ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034096
Parties:
| Complainant | Respondent |
Parties | Uchenna Jude Dike | First Care |
Representatives |
| MP Guinness BL Hayes Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044867-001 | 01/07/2021 |
Date of Adjudication Hearing: 20/07/2022
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
Background:
The Complainant was employed as a healthcare assistant from 3rd May 2020 until 22nd November 2020.
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Summary of Complainant’s Case:
CA-00044867-001 The Complainant was dismissed by the company on 22nd November 2020. He submitted an appeal and the dismissal was upheld on 2nd February 2021. The Complainant is six foot six inches tall. He alleges discrimination due to his race. He was born in Nigeria and is a South African citizen. He says the last act of discrimination took place on 2nd February 2021 when his dismissal was upheld. He believes his appeal allows an earlier decision based on racist criteria to be upheld. The Complainant was dismissed on grounds of poor performance. He denies signing his performance appraisal form and says this was forged. He recalls being given an excellent and positive performance appraisal by his Team Leader. The Complainant says he was subject to a racist slur by a colleague on 9th November 2020. The colleague said she did not want to work with him due to his height and colour. She said she feels intimidated. He alleges he was described as a “big black man”. The Complainant made a verbal complaint about the incident on 10th November 2020. The Complainant was then refused all leave due. He was questioned by the HR representative about an alleged altercation with this colleague, and failure to make entries on EPIC about shift activities which he denies. He says the other Nurse on duty can confirm this never occurred. The Complainant says there is video and recorded proof of his EPIC entries being made. The company have refused to produce the video and EPIC entries. The Chief Nurse Manager investigated the incident. The Complainant was sent an unsigned letter from the Chief Nurse Manager which contains malicious false allegations. The Complainant was notified on 22nd November 2020 he was being dismissed, and his colleague feels intimidated due to his height and big size. He believes that rather than investigate this complaint properly, the Chief Nurse Manager initiated a Performance Improvement Plan. The Complainant denies there were prior discussions regarding his performance. He says there were no meetings or prior discussions regarding his performance. There was only one conversation where he was commended for his performance. The Complainant says he was subject to a racist slight, and this paved the way for his dismissal. He believes there is no evidence to show his work was below par. Another reason existed as to why his employment was terminated.
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Summary of Respondent’s Case:
The Respondent makes a preliminary objection regarding the claims of discriminatory dismissal and unfair dismissal. They say the Complainant must elect whether he is seeking redress for unfair dismissal or for discriminatory dismissal. The Complainant’s employment ended on 30th November 2020. His complaints are out of time as these were not lodged until 1 July 2021. The Complainant tries to bring the complaints in time by alleging the most recent date of discrimination was 2 February 2021, when he was no longer an employee. The Respondent submits there cannot be an act of alleged discrimination when the Complainant was no longer an employee. The Complainant is out of time and has not applied for an extension of time. There is no reference to any alleged act of discrimination in February 2021 in the Complainant’s submissions. Without prejudice to the above, the Complainant commenced employment as a healthcare assistant on 3rd May 2020. He was initially mentored by senior healthcare assistant and team leads. He was put on night duty. His work was not of a high standard. The Complainant was placed back on the day shift for a further mentoring programme for two weeks with the Team Lead. On 2nd August 2020, the Team Lead emailed the Home Manager in relation to a number of issues regarding the Complainant. When he gave the Complainant a five minute break, he did not return for forty-five minutes. The Complainant indicated he assisted DD to his bedroom for help. The Team Lead informed the Complainant he could not have done this as he brought DD down for tea at 3.30pm. He informed the Complainant that he was the manager on the floor, he was on a second round of training as there was concern about his work. He warned him that if his behaviour and conduct did not improve, he may be out of a job. The Complainant’s performance appraisal for the first three months shows a performance rating of 2 “partially meets job requirements”. On 5th August 2020 discussions took place with the Complainant and the probation policy was explained to him. On 7th November 2020, a colleague of the Complainant (A) sent an email of complaint to the Home Manager. She said he refused to help bring people to their bedrooms, raised his voice in front of residents, and spent the night on the sofa. She asked that she not be put on the same shift as him. Another colleague (B) emailed the Home Manager stated she did not feel comfortable working with the Complainant. She said he was difficult and did not seem to like working as part of a team. He raised his voice to her and another colleague in front of residents. On 19th November 2020, the Home Manager wrote to the Complainant referring to previous conversations that his performance including quality and standard, team player, and general performance was not satisfactory since 5th August 2020. A meeting took place on 20th November 2020. The Complainant denied any incident took place, but felt his two colleagues had a plan not to work with him that night. The Home Manager outlined concerns about his performance. She had completed spot checks on paperwork which found gaps on the night shift, and records completed at the start and end of shifts. Issues with colleagues occurred on both day and night shifts. A further meeting took place on 23rd November 2020. The Home Manager advised despite meeting in August, she was not satisfied there was a significant improvement in his work and relationships with colleagues. She then terminated the Complainants employment. On 25th November 2020, the Complainant lodged a complaint against the Chief Nurse Manager for racist conduct and false allegations leading to dismissal. The grievance was treated as an appeal against dismissal by the company. The appeal hearing took place on 7th January 2021 and the Complainant was represented by his trade union. A Senior Manager considered the grievance and interviewed witnesses. The Home Manager and Team Leader confirmed the Complainant signed his performance appraisal at the meeting. The Complainant said discrimination occurred when the Home Manager refused his request for holidays. The Senior Manager found this decision was due to a Covid-19 backlog of holidays for other staff and balancing all requests. The Complainant’s appeal was not upheld.
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Findings and Conclusions:
The Complainant has made a complaint of discriminatory dismissal pursuant to the Employment Equality Acts 1998- 2015 and a complaint of unfair dismissal pursuant to S13 of the Industrial Relations Act 1969. In reaching my decision, I have taken into account all of the submissions made and evidence given in the course of the hearing, and subsequent to the hearing. CA-00044867-001 S101 (2) of the Employment Equality Acts 1998 – 2015 states: “Where an individual has referred a complaint under S77 (1) and either a settlement has been reached by mediation or the Director General has begun an investigation under S79, the individual – (a) Shall not be entitled to recover damages at common law in respect of the case, and (b) if he or she was dismissed before so referring the case, shall not be entitled to seek redress or to exercise, or continue to exercise, any other power under the Unfair Dismissals Acts 1977-2015 in respect of the dismissal, unless the Director General having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and respondent. “ The Respondent has raised a preliminary objection that the Complainant cannot proceed with both a discriminatory dismissal complaint and unfair dismissal complaint. The Complainant has opted to proceed with his discriminatory dismissal complaint. The Complainant alleges he has been (i) discriminated against in terms of S6 (2) h of the Employment Equality Acts 1998-2015, and (ii) in dismissing him for discriminatory reasons. He is a South African national who took up employment with the Respondent as a healthcare assistant. S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. Discrimination on the “race ground” is discrimination on the basis of different race, colour, nationality or ethnic or national origins. The burden of proof is set out in Section 85A (1) of the 1998-2015 Acts which provides that: “Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.” Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent. The Complainant’s employment terminated on 30th November 2020. He lodged a complaint of discrimination to the Workplace Relations Commission which was received on 1st July 2021. S77 (5) of the Employment Equality Acts 1998-2015 states: “ 77. (5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. (b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.” The statutory time-limits in S77 of the Employment Equality Acts 1998-2015 require the Complainant’s complaint be lodged within six months of the date of occurrence of discrimination or the date of its most recent occurrence. The Complainant alleges a continuum of discrimination, that his dismissal took place following a racist slight. He claims the last act of discrimination occurred when his dismissal was upheld on 2nd February 2021. The Respondent submits that the Complainant cannot proceed with a complaint of discrimination after his dismissal as he was no longer an employee when the complaint was made, and his complaint is out of time. S2 of the Employment Equality Act 1998-2015 defines an “employee” as “as person who has entered into or works under (or where the employment has ceased, entered into or worked under) a contract of employment…”. I find the Complainant’s complaint falls within the statutory time-limit as it was received by the Workplace Relations Commission within six months of the last act of alleged discrimination. As a former employee, the Complainant can proceed with his complaint. The Complainant signed a contract of employment dated 11th April 2020 which contains a probation period of nine months. Confirmation of appointment is subject to satisfactory completion of the probationary period. Employment may be terminated in writing during the probationary period on one week’s notice. The Complainant began working on 11th May 2020. A performance appraisal was carried out after three months by the Home Manager on 5th August 2020. This found the Complainant partially met job expectations. It said he lacks initiative and needs constant direction and supervision. Concerns were raised regarding non-compliance with standards and record-keeping. The Complainant was given two weeks further training with a team leader and was moved back to days for monitoring. The Complainant denies signing the performance appraisal form. The Complainant alleges he was dismissed on 23rd November 2020 following allegations of difficulties with his work and behaviour by colleagues which he disputes. The Complainant alleges a colleague said she did not want to work with him due to his height and colour which is racist. The Respondent produced the emails of complaint from two colleagues. There is no reference to the Complainant’s race or colour in the emails. No evidence has been adduced by the Complainant of the alleged discriminatory comments. The Complainant also alleges the Home Manager discriminated against him by denying annual leave. This complaint was investigated by the Respondent. Annual leave was refused due to a need to balance other employee annual leave requests, and the complaint was not upheld by the Respondent. The Labour Court in its determination in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and held:
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.” It follows that a Complainant must establish both the primary facts upon which he relies and also that those facts are of sufficient significance to raise an inference of discrimination.
In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. I find no prima facie case of discrimination has been made out by the Complainant and the complaint fails.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint and dispute 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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00044867-001 I find no prima facie case of discrimination has been made out by the Complainant and the complaint fails.
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Dated: 01/03/2023
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Unfair dismissal and discriminatory dismissal complaint, burden of proof |