EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2012 - 137
Brian O' Goilin
Symantec Ireland Ltd.
(Represented by Eversheds, O'Donnell & Sweeney Solicitors)
Date of issue: 24 October 2012
File reference: EE/2010/188 & EE/2010/336
Headnotes: Employment Equality Acts, 1998-2008 - sections 6,8 and 77 - age - race - sexual orientation - prima facie case - harassment - discriminatory dismissal - burden of proof.
This dispute involves a claim by Mr. Brian O' Goilin (hereafter "the complainant") that he was (i) discriminated against by Symantec Ltd. (hereafter "the respondent") in respect of his conditions of employment on grounds of race, age and sexual orientation, in terms of section 6(2)(d)(f) and (h) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts. He also claims that he was discriminatorily dismissed on grounds of age and race contrary to the provisions of section 8 of the Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 19 March, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 13 June, 2012 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 11 September, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced working with the respondent on 13 October 2008. He was employed as a credit and collections manager. He alleges that he was subjected to ageist comments by his manager, in that, his manager held one to one interviews with the complainant regarding his work performance and asked him to consider if he was "up for the job and in touch with the job and sufficiently energetic and suitable considering the demands of the job" given his age. The complainant further alleges that his manager questioned his "stamina and energy and ability levels" to carry out his functions in the role and that his manager stated very clearly that he did not think the complainant could do the job, based on a variety of reasons, one of which was his age. The complainant alleges that his manager kept producing a great deal of additional information and report requests to push him to the extreme and to deplete his energy levels and resources.
3.2 The complainant also states that his manager made reference at the one to one interviews to his background and nationality and stated that in his view he was "a thick Paddy and way out of his depth in the job". In addition, the complainant submits that this type of racist remark was often made outside the workplace at after work social events. The complainant submits that on a work related three day visit to Eastern Europe, his manager made a request to him to provide him with a business report update on his laptop at 3.00 am local time in Warsaw which was on the last day of the three day gruelling itinerary according to the complainant. The complainant states that his manager was aware that they both had alcoholic drink taken and he was also aware that the complainant needed to be up at 5.00 am in order to catch a flight to meet up with his wife and two daughters for a pre-booked holiday to Malaga. The complainant states that his manager originally and very reluctantly agreed to him charging his return flight to the company. The complainant submits that his manager made every effort to force him to miss the flight by forcing him to complete a report for him in the early hours of the morning. The complainant alleges that his manager made a racist "Paddy" remark directly to him about drinking and the Irish following his manager's review of the report. The complainant submits that this racist remark was designed to infuriate him into making some form of public rebuke of his manager in front of his work colleagues.
3.3 The complainant states that his manager was aware that the complainant was a big fan of Irish rugby and on one occasion while they were chatting, his manager stated to him that he completely disliked the Irish rugby scene the sport itself and all and sundry involved in the Irish game. The complainant alleges that he was subjected to persistent bullying and harassment behaviour by his manager. The complainant states that his manager bullied and harassed him in project related tasks which he was deliberately unhelpful, evasive, unclear and vague and for which he set the complainant up to fail. The complainant states that his manager did not support him in relation to cash forecasting and did not offer him any clear policy or procedure or training to carry out this task. The complainant alleges that his manager bullied and harassed him to "work out of the organisation" two of the complainants staff who worked to him and forced these two individuals out of their jobs. The complainant also alleges that the respondent tried to "force and harass" the complainant to rehire Mr. R who had previously worked for the company. The complainant asserts that his manager ignored the complainant's poor state of health and dismissed him without allowing him access an official improvement plan which was customary for employees. The complainant alleges that he was forced to attend a sham disciplinary hearing which he was not medically fit to attend. He states that his manager ordered him to return to his desk at the end of the meeting and only changed his mind when the chairperson in charge of the disciplinary hearing intervened and advised him that he did not have to do so. The complainant also alleges that Ms. W made reference to the complainant as "being up himself" during a telephone conversation.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed with the company from 13 October, 2008 until 22 September, 2009. The respondent submits that it is shocked by the nature of the complainant's allegations and denies that any discrimination took place. Mr. T was the complainant's manager from 30 March 2009 until his dismissal. The complainant's manager denies that he made any racist or ageist remarks to the complainant. He states that he advised the complainant of weaknesses in his performance, based on feedback provided to Mr. T by his colleagues and also Mr. T's supervisory observations which resulted in a meeting to review the complainant's performance on 24 April 2009. Mr. T admits that he did ask the complainant at this meeting if he considered that he was capable of performing the role of credit and collections manager. He states that this was a standard performance related question during a performance review meeting that would have been asked of any other employee and was entirely unrelated to the complainant's age. Mr. T denies that he asked the complainant to deal with an excessive number of reports/information requests or that the complainant's job was for a "younger or more energetic person". The reports that the complainant was asked to prepare for the European Middle East Area region were consistent with those prepared by finance personnel in other regional areas where the company operated. The respondent submits that the request for these reports came from a US based director who was consolidating global data for the company.
4.2 The respondent submits that it was required to provide follow up analysis to these reports due to inaccurate data been provided by the complainant i.e. adding euro and dollar amounts without conversion and using opening monthly balances that differed from closing balances of the prior month. The respondent submits that this additional work was as a result of the complainant's failure to provide adequate reports/information in the first place. Mr. T denies that he tried to "force and harass" the complainant to rehire Mr. R who previously worked for the employer. The role that the complainant was recruiting for was for a temporary supervisor in the credit and collections team who would report to the complainant. Mr. T denies that he continually made "undermining ageist remarks" to the complainant. Mr. T further denies that he forced the complainant to "work two employees out of the company". The respondent states that one of these employees is currently employed by the company whilst the other employee resigned and returned overseas to care for her sick parents. Mr. T refutes that he forced the complainant to accept a "less than normal" HR procedure. Mr. T was not involved in the management of the disciplinary process applied to the complainant after the performance meeting held on 24 April, 2009. The respondent submits that the disciplinary process was co-ordinated by the respondent's HR department which is entirely independent from the finance team. The complainant made a number of allegations against Mr. T subsequent to the meeting held on 24 April and to ensure fairness of the disciplinary process Mr. T was removed as the proposed decision maker at the disciplinary hearing and was only called in as a witness.
4.3 The respondent submits that Mr. T rejects the complainant's allegation that he made comments which included stating that the complainant was a "thick Paddy, and way out of depth in his job". Mr. T denies that he ever made such comments either in the workplace or at any social events related to work. In relation to the trip to Warsaw, the respondent states that the agenda and the travel itinerary for the visit was prepared by the US based contact for the trip. The respondent denies that Mr. T made any attempt to force the complainant to miss his early flight to Malaga. Mr. T submits that the complainant asked him if he needed any information whilst he was on holiday, when they were both in the hotel lift returning to their respective rooms after a dinner with their local hosts at 11pm local time. Mr. T submits that the complainant offered to provide him with a powerpoint file and some data in excel that was related to the business trip. Mr. T states that the complainant advised that he had the two files on a memory stick and it would take "less than a minute" to provide the files to him. Mr. T states that the entire process took less than five minutes and that both of them returned to their fellow colleagues in the hotel bar shortly after 11 pm. Mr. T vehemently denies that he made a racist "Paddy" remark to the complainant about drinking and the Irish before they both returned to the hotel bar. Mr. T denies ever having a conversation with the complainant in relation to Irish rugby. Mr. T gave evidence at the hearing that he has no anti-Irish sentiments and that he takes great offence at such allegations by the complainant. Mr. T was born in England but holds an Irish passport and has lived in Ireland for over thirty years with his Irish wife and children.
4.4 The respondent submits that Mr. T refutes the complainant's allegation that he bullied and harassed the complainant to resign from his job in order to facilitate the rehire of Mr. R, a former employee. Mr. T states that he advised the complainant of weaknesses in his performance. The complainant was informed verbally and in writing of areas that he needed to improve and was also offered training courses to help his performance. The respondent submits that legitimate performance management is not bullying and harassment. Mr. T further denies that he bullied or harassed the complainant in relation to project related tasks. The respondent submits that the complainant missed project deadlines and provided inaccurate data which had to be subsequently prepared by other employees. Mr. T further denies that he bullied the complainant in relation to cash forecasting. The respondent submits that the complainant indicated on 24 April, 2009 that he considered he had received enough training and support in this role. The respondent also submits that the complainant acknowledged that he had made errors in the process but considered he was experienced enough to prepare the forecasts. However, the respondent states that the complainant continued to make basic errors in the forecasting process. These errors were brought to the attention of the complainant but he continued to make errors causing a lack of confidence in the quality of his work and requiring additional checks and re-performance.
4.5 The respondent submits that Mr. T refutes the complainant's allegation that he forced the complainant to attend a "sham" disciplinary hearing or that he fired the complainant from his employment. The decision to terminate the complainant's employment was taken by an independent chairperson who was a senior director of IT following a disciplinary hearing. Mr. T did attend the disciplinary hearing on 24 August 2009 as a witness only. Mr. T denies that he ordered the complainant to return to his desk at the conclusion of the disciplinary hearing. Mr. T submits that the complainant asked him if he could go to his desk and he responded that he could. The respondent also denies allegations made by the complainant against Ms. W wherein the complainant alleges Ms. W asked him if he was "with it" during the disciplinary appeal process or that she questioned the complainant's capacity to understand the HR policy "at his age". The complainant was asked by the MD of the company at the outset of the appeal meeting if he was happy to proceed with the meeting. The respondent submits that the complainant had been out sick and had indicated that one of the grounds of his appeal was the fact he was not medically fit to defend his position at the disciplinary hearing. The respondent submits that the complainant construed this statement of concern as something more sinister. The respondent submits that the MD of the company simply asked the complainant a standard question that would have been asked of any other employee who had been absent on sick leave and who had specifically raised his medical fitness as a ground of appeal.
4.6 The respondent submits that Ms. W strongly denies that she made reference to the complainant as "being up himself" during a telephone conversation. Without prejudice to this denial, the respondent submits that it would be unreasonable to interpret this comment as "sexist behaviour". In addition, the respondent submits that it would not be evidence of less favourable treatment, harassment and/or victimisation on the grounds of sexual orientation within the meaning of the Employment Equality Acts (i.e. heterosexual, homosexual or bisexual orientation). The respondent rejects any allegation of discriminatory treatment against the complainant on the grounds of age, race or sexual orientation. The respondent states that the company applied its disciplinary policy to deal with the complainant's performance issues. The respondent submits that the complainant's dismissal was a result of his performance issues and his own inability to improve these to the required standard.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court1, whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
I shall now consider each of the complaints of discrimination made by the complainant.
5.1 Claim of discrimination on grounds of age
The complainant makes a number of allegations concerning his manager Mr. T, in that, he made various derogatory remarks to him relating to his age which Mr T utterly denies. Having questioned Mr. T at length at the hearing, I found no evidence to substantiate these allegations. Mr. T admits that he did ask the complainant at a disciplinary meeting on 24 April 2009 if he considered he was capable of performing the role of credit and collections manager. I am satisfied that based on the inaccuracies in the reports submitted and the fact that other staff had to subsequently review the data provided, Mr. T had an obligation to have a performance appraisal meeting with the complainant and put issues of his under performance to him and give him an opportunity to improve his performance including the offer of any suitable training courses which might assist him. The respondent did give evidence at the hearing regarding errors in forecasting data prepared by the complainant which was beginning to impact on the company and which could have cost the company substantial money. In addition, testimony was given at the hearing in relation to complaints by other overseas Directors questioning the accuracy of data provided in reports and in regard to cash forecasts being prepared by the complainant. Taking all the evidence into account on this issue, I am satisfied that the complainant has not demonstrated a prima facie case of discrimination on the age ground. I found Mr. T and the other independent witnesses to be consistent in their testimony and came across as cogent witnesses at the hearing.
5.2 Claim of discrimination on grounds of race
The complainant also makes a number of allegations that discriminatory remarks were made to him because of his nationality for e.g. he was referred to by Mr. T as "a thick Paddy and way out of his depth in the job". In addition, the complainant submits that this type of racist remark was often made outside the workplace at after work social events. In addition, remarks relating to "Irish rugby and his total dislike of the game and all and sundry relating to it" and other comments about "the Irish and their drinking habits". Having extensively questioned various individuals on the day of the hearing in particular Mr. T, I can find no evidence to substantiate these alleged discriminatory remarks. Mr. T gave a substantial amount of detail regarding his Irish roots and the fact he was born in England but has spent most of his life in Ireland. He denied the comments attributed to him regarding anti-Irish sentiments and he appeared very hurt by said comments on the day of the hearing. Having examined all the evidence submitted on this matter, I find that the complainant has failed to establish a prima facie case in relation to discrimination on the grounds of race.
5.3 Claim of discrimination on grounds of sexual orientation
The complainant states that Ms. W (a member of HR who was present on the telephone at the appeal hearing relating to the complainant's dismissal and was appointed as she was independent of the original disciplinary process who was involved at the disciplinary hearing) made a comment that he was "being up himself perhaps". The respondent denies that such a comment was ever made but submits that even taken at its height, it would be unreasonable to interpret this comment as "sexist behaviour". In addition, the respondent submits that it would not be evidence of less favourable treatment, harassment and/or victimisation on the grounds of sexual orientation within the meaning of the Employment Equality Acts (i.e. heterosexual, homosexual or bisexual orientation). This issue was in dispute by both the complainant and Ms. W at the hearing. I am satisfied that even if this comment was made, it is not evidence of less favourable treatment on the grounds of sexual orientation. Therefore, the complainant has not demonstrated prima facie evidence in relation to discriminatory treatment on the grounds of his sexual orientation.
5.4 Claim of discrimination on grounds of discriminatory dismissal
The complainant has argued that his dismissal was engineered for ageist and racist reasons. While he stated at the hearing that he made an initial complaint under the grievance procedure regarding his manager and his manager's treatment of him, he withdrew it very quickly as he felt he had no confidence in the respondent or its grievance procedures. The complainant's manager met with the complainant on a one to one basis on 24 April 2009 and raised issues of work related performance with the complainant including communication issues, listening ability, issues with cash forecasting, inaccuracy of data in reports, project management skills etc. The minutes of the meeting were put in writing and given to the complainant and he was given the opportunity to improve his performance and was also directed to various training courses that might assist him in the job. Issues continued to arise regarding the complainant's performance and testimony was given at the hearing regarding inaccuracy in reports, difficulties with project management and cash forecasting following on from the meeting held on 24 April. The respondent gave an example in which errors in the cash forecasting arrangements were beginning to impact on the company from a financial perspective and overseas Directors were complaining about the poor quality of reports being furnished by the complainant.
5.5 The respondent held a disciplinary meeting with the complainant on 24 August, 2009 and the various issues were discussed and it was decided that the complainant's employment be terminated on the grounds of poor performance. The complainant appealed the outcome and an appeal hearing was held on the 2 September, 2009. The outcome remained unchanged. Having examined the totality of evidence in the case, I am of the view that issues arose in relation to the work performance of the complainant, these inadequacies were highlighted to him and the respondent required improvement on same but issues regarding poor performance continued. The respondent was concerned that continued poor performance on behalf of the complainant could have resulted in the company being seriously impacted from a financial point of view. Therefore, the respondent decided that in the interests of the company as a whole and the fact the complainant had been given reasons in writing following the 24 April meeting regarding issues of poor performance and these performance issues were not improved upon, a decision was made to dismiss the complainant. I am satisfied that his dismissal was unrelated to his age and his race and was due to poor performance in his role. I am satisfied that the complainant has not established prima facie evidence of discriminatory dismissal on grounds of his age or race.
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment equality Acts, 1998 to 2008. I find that the complainant
1. was not discriminated against by the respondent in relation to his conditions of employment on grounds of race, age or sexual orientation, in terms of section 6 (2) of the Acts and contrary to section 8 of the Acts.
2. was not dismissed on grounds of race or age within the meaning of section 6 (2) of the Acts and contrary to section 8 of the Acts.
24 October 2012
1 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.