Complainant

Respondent

Parties

Rana Shaheer  Ebrahim

Board Of Governors And Guardians National Gallery Of Ireland National Gallery Of Ireland

Representatives

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-00066642-001

11/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00066642-002

11/10/2024

The Complainant alleges that he was discriminated against by the Respondent on both the Race and Religion grounds. The claims are contested by the Respondent.

The Complainant withdrew CA-00066642-002

CA – 00066642 -001

The Complainant took the affirmation and gave his evidence as follows:

The Complainant commenced employment on 8 March 2024 at the National Gallery of Ireland (NGI). He was instructed to report to Margaret’s office at 9:30 a.m. He arrived on time, but nobody was present until approximately 10:00 a.m., when Mr. Fergal Finnegan, Security Supervisor, arrived. Mr. Finnegan brought the Complainant to Mr. Sean Kerr’s office, where he waited an additional 20–30 minutes. When Mr. Kerr eventually arrived, he attempted to organise a uniform for the Complainant. No proper uniform was available, only a tie. The Complainant was then provided with a second-hand shirt and blazer. He was also issued an access card, which initially did not function, and time was spent resolving this issue. He was then assigned to Room 25 on the second floor. The Complainant finished his shift that day at 3:30 p.m., although he was rostered until 5:40 p.m. He stated that he was not aware of his official finishing time. He had received a contract by email, but the working hours were not specifically set out. The contract contained a generic clause stating “9:30 a.m. to 5:30 p.m.” During cross-examination, the Complainant admitted he had not read his contract in full but had merely glanced through it.

On 9 March, his access card again failed, but he was let in by another staff member. He collected a radio from the supervisor’s office around 9:00 a.m. and began his shift. A colleague had to show him his assigned room, as he was unable to access the roster. At the end of the day, he returned the radio and left. Before leaving, he was informed that his start time for Sunday 10th would be 10:50 a.m.

On 10 March, his access card again malfunctioned, preventing him from clocking in on time. The machine recorded his start at 11:04 a.m., although his official start was 10:50 a.m. He completed a lateness form, stating “card tap failure” as the reason. He also reported that he had not been given breaks. He submitted this form to his supervisor, Mr. Bernard Eldic. The Complainant stated that Mr. Eldic verbally confirmed that he had arrived on time, as she saw him.

On 11 March, he received another lateness form showing his arrival at 9:06 a.m., though his start time was 9:00 a.m. He reported repeated card issues and again raised the lack of breaks as an issue. He submitted this form to his supervisor, Mr. Paul Irwin. He completed his shift that day and left at 5:40 p.m.

On 4 April, he was issued another lateness form, though the arrival time was left blank. He linked this to an incident that occurred on 3 April in the staff locker room. According to the Complainant, a colleague shouted the racial slur “nigger” while he was present. As he was the only person of colour in the room, he felt the remark was directed at him. Later, when that colleague left, the Complainant discovered his locker had been tampered with. His bag inside the locker had a red stain on it, and pork rashers had been placed inside. As it was the last day of Ramadan, he considered this highly offensive. He threw away the bag on his way home and did not show it to anyone. He verbally reported the matter to Mr. Irwin and requested CCTV footage but was informed that there was none covering the locker room.

On 4 April, he completed the lateness form, again raising the locker incident. During his shift the same day, he briefly spoke with Ms. Margaret Devine about permanent positions at the Gallery. She advised him to email her, which he did on 5 April. He never received an acknowledgment.

On 25 April, he received two further lateness forms for the same day, both recording an arrival time of 9:25 a.m. He disputed this, maintaining he arrived on time, but his access card again failed. He set this out on the forms before submitting them.

On 22 April, a review meeting was held, chaired by Mr. Kerr, concerning lateness and smoking on duty. Mr. Kerr reminded the Complainant that smoking was only permitted in designated areas. The Complainant denied smoking while on duty, though CCTV evidence showed him rolling a cigarette. He admitted rolling but stated he did not smoke it. Mr. Kerr issued a warning regarding timekeeping and directed the Complainant to improve punctuality. The Complainant also raised the pork incident during this meeting. The meeting was brief.

From 22 April until the termination of his employment on 8 May, the Complainant was not late.

The Complainant alleges that he was treated less favourably by NGI than permanent employees. He was employed on a temporary contract. His rate of pay was stated as €629.90 gross per week for 35 hours, equating to €17.99 per hour. He claims he was paid less but produced no evidence of comparator rates.

During cross-examination, he was asked why he had claimed payment for days when he was neither rostered nor clocked in. This occurred on 8 April, and on seven other occasions. From 8 April onward, when he was rostered, his card worked correctly and his movements within the building were logged. The Complainant could not explain the earlier claims.

Pay Issue:

On 5 March 2024, he received an email from Ms. Grainne O’Donnell stating that his pay would be €17.00 per hour. He claims this was incorrect, as his contract stated €17.99 per hour. He commenced employment on 8 March. On 1 May, he emailed Mr. John Grogan of the Respondent’s staff, stating that his payslips did not reflect correct hours.

On 8–9 May, he was informed of his termination. No reasons were initially given, but when he enquired further, he was told it was due to lateness.

On 17 May, he emailed payroll stating that 7 hours were missing from his payslip. He received no response. He initially claimed €367.00 in unpaid wages. However, during cross-examination, he was shown a payslip for €366.61, paid on 26 July 2024, which he accepted settled the claim.

Eoin O’ Donnell took the affirmation and gave his evidence as follows:

The Complainant was hired on a four-month agency contract as an Attendant Grade Security Staff member, beginning on 8 March 2024 with an expected end date of 7 July 2024. His role included front-of-house security, monitoring and reporting incidents, assisting with investigations, following the Security and Safety Management Plan, providing visitor information, and complying with Gallery policies. His contract, however, was terminated early on 8 May 2024 due to persistent punctuality issues.

Between 8 March and 25 April 2024, he was rostered for 35 days and arrived late on 11 occasions, about a third of his scheduled shifts. These late arrivals ranged from a few minutes to more than half an hour past the official start time. The Gallery’s Standard Operating Procedures set strict expectations for punctuality, allowing only a short grace period of five minutes, and specify that repeated lateness must be addressed through formal processes.

In response to his repeated delays, management escalated interventions. He completed several lateness forms, although some contained discrepancies with the official time records. On 22 April 2024, he attended a lateness review meeting and signed an improvement plan, which required him to report to work on time and avoid smoking outside of designated breaks and areas. He did not mention any discriminatory behaviour at this meeting.  He was late again on his next two working days, 24 and 25 April. The forms submitted by the Complainant are not co- signed by the respondent. The originals are co-signed.

On 30 April, HR formally wrote to him, advising that his attendance record was a serious matter and warning that his employment could be in jeopardy. A further review meeting was held on 2 May with HR and the Operations Manager. At this meeting, the Complainant admitted his punctuality was a problem, acknowledged previous warnings, and gave reasons such as oversleeping, bus delays, lack of motivation. He confirmed he had signed the improvement plan and understood that failure to improve could result in dismissal.

Following this meeting, the Head of HR and Employee Relations met with the agency on 8 May 2024 and requested the Complainant’s engagement be terminated due to persistent lateness. The agency then informed him of the decision.

The Complainant later alleged that his dismissal was discriminatory under the Employment Equality Act, 1998. The Gallery rejected this claim, stating that he had never disclosed any issues requiring accommodation, nor had he raised concerns of discrimination during his employment. He received the Dignity at Work Policy and Employee Handbook, attended relevant training, and signed workplace pledges. He also continued to seek roles with the Gallery after his dismissal, even submitting a proposal for future collaboration, which the Gallery argued was inconsistent with his allegations of discriminatory treatment.

The Gallery maintains that the decision to terminate was based solely on persistent lateness. Across 35 to 41 days worked, the Complainant was late on 11 to 12 occasions, roughly 30% of his shifts. Despite repeated interventions and warnings, he failed to improve, and even admitted at the final meeting that a lack of motivation contributed to his poor attendance. While he cited Ramadan as a factor, this was not mentioned until after Ramadan had ended, and he never sought accommodations during that period. The Gallery therefore contends that the dismissal was justified on performance grounds and was not related to any form of discrimination. The first time the Respondent was put on notice of the issues complained of today was on the 30th October 2024.

Jane Brennan took the affirmation and gave her evidence as follows:

All the records have been checked to see if there were any reports of discriminatory behaviour recorded. Furthermore, checks were carried out in relation to the Complainant’s pay related issue and the Respondent is satisfied that the Complainant had bene paid up to date.

The forms that have been submitted by the Respondent are the original forms. They are countersigned. The forms that have been produced by the Applicant today have not been countersigned and contain different information that those on the Respondent’s records.

Margaret Davin took the affirmation and gave her evidence as follows:  

She has been working in the Gallery since January 2024. She works in the HR department. She met with the Complainant informally on three occasions. Two were on the floor of the gallery and one was in the admin building. He asked if there were any opportunities for temporary staff to be made permanent. He was informed that the Gallery was part of the public sector and there were strict rules in relation to new position and that if any position came up he would have to apply in the appropriate way. There was no FastTrack way. He did not mention any discriminatory issues, working excessive hours or salary related issues, lack of training or access issues because of his card malfunctioning. 

CA – 00066642 –002 was withdrawn.  

CA – 00066642 -001

The Complainant herein alleged that the dismissal from his employment was discriminatory on grounds of race and religion. The Complainant was placed at NGI by a recruitment company. The Complainant filed an additional claim of discrimination against them. He commenced his employment of the 8th March.  From the outset there were issues in relation to the Complainant’s punctuality. The Complainant was warned by the Respondent about the issue and was placed on an improvement plan. Despite that his punctuality did not improve. Prior to the expiry of his four months temporary contract, they instructed the recruitment company that had placed him that his contract was being terminated. The terms of the contract permitted the Respondent to do that. The Complainant produced documentation and evidence at the hearing today which suggested that he had raised the issue of the discrimination with the Respondent by way of the late forms. The forms submitted into evidence by the Complainant are not co-signed whereas the forms submitted by the Respondent are. On that basis I prefer the Respondent’s evidence. Excluding the forms submitted into evidence by the Complainant I can no evidence documentary or otherwise, that the Complainant informed anyone at the NGI of the discriminatory matters he complains of in his complaint form.

The law in relation to discriminatory dismissals in this jurisdiction is well established. In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...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. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from 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 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 provide that there was no infringement of the principle of equal treatment”.

I can find no facts that could lead me to conclude, on the balance of probabilities, that an unlawful discrimination occurred. I have serious concern about the authenticity of the forms submitted into evidence by the Complainant. On that basis, I am excluding them. Therefore, there is no evidence before me which demonstrates the type of behaviour the Complainant complains. Even in relation to the pay issue he accepted, when shown documentary proof of payment, that he had been paid. On that basis I find that the Complainant has failed to establish a prima facia case of discrimination on the grounds of race and/or religion. Therefore, the complaint fails.

CA – 00066642 -001 The Complaint fails.

CA- 00066642 -002 The complaint was withdrawn

Discrimination, Race, Religion, Pay.