FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : E MANAGE IT LIMITED T/A IQUATE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - OLUMIDE SMITH DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No. DEC-E2015-156
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on the 2 June 2016. The following is the Determination of the Court:
DETERMINATION:
Appeal
1.1 This is an appeal by Mr. Smith (the Complainant) against a decision of the Adjudication that a complaint he made that he was discriminated against by his employer, E Manage IT Limited t/a IQuate, (the Respondent) on the grounds of race and civil status contrary to section 6 (2) of the Employment Equality Acts was not well founded and was dismissed.
1.2 The decision of the Adjudication Officer was issued in December 2015. The case was appealed to the Court on the 30 December 2015. The case came on for hearing on 13 April 2016 but was adjourned as the complainant told the Court that he had temporarily lost access to his files and records and was accordingly labouring under a disadvantage. The Court adjourned the case to allow him access his records. The case came before the Court again on 2 June 2016.
1.3 The Equality Officer/Adjudication Officer decided as follows
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
The complainant has failed to establish facts from which it may be inferred that his treatment by the Respondent was on grounds of his race and hence discriminatory.
The termination of the complainant’s employment was not discriminatory on the race grounds but resulted from his failure to meet the respondent’s requirements in the course of the probationary period and to respond to injunctions to improve his performance.
No claim of victimisation arises as the employee had left the company before the complaint was lodged with the Tribunal
Accordingly I dismiss the claim.
Background
The Respondent is a computer software developer. The Complainant has a Masters Degree in Computer Science. He was employed by the Respondent to undertake software development and testing duties. He commenced employment with the Respondent on December 2nd2013 and entered a six month probationary period. His employment terminated on June 12th2014.
He identifies 9 incidents of alleged discrimination under the Act. He submits that he was discriminated against through each of those incidents and that he was finally discriminatorily dismissed from his employment. The respondent maintains that the complainant did not meet its expectations in the probationary period and his employment was as a consequence terminated. It maintains that it did not discriminate against the complainant on any grounds during his employment with the company.
The Complaints
The Complainant listed nine incidents that he states constitute discrimination under the Act.
The Court dealt with each in turn.
Complaint No 1
The Complainant states that on his first day with the Company he was denied access to the alarm codes that would enable him to access the building outside normal working times. He maintains that the Respondent supplied those codes to other employees on their first day including Mr. Rafe Slattery, Mr. Andy Taylor and Mr. Tony Fay. He submits that they are of “the same/similar race colour as six named individuals that made up the senior management of the Company. He maintains that this amounted to discrimination under the Act.
He submits that the decision not to give him access codes to the alarm system caused him considerable embarrassment and humiliation when on 27 December he reported for work to find that when he entered the building he triggered the alarms. This resulted in his entry into the building being treated as an intrusion by the security company managing the alarm system. He submits that other members of staff were not so embarrassed and that had he been of the same colour as the comparators named above he would have been provided with the codes.
The Respondent submits that this was an oversight. Before that date the Complainant did not need access codes as he came to work during times when the building was otherwise open. It was of the view that other longer serving members of staff would be on the premises on the 27 December 2013 and that the building would be accessible to the Complainant.
It submits that after the incident the Complainant was provided with the codes and could access the building. It submits that the matter was unfortunate and was not related to the Complainant’s colour or ethnic origin.
After that incident the Company took a decision to issue the alarm codes to all new employees. Accordingly it issued them to Mr. Tony Fay another new employee who joined the Company in April 2014.
Finally it submits that the complaint was statute barred as it related to an event that occurred on 27 December 2013. The instant complaint was submitted to the Tribunal after the 26 June 2014 and accordingly is statute barred.
Findings of the Court
The Court considered the submissions and evidence of both parties in this matter. The Court finds the Respondent’s account of the event as credible. It was in error regarding the extent to which the building would be occupied on 27 December 2013. No doubt the triggering of the alarms caused considerable embarrassment to the Complainant. However the Court determines that the incident was not tainted with any suggestion of discrimination against the Complainant. It notes that the Complainant was a new employee and was given the access codes immediately after the incident.
Determination
The Court finds that the complaint is not well founded. The decision of the Adjudication / Equality Officer is affirmed. The Court so determines.
Complaint No 2
The Complainant maintains that his contract of employment purported to be between himself and a company E Manage IT Limited. He submits that this was not the name of his employer. He submits that this was a deliberate mistake that had the intention and effect of being disrespectful, disdainful, dismissive, unfair and abusive towards him. He submits that it amounts to discrimination under the Act as it did not apply to other workers of a different colour or ethnic origin.
The Respondent submits that it was a genuine error that is repeated on all contracts issued around that time. It submits that it subsequently corrected the error. However it submits that it had no impact on the legal employment relationship between the complainant and the Company. Finally it rejects the suggestion that it was motivated by an intention to or had the effect of discrimination against the Complainant on any ground.
Finally it submits that the Complaint is statute barred as it was not pursued within six months of the date of on which the incident occurred.
Findings of the Court
The Court accepts the Respondent’s evidence that the same name appears on all contracts issued at that time and that the Complainant was not singled out for adverse treatment. The Respondent’s name was incorrectly stated on the Contract of employment but it had no consequences for the Complainant. The Respondent treated the Complainant no differently to other workers employed at that time.
Determination
The Complaint is not well founded. The appeal is rejected. The decision of the Adjudication is affirmed.
Complaint No 3
The Complainant submits that the Respondent failed to provide him with suitable product training and or suitable company production documentation when he was first employed or thereafter. He submits that affected his capacity to undertake his duties. He submits that he discharged his duties at the highest level and brought numerous product defects to the attention of his line management. He submits that he was consistently undermined in the performance of his work and that on numerous occasions his work was diminished or belittled by his manager who sought to show him in a very bad light and to denigrate his work. He submits that the reason for this behaviour was related to his racial and or ethnic origin. He identified two courses he submits would have benefited him. He was neither put on those courses or provided with the associated documentation related to those courses.
The Respondent submits that the Complainant was provided with the same product training as other staff. It submits that the Complainant makes reference to two specific courses that had not been developed when he was employed. Consequently he could not have been placed on those courses.
It submits that the Complainant was provided with sufficient training to undertake his duties. It rejects the complaint of discrimination.
Findings of the Court
Having considered the submissions of both sides the Court finds the account of the training given to the Complainant in the context of his qualifications and the role he was employed to undertake, is reasonable and credible. It finds that the activities of the Respondent were not in any way motivated or influenced by any discrimination against the complainant. The Court finds that he was provided with relevant training and support in his employment and was treated similarly to other workers. The Court further finds his work was not belittled but that it was managed and he requested that management.
Determination
The Court finds that the complaint is not well founded. The decision of the Adjudication Officer is affirmed. The appeal is rejected.
Complaint No 4
The Complainant makes four points in this complaint. He submits that the Respondent failed to conduct or document a fair and proper performance review during a meeting it had with him on 11 April 2014. He submits that it failed to evaluate him on progress he made in achieving key performance indicators targets and goals it had set for him during the January 2014 review. He submits that it refused or failed to document criticisms of his performance in the post outlined in the course of the meeting and finally threatened him with dismissal should he fail to improve over the balance of his probation.
The Respondent submits that it engaged with the Complainant concerning his performance at work over the previous six weeks. It submits that it advised the Complainant that his performance was not up to the required standard and that if it did not improve his appointment to the position would not be confirmed at the end of the probation period.
Findings of the Court
The Court has reviewed the evidence of both sides and the documentation exchanged at the time. A number of emails on this matter were exchanged between the parties between the 11thand 14thApril 2014. Those emails broadly support the Respondent’s outline of events. The final email sent by the Complainant at 9:52 on 14 April finishes with the following comment
“At this point, I will focus my energy on doing my level best to meet/exceed your expectations as per the targets goals set for me following the meeting on Friday”
The Court finds therefore that the purpose of the meeting was to notify the Complainant of the shortcomings in his performance at work, to advise him of the changes he was required to make and to put him on notice that his employment might be terminated at the end of the probation period should he not make the desired adjustments.
The Court finds no element of discrimination has been made out in relation to this complaint.
Determination
The complaint is not well founded. The appeal is dismissed. The decision of the Equality/Adjudication Officer is affirmed.
Complaint No 5
The Complainant submits that the Respondent discriminated against him when it wrongly accused him in relation to
1. Defect tracking some of its products
2. Providing notice to take paid vacation
3. Carrying out an assigned work item
The Complainant submits that he was singled out for ridicule by Mr. James Wilson at circa 17:32 hours on 3 February 2014 over a work item with the tracking number Defect ID 6512. He submits that the detail of the defect was properly document in the defect note. He submits that when questioned by one of his managers Mr. Wilson he was harassed and treated disrespectfully in a manner that was not and would not be applied to a person of the same colour or ethnic origin as Mr. Wilson. He submits that this amounts to discrimination under the Act.
The respondent told the Court that the entire event was witnessed by Mr. O’Byrne. He told the Court that the record of the defect was not clear to Mr. Wilson who sought clarification of the precise problem by the Complainant. He told the Court that the Complainant simply read the defect report to him despite being told that it was not clear what the problem was. He said that after 45 minutes they had made no progress clarifying the matter and terminated the conversation. He said that the Complainant was shown no disrespect or discriminated against in the course of the conversation.
Findings of the Court
The Court has reviewed the extensive documentation submitted by both sides. The Court finds that the exchange was no more than an engagement between the Complainant and Mr. Wilson that was unproductive and ineffective. The Court finds that no case of discrimination has been made out.
Determination
The complaint is not well founded. The decision of the Equality/Adjudication Officer is affirmed.
The second incident referred to above relates to a claim for a day’s annual leave submitted by the Complainant. The Complainant did not have a copy of the Respondent’s Employee Handbook. He had not been provided with this. He queried how one applied for annual leave and what notice was required. He was advised by Mr. Brian O’Byrne, his manager, that he was required to give between one and three days, notice. He says that he gave the required notice. He says that he was subsequently accused by Mr. O’Byrne of not giving sufficient notice of his request for annual leave.
The Respondent told the Court that it normally requires a week’s notice of short duration annual leave when requested and two weeks for longer periods. The Complainant gave four days, notice and was granted the leave. He was advised of the requirements for future applications for annual leave.
Findings of the Court
The Court finds that the case outlined by the Complainant regarding the incident described above does not constitute discrimination within the meaning of the Act. The Court so determines.
Determination
The complaint is not well founded. The decision of the Equality/Adjudication Officer is affirmed.
The third incident outlined above relates to an event that took place on 29 April 2014. The Complainant states that he was asked by Mr. O’Byrne to perform an analysis of an identified problem with a piece of software. He ran all appropriate tests and reported his results. He submits that Mr. O’Byrne then abused him for so doing despite his having undertaken and discharged the task assigned to him.
Mr. O’Byrne told the Court that the Complainant was asked to perform an analysis of the logs of an identified problem rather than re-run the tests which was more time consuming and wasteful of resources. He submits that the complainant was unwilling to accept instructions that he should undertake his duties as directed and not as he chose. He submits that he put this position to the Complainant in an email dated 29 April.
Findings of the Court
The Court has considered the submissions and evidence of both sides in relation to this matter. The Court finds that the Complainant has not made out facts from which an inference of discrimination can be inferred. The Court prefers the respondent’s version of events as being more consistent with the evidence before it.
Determination
The Complaint is not well founded. The appeal is rejected. The decision of the Adjudication/Equality Officer is affirmed.
Complaint No 6
The Complainant submits that he was charged with completing a task in one day for which another employee was allowed three days to complete. He submits that the other employee was of the same colour/ethnic origin as Mr. O’Byrne his manager who assigned the task. He submits that race/ethnic origin is a possible explanation for the difference in their respective treatment. He submits that this amounts to discrimination within the meaning of the Act.
The Respondent submits that the two tasks were different; that the complainant was an experienced computer professional while the other person had converted from being an electronic engineer into computer programming and as a consequence was not as experienced as the Complainant. Finally it submits that the other person was a relatively new employee to the Company and did not have the product knowledge the Complainant had.
Findings of the Court
The Court finds that the Complainant has made out a prima case of discrimination within the meaning of the Act. In accordance with section 85A of the Act the burden of proving compliance with the Act shifts to the Respondent.
The Respondent explained the difference in treatment of the two employees by referring to their expertise, qualifications, product knowledge and time in the company. The Court finds that these explanations discharge the burden of proving that the protected characteristic of the Complainant was not a factor in the difference in treatment of the two employees.
Determination
The Court finds that the Complaint is not well founded. The decision of the Equality/Adjudication Officer is affirmed.
Complaint No 7
The Complainant outlined a number of incidents which he submits amount to discrimination under the Act. They are as follows
On 10 April 2014 when discussing a product defect (Defect ID 6782) Mr. O’Byrne stated “We don’t expect people to use the product like idiots”. He submits that Mr. O’Byrne was in effect calling him an idiot and that he would not have treated an employee of a different colour or ethnic origin in that way.
Mr. O’Byrne submits that there was a discussion regarding the appropriate documentation that should accompany a defect report. He states that he was advising the Complainant that such reports were prepared with the user’s knowledge in mind. It was only necessary, given the use to which the product was being put, to provide support appropriate to that use. It was not necessary to go beyond that. He denies ever using the terms outlined by the Complainant.
He relates another incident that occurred on 15 April 2014 in which another employee described as “stupid” a question he asked Mr. O’Byrne about a product he was testing. He submits that this amounts to discrimination under the Act.
Mr. O’Byrne denies that this comment was ever made in his presence.
He relates another incident which occurred on 10 January 2014 in which he alleges that Mr. O’Byrne described him as a “snake who should not be trusted”
Mr. O’Brien denies that this comment was ever made. He submits that the Complainant had requested a new chair and had been provided with same. He submits that there is no context for such a comment and it was not made by him or while he was in the presence of the Complainant or otherwise to his knowledge.
He relates another incident that occurred on 21 January 2014 in which Mr. O’Byrne responding to a product documentation proposal he made said “a defect should not be written so that a child can understand it”.
The Complainant denies that such a comment was ever made.
He relates another incident that occurred on 13 March 2014 in which another manager stated in the Complainant’s presence “my first thirty years in Ireland was not this scary”. He states that Mr. O’Byrne was present and laughed at the comment.
The respondent denies that this comment was made.
He relates an incident that occurred during his interview for the position on 2 December 2013 in which he was asked “where are you from” to which he responded I am Irish.
The Respondent submits that this comment is not discriminatory and is outside the statutory time limit for making a complaint under the Act.
The Complainant submits that these comments disclose a pattern of discrimination, within the meaning of the Act, towards him by Mr. O’Byrne and or by other agents of the Respondent Company.
Findings of the Court
The Court has examined each of these alleged incidents. The Court has also examined the contemporaneous exchange of emails and documents associated with each of the exchanges. The Court finds no reference to the incidents in the documents before it.
Accordingly the Court finds that the occurrence of the incidents is mere assertions unsupported by any evidence other than the averment of the Complainant. The Court notes the equal averments of the Respondent.
The Court finds the Respondent’s version of events is consistent with the documents before it. The Court also finds that it is a more credible version of events and accordingly prefers it.
Determination
The Complaint is not well founded. The decision of the Adjudication/Equality Officer is affirmed.
Complaint No 8
The Complainant submits that the termination of his employment by the Respondent and the manner in which it did so and the reasons advanced for doing so amount to discrimination within the meaning of the Act.
The Complainant further submits that Mr. O’Byrne told him he felt threatened by him, that he refused or failed to set out good grounds for the decision to dismiss him, that he failed or refused to identify shortcomings in his performance since his last performance review when dismissing him and that he otherwise discriminated against him in the manner in which he made and gave effect to the decision. He submits that as there was no reason outlined for the decision to dismiss him the inference of discrimination arises given his colour and ethnic origin and that of Mr. O’Byrne the decision maker.
The Respondent submits that the Complainant was interviewed for and appointed to the post in 2013. It submits that he was subsequently reviewed on two occasions and the problems with his performance brought to his attention. It submits that he was advised after the April performance review that he would not be appointed at the end of his probation if he did not improve. He submits that the Complainant was difficult to manage and did not fit into the Company in the required manner. It decided not to appoint him at the end of his probation and terminated his employment.
Findings of the Court
The Court has given careful consideration to the submissions of and evidence adduced by both sides. The Court finds that the Respondent’s account of the events that led to the Complainant’s dismissal are credible and consistent with the contemporaneous correspondence between the parties. The Court finds no element of discrimination has been identified or made out with regard to this decision or the events leading up to it.
Determination
The Complaint is not well founded. The appeal is rejected.
Complaint 9
The Complainant refers to an alleged secret complaint against him that was the subject of a secret investigation neither of which he was advised of or given the benefit of fair procedures or natural justice when deciding the matter. He refers to an email dated 11 April 2014
The Respondent denies any such complaint or any investigation. It submits that the events referred to relate to the Complainant’s performance review of which he was advised and participated in.
Findings of the Court
The Court finds that the Respondent did not receive a complaint against the Complainant. It also finds that it did not engage in a secret investigation of that complaint. The Court finds that the Respondent reviewed the Complainant’s performance and notified him of the improvements it required in order to make his employment permanent. It further finds that the Complainant was, on the balance of probabilities, very difficult to manage and resisted taking instructions from his managers. The Court finds that the Complainant was given every opportunity to improve his performance and failed to make the required improvements or to integrate into the management structure of the Company. The Court finds that the Respondent did not discriminate against the Complainant but rather sought to manage his performance and bring it into line with its requirements for successful appointment to the post.
Determination
The Complaint is not well founded. The appeal is dismissed.
Conclusion
The Court finds that the Respondent did not discriminate against the Complainant on any of the grounds before it. The Court finds that the complaints are not well founded. The appeal is rejected. The decision of the Equality Officer/Adjudication Officer is affirmed.
As the Court finds that no act of discrimination took place in the relevant statutory period the Court has not found it necessary to address the question as to whether Complaints numbered 1 and 2 above come within the scope of the time limits set out in the Act.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
LS______________________
28 July 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.