Complainant

Respondent

Parties

Katarina  Balintova

Allstate Sales Group, Inc.

(In liquidation)

Representatives

  In person

Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00059022-001

26/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059558-001

23/10/2023

The complainant was employed by the respondent as a CAD Drafter from 15th July 2019 until 30th October 2023. The complaint relating to discrimination was submitted on 26th September 2023. The cognisable period of the complaint is 27th March 2023 to 26th September 2023.

The within complaints relate to allegations of discriminatory treatment and an alleged unfair dismissal. This complaint is linked to ADJ-00050337 and should be read in conjunction with that referral.

Note: There is a complaint submitted within this adjudication file relating to the Pensions Act, 1990. It relates to issues that fall to be considered under the Employment Equality Acts, 1998-2015. The respondent was notified of the issues raised by the complainant but did not attend the adjudication hearing as the respondent entity is in liquidation and no longer has a presence in Ireland.  The Liquidator was also notified of the time and date of the adjudication hearing but did not attend. In those circumstances and the clear relevance of the Employment Equality Acts, 1998 to the subject matter of the complaints, I will make my decision in line with the provisions of the correct legislation.

CA-00059022-001 – Pensions Act, 1990. (Discrimination complaints)

The complainant contends that she was discriminated against on the gender ground. The complainant, in her narrative also describes alleged discrimination on the grounds of race and religion. The complainant stated that in the months that followed her return from Maternity leave in September 2022, her role had changed to that of a photo checker as opposed to the role of CAD drafter for which she had been employed. In November 2022, the complainant went on a period of sick leave until March 2023. The complainant stated that by March 2023 a male colleague was placed into a management position without a competition or any opportunity for others to apply for the role. The complainant stated that she previously had issues with this male manager and raised a grievance in respect of reporting to him in his new role. The complainant stated that the grievance was placed on hold as an assurance was given to her that she would have her work appraised by another staff member. The complainant stated that another interaction with the Vice President of HR left her in a situation where she felt she was being harassed and disrespected and she decided to proceed with the grievance process and raised further issues of dissatisfaction to management in September 2023.

CA-00059558-001 – Unfair Dismissal Complaint.

The complainant contends that she was unfairly dismissed as part of a sham redundancy by the respondent.

The respondent did not attend the adjudication hearing and was not represented.

Note: The within referral is linked to ADJ-00048348 against the respondent Allstate Sales Group Inc. The complainant is representing herself at adjudication. At the previous adjudication hearing of this complaint on 13th February 2024, the complainant raised issues that the respondent was not on notice of and was given the option of submitting further complaints on these issues. (ADJ-00050337 refers).

In respect of the respondent itself, it is in liquidation since 29th January 2024 and no longer has any presence in Ireland. The WRC was notified that the respondent was in liquidation. The Liquidator was informed of the time and date of the remote adjudication hearing but did not attend.

CA-00059022-001 – Pensions Act, 1990.

The complainant alleges that she was discriminated against on the grounds of gender. The cognisable period of the complaint is 27th March 2023 to 26th September 2023.

The gender-based complaint relates to the complainant’s return to work in September 2022 following Maternity Leave and a change in role that resulted in the complainant becoming a “photo checker” as opposed to a CAD drafter which was the position for which she was employed. The complaint further stated that a male colleague had been promoted into a management position and the complainant was not considered for this role. The complainant then went on a period of sick leave from November 2022 until March 2023. On her return, many of the complainant’s colleagues had left the organisation and the complainant herself was waiting for weeks to be given any work to do. The complainant further claims to have been harassed on a call in March 2023 relating to her grievances when she was spoken to in an arrogant tone by the Vice President of HR and generally treated with disrespect by the employer regarding working from home and not being paid the appropriate expenses. The complainant also raises industrial relations issues which were addressed by another WRC Adjudicator.

The Applicable Law

Discrimination

Section 6(1) and (2) of the Employment Equality Acts, 1998-2015 provide as follows:

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) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) to (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”,

(i) not relevant

Harassment

Section 14A(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…….

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 complainant sought that the time be extended in relation to her complaints so that matters that occurred in the six months prior to 27th March 2023 could be considered in her complaints of discrimination on the gender, race/nationality grounds.

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”.

Burden of Proof

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

85A (1) Where in any proceeding’s 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 F156[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.

Conclusions

I note that the complainant returned from Maternity Leave on 12th September 2022. The cognisable period of the complaint submitted on 26th September 2023 is 27/03/23 – 26/09/2023. The issues that the complainant states constitute discrimination on the gender ground are the change of role from CAD drafter to photo checker which she says occurred following her return from maternity leave and that this was a discriminatory act. However, from the complainant’s own submissions there were many other employees in 2022 who had been asked to carry out the role and had refused or others who were carrying out this role. I do not accept that the photo checking role was an act of discrimination towards the complainant and in any event, it occurred outside of the cognisable period of the complaint.

In respect of the complainant’s application for the twelve months (27/09/2022 – 26/09/23) to be considered, I find that the complainant has not provided reasons that explain and excuse the delay in submitting her complaint on 26th September 2023. I find that the complainant chose to pursue issues of dissatisfaction to her through the appropriate internal grievance process. If the complainant was of the view that she was discriminated against following her return to work in September 2022, her complaints were subject to a statutory time limit which the complainant did not adhere to. Accordingly, I have considered the complaints in respect of the six-month period prior to the referral of the complaints to the WRC.

In respect of the harassment complaint, this is within the six-month period prior to the complainant referring her complaint. However, the complainant states she was harassed by the VP of HR when he told her that her husband should not be coaching her on the call where she discussed her grievances. While the VP may have spoken arrogantly to her, the complaint of harassment in my view fails as the complainant has not proven that she was spoken to in an arrogant manner as a result of her gender, nationality/race or her religion.

In all of the circumstances of the complaint, I find that the complainant has not established a prima facie case of discrimination within the cognisable period of the complaint. I also find that the complainant has not established that she was harassed by the VP of HR on the grounds of gender, race/nationality or her religion.

CA-00059558-001 – Unfair Dismissal Complaint

The complainant contends that she was unfairly dismissed. I note from the correspondence between the parties and from the complainant’s own written and verbal submission that the respondent is in liquidation having ceased its operations in Ireland and having made its final three employees redundant in October 2023. In circumstances where the respondent closed its Irish operations and no longer has a presence in Ireland, I find that the complainant was not unfairly dismissed within the meaning of the Unfair Dismissals Act, 1977 and was instead fairly dismissed by reason of redundancy.

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

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

Discrimination, harassment, unfair dismissal