection of a call in which she was alleged to have said that members of the team were very lucky to be in the company.  The witness questioned why she would say something like that.  

The witness had not been aware of any discrimination or other issues raised by the complainant in the workplace.

It was a big disappointment and shock when the complainant left.  It had been anticipated that the complainant would step into the supervisor role to cover a maternity leave.

The witness was familiar with the HR policy that English was the business language on site.

The witness maintained that the complainant had not been treated differently to any of its other employees on site.

The case referred to the Workplace Relations Commission under section 77 of the Employment Equality Acts 1998-2015 was of harassment and discrimination on grounds of race.    

In reaching my decision I have taken into account the oral and written submissions of the parties and given appropriate weight to the oral and documentary evidence.

The Legal Framework

The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in employment-related areas on any of the protected grounds. 

Section 6(1) of the Acts in relevant part provides that discrimination shall be taken to occur where:-

“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,”

The race ground is specified in section 6(2)(h) of the Acts as meaning that between any two persons “they are of different race, colour, nationality or ethnic or national origins”. 

Section 14A(7) defines harassment in relevant part as:

“… any form of unwanted conduct related to any of the discriminatory grounds,

…

(b) 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.

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.”

Harassment constitutes discrimination in relation to an employee’s conditions of employment.

Section 85A of the Acts deals with the burden of proof in cases under the Acts.  In the first instance a complainant must establish facts from which discrimination may be inferred; thereafter the burden of proof passes to the respondent to rebut the presumption of discrimination.  Section 85A states as follows:-

"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."

I note in particular from the Labour Court’s determination in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 the following dicta on section 85A and the establishment of facts:-

“All that is required is that they be of sufficient significant to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

Findings

The claims of harassment and discrimination on grounds of race were referred to the Commission on 24 January 2024.  The claims were grounded on various matters detailed by the complainant in her complaint form, which I have established relate to access to employment, conditions of employment and pay.

I have considered the date of the referral of the case to the Commission and the relevant time limits in section 77(5) of the Acts.

The complainant is a Brazilian national.  She was initially employed by the respondent as an agency worker and subsequently directly employed under 2 fixed-term contracts of employment as a customer service representative from 14 March 2022 until her resignation from employment on 9 February 2024.

On the complainant’s return from maternity leave in October 2023, she was informed that annual leave she had applied for prior to commencing maternity leave in February 2023 had been approved in error, and that she would be unable to take the requested annual leave.  The relevant annual leave applications concerned the period from 27 December 2023 to 2 February 2024, excluding public holidays.   The complainant’s contract of employment and terms and conditions relating to annual leave provided that a maximum of 10 days’ leave may be taken at any one time.  The complainant did not have sufficient leave accrued to cover the period of annual leave she had applied for.  The complainant’s request to work from Brazil during the relevant period was refused as the respondent’s IT infrastructure could not facilitate remote working at the time.  This is reflected in a message from the complainant to her team leader which acknowledged that the respondent did not allow people to work from abroad.  

On the complainant’s return from maternity leave in October 2023, the complainant was tasked with providing cover for all the roles on the team, which is what her maternity leave replacement had been doing.  The complainant had declined to do this cover role in conversation with her team leader prior to her return from maternity leave and expressed a preference to return to working specific client accounts.  The complainant undertook the cover role for a week.  The complainant’s evidence and submissions were inconsistent in respect of training she then received. In her complaint form, the complainant referred to being trained for new work which had been added to the customer service team.  In evidence, the complainant said that she was trained to take on the role of logistics coordinator and did not receive the same salary for the role as the person who had trained her.    The assertion of discrimination is based on the person who trained her being Irish and paid more.  The case was not made out that the work undertaken by the complainant and logistics coordinator was like work, rather it was that the complainant had increased responsibility with the new task in her role as customer service representative and therefore should be paid more by reference to the logistics coordinator’s salary.  I have reviewed the job description for the role of logistics co-ordinator and that of customer service representative and had regard to the complainant’s evidence that these are completely different roles.  On balance, I am satisfied that the complainant was trained by the logistics coordinator on a new task assigned to the customer service team.  In this regard, I note the complainant’s evidence that when she raised with her team leader the matter of a pay increase for the additional responsibility, the response was that this task was being assigned to the customer service team as part of their work going forward, and the complainant’s confirmation that the job specification of customer service representative accurately reflected her duties and tasks. 

On 18 October 2023, the complainant was asked not to speak Portuguese in the office.   The complainant’s evidence was that she always spoke Portuguese with Portuguese speaking colleagues in training and amongst themselves.  I have reviewed the message sent by the complainant’s supervisor with the request that the complainant speak English on site.  It referred to the complainant speaking Portuguese when others were in the room.  The complainant’s response was “Sure, no problem.  Sorry about that.”   I consider this response to be consistent with the complainant’s evidence that she understood and accepted that the working language in the respondent business was English.    The respondent has a diverse workforce comprised of different nationalities from around the world.  Over 70% of its workforce are non-Irish nationals and at its Dublin site, where the complainant was employed, approximately 50% of employees are Brazilian nationals.   In such circumstances, I am satisfied that a requirement that employees speak English while at work is objectively justified by a legitimate aim of ensuring employees are not excluded or isolated and that the means of achieving that aim are appropriate and necessary where the requirement applies to on-site communications in a hybrid workplace.

The complainant referred to communications from Ms Pender to the effect that the complainant should be grateful for her job and to meetings where the manager was always rude to all the Brazilian girls on the team and made them feel undeserving.  The complainant contacted HR regarding the respondent’s position on the complainant taking leave from December 2023 to February 2024.  I note that the complainant did not however at any stage raise an issue with HR regarding the communications complained of.  The respondent has comprehensive workplace policies and procedures, including anti-bullying, anti-harassment and grievance procedures.  The complainant did not raise an issue about the manager, of harassment or of a hostile working environment with HR or through any of the respondent’s procedures.

The complainant submitted her letter of resignation by email of 12 January 2024, which included notice of the effective resignation date of 9 February 2024.  The complainant’s resignation was submitted when she was on approved leave in Brazil.  The resignation letter included the following:-

“I want to take this opportunity to thank you and the entire team for the valuable experience and support provided during my time at DB Schenker.

I am committed to ensuring a smooth transition and am willing to assist with the handover process in any way I can.  Please let me know how I can best support the team during this time.

Thank you again for everything. “

The complainant did not in fact return to work from authorised leave as she was subsequently certified unfit for work until 9 February 2024.

I have considered the content of messages submitted by the complainant between her and former colleagues at the respondent company. 

I am satisfied that a material issue for the complainant was that the respondent would not facilitate the complainant taking paid annual leave in the December 2023 to February 2024 period.  She thought this was unfair.  The person who communicated to the complainant that her annual leave had been approved in error, and that she would not be able to take the annual leave as applied for, was Ms Pender, a manager who joined the company when the complainant was on maternity leave. 

I find that the complainant’s perspective of communications between the manager and complainant was skewed by the fact that Ms Pender had been the bearer of unsatisfactory news regarding the complainant’s planned leave arrangements.  I am not satisfied that the complained of communications or conduct, including those regarding annual leave arrangements, the complainant undertaking cover for the team and training for a new task, were related to the complainant’s race. 

I do consider the manager’s comment about Irish people being blessed in having family around to assist with childcare to have been insensitive and misplaced in the particular circumstances of the complainant’s return to work and dealing with the annual leave issue.  However, I accept the manager’s explanation of the comment having been made during a discussion about their respective childcare arrangements. I am not satisfied that this was conduct related to race which had the purpose or effect of violating the complainant’s dignity.

Assertions that the complainant did not receive an offer of permanent employment on the same terms of employment as an Irish national in June 2021, or 12 months thereafter, is unsupported by admissible evidence and furthermore any complaint in this regard was referred outside of the statutory time limits set out in section 77(5) of the Acts. 

Having considered the totality of the evidence adduced in respect of this claim, I do not find that the complainant was discriminated or harassed on grounds of race within the meaning of the Acts.

CA-00061189-001

I find that the complainant was not discriminated against by the respondent on grounds of race.

I find that the complainant was not subjected to harassment on grounds of race.

CA-00061190-001

This is a duplicate of CA-00061189-001.

Accordingly, I find this complaint to be not well founded.

Discrimination – Harassment – Race