Complainant

Respondent

Parties

Nebojsa  Lukovic

Charleen Ltd t/a Sheraton Athlone Hotel  

Representatives

Self-represented

Tiernan Lowey BL instructed by Ryan McAllister of Arag Legal Protection Limited

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-00054582-001

19/01/2023

The complainant referred a case to the WRC on 19 January 2023.  The complainant contacted the WRC on 24 January 2023 to advise that he had made a mistake in completing the complaint form and advised that his claims were of discrimination in getting a job, training, victimization, conditions of employment, discriminatory dismissal, dismissal for opposing discrimination and harassment.   The original complaint was amended as requested by the complainant.

The complainant confirmed at the hearing that the case referred on 19 January 2023 concerned discrimination on grounds of race and nationality.

Hearing letters issued to the parties on 12 April 2024.

On 25 April 2024, the complainant requested to supplement his case with claims of disability discrimination and a failure to provide reasonable accommodation.

Summary of the complainant’s sworn evidence

In March 2022, the complainant commenced employment as a maintenance assistant on the Sheraton Athlone Hotel’s maintenance team.  The team consisted of the Head of Department, two other employees and the complainant.  The complainant’s interaction with the other team members concerned work and the completion of daily tasks.  As a new member of the team, the complainant had questions about the work so that he could become familiar with it.   After a couple of months, the two other team members started to exclude the complainant from everyday work duties by speaking in Polish.  The complainant spoke with the maintenance manager about this exclusion in June 2022.  In response, the manager organised a meeting of the service team.  The manager made it clear at this meeting that it was necessary to form and work as a team and that exclusionary behaviour was not acceptable.  The meeting concluded with the other two team members agreeing with the manager’s position.  The situation however did not change for the complainant; after the meeting, the other team members completely ceased communications with the complainant and contact regarding work issues was impacted with the complainant’s phone calls and text messages going unanswered or having delayed responses.  The complainant spoke with the maintenance manager over the 2 weeks following the meeting about the exclusion from daily duties, not being spoken to by the other team members and how they only spoke in Polish in his presence meaning that he could not understand what was going on.  The manager told the complainant that his colleagues would not change, and he advised the complainant to ignore them. 

The complainant lodged a complaint of bullying, and a series of meetings took place with the complainant, the maintenance manager and the two team members.  The complainant referred to the notes of those meetings and in particular where it was acknowledged by a manager that English is the official language in the workplace, and where the complainant considered a lack of training being in consequence of his exclusion. At a mediation meeting on 30 August 2022, the issue of communicating in English at work was addressed by management with the relevant personnel.  It was agreed that English was the expected language of communication at work, and that this would be monitored going forward.  However, no measures were taken, and the complainant had to take a 4-week period of sick leave.   The complainant returned to work to find the situation the same or even worse.  The job was organised so that the team was physically divided.  This was not done to improve the situation but to enable his colleagues to proceed in the same manner ignoring and excluding the complainant.

The main issue for the complainant was that English was not being used for communications at work; this impacted on the complainant’s ability to do his job and develop his skillset.  English was spoken at all meetings with HR and between the complainant and his manager, but the complainant always heard the general manager speaking with the complainant’s colleagues in Polish.

The complainant went to HR and advised that nothing had changed but did not receive a response from HR on this.

The complainant was given a few reasons at the probationary meeting on 28 September 2022 as to why the decision had been taken to extend probation instead of confirming permanency.  The complainant was characterised as rude and hostile and accused of inappropriate behaviour but not given the detail of this.  When the complainant asked for detail, he was told it was just a small red flag.   The complainant did not trust the respondent anymore at this stage and did not accept the respondent’s reasons for extending his probationary period.   The complainant was forced to leave his job as he was accused of all kinds of things and didn’t know what worse would happen.

The complainant was not provided with tools and personal protective equipment required for his role.   The complainant’s colleagues were provided with personal protective equipment.

Under cross-examination, the complainant confirmed receipt of his contract of employment and acknowledged the probationary clause therein.  The complainant accepted the respondent’s right to put him on probation and to conduct a probationary review meeting.  The complainant was referred to the policies and procedures in the employee handbook, including the grievance and bullying and harassment procedures contained therein, which the complainant accepted having received on commencement of employment.  The complainant acknowledged having revoked his bullying complaint at the mediation meeting on 30 August 2022.  He considered the issue to be more about respect.  He had given enough time to trying to address his grievance and bullying complaint.  It was put to the complainant that all staff had access to the same tools in the workshop to undertake their work and that there was no difference in treatment in the provision of tools.  The complainant did not accept that tools were provided to him and maintained that there was an insufficient amount of tools in the workshop for all three team members.  The complainant further maintained that he had not received PPE. The complainant accepted that steps were taken following the mediation meeting with the objective of assisting the complainant’s integration in the workplace, including breaks being moved to a common area, although the complainant did not accept that this solved the problem where his colleagues were speaking in Polish when not on breaks.  In August 2022, when the complainant contacted HR and the maintenance manager, he referred to the exclusion issue as bullying as he did not know whether to formulate it as discrimination, bullying or something else.   The complainant agreed that the main issue for him at the beginning and in August 2022 was with one of the team members (AB) as the other team member (XY) made efforts to include the complainant and speak English with him.  The complainant considered AB to be the instigator of ignoring and excluding the complainant.  By the end, XY was not speaking with the complainant in English at all.  It was the Group HR manager’s view that there was an interpersonal clash between AB and the complainant.  At the mediation meeting on 30 August 2022, AB and XY agreed to use English for work communications.  The complainant accepted at the meeting that the issue for him was not bullying but more a matter of respect.  The complainant agreed to withdraw the bullying complaint in the hope that the situation on the maintenance team would improve and the complainant could work normally.  At the probationary meeting on 28 September 2022, it was confirmed to the complainant that his contract was not ending rather the probationary period was being extended.  The complainant did not agree with the respondent’s position that it was made clear to him at the probationary meeting that he was likely to get a permanent contract. The complainant accepted that there were no reasons provided in his resignation letter of 29 September 2022 and that he had been asked by HR’s Mr Keogh whether he was sure about tendering his resignation.  The complainant accepted that he did not raise anything with Mr Keogh about discrimination when he handed in his resignation letter, and that he confirmed to Mr Keogh his decision to resign.  The complainant had felt threatened in the probationary meeting the day before and he did not want to participate in this anymore.  The complainant acknowledged that in an email to the general manager of 6 October 2022 he explained the reasons for his decision to resign.  He accepted that he stated in that email that the main reason for his decision was that he did not get a permanent contract.  The complainant was in a bad condition at the time.  He was under huge stress and his health was suffering.   The complainant did not accept that he did not give his employer an opportunity to address his grievances before he left employment; he remained in employment until 7 October and his email to the general manager was sent on 6 October.   Nobody came to the complainant to ask for the reasons or events that gave rise to his resignation.  The complainant was on annual leave during the notice period.

Preliminary issues were raised concerning the named respondent to the case and statutory time limits applicable to claims submitted subsequent to the complainant’s referral of his case to the WRC on 19 January 2023.

The complainant commenced employment with the respondent as a maintenance assistant on 6 March 2022.  The complainant raised issues with his manager regarding communication issues with his colleagues on the maintenance team in June 2022.  The respondent took steps to address the issues raised.  The complainant lodged a bullying complaint about two of his colleagues on 19 August 2022.  The respondent conducted an investigation on foot of this complaint, which concluded with a mediation meeting and agreed outcomes.  The complainant commenced a period of sick leave on 24 August 2022, from which he returned to work on 20 September 2022.  At the complainant’s 6-month probationary meeting on 28 September 2022, the complainant was informed that his probation was to be extended in accordance with his contract on grounds of his performance.  By letter dated 29 September 2022, the complainant gave notice of his intention to resign, effective 6 October 2022. 

The respondent denied that it discriminated against the complainant as alleged.  It rejected the claims against it as unfounded, misconceived and/or wholly without merit.  The issue was not race-related but concerned a clash of personalities.  At all times, the respondent responded promptly and appropriately to issues raised by the complainant.  The respondent relied on sections 14(A)(2) and 15 of the Employment Equality Acts 1998-2015 in relation to the complainant’s claim of exclusion.  The complainant’s dismissal by the respondent was fully disputed; the complainant resigned without giving the respondent an opportunity to address any grievance on his part. 

The respondent’s maintenance manager, Mr Artur Maly, gave evidence regarding his role, his reports and the work carried out by members of the team, including variations in the work undertaken by members of the team, and how tasks were distributed amongst the team.  The complainant’s colleagues, AB and XY, had trade qualifications and worked alone or independently most of the time.  During the working day, the team members spent time together in the canteen or when tasks required 2 people.  The complainant was not required to work alongside AB and XY in carrying out his tasks.   Tasks were assigned to the team members by the maintenance manager.  At a June meeting, the maintenance manager spoke with the team members about speaking in English when together.  He was aware of AB and XY working together and speaking in Polish.  The manager’s request was for communal communications to be in English.  The witness also implemented measures to address the issue raised by the complainant regarding communications on the team; he moved his office down to the workshop and breaks returned to the main canteen.  The maintenance manager outlined how whatever tools were needed to carry out the workplace tasks were accessible and available to staff members.  The witness could not recall the complainant not receiving PPE.  There was no discrimination issue or grievance raised by the complainant with the manager. 

The respondent’s HR manager, Mr Richard Keogh, gave evidence regarding his role at the time as HR executive, the induction training provided to employees on commencement of employment, and his involvement on receipt of the complaint from the complainant on 19 August 2024 and in the subsequent investigation and probationary meetings.  The first time the witness was on notice of an issue on the maintenance team was on receipt of the August complaint and as far as the witness was aware, this was the first HR had heard about it.  The complainant did not give any indication at the probationary meeting of 28 September 2022 that he intended leaving employment.  The complainant mentioned at the probationary meeting that his colleagues communicating in Polish continued to be an issue.  When the complainant gave the witness his letter of resignation on 29 September, the witness recalled asking the complainant whether he was sure and wishing the complainant well. 

In evidence, a general manager with the respondent, Ms Sabine Wycisk, confirmed her role at the material time as deputy general manager and the HR aspect of that role.  The witness outlined the induction training for new employees and how the Employee Handbook was available online for employees.   The witness’ first involvement on issues raised by the complainant was when the complaint of 19 August was sent to her.  The witness requested HR to set up a meeting with the complainant to get a better picture of what exactly was going on.  Regarding the respondent’s policy on communication in the workplace, there is no mandatory requirement to speak in English at all times.  There are some employees working with the respondent who speak no English; any language can be spoken.  The witness spoke in Polish, German and English to employees; she will communicate in the best language available to her to get a message across.  The respondent does not have a written policy that communications in English are mandatory.  There are over thirty different nationalities working in the hotel.  The respondent’s diversity policy is implemented in practice and staff have progressed in the respondent organisation in accordance with that policy.  Further to the complaint of 19 August, the witness met with the complainant.  The complainant told the witness that the main issue for him was his colleagues on the maintenance team speaking in Polish and how the complainant felt excluded.  The witness told the complainant that she would speak with his colleagues and encourage them to speak in English but that she could not force this.  The witness also confirmed to the complainant that it was not the role of AB or XY to train the complainant.  The witness then met with the maintenance manager, AB and XY.  The maintenance manager told the witness that he had tried to resolve the issue and had requested AB and XY to communicate in English around the complainant.   The relevant personnel all confirmed a willingness to engage in mediation.  The mediation outcome was that there was an agreement for the English language to be used as much as possible.  The complainant took the bullying complaint off the table at the mediation meeting.  The complainant did not raise concerns of discrimination following the mediation meeting.  The decision to extend the complainant’s probation was absolutely not taken as a result of the complainant raising the English language issue.  The witness outlined little things of concern which were a factor in the extension of the complainant’s probationary period.  The complainant’s performance was slow, but this was not a big concern for the witness.   The witness assured the complainant at the probationary meeting that if his tasks were undertaken to standard and he was 100% fit, that a permanent contract would issue.  In response to the complainant’s query about a pay rise on completion of probation, the witness advised that it was not in the budget for that year.  The complainant did not give any indication at the probationary meeting that he was going to terminate his employment.  The witness was surprised to hear the following day that he had resigned.   The witness had never previously encountered an employee resigning because they had had their probationary period extended. 

Mr Mannion, Group HR & Talent Acquisition manager with the respondent, described in evidence the practical implications of the respondent’s diverse workforce, the many different languages at play and the difference in the requirements for English language competency depending on where an employee worked in the hotel.  The expectation was for English to be the language for communications.  The witness first became aware of the issue raised by the complainant in August 2022 when Mr Keogh consulted him on the bullying complaint.  The witness was involved in the mediation process as chair of the mediation meeting and to guide the discussion between the maintenance manager and his team members.    The witness emphasised at the mediation meeting the need for professional communications on the team.  There was insufficient time after the mediation meeting to monitor its outcome as the complainant commenced a period of sick leave.   The complainant did not raise directly with the witness any issue on his return from sick leave.  The witness was unaware of the complainant having gone to HR regarding issues on his return from sick leave.  The witness was surprised when he heard of the complainant’s resignation as he had thought reasonable steps were taken to address issues raised by the complainant. 

At the outset of the hearing the complainant confirmed that the relevant protected ground upon which he claimed discrimination, harassment, victimisation and discriminatory dismissal in his complaint to the Workplace Relations Commission of the 19 January 2023 was the race ground.  The grounds of religion and age had been marked in error on the complaint form.  An additional complaint of disability discrimination and a failure to provide reasonable accommodation was referred by the complainant on 25 April 2024.  

The complainant is an ethnic Serb of Irish nationality who worked with the respondent from 8 March 2022 until 6 October 2022.

In or around May or June 2022, the complainant experienced difficulty in employment with regards two of his colleagues on the maintenance team speaking with each other in Polish and excluding the complainant.  The complainant raised this with his line manager, Mr Maly.

On 19 August 2022, the complainant made a complaint of bullying to his line manager and HR.  This complaint concerned the behaviour of a particular team member (AB) and his influence over the other team member (XY), giving rise to exclusion of the complainant.  The complaint expressly referred to AB not communicating with the complainant at all and how the English language was rarely used in the complainant’s presence.  The complainant sought the respondent’s support and assistance with the situation and for the respondent to proceed with the most appropriate and efficient procedure to address the situation.

HR acknowledged receipt of the complaint on the same date and a manager conducted one-to-one meetings with maintenance team personnel on 25 August 2022.  A mediation meeting was arranged for 30 August 2022.  

The mediation meeting was attended by the complainant, his two colleagues, Ms Wycisk, general manager, and Mr Mannion from the respondent’s HR department.  The agreed outcomes were that the complainant’s training was to be delivered by Mr Maly, and that communications at work should be in English.  Measures taken previously by Maly aimed at integrating the complainant in the workforce, including moving the maintenance team’s breaks to the canteen and moving his office to the workshop area, were noted at the meeting.

The complainant was certified unfit for work due to medical illness from 24 August 2022 until 19 September 2022. 

At a probationary meeting on 28 September 2022, the complainant was informed that his probationary period was being extended by the respondent for a 3-month period. 

On 29 September 2022, the day following the probationary meeting, the complainant gave notice of his resignation from employment on 6 October 2022.

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 14A(2) provides specific defences for an employer in harassment cases.

Section 74(2) of the Acts addresses victimisation as follows:-

“… 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 any 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)    the 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 or 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.”

Relevant time limits for referral of a case to the Commission are set out in section 77(5) of the Acts.  In summary, a claim for redress in respect of discrimination or victimisation must be referred within 6 months from the date of occurrence of the discrimination or victimisation complained of, or the date of its most recent occurrence.  This timeframe may be extended for reasonable cause to a period not exceeding 12 months on the complainant’s application.  

Section 85A of the Acts deals with the burden of proof in claims 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."

The Labour Court’s determination in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 on section 85A and the establishment of facts is instructive:-

“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

Discrimination on grounds of disability - Failure to provide reasonable accommodation

A claim of discrimination on grounds of disability and a failure to provide reasonable accommodation was referred by the complainant on 25 April 2024.    The complainant applied to extend the statutory timeframe for referral of these claims.  The complainant’s application was grounded on his health at the relevant time, mistakes made when filing his original claim with the WRC and an inability to access free legal assistance in a timely manner.   The complainant’s evidence was of receiving legal advice in or around January or February 2023 and of obtaining further legal advice from a different organisation in August 2023. 

In circumstances where the claims of disability discrimination and a failure to provide reasonable accommodation relate to the complainant’s time in employment, which employment ceased on 6 October 2022, I find that I do not have jurisdiction to investigate the claims referred on 25 April 2024 by the complainant as they have been referred outside of the timeframes set out in section 77 of the Acts.

Discrimination in getting a job, training and conditions of employment

There was no evidence before me of discrimination in connection with the complainant getting a job and training.  Mr Maly was responsible for the complainant’s training; this was confirmed to the complainant and the complainant did not take issue with this.

I accept the complainant’s evidence that he was not provided with PPE and tools however I am not satisfied that these facts are of sufficient significant to raise an inference of discrimination on grounds of race.  The complainant’s evidence was that all staff were provided with PPE and tools except for him.  I note that the complainant did not raise this as an issue at local level with Mr Maly in 2022 or during the complaint process in August 2022.  In a workplace where the staff demographic is comprised of over 30 different nationalities from all continents and where basic tools could be accessed from a workshop, I am satisfied, on balance, that any omission in this regard was an oversight on the part of the respondent. 

Harassment

The respondent’s evidence on its communication policy was that there was no mandatory requirement to communicate in English in the workplace but that it was expected English would be used in communications.  I acknowledge that the respondent must implement any language policy in a reasonable and proportionate manner and am satisfied that the respondent’s policy was reasonable and appropriate in a workplace with a large number of nationalities employed. 

The communication policy in the respondent’s employee handbook recognises cultural diversity and provides:-

“In the interest of integration, equality and to prevent exclusion, the Company must take into account the practical implications of such a diversity and ask that, while on the premises of the company or a company associate, vendor or client you must communicate in a manner that can be understood by all.  In the majority of cases this will mean communicating in English.  This will allow employees to operate effectively and efficiently as a team and create a comfortable, unified working environment for all.”

I consider the conduct of the team members, namely speaking in Polish in the complainant’s company on a small team, to have been unwanted conduct related to the race ground in circumstances where the individuals concerned were of different national origin to the complainant and using the language of that origin with the purpose or effect of violating the complainant’s dignity and created an intimidating, hostile or offensive environment for the complainant. 

However I find that the respondent, through its communication policy and diversity policy, and by its actions in the material timeframe, and in particular the response of the maintenance manager, of meeting with the relevant staff members, requesting that communications be in English and putting in place measures to address any exclusion of the complainant and to assist with his integration with the workforce, took steps that were reasonably practicable to prevent harassment of the complainant.   

Discriminatory dismissal

The Acts deem as discriminatory in relation to conditions of employment if, on any of the discriminatory grounds, an employer does not afford an employee the same treatment in relation to dismissal.  Dismissal includes the employee’s termination of the contract of employment in circumstances where the employee was entitled, or it was reasonable for them to do so because of the conduct of the employer. 

The complainant’s claim is of discriminatory constructive dismissal on grounds of race, and it is for the complainant to establish that because of the respondent’s conduct he was entitled, or it was reasonable for him to terminate the contract.

I have very carefully considered the conduct of the respondent in this case by reference to the contract and reasonableness test.  I am not satisfied there was conduct on its part constituting a significant breach going to the root of the employment contract or which made it reasonable for the complainant to terminate his employment in circumstances amounting to a constructive dismissal.  The respondent’s response of investigation and mediation is not consistent with it having significantly breached the employment contract or acted unreasonably.  I have further considered the timeline and sequence of events prior to the complainant’s resignation to be of significance.  The complainant was in work for just over a week after the agreed outcomes of the mediation meeting.  He accepted that measures were put in place by the respondent however he maintained that these did not have the effect of a change in behaviour and communication by his team members.  I am not satisfied that the complainant properly raised this with the respondent, or that the respondent was given an opportunity to address same in the timeframe after the mediation meeting.  In addition, I am not satisfied that the complainant’s race was a factor in the termination.  The complainant was clearly dissatisfied with the respondent’s decision to extend the probationary period and its reasons for so doing.  However, I find that his resignation the day after the probationary review meeting without raising any issue internally about the decision to be fatal to his claim of constructive dismissal.

Victimisation / Dismissal for opposing discrimination

I have found that the complainant’s termination of his employment with the respondent was not one of constructive dismissal; the complainant resigned from employment, and I am satisfied that there was no dismissal within the meaning of the Acts.  In terms of the extension of the complainant’s probation, I have considered whether it amounted to victimisation within the meaning of section 74(2) of the Acts.

There are three components which must be present for a claim of victimisation under the Acts to be made out:-

              i.            the complainant must have undertaken a protected act of a type referred to at paragraphs (a)-(g) of section 74(2),

            ii.             the complainant must have been subjected to adverse treatment by its employer, and

          iii.            the adverse treatment must be in reaction to the protected act having been taken by the complainant.

I find that the complainant made a complaint of discrimination on 19 August 2022 and that this was within the ambit of the protected acts referred to in section 74(2) for the following reasons.

The complaint of 19 August 2022 had the subject matter ‘bullying in the workplace’.  The complainant’s evidence was that he did not consider it discrimination and that he did not know how to formulate it as bullying or discrimination or otherwise.  I accept the complainant’s evidence that what he considered at the time was that there was a problem.  The respondent had a bullying, harassment and sexual harassment policy.  On review of that policy, the procedure for an employee who feels they are the victim of harassment/bullying provides for two options for dealing with cases of alleged harassment/bullying, one informal and the other formal.  The policy expressly states that an employee can discuss their options with either their direct manager, HR manager or general manager. The policy and procedure on bullying and harassment is of an amalgamated nature.  On examination of the complainant’s email of complaint, it is expressed to concern the treatment of the complainant by his colleagues on the maintenance team, the team members not communicating in English in the complainant’s presence, exclusion and humiliation.  It requests that the respondent proceed with the best and most efficient procedure to address the issues raised.  I note the evidence on induction training of the respondent’s policies and procedures, including the bullying and harassment policy, which was described as a brief overview of the polices, as opposed to in-depth training.  In the meeting of 25 August 2022 with the complainant further to his complaint, the complainant expressly stated that use of the Polish language by the other two team members was the manifestation of their exclusion of him.  In the circumstances, I am satisfied that the complainant’s complaint of 19 August 2022 came within the ambit of a complaint of harassment which constitutes discrimination in relation to conditions of employment and, as such, was a protected act referred to in section 74(2) of the Acts.  

In considering whether the complainant has satisfied components (ii) and (iii) detailed above, I have considered section 74(2) of the Acts and how it provides that victimisation occurs where a detriment is imposed on a worker ‘as a reaction’ to a complaint or other protected act.   This involves consideration of whether the complainant’s complaint of 19 August 2022 was an influencing factor in the decision to extend the complainant’s probationary period.  It does not need to be the only or principal reason for the decision; it is sufficient if the making of the complaint was an operative factor and more than a trivial influence.

The complainant’s probationary period was extended on 28 September 2022 for a further 3-month period.  The respondent’s position on the extension was that it was grounded on the complainant’s overall performance with specific reference to inter-personal issues with staff members.  In the probationary meeting, the complainant asked for examples of run-ins with people, as referred to Ms Wycisk.  Ms Wycisk gave examples of staff members, other than the complainant’s colleagues on the maintenance team.  I note that the complainant was not given any specific detail of the respondent’s concerns about his overall performance and that when the complainant asked, he was told that the main issue was reports of people having run-ins with him and him being rude.  On the evidence before me, this was the first time the complainant was told of any such issues, and it is apparent from the meeting minutes that no complaints were made about the complainant by other staff members, rather it was referred to as ‘someone flagging things’.  I note from the minutes of the meeting that Ms Wycisk proceeded to raise ‘little concerns about your interactions with team members’, and that when the complainant referred to his colleagues still speaking Polish and not speaking to him at all, it was not addressed or responded to by Ms Wycisk in any substantive manner, rather the complainant was asked whether there was a work-related reason for his colleagues to speak with him and told that his colleagues cannot be forced to speak with him.  It was submitted on behalf of the respondent that the complainant was one of a number of employees in or around the time to have had their probation periods extended.   Evidence in this regard was not tendered save for Ms Wycisk’s evidence that all positions were on extended probation, and nobody had tendered their resignation before.

The clause in the complainant’s terms and conditions of employment relevant to probation which provides:-

“Initially your employment will be on a probationary basis for a period of 6 months, during which time your performance and general suitability will be assessed by management, and if satisfactory, your employment will continue.

The probationary period may be extended at the Hotel’s discretion, but will not, in any case, exceed 10 months.  If during the probationary period your conduct, performance or general suitability is found to be unsatisfactory your contract may be terminated at The Hotel’s absolute discretion.  Either party has the right to terminate your employment during the probation period on 1 weeks’ notice.  During the probationary period, we reserve the right to use an abridged version of our Grievance and Disciplinary procedures.  Following the successful completion of the probationary period your new status will be confirmed to you.  Periods of absence during the probationary period will have the effect of lengthening the probationary period by the duration of your absence.”

The complainant’s employment commenced on 8 March 2022.  The meeting at which his probationary period was extended took place on 28 September 2022.   The complainant had a minimum of 4 weeks’ leave in the 6-month probationary period by reason of his certified sick leave absence from 24 August to 20 September 2022.  By application of the probationary clause in the complainant’s contract, the complainant’s probationary period was to run up until 6 October 2022, at the earliest. 

In the circumstances, on balance, I find that the complainant’s complaint of 19 August 2022 was an influencing factor in the decision to extend the complainant’s probationary period, and that the extension of the probationary period on 28 September 2022 amounted to adverse treatment within the meaning of the section 74(2) of the Acts.

Conclusions

For the reasons set out above, I find that a claim of disability discrimination and failure to provide reasonable accommodation were referred outside of the statutory time limits.  Accordingly, I find that such claims are not well founded.

I do not find that there was discrimination of the complainant on grounds of race within the meaning of section 6 and in contravention of section 8 of the Employment Equality Acts 1998-2015; I have found that the respondent took such steps as were reasonably practicable to prevent harassment of the complainant within the meaning of section 14(A)(2) of the Acts and that the complainant was not dismissed by reason of his race and was not discriminated against on the ground of race in respect of constructive dismissal.

I find that the complainant was victimised by the respondent contrary to section 74(2) of the Acts and consider appropriate in the circumstances of the case an order for compensation in the sum of €7,488.00, which equates to approximately 16 weeks remuneration, for the effects of victimisation. 

I find that a claim of disability discrimination and failure to provide reasonable accommodation were referred outside of the statutory time limits.  Accordingly, I find that such claims of discrimination are not well founded.

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

I find that the complainant was victimised contrary to section 74(2) of the Acts and order compensation payable by the respondent to the complainant in the sum of €7,488.00 for the effects of victimisation.

Preliminary issues – Named respondent – Time limits Discrimination – Harassment – Race – Victimisation