Complainant

Respondent

Parties

Oxana  Bolshanina

Scooters Montessori Creche Creche

Complainant

Respondent

Anonymised Parties

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Representatives

  complainant

William Wall Peninsula

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-00061573-001

18/01/2024

The complainant alleges that she was subjected to harassment and discriminated against on the grounds of age and nationality.  Evidence was given under oath/affirmation by the complainant, Ms Oxana  Bolshanina, her partner Mr Hristov Dimitrov, Ms Catriona Belton, Owner, Ms Thirza Heron, Manager.  Witnesses were subject to cross examination.  Submissions received from both parties were considered by me.

The complainant commenced with the respondent in May 2023 at the premises which is located in Sligo. Before the complainant started, she explained to the owner of the company, Miss Catriona Belton, that her husband was waiting for a hip replacement, and that she could only do work part time initially, but that she could do full time after the surgery, and the Ms Belton agreed to that.

It was a hard time for them after the surgery, because social welfare refused their request for care benefit. They lived in Bundoran and the complainant had no driving license and was very dependent on public transport, and therefore she had to ask to have her roster changed.  One day, Ms Belton called the complaint to the office and said that she had to find a job in Bundoran and to leave the company because Bundoran was too far away from the creche.

The complaint was upset, and she did not think it would be possible for her to find a job in Bundoran.

The next morning, she met Miss Belton in a different mood, and she said to her that I know you like your job, and this is not because of the problems between Russia and the Ukraine. The complainant was born in Russia, but is now an Irish citizen.  The complainant was shocked at this statement.

in October 2023, the day before the complainant’s holidays were due to commence, Ms Belton said that she had no right to work in the creche because of her education. This upset the complainant, who had got her first letter of her eligibility to practice in March 2017 and the second letter of qualification on 28th of November, 2022. She contacted The Department of Children to seek clarification. The complainant was stressed and did not sleep at night. The next day, when she was in the airport, she got an answer from the department that everything was okay with her education and she had a right to work in the creche. The complainant had started work in the creche in May, 5 months beforehand, and Ms Belton was raising this in October just as she was going on holidays.  The complainant is of the view that this was done to cause her stress.

On the 21st of November, the complainant gave Ms Belton a letter from the hospital stating that she needed to go for surgery. Ms Belton told her that while she could go to the hospital, she had to take days from her Holidays instead of illness benefit, as she had to think about her own business first.

She requested information as to how long the complainant would have to stay at home after surgery. This this was not possible for the complainant to provide and this again, caused the complainant stress.

On the 23rd of November 2023 when the complainant came back home from the creche, her blood pressure was very high. She got tablets to bring it down. The next morning, when she went to work and said to the manager that she was not well and not able to work because of her high blood pressure, she was told to wait until Miss Belton arrived.

Ms Belton took the complainant’s blood pressure and said that she wanted to check her blood pressure to be sure that ‘you don't have a heart attack or a stroke’. The complainant was shocked. Ms Belton was not a doctor, and she had no right to check her blood pressure. Having checked her blood pressure, Ms Belton sent the complainant home and told her to contact her GP.

The complainant went to her GP that afternoon. At this stage, her blood pressure was gone very high. An ECG was carried out, and her GP rang the ambulance, and she was sent by ambulance to Sligo hospital with a suspected heart attack. When she was in the emergency department, Ms Belton visited her, and she told the complainant that she would have to quit the company or to get disability. This stressed the complainant again. Ms Belton asked her, did she get a letter from the surgery saying how long she would have to stay at home. If she was worried about the complainant, she would not have put her under stress on this occasion.

The complainant asked Miss Belton to give her an hour off on the 20th of September because she had a GP appointment at 9:20am and she said she would be in the creche at 10.30 instead of 9.30 Miss Belton said that this was her business and she did not need the complainant's health problem.

That evening, the complainant's blood pressure was very high again, and she had to go to the emergency department. It was the nonstop stress in Scooters that was responsible for this high blood pressure.

Another incident occurred in 2023; the complainant was in the garden with a colleague working with the children from her room. Over the gate were two girls with a dog. The complainant asked the girls if she could take a picture of the dog and was planning to show it to her husband. The girls agreed. The complainant went into the creche to get her phone and took the picture of the dog. She did not take any pictures of the girls.

Some time later on 3rd December 2023 Ms Belton informed the complainant that there was a person looking for her (on the work premises).  The person accused the complainant, in an aggressive manner, of taking pictures of the girls.  The complainant’s colleague confirmed that she had not taken a photo of the girls. The next day the complainant’s husband went to Ms Belton about the incident and informed her that the complainant would be making a statement to the Gardai. The complainant got the name of the person concerned from one of the children in the After School class.  The following day Ms Belton confronted the complainant saying that the mother of the child who had given the complainant the name said her daughter had been terrified about the incident.  Ms Belton insisted that the complainant withdraw her complaint from the Gardai.  This incident caused the complainant further stress and again her blood pressure became greatly increased.  Her GP gave her a sick cert for one week.

On 16th January the complainant had surgery. On 22nd January she got a sick cert from the GP and sent it to Ms Bolton.  Ms Bolton contacted the complainant and asked for a stamp on the cert from the GP and the diagnosis.  The complainant’s husband brought in the cert on 25th January.  Ms Bolton then looked for the hospital certs.  The complainant was too scared to return to work after these incidents and as a result tendered her resignation with effect from 1st March 2024.

The complainant believes she was treated differently due to her nationality.  Firstly due to her treatment regarding hospital/GP/dentist appointments and secondly when Ma Belton pushed her to find alternative employment in Bundoran and said it was not because of the Russian Ukraine conflict.

Scooters Montessori Creche is situated in Co Sligo employing 13 employees.  Ms Oxana Bolshanina, the complainant, commenced employment on the 7th of May 2023 as a room leader.  The complainant claims that she was discriminated against on the grounds of her age and her race in accordance with the provisions of the Employment Equality Act 1998. She further alleges that she was harassed.

When interviewed for the position by Ms Catriona Belton (Qualified Nurse) and Ms Thirza Heron. the complainant informed the respondent and Ms. Heron that she was Russian. She commented to the respondent that knowing now that the complainant was Russian she would not employ her. The respondent was shocked by this statement. As the complainant met the criteria for the position, she was offered the position.

In relation to the allegation regarding the complainant’s qualifications, Ms Belton merely stated that Core funding was not accepting the complainants’ qualifications. Further to this, the respondent forwarded subsequent documentation, which was accepted, and the matter was finalised. It is completely inaccurate for the complainant to suggest that the respondent commented that the complainant had no right to work in the respondents creche.

The complainant alleges that the respondent told her to find another job near to home. Again, this is a totally inaccurate version of the conversation held. The respondent, the complainant and Ms. Thirza Heron were talking, and the complainant advised of her husband’s surgery and that he would not be in a position to drive her to work after the operation. The respondent simply commented, was it possible to work closer to home as she had no driving licence. The complainant advised that she would take the bus to work following the operation.

The complainant alleges that the respondent was unhappy that the complainant was going for surgery in January 2024 and that the respondent suggested that she take annual leave whilst out sick. Ms Belton when informed of the complainant’s surgery stated that she required the letter from her doctor in order to qualify for the statutory sick pay which amounted to five days. Ms Belton asked the complainant if she wished to take any annual leave as her recovery may take some time. The respondent as a matter of operations was enquiring into the length of time she would need to cover for the complainant’s time off work.

The complainant referred to an incident when she arrived at work on the 24th of November and stated that she wasn’t feeling well and mentioned high blood pressure. She advised that she had taken her husband’s blood pressure tablets. As Ms Belton is a qualified nurse, she took the complainant’s blood pressure to which the complainant agreed. Ms Belton informed the complainant that it was a very serious matter to take unprescribed medication. The complainant was directed to remain seated in the after-school room as her blood pressure was extremely high. The complainant was directed to the staff room where she was then told to call her doctor, following this the complainant raced out of the creche. Ms Belton called Bundoran doctor and she was informed that the complainant was awaiting an ambulance to take her to Sligo hospital due to her high blood pressure.

Ms Belton visited Sligo hospital that evening and met the complainant in the waiting room. The complainant informed Ms. Belton that she had been given medication to bring her blood pressure down. It is alleged by the complainant that Ms Belton suggested that the complainant must quit her job. Ms Belton told the complainant that she wasn’t to worry, to take time off until she recovered and then return to work three days per week. The complainant had previously asked if a three-day week was possible. However, each time she mentioned it, she would continuously change her mind.

Ms. Belton offered to take the complainant home from the hospital however the complainant advised that she had close friends living close by and that she would stay with them for the night.

Regarding the comment referring to the complainant attending her doctor on the 8th of December 2023, the complainant states that Ms Belton said to her that she didn’t need her health problem. This never occurred. The complainant was given the hour. The pay slip shows the complainant receiving her pay for that period.

Regarding the incident of the photo of the dog, the respondent did not say that the complainant would have to leave the company or anything like it. The only matter mentioned to the complainant during this event was the if she wished to retract her statement from the Gardai she could do so.

Following this the complainant went on sick leave and the respondent wrote to the complainant seeking sick certificates. The complainant failed to forward on proper certificates. The certificates furnished to the respondent failed to include an official doctor’s stamp or address. Ms Belton has never asked the complainant for her diagnosis. On one occasion Ms Belton requested by email a copy of the hospital certificate following her attendance with her consultant which was forwarded to the respondent.

On the 10th of January 2024 the complainant wrote to the respondent stating that if she understood correctly, she was no longer employed and wanted a dismissal letter in order to claim social welfare.

The complainant on the 9th of January submitted a medical certificate stating that she was unfit for work. Again, on the 18th of January the respondent received a medical certificate

informing them that the complainant was unfit for work. It is submitted that the complainant resigned her position as of the 1st of March 2024.

The complainant states that she was treated less favourably by the respondent on the basis of her age and her race. This is denied by the respondent as they treat all their staff equally.

The respondent refers to s.6 subs (1) & (2) of the Employment Equality Act 1998 which states;

Discrimination for the purposes of this Act.

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—

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

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

 From the complainant form the complainant grounds her within complaint in that she was treated less favourably by the respondent on the grounds of her age and race.

The complainant has failed to put the respondent on notice of the latest date upon which she relies upon, where she alleges discrimination.

The respondent refers to s.28(1) of the Act of 1998 where it refers to comparators.

In order for the complainant to advance her within complaint she must put in evidence that she was treated less favourably than another of a different age and race or colour, on particular dates, by such behaviours by the respondent in relation to a ground specified under section 8 of the Act of 1998.

The respondent has not treated the complainant any less favourably than another worker based on the complainants age or race. It is submitted that the complaint referred does not present a prima facie case of discrimination on any of the nine grounds set out under s.6 of the Act of 1998.

The complainant’s allegation relates to discrimination by way of harassment and discrimination on age and nationality grounds.  In evidence she referred to instances in which; the respondent suggested that she leave employment and referred to the Russian Ukraine conflict; that the respondent’s conduct caused her severe blood pressure issues;  that the respondent took her blood pressure when that should have been done by a doctor; that the respondent refused her time off to attend medical/dental appointments and; that the respondent tried to coerce her into withdrawing a complaint she had made to the Gardai about an incident at work.

In relation to complaints of discrimination under the Employment Equality Act a complainant must first establish that he or she is being discriminated against under one of the 9 grounds stipulated in the Act, namely; gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community.  In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant and that such treatment related to the complainant being covered by one of the 9 grounds. Section 6 of the Employment Equality Acts requires that the comparator must be in a “comparable situation” and therefore a level of similarity is required in order for the circumstances of the two persons to be comparable.

As per section 85(a) of the Act, the burden of proof in these cases lies with the complainant in the first instance to establish primary facts, or ‘prima facie’ from which an inference of discrimination may be made. This means that the onus is on the complainant to establish fundamental facts that on first inspection may indicate that an act of discrimination has taken place. Only after this prima facie case has been made does the burden of proof switch to the respondent

The complainant offered no evidence as to how she was discriminated against under either of grounds in comparison to any other employee of the respondent. In her direct evidence she did not name any other employee who had been treated differently than her. The fact that she believes the policies of the respondent to be unfair does not of itself mean that they are discriminatory for the purposes of the Act. I accept the evidence of the respondent that the respondent’s policies apply equally to all of its employees. The fact that these caused stress to the complainant is not of itself evidence of discrimination or harassment based on age or nationality.

 I also accept the evidence of the respondent that in taking the blood pressure of the complainant she did so out of concern. Similarly, I accept her explanation in relation to comments that work closer to the complainant’s home might suit better when she did not have transport. The complainant has failed to meet the requirement to make a Prima Facie case and therefore I conclude that the complainant was not discriminated against under the Employment Equality Act.

The complainant as not discriminated against.

Harassment/discrimination, age and nationality grounds