Complainant

Respondent

Parties

Francisca  Ehiguese

Health Services Executive  

Representatives

Self- represented

 Mason Hayes and Curran LLP

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-00058922-001

20/09/2023

The complainant has submitted a complaint of discrimination under the Employment Equality Act, 1998-2015 (the “Acts”), that she was discriminated against on the grounds of race when she was discriminatorily dismissed on 8/3/23. Her employment ended on 27/4/2023.

She had worked as a psychiatric nurse with the respondent since 2004.

She worked 39 hours a week. Her annual salary is €62,775.

She submitted her complaint to the WRC on 20/9/2023.

The complainant was employed by the respondent from 2004 until 2023.

The complainant is of African descent.

The complainant maintains that she was bullied, abused, and ultimately dismissed on 8/3/2023 on the grounds of her race. The dismissal was the end point in a disciplinary process which commenced because of an incident on the 24/2/2020.

The complaint gave evidence under affirmation.

Incident of 24 February 2020.

The discrimination began when the nurse manager in the ward to which she was assigned took issue with her using a broken, plastic spoon as an improvised toothpick. Her use of this implement did not happen within sight of patients. The complainant states that she was placed on sick leave at that point. The respondent referred her to a doctor on 25/2/23.

She was placed on paid, administrative leave from May 2020 up until March 2023.

The complainant states that the respondent did not permit her to write a report about the incident of 24/2/20 whereas other staff, all Irish, were invited by the respondent to submit a report.

The respondent referred her to a doctor on 25/2/23.

The complainant attended an investigative hearing as part of the HSE disciplinary procedure on 20/12/2021. This hearing concluded with a recommendation that a stage 4 disciplinary hearing into her alleged gross misconduct on 24/2/2020 was warranted.

The complainant maintains that the investigative and disciplinary hearings indicate racism at play as all personnel involved in these processes were Irish. The complainant states that the Chief Officer, Cork Kerry Community Healthcare, who conducted the disciplinary hearing did not allow her to set out the actions of colleagues which she believes warranted the  initiation of   disciplinary proceeding and which showed a difference in treatment. This is evidence of less favourable treatment towards her on grounds of race.

She states CCTV could show these actions.

Concerning the toothpick issue, no patients were involved in this issue on 24/2/20.

When asked, she was unable to set out an incident involving a person of a different racial background who was treated differently and more favourably than her.

The disciplinary meeting occurred on 2/3/2023. There was no CCTV footage available from that incident. Only Irish personnel were tasked with activating this procedure.

She did not go to the employer prior to 2015 to complain of discrimination.

She was allowed an opportunity to appeal the sanction of dismissal.

She has not secured another position.

The Nursing and Midwifery Board have taken the decision to debar her from working as a nurse. She has appealed this decision.

Cross examination of complainant.

The complainant confirmed that no one stopped her from making a report of the incident which occurred on 24/2/2020, but no one invited her to do so. Nursing management should have requested a report from the complainant.

She could not recall if she submitted this failure to invite her to submit a report  or the withholding of CCTCV from her to the investigative committee or to the disciplinary meeting on the 2/3/2023.

She asks that her complaint of discrimination on race grounds be upheld.

The respondent denies that they discriminated against the complainant under any of the nine grounds.

The respondent dismissed the complainant for serious misconduct entirely unrelated to her race.

They adhered to the agreed process throughout the investigation and disciplinary and appeal stage. The complainant failed to exercise her right to appeal though offered opportunities to engage with the respondent on 5 occasions.

The complainant’s argument that the withholding of CCTV footage is indicative of discrimination is contested and is simply explained by the fact that CCTV footage is erased after 28 days.  She looked for the footage 18 months after that date.

The complainant did not indicate that the absence  of CCTV was a concern of hers during the course of the investigative meeting conducted by the respondent in December 2021.

The complainant had ample opportunity to answer all the allegations made against her at the disciplinary hearing.

Evidence of Area Director of Nursing given under affirmation.

The witness was tasked with overseeing the reintegration of the complainant back into a clinical setting, having been deployed to a non- clinical area for an extensive period. This latter deployment arose out of the respondent’s obligations to ensure that the complainant adhered to the Nursing and Midwifery Board’s Code of Conduct.

On 29/1/2020 The complainant’s trade union and respondent agreed that the complainant would start back on a psychiatric ward.

On 24/2 2020, the Assistant Director of Nursing of the unit to which the complainant was deployed, advised him that she was unhappy with the complainant’s aggressive and disruptive behaviour which had occurred at a meeting concerning return to work details.

Evidence of Chief Officer, Cork Kerry Community Healthcare given under affirmation.

The witness has worked in the HSE for 40 years.

The witness advised that the investigation committee had upheld the charge of serious misconduct on the part of the complainant. The Investigative committee recommended that the matter should proceed to a stage 4 disciplinary hearing in accordance with the respondent’s agreed disciplinary procedures.

The witness’s job was to consider the outcome of the investigation committee, to hear the complainant’s response to the charge facing her and to decide on an appropriate sanction if necessary. Sanctions included a range of measures up to and including dismissal

He understands that the complainant’s work, nursing in an acute psychiatric unit, can be challenging.

The complainant has mischaracterised the serious misconduct charge. It was not the matter of a broken spoon. It was her aggressive, loud and abusive response to the manager’s request to remove the spoon from her mouth, plus her call to the Gardai, all played out in front of patients and staff on a psychiatric unit which led to the initiation of the disciplinary process.

The witness conducted the disciplinary procedure.

He upheld the charge of serious misconduct and recommended dismissal with notice which took her employment up until the 27/4/2024.

Legal arguments.

The respondent argues that the complainant has failed to meet the burden of raising a prima facie case of discrimination on the grounds of race, requirements for which were set out Southern Health Board v Mitchell AEE/99/8, [2001] 12 E.L.R. 201.

The respondent refers to Melbury Developments Ltd and Artur Valpeters, EDA 0917 which held that mere assertions cannot be elevated to the status of evidence.

The respondent also relies on Rescon Ltd v Scanlan EDA 085/2008 which held that the

“the claimant had adduced no evidence to establish a nexus between his gender and the respondent’s failure to offer him the disputed post other than a woman was appointed and he was not”

The complaint submitted no comparator. In this regard, the respondent relies on Saoirse Soden v SuperValu Harris, ADJ -00034460 where the complainant was held to be unable to meet the burden of establishing a prima facie case in the absence of a comparator- considered to be an essential evidential tool.

The complainant has submitted no evidence that race influenced the decision to dismiss her as opposed to asserting this view.

She was afforded fair procedures throughout the process.

The adjudicator is asked to reject her complaint.

Complaint under section 77 of the Employment Equality Act, 1998

I am required to decide if the complainant was subjected to discriminatory treatment on the grounds of race in relation to her dismissal.

The act of discrimination was the alleged discriminatory dismissal on grounds of race, notified to her on 8/3/2023, and which took effect on 27/4/2023. This act was the culmination or final step in a disciplinary process which began in 2020

Relevant Law.

Section 6(1) of the Employment Equality Acts 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)”.

Section (2) provides

“As between any 2 persons, the discriminatory grounds (and the descriptions

of those grounds for 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”).

Burden of Proof.

Section 85A of the Acts lays the onus of proof with the complainant to establish a prima facie case of discriminatory treatment contrary to the Acts. Section 85A of the Acts provides that facts must be

“established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that”

 “a complainant 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

In order to meet this first test and show that a prima facie case exists, the complainant is obliged to satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 and in other decisions. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.”

Application of the law to the circumstances of the instant case.

I explained to the complainant who was unrepresented of the initial obligation to raise an inference of discrimination as required by section 85A of the Acts.

The complainant is comparing herself to Irish nurses.

The specific treatment is the termination of her employment on 27/4/2023.

Less favourable treatment on the grounds of race?

 I pointed to the obligation to illustrate less favourable treatment on the grounds of race. The complainant accepted that she could not provide such an example. This is a complaint of discrimination not a complaint of unfair dismissal which requires the complainant to submit evidence disclosing that she was treated less favourably than a fellow employee of a different race faced with a charge of serious misconduct, or a fellow employee of a different race being brought though a disciplinary process. The complainant was unable to point to such a comparable situation or to any incident of less favourable treatment relative to a person of a different race or ethnicity as opposed to asserting that this was the case.

The complainant sincerely believes that it was her race which led to her demise, but the evidence did not support this belief.

The uncontested evidence was that a ‘brou ha ha‘  broke out on the ward on 24/2/2020 when she was asked to remove something from her mouth. She did not contest that she spoke loudly, abusively or that she called the Gardai telling them that she was being held against her will. She was unable to advise what the CCTV footage – not made available to her – would reveal, though she stated that the absence of same was discriminatory.

She was unable to advise what a report from her in February 2020 would have revealed or how it would have challenged the respondent’s evidence.

The fact that no one of her ethnicity sat on the investigative committee is not evidence of discrimination.

While the sanction may have been harsh, that is not the assessment or decision required in this instance. What is required is that the complainant shows that race was a least a factor in deciding that she should be dismissed as opposed to the upholding of the  charge of serious misconduct.

Based on the evidence and the law, I find that the complainant has failed to raise an inference of discrimination on the grounds of race, and her complaint, therefore, cannot succeed.

I decide that the complainant has failed to raise a prima facie case of discrimination on the grounds of race and her complaint cannot succeed.

Absence of prima facie evidence.