DECISION NO: DEC-E/2013/179
Ms. Regina Stasytiene
(Represented by Richard Grogan & Associates Solicitors )
Anora Commercial Ltd
(Represented by IBEC )
FILE NO: EE/2012/621 & EE/2013/043
Date of issue: 16th of December, 2013
1.1 This dispute involves a claim by Ms. Regina Stasytiene against Anora Commercial Ltd that she was discriminated against on grounds of race, gender and family status in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to her conditions of employment. There is also a complaint of victimisation.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 11th of December, 2013 alleging that the respondent had discriminated against her on grounds of race gender and family status when she was requested to return to work during a period of unpaid leave and threatened with dismissal if she did not return. The complainant submitted a further complaint of victimisation on 15th of January, 2013.
2.3 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 20th of September, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 18th of October, 2013.
3. Summary of complainant’s case
3.1 The complainant states that she is a Lithuanian National. She submits that she was employed by the respondent from 6th of April, 2009 and remains in the employment of the respondent.
3.2 It is submitted that the complainant applied for a period of unpaid leave from 12 September, 2012 to 31 December, 2012 and submitted this request by letter to the General Manager Mr U.
3.3 The complainant was contacted by the respondent in early December 2012 and requested to return to work prior to the end of her leave which was due to finish on 31 December, 2012. The complainant later advised the respondent that she was seeking to extend her leave to the 5th or 6th of January 2013. The complainant submits that she was told by the respondent that she must start back to work on 6th of December, 2012 or she would be dismissed.
3.4 It is submitted that the complainant had taken the time off to look after her child and that her treatment by the respondent amounts to discrimination on grounds of race, gender and family status.
3.5 It is submitted that the complainant did not return to work and submitted a claim to the Equality Tribunal on 11th of December, 2012. Following the receipt of her claim a meeting was arranged between the complainant and the respondent on 8th of January, 2012.
3.6 It is submitted that the complainant was told at this meeting that she could not return to work due to her having a “case open” against the respondent. It is submitted that this amounts to victimisation.
4. Summary of Respondent’s case
4.1 It is submitted that the complainant was employed by the respondent, from6th of April, 2009 as Accommodation Supervisor and remains in the employment of the respondent.
4.2 It is submitted that the complainant applied for a period of unpaid leave from 12 September, 2012 to 31 December, 2012 and submitted this request by letter to the General Manager Mr. U. Mr. U did not read the letter until his return from annual leave two weeks later at which stage the complainant had gone on her leave. The complainant did not indicate that this leave was for the purpose of looking after her child.
4.3 The respondent advised the complainant that it was not possible to remain on leave until 31 December, 2012. The complainant indicated that she could not come back early and would in fact be seeking to extend her leave until mid January.
4.4 The respondent advised the complainant that it was not possible to extend her leave past the 31st of December, 2012. The complainant did not return to work but her position was kept open for her. The complainant submitted a complaint of discrimination to the Equality Tribunal following this.
4.5 On 7th of January, 2013 the respondent received contact from the complainant seeking to meet the following day. Mr. U met with the complainant on 8th of January and was asked by the complainant what the company decision was. The respondent wrote to the complainant following the meeting clarifying that the complainant’s position was still open and seeking her return to work date.
4.6 The respondent subsequently received notice of a second complaint, of victimisation to the Equality Tribunal and further complaints to the Rights Commissioners.
5. Conclusions of the Equality Officer
5.1 The complainant at the hearing withdrew the claims in relation to discriminatory treatment on grounds of race, gender and family status and indicated that she was only proceeding with the victimisation claim. The issue for decision by me now is, whether or not the complainant was victimised following a complaint of discrimination to the Tribunal contrary to section 74(2) of the Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 The complainant advised the hearing that she met with the General Manager, Mr. U, on 8th of January, 2013 in order to discuss with him whether she still had a job and on what date she could return to that job. The complainant advised the hearing that she had been on unpaid leave since September 2012 which had initially been due to finish on 31st of December, 2013 but which she had sought to extend to mid January 2013. The complainant advised the hearing that she had made a claim of discrimination against the respondent when they had requested that she return early from her unpaid leave which she had taken to look after her child. The respondent advised the hearing that the complainant had signalled to the General Manager Mr. U back in early September 2012 that she would be seeking a period of unpaid leave, she did not indicate that it was for the purpose of looking after her child and the letter submitted in request of the leave, presented to the hearing, did not indicate that the leave was being sought for the purpose of looking after her child, it indicated that it was due to “unforeseen events” in her family.
5.3 Witness for the respondent, Mr. U at the hearing stated that the complainant had not initially advised him as to the duration of this unpaid leave and stated that he awaited receiving her request in writing. Mr. U advised the hearing that the complainant had in the previous 2 years also taken unpaid leave and so he expected that it would not be for a long period and he added that the complainant had drawn up the roster to the end of October so he expected that she intended to return to work after that roster had run out. Mr. U advised the hearing that the complainant had submitted the application for the unpaid leave in a letter, during his absence, which was left unopened on his desk until he returned from annual leave at the end of September. Upon discovering how much time the complainant was intending to be away on leave Mr. U stated that he realised this would be a problem as the hotel could not manage without its Accommodation Supervisor for such a long period up to the end of December especially with hotel being open over Christmas. Mr. U stated that the complainant had indicated that she would be in touch in October but, as that didn’t happen he made enquiries of her colleagues who were in contact with the complainant and asked that they advise her to contact him. Mr. U stated that the complainant did contact him and arranged to meet with him in early December when she was back in the country for a few days. It emerged at the hearing that the complainant while on unpaid leave had been looking for alternative employment in Lithuania.
5.4 The complainant advised the hearing that her friend and colleague also an employee of the respondent had indicated to her that Mr U was looking to speak with her and so the complainant contacted him and arranged to meet with him in early December when she was back in Ireland for a few days. The complainant advised the hearing that she met with Mr. U and with the head of HR on 3rd of December, 2012 and was advised that it was not possible for her to stay on leave until the end of December as they needed her back sooner. The complainant added that she then advised them that she actually need to extend her leave until 5th or 6th of January. The complainant stated that she offered to train someone up for the few days she was in Ireland in order that they could to take over for her until January. The respondent agreed to think about this and to contact her later that day. The complainant advised the hearing she received a phone call from the HR Manager later that day who told her that that it was not feasible for her to train up a new member of staff in time for the Christmas period and that she could either return to work as requested or resign or be dismissed. Following this the complainant submitted a claim of discrimination to Tribunal.
5.5 The respondent at the hearing denied that the complainant was ever threatened with dismissal and stated that she was a valued member of staff and that they badly needed her to return to work and would not have jeopardised this. The HR Manager was not present at the hearing. The respondent advised the hearing that complainant following this meeting did not return to work and submitted a medical certificate for an eye infection. The complainant stated that she did not return to work and added that she contacted the respondent in January and arranged to meet with Mr. U on the 8th of January, 2013
5.6 The complainant advised the hearing that she met with Mr U on the 8th of January as she wanted to clarify whether her job was still available. The complainant advised the hearing that Mr U asked her at the meeting why her solicitor was not present and seemed reluctant to talk to her without her solicitor present. The complainant stated that when she asked Mr U about her returning to work he had asked how she expected to come back to work when she had a “case open” against the respondent. Mr U at the hearing conceded that he did ask the complainant this question as he was unsure as to whether it was possible for the complainant to agree a return to work date with him with a case being open. Mr U stated that the complainant, at the meeting of 8th of January, began by asking him what his decision was, Mr U advised the hearing that he was unclear as to what she meant by this and thought she was asking about the discrimination claim. Mr U stated that she repeatedly asked him what the decision was, and that he was surprised that she expected him to deal with this matter especially without her solicitor being present. Mr U stated that the complainant then asked about when she would be rostered to return to work and he stated that he did then question the complainant as to how she expected to return to work with a ‘case open’ against the respondent. Mr U did not see how this was possible and genuinely seemed to have the impression that an open claim against the respondent precluded him from agreeing a return to work date there and then with the complainant. Mr U at the hearing came across as consistent and honest and admitted that he asked the question as he genuinely thought he was being asked to make a decision on the discrimination claim and did not think it was possible for it to be resolved and a return to work date agreed by a simple meeting between himself and the complainant especially without the presence of her solicitor.
5.7 The respondent advised the hearing that following the meeting a letter issued to the complainant the next day clarifying the position and stating that her continued employment was never in doubt and seeking her return to work date. The respondent advised the hearing that the complainant did not reply to this letter and did not contact the respondent regarding her return to work but instead submitted a second claim to the Equality Tribunal, a claim of victimisation. The complainant at the hearing conceded that she did receive the letter in question following the meeting with Mr U. The complainant when questioned as to why she did not revert to the respondent upon receipt of this letter stated that she did not know the person who had signed the letter and as it had issued from the Group HR Manager. I put it to the complainant that this letter indicated that she could have returned to work immediately and again she stated that the letter had come from someone whom she had no dealings with. It emerged at the hearing that the complainant had returned to work with the respondent in April 2013 following meetings with the Rights Commissioners.
5.8 Victimisation is defined in Section 74(2) of the Employment Equality Acts, 1998-2011 as follows:
“For the purposes of this Part 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………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
5.9 In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
(i) The complainant, in the present case did submit a complaint of discrimination against the respondent in December 2012. I am satisfied that this complaint of discrimination to the Tribunal of the 11th of December, 2012 amounts to a protected Act for the purpose of this Section.
(ii) The complainant submits that, following her complaint to the Tribunal, she was prevented from returning to work and cites her meeting with Mr. U on the 8th of January, 2013 and his comment about her having a “case open” against the respondent as grounds for the victimisation claim. The complainant submits that she was not permitted to return to work following her claim of discrimination and that Mr. U ‘s comment of 8th of January is evidence that the respondent refused to permit her to return to work. It is agreed that Mr. U made the comment and it is clear from the evidence adduced, that Mr. U in making that comment was under the impression that a return to work date could not be agreed with the complainant while she had a “case open against the respondent”. Mr. U should not have made such a comment and while it was incorrect and inappropriate, the respondent immediately clarified the position by writing to the complainant and advising her that her continued employment was not in any doubt and seeking her return to work date. It was open to the complainant at this point to return to work as soon as it suited her. I am not satisfied that the complainant’s contention that she was not familiar with the signatory of the letter, justifies her not reverting to the respondent and immediately agreeing a return to work date if she wished to return to work. In addition, I am not satisfied that a statement from Mr. U although incorrect but which clearly did not represent the actual position of the respondent, did not and should not, have prevented the complainant from returning to work, if she so wished. The complainant upon receipt of the letter from HR could easily have reverted to the respondent and returned to work.
5.10 Section 74(2)(ii) states that the complainant must be subjected to adverse treatment by his/her employer in order for victimisation to have taken place. In the present case I cannot see where the adverse or less favourable treatment occurred. Mr U’s comment was incorrect and inappropriate but was later clarified via the letter from personnel. When questioned at the hearing as to why she didn’t contact the respondent regarding her return to work on receipt of letter the complainant replied that she did not know the person whom the letter was signed by and had not had any dealings with her. I am satisfied that the letter issued by the respondent clarified the position which Mr U had been unclear about when speaking to the complainant. It was open to the complainant on receipt of this letter to contact the respondent and arrange a return to work date but she chose not to. I find that the complainant herself contributed to her failure to return to work and that, despite Mr U ‘s comment re the “case open” against them, she was not prevented by the respondent from returning to work and could in fact have returned following the letter from Personnel, therefore there was no adverse or less favourable treatment. I therefore find that, although Mr U referred to the complainant’s claim of discrimination in the meeting of the 8th of January, 2013 the complainant was not in any way adversely affected by this comment as she was advised by the respondent immediately that her position was still open to her, thus her complaint that she was victimised contrary to the Acts cannot succeed. Accordingly I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not victimised by the respondent in relation to this matter .
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant was not victimised by the respondent following a complaint of discrimination to the Tribunal contrary to section 74(2) of the Acts
16th of December, 2013