ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014913
Necati Hakan Erdogan
Ecomm Merchant Solutions Ltd.
Gerry McGreevy Brady McGreevy 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: 05/12/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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.
Mr Erdogan (the Complainant) was employed by the E Comm Merchant Solutions (the Respondent) from 25th November 2015 until 14th February 2017. He was employed as an Integration Specialist.
This complaint was received by the Workplace Relations Commission on 24th May 2018.
Summary of Complainant’s Case:
As per complaint form the Complainant has stated:
Grounds for my complaint and what I would like to apply for:
“I would like to underline for the acceptance of my claim under the Employment Equality Acts, that the Respondent breached the fair dismissals procedures, run disciplinary process with Mala fide, and did not provide any evidence while dismissing me with Gross Misconduct immediately, in order to hide its acts of discrimination and victimisation during my employment. It is only revealed that the respondent lied in Disciplinary meetings in order to hide its act of discrimination and victimisation on 26/01/2017. The Respondent also continued the acts of discrimination and victimisation under the Employment Equality Acts by lying to the Workplace Relations Commission Adjudication Officer and lodging forged documentation. The events indicate that the company’s actions are highly influenced from me being foreign national”.
Summary of Respondent’s Case:
It is submitted that the WRC must consider whether the allegations falling within the cognisable period are acts of discrimination within the meaning of the Employment Equality Acts and only if so found, can the WRC consider the allegations which fall outside and beyond the cognisable period. (Cork County VEC v Hurley EDA 24/2011 and Sysco Systems International Limited and Oluminde Smith EDA 1829).
The claimant contends that he has been discriminated against on the grounds of race Section 61 and Section 62 as amended of the Employment Equality Act 1998 provides –
6(1) for the purpose of this Act and without prejudice to its provisions relating to discrimination occurring in particularly circumstances, discrimination should be taken occur where
a) A person is treated less favourable than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in Sub Section 2 (in this Act referred to as “discriminatory grounds”)…
The Labour Court in Southern Health Board against Mitchel 2001 ELR 2001 considered the extent of the evidential burden imposed on the Complainant by Section 85 A of the Act and held
“The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them, this indicates that a Claimant must prove in the balance of probabilities the primary facts in which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the court that they are regarded by the court as being of sufficient significance to raise the presumption of discrimination that the onus shifts to the Respondents to prove that there was no infringement in the principal of equal treatment”.
The Labour Court in Sysco Systems Internet Working (Ireland) Ltd v Oluminde Smith EDA 1829 stated:
“It is well a settled Law that mere assertions cannot be elevated to the status of evidence”.
It is the position of the Respondent that the Complainant has offered no more than mere assertions in support of his contention of discrimination and that the decision to dismiss him was related to his race or ethnic origin, which was not asserted in the Claim for Unfair Dismissal.
Neither has the Claimant offered any evidence that, the Respondent would have treated other workers of a different race or ethnic origin in a different manner. The Complainant has made no assertion nor provided any evidence nor sought to provide any evidence that any employee of the Respondent would have been treated differently to the Complainant by reason of his race.
It is respectfully submitted that the Complainant’s claim in its entirety ought to be dismissed.
Findings and Conclusions:
Section 77 (6) of the Employment Equality Acts (as amended) reads as follows:
(6) where a delay by a Complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of the occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the Complainant’s notice.
By letter dated 28th November 2018 (one week prior to the hearing) the legal representative of the Respondent has outlined the position as follows:
The Complainant’s claim seeks for the WRC to enquire into the allegations of discrimination which fall outside the cognisable period on the grounds that the delay in making a complaint was due to misrepresentation by the Respondent pursuant to Section 77(6) of the Employment Equality Acts as amended. This misrepresentation alleged by the Complainant in essence is that his dismissal by the Respondent was based on a single event and that this only became apparent when evidence was being given at the WRC hearing on 15th January 2018. This is not the case. By letter dated 19th April 2017 the Respondent responded to the Complainant’s claim for unfair dismissal and at paragraph 13 thereof it is stated that the Respondent was defending the complaint on the basis that: -
“The Respondent was advised that by reason of his admission, that he had embedded personal text within the Respondent’s security code, and the serious nature of such offence, the Respondent found him guilty of gross misconduct and his employment was therefore terminated with immediate effect”
By letter dated 14th February 2017 the Respondent HR Manager has written a letter of dismissal, this reads as follows:
“you have received 3 warnings in the past 3 months; a recorded verbal warning on 30th November 2016 for poor performance and attendance, a first written warning on 15th December 2016 for poor performance and attendance and a final written warning on 26th January 2017 for poor performance and attendance. You have not disputed any of these warnings and agreed that the warnings were justified.
At our meeting on 26th January 2017, G provided you with evidence that you embedded a text of a personal email into the source code. This text actually showed you were planning to be in Germany on 12th and 13th December, two days you claimed to be home sick. You admitted that you were applying for jobs and embedding the text in code. This is a serious misuse of company resources. You also confirmed that all of the warnings issued to you did not have an impact on your current health issues, you provided me with a medical certificate confirming you are unfit for work due to depression from 24th January until 12th February 2017.
Having taken all of the facts and circumstances into consideration, including your 3 prior warnings for attendance and poor performance, and the serios matter of embedding text in code on company software; we have decided to summarily dismiss you from your employment with immediate effect.
If you wish to appeal against this decision you should inform me within 5 working days, I will invite you to a further hearing to discuss the appeal. You have the right to be accompanied by a colleague. The final decision will be communicated to you in writing within 5 working days of the hearing”.
This letter was signed by the HR Manager and by the Complainant – there can be no doubt that he was aware of why he was being dismissed.
The Complainant was dismissed on 14/02/2017 – under section 77 (5)(a) of the Acts the complaint should be presented to the Director General within 6 months from the date of occurrence. This period may be extended for reasonable cause or under section 77 (6) “where a delay by a Complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of the occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the Complainant’s notice”.
The representative of the Respondent cites Sysco Systems Internet Working (Ireland) Ltd v Oluminde Smith EDA 1829 –“It is well a settled Law that mere assertions cannot be elevated to the status of evidence”.
In this instant case I believe that is exactly what the Complainant is doing - making assertions. He was always aware of the reasons for his dismissal.
The Complaint as presented to the Workplace Relations Commission was submitted out of time and the Complainant has failed to provide evidence of any misrepresentation on the part of the Respondent.
The Complaint fails.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint fails as outlined above.
Workplace Relations Commission Adjudication Officer: Jim Dolan