ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008025
Bond Personnel Group Limited
Cosgrave Gaynard Solicitors
John Kilroy Solicitors.
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 20/11/2017
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This is a claim by the Complainant that she was subjected to harassment, discrimination and victimisation in the course of her employment with the Respondent contrary to the provisions of the Employment Equality Acts 1998-2015 (hereinafter referred to as ‘the Acts’), by way of persistent disrespectful remarks about her heritage and culture. The respondent requested her to change her name to a more Irish name.
She was summarily dismissed by the Respondent as a reaction to her making a complaint of discrimination on race grounds to the respondent on 9/2/17.
The complainant commenced employment as a medical recruitment consultant on 3/1/17. The complainant was in possession of a Stamp 1G visa, valid until the 22/5/17.
Her salary was €22,000pa., plus 10% commission on all fees invoiced due to placements made by her. She was contracted to work 37. 5 hours per week.
The complainant submitted her complaint to the WRC on 17/4/17.
She is seeking compensation for the alleged breaches of the Acts.
Summary of Complainant’s Case:
The complainant graduated with an MBA in Dublin Business School in May 2016.
The complainant commenced employment as a medical recruitment consultant with the respondent on 3/1/17. The complainant was in possession of a Stamp 1G visa, valid until the 22/5/17.
In the first few weeks of her employment, several HSE- run hospitals assigned their recruitment drives and requirements to the respondent company. Throughout January and February, she states that she built up a data base from approximately 10 to100 clients and built the number of hospitals up to 50. The existing data base was rudimentary. She had acquired contacts previously through social media.
She advised that she secured a placement for a doctor in January even though her target for January was €0.00. The complainant contends that this placement generated €7,586 being 15% of the annual salary (the agreed rate of commission) of the person and way exceeded her target for January which was €0.00 and is surely evidence that she was achieving what was expected of her particularly in circumstances where she had to build up a data base.
After approximately 2 weeks in her employment, the respondent advised her to improve her knowledge of the English language and to alter her accent so as to sound more Irish. When she was on calls to clients he would frequently be standing alongside her. She states that the respondent MD also advised how to write emails so as to make it appear that an Irish person and not an Indian or foreign person was writing them. The complainant stated that the respondent told her she put too much detail in emails.
In or about the second week of the complainant’s employment with the respondent, the MD advised her to adopt the name Ita, stating it sounded more Irish and that it would make the clients think that she was Irish and could help her to develop business. The complainant advised she only agreed very reluctantly to the respondent’s suggested name change. He made the administrative changes to the complainant’s email being the only person who had access to the administrative functions of the complainant’s email. A copy of this email with the new name was opened at the hearing. It was not possible for her to change the email address as she did not have the password.
She states that the MD made consistent derogatory remarks about people from the Indian sub-continent. He belittled the complainant’s heritage and culture. She states that he criticised Indian people frequently. The complainant advises that this continued daily up to the date of her dismissal on 10 March 2017. When he returned from a holiday in Nepal, he talked on the phone to friends in front of her stating how bad the traffic was and how bad things were in Nepal.
She did not make a complaint as the MD was the only other person working in the office and she needed his support for her visa application.
She was summoned to a meeting on 9 February in a coffee shop adjacent to her workplace. She was uncomfortable in this venue and would have been more comfortable in the office even if there was another employee present in the office on that date. She had no prior notification of this meeting or its purpose, nor was she advised that she could bring a representative with her. The respondent advised that he was not happy with her performance; raised concerns about her motivation; the need to make more calls and the necessity to drum up more business. The complainant challenged this; she was well motivated, had sourced jobs for clients and had developed a data base for the respondent who up until then had only a rudimentary one. The following day on 10 February ‘17 she was given a termination letter. This was wholly unexpected. She was forced to sign this letter on 10/2/17 as she thought to oppose it would jeopardise her visa application.
That same day the respondent tried to retrieve a personal diary/ document from her which she would not allow and so he roughly tore a number of pages from this booklet. The MD took 2 page of medical consultant contacts and 2 pages of registrar contacts out of her diary. This amounted to about 80% of her contacts. The complainant had sourced these names and contact details before she took up employment with the respondent.
In response to the respondent’s claim that she had omitted one employer from her CV she stated that she did so because it was an internship. She denies that she described this company as a `bad company.
She disputes that she was unpunctual.
There were no targets to be reached in first month. The claimant asserts that she met targets in previous employments.
The complainant states that she believes she was dismissed because of her race.
The complainant’s representative argued that in the event that that adjudicator does not find evidence of discrimination in the complainant’s evidence she should then consider the case law. Addressing the complainant’s obligation to raise an inference of discrimination pursuant to section 85A(1) of the Acts, the complainant’s legal representative cited the Citibank V Masinde Ntoko case 92004) E.L.R 116, which states “ a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainants’ power of procurement’”
The complainant’s representative also relied on the decision given by Neil L.J. in King v Great Britain China Centre, 1992. I.C.R 516 and which was adopted in the latter case
“Though there will be some cases where, for example the non- selection of the candidate for a post or her promotion is not on racial grounds, a finding of discrimination and a finding of difference in race will often point to the possibility racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law ……… but a matter of common sense”.
The complainant’s representative stated that the primary facts of alleged discrimination set out above must lead to the conclusion that the complainant was discriminated, harassed an victimised by the respondent. If that conclusion is not reached the adjudicator should turn her attention to the circumstances of the dismissal -the lack of a disciplinary process as provided for in her contract and the failure to notify the complainant of her right to representation. The respondent was in breach of fair procedures and in breach of the complainant’s contract. No time was given to her to improve.
The complainant’s representative stated that she was harassed, victimised and ultimately dismissed because of her race
Summary of Respondent’s Case:
The respondent managing director submitted oral and written evidence. The company is a long-established recruitment agency sourcing staff for hospitals and the hospitality sector. The respondent estimates that in the 20 years of employing staff, between 50 -70 % were non- Irish and that he knew the complainant was not Irish when he employed her.
The former employee who introduced the complainant to the respondent was also Indian. The respondent contends that it makes no sense for a fellow Indian to recommend the complainant to an organisation that would racially harass staff. The Respondent had met the complainant before she commenced employment and so knew her ethnicity. The respondent’s submission states that hiring someone is an expensive business and it would not make sense to do other than try and motivate an employee to reach targets and generate revenue for the respondent.
The respondent was given the complainant’s cv by a former (Indian)employee. She impressed at interview and was offered the position at a salary of €22,000 with a view to securing a visa subject to performance and market demands.
Her letter of appointment states that she is required to generate the following revenue:
Month 1 €000
Month 2 €3,500
Month 3 €8500
The respondent MD advised that there were problems with the complainant’s telephone manner. She came across as overly formal in her dealings with clients. She explained to him that in India telesales were conducted in a very formal manner. The respondent stated that the problem was that on occasions the complainant was almost apologetic when speaking to a client on the telephone. Conversely, he gave an example of an aggressive telephone encounter where she said aggressively “are you listening to me Dr”. The MD advised her to say in future” is this a bad line”? She received video training specific to recruitment business, the MD did role play calls and made calls to clients to demonstrate how it might be done.
The complainant was hesitant about making business development calls. She put this down to a lack of confidence and poor response to earlier efforts, and that she was not a native English speaker. Three weeks into the employment she was emailing the MD asking him to make business calls. The respondent repeatedly referred to her inability or limited capacity to make an effective business call; yes, she would make the call, but getting from there to (1) signing up an applicant to (2) getting a job was a different matter and the revenue yield submitted by the respondent showed this to be correct summation.
The respondent described a lack of motivation manifested in lateness and poor performance against targets.
The complainant displayed poor attention to detail. Sometimes she sent CVs to a hospital within a geographical area in which the candidate could not work. One such example was submitted to the hearing. The respondent would then have to cancel the interview with the hospital.
The respondent noticed that she had omitted one job from her CV and this was a matter of concern. When asked about it she said that it was a very bad company and that the management had a bad attitude. She had been unhappy there.
The respondent states that he never asked or suggested that the complainant change her name. On the contrary, his evidence was that the complainant suggested 3 times in the first 3 weeks of her employment that she would adopt a more Irish sounding name as she expressed fears that clients were prejudiced towards her when they heard her name. She herself specifically mentioned the names Aisling or Aoife; she liked these names. The MD rejected this as ridiculous and inappropriate explaining. On the third request to change her name, the MD suggested that she could shorten it to Ita instead of other names suggested by the complainant and it was not a deceptive act (it was the last syllable of her first name.) The complainant was happy with this and asked the respondent to make the changes on her Outlook account and on the respondent’s CRM system. The MD made the changes on Outlook on the admin panel. Contrary to what the complainant states, she changed her own signature on the email. A copy of an email of 2/3/17 illustrating this was opened to the adjudicator.
The respondent set up a meeting on 9/3/17 to convey his concerns and to explore how they might
be addressed. He did not view this meeting as any part of a `disciplinary process’. He met her on 9 March 2017 in a local café, confident that they could not be overheard. It was the venue of her initial interview with the respondent. No private space was available in the office. He advised her that he was concerned about targets not reached, lack of attention to detail and her manner of making phone calls. He stated that she became agitated and disagreed with the respondent’s statements and analysis. The respondent stated that he was dumbstruck when the complainant stated. “J, I changed my name for you. I am very proud of my name and this shows how dedicated I am.” The respondent states that he replied that she, not he, had asked on 3 occasions if she could change her name and it was only on the third occasion that he agreed. The respondent states that the complainant then said that she had been only joking about a name change. He felt now that he had lost all trust and confidence in her. He terminated the meeting and said they would reconvene on 10 March and both could think about matters overnight.
Overnight he considered the accusation that he coerced her into changing her name, her poor performance and the continued cost to him of employing her. He reflected as to whether he could turn the situation around and concluded no.
He had also noticed on the 9 March the complainant transcribing details into a black book.
On 10 March, he handed her a letter terminating her employment. It appeared to the respondent that she was transcribing personal details of the respondent’s clients into this black book – information which was confidential to the client, in breach of GDPR and her contract of employment. He asked her about this. With the complaint’s consent the MD removed 4 pages from this black book. They contained the names of medical consultants and registrars This did not as asserted by the complainant constitute 80% of her book, nor were the pages taken roughly from her. This was corroborated at the adjudication hearing by a witness for the respondent, the daughter of the MD, who was present in the office on the day. It also became apparent that she had taken details personal to her previous employer, specifically a confidential email with details of that employer’s clients, which she was now using to develop business for the for the respondent. The respondent stated that it was difficult to know from which company the candidates’ details were drawn.
The respondent challenged her claim about securing a contract worth €7586 to the respondent. She secured a three-month contract for a Doctor to the value of €1700, realisable only after April. The offer was made on 13 February, but the doctor did not start until April (after she had left). The complainant’s target for February was €3500 for revenue invoiced. Revenue secured by her at the date of termination was €0.00. The sum of €1700 was transferred to the respondent in April, after she had left.
The respondent disputes that he had any racial motives in terminating the complainant’s employment.
The respondent states that the complainant was never subjected to any racial remarks or taunts. The MD was very interested in her culture and had many conversations with her about her family in India. Undermining someone would be counterproductive.
Findings and Conclusions:
I must decide on the basis of the evidence, the statutory provisions and the authorities if the complaint of discrimination, harassment and victimisation on race ground is well founded.
Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and as well-established by the Equality Tribunal and Labour Court, requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. I propose dealing with the claim of harassment, discrimination, and the complaint of victimisation as manifest in her dismissal on the 10/3/17.
The Labour Court in the case of Cork City Council v Kieran McCarthy, EDA 0821 that
“The law provides that the probative burden shifts where a complaint proves facts from which it may be presumed that there had been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular fact or set of facts which are proved in evidence”
The evidence presented at the hearing.
On cross examination by the respondent’s legal representative, the complainant accepted that she had mistaken the dates of the meeting in the cafe with the respondent MD and the date of the dismissal and accepted that these events took place over the 9-10 March as contended by the respondent and not the 9-10 February as contended by herself.
The complainant also accepted that there were inaccuracies in her CV submitted to the hearing and in the periods of employment. She advised that her previous employer had agreed to extend the period of her employment with them so as to erase from her cv her employment with the respondent
The complainant stated that she did not sign the letter of 10/3/17 and then corrected herself and stated that she was forced to sign the letter which was an acknowledgement of receipt of letter of termination.
A. Complaint of harassment
Definition of harassment
Section 14A (7) of the Acts (1998-2015) describes harassment as being conduct
“Which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive work environment for the person”
I must firstly consider the instances of alleged harassment?
1.a. Instances of alleged harassment.
The complainant in her evidence spoke about comments being made by the respondent MD on an almost daily basis which belittled her heritage and culture. She did not provide dates. Examples of these denigratory comments were:
i). How awful Nepal was – the traffic there.
ii). People in an Indian call centre speaking rudely to the respondent MD.
While it is unfortunate if the complainant took offence, I do not consider comments about traffic in a holiday destination selected by the respondent MD or a comment about rudeness in an Indian call centre to be a comment about an entire race nor that the respondent would never apply these descriptions to persons of a different nationality.
III). Standing over her watching how she does emails.
The respondent disputes this but did state that he gives assistance to her as to how emails should be written. He advised her not to capitalise text as this came across as a shout out message in an email, nor to send group emails.
IV). Request to change her name to make it sound more Irish.
There was a conflict of evidence about who initiated the name change. The complainant states that it was the respondent and the respondent states the opposite. The respondent states that it was the complainant who on 3 occasions asked to change her name; originally, she suggested Aoife or Aisling.
The email dated 27/1/18, furnished to the hearing, does have a signature- shortened name but her full name is also still there on her email address. The respondent also uses her full name in correspondence. The complainant did not dispute the respondent MD’s claim that he always addressed her using her full name.
So, the name was in full view and hence any attempt to suggest that she was Irish was surely undercut by retaining her full, unconverted name on the emails for all to see. There is an air of reality to the respondent’s statement that a name change to Ita would not have altered a customer’s perception concerning her nationality. She never submitted any incidents of racial harassment or taunts from clients in her oral or written evidence. The question arises then why did she need to make herself more Irish for Irish clients. Her own unaltered name was not unpronounceable. There
was a gap in her evidence as to why this became necessary and what value it would bring to the situation – a situation where no client had ever indicated that they had a problem with her being non- Irish. It is hard to accept the implied explanation offered that it was to placate any racial hostility which the respondent might harbour towards the complainant a mere 3 weeks after having employed her.
I cannot see the value to the complainant, the respondent or his business of a respondent -sponsored name change. Again, it is very unfortunate if the complainant believed that masking her identity would assist her in getting more clients.
Having considered the conflict in the evidence and based on the balance of probabilities, I do not find that the evidence advanced moves the probative burden to the respondent. I do not uphold the complaint of harassment contrary to section 14 A(7) of the Acts.
B. Complaint of Discrimination on grounds of race.
The statutory provisions guiding this examination is contained in Section 6 of the Acts which defines discrimination as occurring where
(a) “one person is treated less favourable than another is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) of this Act”.
The complainant being of Indian origin is within the protected class as set out on section 6(2)(h) of the Act which prohibits discrimination
where a person is of a different race, nationality or ethnic or national origin”.
This complaint was grounded on the behaviour of the respondent towards her; the request to change her name; the advice to sound more Irish, the derogatory comments about her culture. The complaint of discrimination on the grounds of race draws on the same allegation advanced to support the claim of harassment .
I have dealt with these same complaints which the complainant has submitted as evidence of discrimination in section A, Complaint of Harassment, pages 7-8 of this decision. As has been stated previously, the question now arises as to whether an inference of discrimination has been raised and whether the burden now shifts to the respondent to prove the absence of discrimination.
The Labour Court stated in A General Practitioner and A Worker, Determination No EED062
“It is now well settled in that in cases of discrimination it is for the complainant to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If these facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the respondent to prove the absence of discrimination.”
Having considered the conflict of evidence, and on the balance of probabilities, I do not find that the facts are sufficiently credible or significant to transfer the probative burden to the respondent.
I therefore do not uphold the complaint of discrimination on grounds of race.
C. Dismissal as an act of victimisation.
The complainant maintains that her dismissal on 10/3/17 was an act of victimisation.
Section 74(2) of the Act states victimisation “occurs where dismissal or other adverse treatment of an employee by or her employer occurs as a reaction to-
(a) complaint of discrimination made by the employee to the employer”
In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows:
“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;
(2) The Complainant was subjected to adverse treatment by the Respondent, and;
(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”
1.The protected act
Did the complainant take a type of action referred to in section 74(2) of the Acts on the 9/3/17? The complainant stated to the respondent” J I changed my name for you. I am very proud of my name and this shows how dedicated I am.” I consider this complaint, made to her employer at the meeting of the 9/3/17, arranged to allow the respondent to express his concerns to her to come within the range of acts protected by s .74(2) of the Acts. It is a complaint that she was made to do something which she did not wish to do because of her race.
2. The adverse treatment.
As per the second limb of the test set out above and an item not in contest between the parties is her dismissal on the 10/3/17. This is the adverse treatment.
3.Was the adverse treatment in reaction to the protected act.
The Labour Court in Monaghan County Council v. Mackarel EDA1213 stated
“The procedural or substantial fairness of the dismissal, per se is not the determinative issue…… Rather what is at issue is whether or not the complainant having made complaints of harassment against his colleague was in any sense an influential or causative factor leading to his dismissal.”
The same decision notes also that the burden of proving the absence of victimisation rests with the respondent, “That burden can only be discharged if it is established, on credible evidence, that the
making of complaints by the complainant was in no sense beyond the trivial, an influencing or reactive factor in the decision leading to his dismissal”
So also in A Complainant v a Community Development Organisation DEC-E2012-187, the Labour Court stated “However, it is not for me to make a determination as to whether the Board was justified in dismissing the complainant unless it can be shown that his sexual orientation was more than a trivial factor in that decision and/or that he was dismissed because he had claimed he was being harassed in the workplace.”
The task of the adjudicator is to decide whether or not the Complainant was dismissed for making a complaint in this case within the meaning of the Acts.
The protected act triggering the dismissal was the complainant’s statement to the respondent on the 9/3/17 that “I changed my name for you”. This constituted the complaint of discrimination to the employer. I have not found that the evidence supports the complainant’s contention that the respondent made her change her name to a more Irish sounding name. I have not upheld the complainant of discrimination or harassment based on this and other alleged instances. But proof of the discrimination claimed of is not required to make a complaint of victimisation, merely that the complaint of discrimination has been made to the employer and it is this statement or protected act which prompted the decision to dismiss.
The respondent’s explanation for the dismissal, contained in the letter of dismissal on the 10/3/17 was that her “performance and motivation levels have fallen fall short of my expectations”. His evidence at the hearing identified her statement to him of the 9/3/17 and his legitimate concerns about respect for confidentiality of client details, not put to her until the 10/3/17.
It is hard to avoid the conclusion that the complainant’s statement was, if not the trigger, then far more than a “trivial factor” driving the dismissal as the respondent moved from a non – disciplinary process meeting on the 9/3/17 to a summary dismissal the next day. One week’s paid notice was given. What changed overnight to move him so swiftly to that stage on the 10/3/17 with a total absence of fair procedures; no advance notification, right to be represented, no appeal as provided for in the respondent’s disciplinary procedures. The only significant difference between the 9th and 10th March was her complaint to him.
Based on the evidence submitted, I find that the complaint made to the respondent on the 9/3/17- the protected act constituted more than a trivial factor in the decision to dismiss her. I find therefore that her dismissal on the 10/3/17 was an act of victimisation contrary to section 74(2)(a) of the Acts.
She has since secured alternative employment.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I do not uphold the complaint of harassment on the race ground contrary to section 14A (7) of the Acts.
I do not uphold the complaint of discrimination on the grounds of race contrary to section 6 of the Acts.
I find that the dismissal of the complainant on the 10/3/17, the maximum penalty at the disposal of the respondent, was an act of victimisation and in breach of section 74 (2) of the Acts. Having regard to all the evidence and all of the circumstances I award the complainant the sum of €11,000 in compensation which is equal to six months’ salary as redress for this breach.
Dated: 21 March, 2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Discrimination and harassment on race grounds not upheld; discriminatory dismissal; dismissal as an act of victimisation; protected act triggering dismissal