Complainant

Respondent

Parties

Nadine  Reid

Murrays Ambulance Service

Representatives

Complainant

Peninsula Business Services Ireland

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-00064757-001

13/07/2024

The complainant, Ms Nadine Reid, was employed as an Emergency Medical Technician, with the respondent, Murray Ambulance Service Ltd.  She was dismissed during her probation in relation to an incident which had occurred in which she facilitated a patient in allowing him to smoke outside of the ambulance in which he was travelling.  Ms Reid claims she was discriminated against because a second EMT who had participated equally in facilitating the same patient, was only given a letter of concern by the respondent and retained in employment.

Evidence was given at the hearing under oath/affirmation by the complainant and by Ms Carmel Giblin, HR Manager for the respondent.  All evidence was subject to cross examination.  All submissions received were considered by me in reaching my decision.

The complainant, Ms Nadine Reid, was employed by Murray Ambulance Service Ltd (MASL) as an Emergency Medical Technician (EMT) from May 15, 2024, until her dismissal on June 11, 2024. She asserts that her dismissal was unfair, discriminatory on the grounds of race, and procedurally flawed, causing significant financial, emotional, and career hardship.

An incident occurred on 6th June 2024 approximately three weeks after the complainant had commenced work with respondent.  The complainant had facilitated a patient in allowing him to smoke outside of the ambulance.  Both the complainant and a fellow EMT, Ms A, were present throughout.  The complainant was subsequently told by HR that a member of the public had complained.

On 11th June, 2024 the complainant was asked to take a call but was not informed it was a dismissal call, without prior notice; she was told 'gross misconduct'. The complainant was denied the right to representation as per the MASL handbook. By the time it was put in writing the reason for dismissal changed from Gross Misconduct to short term dismissal.

At this stage the complainant thought both herself and Ms A were both dismissed as they equally worked as EMT partners for the company for the same amount of time. Then to her shock the complainant was told by a colleague that Ms A was still in the rota and working full time for MASL.

On 27th June 2024 an Appeal hearing was held. There were delays in providing notes and responses.  Many questions were unanswered, such as ‘what was the exact complaint from the member of the public’ and what is the official procedure to manage a patient who is severely addicted to smoking during a 10 hour journey.

No guidance was given on smoking rules for patients.  Both crew were present yet only the complainant was dismissed. The complainant later learned that the complaint had in fact come from her colleague, Ms A.  She had not been informed of this throughout the process.

MASL’s June 2024 memo discusses staff smoking/vaping and reiterates the statutory ban on smoking in enclosed workplaces and in company vehicles. However, it does not provide guidance on how crews should manage a nicotine‑dependent patient’s request to smoke outside the ambulance during long transfers, nor does it specify any minimum safe distance from the vehicle when oxygen is not in use. Despite repeated requests for guidance (including by email of 23 May 2024 seeking clinical escalation points, and same‑day incident report on 6 June 2024 asking for direction), no written policy or instruction was given to the complainant.

During the dismissal call, HR referenced an ambulance explosion scenario linked to smoking and oxygen. That anecdote is not comparable: in the current case the patient smoked outside was not connected to oxygen, and did not smoke inside the vehicle or near any oxygen flow. The MASL memo itself cautions against smoking or vaping when oxygen is in use which was not the clinical context in this instance. The complainant’s colleague Ms A, was present and facilitated the patient smoking on three occasions, including standing with him while he smoked. To date, MASL have identified no Irish law or Company policy which sets a specific outdoor distance from an ambulance for a patient who insists on smoking. Equally, no clinical escalation pathway was offered to crews for managing nicotine dependency on long inter‑hospital journeys. In this policy vacuum, the complainant acted in good faith, balancing patient safety, dignity and anxiety with the need to avoid any risk inside the vehicle or near oxygen. She communicated thoroughly with Ms A throughout the journey and the patients requests for smoking. 

The complainant has submitted photographic evidence of Ms A standing with the patient while he was smoking. The decision to issue only a letter of concern to Ms. A while dismissing the complainant outright demonstrates unequal disciplinary treatment for the same conduct. Ms. A had consistently shown hostility towards the complainant, while her brother, Mr. B, an EMT of 8 years, made openly racist remarks towards Nigerian and Ukrainian people.

There were deficiencies in the process as outlined in the Handbook.  These included timelines being breached; right to representation ignored and; no joint meeting held. The appeal outcome gave a third different reason for the dismissal citing capability issues instead. Material facts were omitted or misrepresented, including Ms. A’s role and motives.

 The complainant initially did not wish to believe race was a factor. However, both she, a black woman, and her white colleague – Ms A - were present at the smoking incidents with equal EMT status and Ms A was retained in employment while the complainant was dismissed without explanation. No joint meeting was ever held. No credible reason has been provided for this unequal treatment. The law does not permit termination for a discriminatory reason at any stage of employment, including probation.

On 6th June, when transporting a patient by ambulance the complainant facilitated a patient smoking a cigarette on a stretcher in close proximity to an ambulance, on the grounds of a petrol station.  The complainant herself confirmed this.  Such conduct is a significant health and safety hazard and contrary to the respondent’s policies and procedures.

A colleague that was present immediately reported it to the respondent by phone and later that day by email.  The complainant was validly dismissed with less than one month’s service and during her probationary period.  Fair procedures, including an appeal were afforded to her.  There is no nexus whatsoever between the complainant’s race and her dismissal.  In the circumstances of the colleague’s immediate report of the incident a letter of concern was considered an appropriate response to this colleague’s conduct.  Furthermore, the respondent was cognisant that the colleague who reported the incident could be considered a person who had made a protected disclosure and would be entitled to protection from dismissal and protection of her identity as the person who made the report.

The Employee Handbook, in relation to Disciplinary Procedures provide that ‘we retain discretion in respect of the disciplinary procedures to take account of your length of service and to vary the procedures accordingly’.  Examples of gross misconduct in the Employee Handbook include ‘taking part in activities which result in adverse publicity to ourselves, or chich cause us to lose faith in your integrity; serious breaches of health and safety rules that endanger the lives of employees or any other person and’ smoking in breach of company policy/designated non-smoking areas’.

The Employee Handbook prohibits smoking in the workplace and company vehicles and states that breaches of this policy may result in disciplinary action up to and including dismissal.

The complainant made no reference to discrimination in the disciplinary process. In O’Donovan v Over C Technology Ltd 2021 IECA 37 Costello J held; During a period of probation, both parties are – and must be -free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason , not something with which they wish to continue…’

Notwithstanding the respondent did provide fair procedures.

The respondent refers to Northeaster Region v Sheridan (EDA 0820) in which the Labour Court declared the test for burden of proof in discrimination cases as follows;

A.      The complainant must prove the primary facts on which he relies in alleging discrimination

B.     The Court or Tribunal must evaluate those facts and be satisfied that they are of sufficient significance in the contest of the case as a whole to raise a presumption of discrimination

C.      If the complainant fails at stage (a) or (b) they cannot succeed.  However, if the complainant succeeds, the presumption of discrimination comes into play and the onus will then shift to the respondent to prove that on the balance of probabilities that there is no discrimination.

The respondent submits that the complainant by failing to provide a suitable comparator and providing insufficient details alleging discrimination that she cannot prove the primary facts necessary.

The complainant alleges discriminatory dismissal under the grounds of race. Section 85 A of the Employment Equality Act 1998 states;

85A.—(1) 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.

It is for the Complainant in the first instance, as set out in Mitchell v Southern Health Board [2001] ELR 201, to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which she relies. In Melbury Developments v Arturs Valpeters EDA0917 the Court stated “ Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The comparator is Ms A.  Ms A was also an EMT, accompanied the complainant on the journey, and acquiesced to the request by the patient to be facilitated in smoking.  The were two distinctions between the complainant and Ms A; Ms A reported the complainant in relation to the incident and; the complainant was a black person, and Ms A was not.

I am satisfied, in circumstances where both the complainant and Ms A facilitated the patient in smoking outside of the ambulance, and the complainant was dismissed and Ms A only given ‘a letter of concern’, and because the complainant was of a different race to Ms A, that this meets the threshold of prima facie evidence of discrimination and therefore the burden of proof moves to the respondent.

In relation to inadequacies in the disciplinary process afforded to the complainant the respondent has sought to rely on decisions in which the courts have found that it was not necessary to adhere to the principles of natural justice when an employee was on probation and where the employee’s position was being terminated because of performance issues.  The respondent also states that in any event proper procedures were afforded to the complainant.

Costello J considered Orr x Zomax10 [2004] ELR 161to be authority for the proposition that “the principles of natural justice apply to cases involving dismissal for misconduct, but not to termination on other grounds”

The principle established was specifically endorsed in Maha Lingham v HSE [2006] 17 ELR 137 where Fennelly J. confirmed that a dismissal by reason of an allegation of misconduct attracts the right to fair procedures, whereas a dismissal in the absence of an allegation of improper conduct does not attract such a right.

The allegations against the complainant changed on a number of occasions and indeed in the first instance were classified as possible gross misconduct.  In any event it is clear that the complainant was being accused of misconduct and, in accordance with the legal principles outlined above, was entitled to fair procedure which, self-evidently, should have included the right to know who made the complaint and to test the evidence of that witness.  The failure of the respondent to facilitate this and to disclose the name of the complainant, and the complainant’s email, was fatal to any fair procedure. The reliance of the respondent on the Protected Disclosure legislation for not informing the complainant is misconceived.

The email from Ms A on the day of the incident includes the statement ‘I knew that I wouldn’t be listened to as she has a reputation of ignoring everyone and doing what she wants’   Such a statement clearly indicates that Ms A had prior issues with the complainant and should, at a minimum, have caused the respondent to delve into the prior history between the two.  In evidence the complainant stated that she and Ms A had worked together previously in a different employment. In evidence the complainant stated that the email from Ms A was full of untruths.  However, in the absence of being presented with it at any stage before her dismissal it was not possible for the complainant to challenge it or to address these alleged untruths.  The question is begged;  why was Ms A believed without question?  What was the difference in her credibility? 

The prima facie case of discrimination has been established and the burden of proof has transferred to the respondent.  They have not discharged this burden to my satisfaction.  I therefore find that the complainant has been discriminated against.  In evidence the respondent confirmed that the complainant received €2,483 for four weeks of employment.  This equates to €614 per week. In all of the circumstances I believe that compensation of €32,000 (approximately equal to one year’s salary) is appropriate.

The complainant has been discriminated against and I order the respondent to pay her the sum of €32,000 in compensation

Discrimination on the grounds of race.  Dismissal during probation