Complainant

Respondent

Parties

Daniela  Krause

Zick Technologies Ltd. Zick Learn

Complainant

Respondent

 Parties

Daniela Krause

Zick Technologies Ltd

Representatives

  Self

Karl Hutchinson Law Plus 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-00061624-006

19/02/2024

The Complainant worked for one week with the Respondent from the 22nd of January 2024 to the 29th of January 2024. The Complainant believes that she was let go because she is a German national.  The Complainant also believes that the Respondent has given her a bad reference, which is denied and is further evidence of victimisation.

The Complainant brings the following complaints:

1.       Race Discrimination

2.       Discriminated against her in training

3.       Victimisation

4.       Harassment

The Complainant alleges that on the 29th of February 2024 that her employment ended because of her German mentality and that she would not be a good fit for the team.

The Complainant alleged that she was recorded on a daily basis via video link without her consent and that other employees were not.

The Complainant alleges that she has been stalked on her professional online profile and this has created an act of harassment.

It is alleged that the Complainant has been victimised by terminating her employment, withholding pay information, and forcing her into tax disputes.

The Complainant also alleges that she was penalised by placing her on involuntary sick leave, the provision of a poor employment reference and failure to receive a pro-rata contractual bonus.

The Company employed the Complainant on a fixed term 1 year contract commencing on the 22nd of January 2024. The Company recruited another German national soon after.

The Complainant’s role was to sell training solutions to new customers in Germany.

A comprehensive induction programme takes place during the first week of employment.

The Complainant received feedback during her induction and reacted very badly to the feedback.

Arising from a review of how the Complainant was performing and receiving feedback during that week it was decided that the Complainant’s employment would cease.

A video call was arranged with the Complainant on Monday 27th January 2024 where she was informed of the decision to end her employment.  She was informed that she would receive a formal written termination notice that day.

The Complainant was served with one week’s notice of termination with a termination date of the 5th of February 2024.

The notice of termination was in line with the probationary clause in the employment contract.

The Complainant’s employment was not terminated because of her race or on any other discriminatory ground. The Respondent employs other German nationals in a comparable role. Her contract was terminated because of her performance.

Burden of Proof:

The Complainant carries the burden of proof to establish facts that give rise to an inference of discrimination.

That evidential requirement is referred to as a Prima Facie case.

The need for a comparator:

2-181

In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore, without a comparator, the claim will fail, and the choice of comparator is of significant importance to the success of any claim.

No comparator has been referenced in any of these claims; however, the law provides for a hypothetical comparator where appropriate.

Hypothetical comparator:

In Regan Employment Law 2nd Ed chapter 17, the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required.’

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed

Prima Facie Test:

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the Respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must normally prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.

The Complainant has named no comparators and the Respondents has stated that at or around the same time it hired a German National. The Complainant relies on an alleged statement that because of her German attitude she was terminated, and a manager told her this was the reason.

Section 85 A of the Act states:

85A.—(1) 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.

(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 [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.

The allegations are as follows:

The Complainant alleges that on the 29th of February 2024 that her employment was ended because of her German mentality and that she would not be a good fit for the team.

The Complainant alleged that she was recorded on a daily basis via video link without her consent and that other employees were not.

The Complainant alleges that she has been stalked on her professional online profile and this has created an act of harassment.

It is alleged that the Complainant has been victimised by terminating her employment, withholding pay information and forcing her into tax disputes.

The Complainant also alleges that she was penalised by placing her on involuntary sick leave, the provision of a poor employment reference and failure to receive a pro-rata contractual bonus.

No facts have been presented to establish an inference of racial discrimination. The Complainant alleges that it was because of her German attitude that her employment was ended. That is denied and what is relied upon is the performance of the Complainant during her first week of employment and how she failed to take feedback and how poorly she interacted with her superiors. This was the reason for deciding that her employment should end.

The allegation that she was recorded on a daily basis must connect to a discriminatory ground. The Complainant has not made out her case that video recording was linked to a discriminatory ground.

No evidence has been presented to this investigation that supports the Complainant’s allegation that she was stalked.

The Complainant was not given a poor reference by the Employer. On the second day of hearing the following was addressed by calling the recruitment agent who referred to the poor reference:

 “The above complaint was referred to the Commission and is currently being investigated by an Adjudication Officer. Your name was provided by the Complainant as the person who she had contact with about her application to join your company. In the course of the investigation of the complaint your name has been mentioned by the complainant as being someone who may have information that is relevant to that investigation. Specifically, the Adjudication Officer requires that you attend to give evidence about the following email issued on Friday 26th July 2024 to the Complainant stating that her former employer Zick Learn had given her a negative reference. The tribunal will require [redacted] to provide evidence about the Zick employee/representative who gave that negative reference: From: careers redacted Sent: Friday 26 July 2024 18:28 To: Daniela Krause Subject: RE:  Support Executive role Hi Daniela, We have contacted your previous employers and received one negative reference from Zick Learn. Unfortunately, we are unable to proceed with an offer of employment at this point.”

On the evidence of the Recruiter no such reference was ever issued by Zick or any agent of Zick. The Complainant has not established a prima facie case of victimisation as alleged.

The Complainant has not made out a prima facie case of racial discrimination, of being discriminated in her training, harassed and or  victimised.

I find that the Complainant was not discriminated on the ground of race as no prima facie case or facts have established to require the Respondent to rebut that allegation.

I find the Respondent did not discriminate against the Complainant in giving her training. No prima facie case of discrimination in how training was given to her has been established.

No prima facie case of victimisation has been established by the Complainant as defined at section 74(2) of the Act.

I have considered all the facts of this case and consider the more likely reason for the termination did arise because of the interaction between the Complainant and her new Employer and primarily was caused because management feedback about her performance was not accepted.

The Employer has the right to dismiss during probation and such discretion being exercised as it related to the worker’s performance of her duties. I note the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court allowed an appeal against a decision of the High Court restraining the employer from dismissing an employee during his probationary period on performance related grounds.

I also note the Complainant’s reliance on a breach of fair procedures and natural justice; however, it is well settled law that a very wide discretion is given to employers during probation. There is no question of misconduct and what arises is a decision to dismiss based on performance. While statutory codes do provide for periods of improvement; the contractual right to terminate for performance during the first 6 months of probation does not breach an equality right where demonstrably no prima facie ground of discrimination has not been made out.

I determine that the Complainant was not discriminated against on the ground of race, was not discriminated against in giving her training, was not victimised for making a complaint and was not harassed.

I have considered all the facts of this case and consider the more likely reason for the termination did arise because of the interaction between the Complainant and her new Employer and primarily was caused because management feedback about her performance was not accepted.

The Employer has the right to dismiss during probation and such discretion being exercised as it related to the worker’s performance of her duties. I note the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court allowed an appeal against a decision of the High Court restraining the employer from dismissing an employee during his probationary period on performance related grounds.

I also note the Complainant’s reliance on a breach of fair procedures and natural justice; however, it is well settled law that a very wide discretion is given to employers during probation. There is no question of misconduct and what arises is a decision to dismiss based on performance. While statutory codes do provide for periods of improvement; the contractual right to terminate for performance during the first 6 months of probation does not breach an equality right where demonstrably no prima facie ground of discrimination has not been made out.

I dismiss all complaints.

Prima Facie