Complainant

Respondent

Parties

Sylwia Szuba

Esker Property Holdings Limited t/a Hazel Hall Nursing Home

Representatives

N/A

Ms. Roberta Urbon and Mr. John Costello, Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063160-002

29/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063160-004

29/04/2024

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

CA-00063160-006

29/04/2024

The Complainant worked as an Activities Coordinator for the Respondent from 4 December 2023 until 11 April 2024. She worked approximately 28 hours per week, earning €14.50 gross per hour. The Complainant alleges that she was discriminated against, harassed and victimised on the ground of race, in breach of the Employment Equality Acts 1998-2015, as amended. The Respondent denies the allegations in full.

The Complainant provided detailed written and oral submissions.

The Complainant outlined that she was discriminated against, harassed and victimised on many occasions. The Complainant further submitted that she was treated badly by the Respondent. The Complainant submitted that she did a good job; that she organised a variety of activities for residents; and that she formed a bond with the residents.

Discrimination and / or Harassment Allegations:

The Complainant outlined numerous allegations and grievances, such as:

·            She was provided with a contract of employment containing “false information”;

·            She was not provided with a full list of her duties;

·            She was required to do tasks outside of her role, such as resident nail-cutting and feeding residents’ pets;

·            She was not informed of the Respondent’s procedures regarding safeguarding, “restrictive practices” and care planning;

·            She took issue with the Respondent’s evidence concerning her work and with the Respondent’s evidence concerning her work performance management;

·            She was asked to use her personal credit card to pay for a resident’s phone credit;

·            She received conflicting instructions regarding the use of a chair;

·            She worked unpaid overtime;

·            She was not provided with breaks;

·            She was required to attend mandatory training;

·            She did not receive correspondence regarding her dismissal and appeal;

·            There were inaccuracies in the Respondent’s meeting transcripts;

·            There was a delay in the return of her property;

·            A Christmas decoration which did not belong to her, was returned to her, after her employment ceased; and

·            She was discriminated against / harassed by her Manager during a workplace incident dated 5 March 2024, when her Manager made discriminatory comments regarding her nationality.

Complainant – Evidence:

The Complainant stated that in alleging that there was “false information” in her contract, she meant that: the first contract that she received, stated that she worked fulltime; whereas the second contract that she received that same day, stated that she worked parttime.

The Complainant stated that in December 2023, she had to print some pages concerning manual activities for the residents. She said that she had to work late to finish the task. She said that the activities were not subsequently shared with the residents and that she did not understand why.

The Complainant stated that in January 2024, she was asked to provide €15 credit for a resident’s phone, using her personal credit card, but she refused to do so. She said that her Manager was angry with her as a result. She also said that her Manager once “touched / brushed against” her shoulder while they were in the corridor.

The Complainant stated that she put up decorations in February 2024 for Valentine’s Day. She said that her Manager had told her to complete the task while standing on a chair, however, Ms. Boylan, the Operations Executive, had told her not to stand on a chair. She stated that she could not finish the task.

Work Performance:

The Complainant said that she completed her work properly and that she undertook a variety of physical and creative activities with the residents.

Break Allocations:

The Complainant stated that she did not have set breaks. She also stated that on one occasion, she was told that she could not take a break.

Incident dated 5 Mach 2024:

The Complainant outlined that she regularly attended to the residents on her own, as an Activities Coordinator and a Carer. She said that it was an “uncomfortable” experience as it was too much for her to tend to.

The Complainant outlined that on 5 March 2024, she was in the Day Room on her own with 17 residents, as their rooms were being cleaned. She said that could not manage the situation when one resident was falling from her chair. She said that she was subsequently called into the Boardroom by her Manager, the Floor Manager and Mr. Priyalal, the Director of Nursing. She explained to them that she needed help and that she could not see what all of the residents were doing, while focusing on one resident. She said that her Manager told her that if she did not like the job, she should go home.

She stated that on the same date, her Manager told her that she did not have a good attitude. Her Manager also said that maybe it was the Complainant’s nationality as she is Polish and that Polish people are “fighters”. The Complainant’s Manager also said that Irish people are “nicer and kinder”. The Complainant outlined that she was upset and began to cry. She said that she did not understand why she was being discriminated against. She said that a day or two later, she asked to speak with her Manager, who apologised for her comments. She said that she thanked her Manager.

The Complainant outlined that, on 6 March 2024, she reported the matter to Ms. Boylan, the Operations Executive. Ms. Boylan informed the Complainant that she could choose for the matter to be handled formally or informally. The Complainant stated that she decided to pursue the informal procedure. The Complainant stated that there were no consequences for her Manager’s behaviour.

Cross-Examination:

The Complainant confirmed that she never raised a grievance concerning the alleged lack of staff.

The Complainant denied that there were several staff members who could have helped her on 5 March 2024. She stated that she rang a bell for assistance, but the staff were on their breaks.

The Complainant did not accept that she did not want to discuss her attitude or that her tone was “sharp and aggressive”.

The Complainant did not accept that she did not like being told how to do her job.

The Complainant denied that she accepted her Manager’s apology “fully”. She said that she thanked her Manager for apologising to her, which was not the same as accepting the apology. She said that she was not satisfied with the outcome of her complaint and that she did not accept that the matter had been closed.

The Complainant denied that she was told to use the Respondent’s credit card in order to add credit to residents’ phones. The Complainant also denied that there was a miscommunication.

The Complainant confirmed that she had acknowledged receipt of her full Job Description and the Employee Handbook, which outlined the grievance procedure, on 4 December 2023. The Complainant also confirmed that she had signed the minutes of the meeting dated 8 March 2024, during which the grievance procedure was explained to her.

The Complainant confirmed that in her email dated 7 April 2024, she informed Ms. Boylan, the Operations Executive, that she had told her Manager “thank you very much for the apology”. She also stated: “According to our meetings that were linked to the case about my nationality and the disparaging comments made by [the Manager], this case is closed. However, I would still like to send an email regarding this matter.” She further stated “After the apology, my complaints would take an informal turn, which is how I reported it to you. You said that you had relayed my report to Peninsula and they asked what my decision is, is it an informal or formal complaint? As I said it is informal, and you said it (sic) she apologised, you said the case was closed and no mediation was required.My request is to see the report which was done about this [the incident of 5 March 2024], even if the case is closed”. The Complainant then stated that she did not understand why the case was closed. She stated again that she did not accept her Manager’s apology.

The Complainant accepted that she had the weekend to think about how she wanted to proceed with her complaint. She denied that she told Ms. Boylan that she had accepted the apology and that she wanted to move on.

The Complainant disputed the accuracy of the Appeal Meeting minutes dated 23 April 2024, which she sought to amend. However, she stated that the Respondent would not accept the amended minutes that she submitted.

The Complainant denied that she was given a list of her duties. She was referred to the five-page document entitled “Job Description” which was emailed to her on 4 December 2023. The Complainant then said that tasks such as resident nail-cutting and feeding residents’ pets were not included in this document. The Complainant accepted that she carried out manicures and grooming for residents but said that this did not include nail-cutting.

The Complainant stated that she was not aware that the Respondent had a credit card for resident purchases. She stated that she was told to use her own personal credit card, which she refused to do. She said that she made a verbal complaint about this to the Floor Manager, but that she did not put it in writing. She accepted that she did occasionally make lists of items that she required, for purchase.

The Complainant stated that she was required to stay longer at work to finish the Christmas activity kits. When asked if she raised a complaint about this, she stated that she said it to the Floor Manager.

The Complainant denied that she had any performance review. She denied that she had meetings regarding her performance and about how the Respondent could support her in her role.

The Complainant stated that on 6 March 2024, she asked for support with the residents and confirmed that she was given support. The Complainant stated that she only received support on that specific day.

The Complainant confirmed that a resident who she had previously alleged as being “locked in” was in fact confined to the high dependency unit. The Complainant said that she had read the resident’s care plan in January 2024. She denied that when this had been raised with her previously, she had said that she had not read the care plan.

The Complainant said that she raised concerns with Ms. Boylan about her Manager asking her to stand on a chair.

The Complainant stated that she did not read the Employee Handbook. She said that she sent emails to Ms. Boylan regarding the incident dated 5 March 2024.

The Complainant denied that she failed to plan the residents’ activities on multiple occasions. She also denied that she carried out only limited activities for certain residents. She stated that she updated the activity records, using the computer. She said that she kept records where she could, but that she was “very busy”. She also said that she read care plans where she could, but that she was “very busy”.

The Complainant stated that she did not have time to read all of the procedures regarding safeguarding, “restrictive practices” and care planning. She also said that, despite asking for them, no one gave her the procedures. She later accepted that she did receive training on these procedures.

The Complainant denied that she failed to follow instructions from the Management Team. She said that she only refused to use her personal credit card; cut resident’s nails; and stand on a chair.

The Complainant denied that she failed to follow the “Dignity at Work” policy. She denied that she raised her voice; used intimidating language; and entered senior management offices without knocking.

The Complainant said that she never received the letter dated 8 April 2024, inviting her to a probationary review meeting on 11 April 2024.

The Complainant stated that during her Appeal Meeting on 23 April 2024, she spoke about “everything”. However, she was dissatisfied that she had not received “answers” to her questions.

The Complainant denied that she received the letter dated 29 April 2024 which outlined the appeal decision. She later alleged that the letter dated 29 April 2024 that she received was different to that in evidence. She later withdrew this allegation.

The Complainant denied that her breaks were recorded on the Break Allocation Sheets.

The Respondent provided detailed written and oral submissions.

The Respondent denied the allegations in full. The Respondent took issue with the Complainant’s “several broad-brush allegations”. The Respondent submitted that there is no evidence that the Complainant was treated differently on the ground of race and that she was not singled out in any way. The Respondent denied that the Complainant’s Manager’s remark on 5 March 2024 amounted to discrimination. The Respondent further submitted that it promptly dealt with the incident dated 5 March 2024 and that it has robust procedures in place.

Ms. Henry – Evidence:

Ms. Henry outlined that she is a Director and the registered provider representative. She oversees all residents and ensures that the business is run in a lawful manner and that everyone is treated correctly. She outlined that the Respondent has approximately 46 residents.

Ms. Henry stated that the Complainant was the Activities Coordinator, with responsibility for residents’ activities. She referred to the Respondent’s Statement of Purpose and Function document, which states how the care facility is run and details residents’ activities and activity times. She said that this document must be followed carefully, as the Respondent may be subject to a HIQA inspection and the Respondent’s compliance with the document may be reviewed.

Ms. Henry stated that it became apparent that the Complainant was not following the activity schedules. She stated that on a number of occasions she personally witnessed the Complainant undertaking “colouring” with the residents and engaging with only four or five residents. She stated that residents who were bed-bound or room-bound were not being provided with any opportunity to engage. She further stated that “The Abbey” is a high dependency unit which requires a higher level of staffing due to residents’ needs. She stated that it was not being documented that these residents were engaging in activities and that this was “becoming a problem”. She said that all residents must be treated equally.

Ms. Henry stated that she sat in the Boardroom and “went through everything from start to finish”. She stated that the Complainant’s record-keeping of activities was poor and that despite the Complainant being spoken to and being given extra training, there was no improvement. She stated that as a result, the Complainant’s employment was terminated.

Ms. Henry stated that staff breaks are important for staff well-being. She referred to both the Employee Handbook and the Complainant’s contract of employment which refer to breaks. She said that all new employees have two full days of training, which also addresses their break entitlements, that can be taken in the Break Room. Ms. Henry referred to the Break Allocation Sheets and in particular, to three Break Allocation Sheets referring to the Complainant. One of those, dated 16 March 2024, showed that the Complainant had entered her own name. Ms. Henry stated that it undermined the Complainant’s allegation that she was not aware of break times or break allocations. Ms. Henry said that sometimes staff are interrupted on their breaks and that if this occurs, they are paid. She said that the Complainant did not raise an issue with her regarding her breaks.

Ms. Henry stated that the Respondent has a credit card which is used for everything from shopping orders to topping up residents’ phones. She also explained the Respondent’s Order Form procedure, used by employees to order and purchase any items required. She said that she has been with the Respondent for 27 years and that “there is no such thing as a staff member being asked to use their own card”. She believed that the Complainant had misunderstood what was asked of her and that this was addressed with her at the time. She said that the Complainant had not lodged a grievance concerning the incident. Ms. Henry stated that the Complainant had used the Respondent’s credit card. Ms. Henry further stated that she had sat down with the Complainant to compile a list of items which she wanted purchased. Ms. Henry referred to an Order Form dated 14 February 2024, completed by the Complainant. Ms. Henry noted that this Order Form was dated approximately three weeks prior to the Complainant’s allegation that she was told to use her personal credit card. Ms. Henry outlined that this undermined the Complainant’s allegation that she was not aware of methods available to order and purchase items.

Ms. Henry outlined that staff work on a shift basis and that it is rare for staff to stay back late. She said that it only happens if there is an emergency. She said that if the Complainant had stayed late at work, it had been her own decision to do so and that she had not been asked to do so. Ms. Henry further outlined that all overtime is paid and that the Complainant never submitted any application for paid overtime.

Ms. Henry stated that all employees are required to know what a resident’s care plan entails as each resident has different needs. The care plans also outline residents’ medical difficulties etc..

Ms. Henry stated that on occasion, for residents’ safety, it is necessary for the Respondent to engage in “restrictive practices” which are used in the safest way possible and for the shortest time possible. She stated that “restricted practices” are never used as a punishment. She referred to Regulation 7 of the Health Act 2007 (Care and Support of Residents in Designated Centres for Persons with Disabilities) Regulations 2013. She said that one such practice may be restricting a resident to their room or to “The Abbey”, which is the high dependency unit. She said that the decision to implement any “restrictive practices” is taken by a multi-disciplinary team. She said that one resident who had mental health issues was restricted for a period to their room. She said that the Complainant subsequently made false allegations against the Respondent that it had breached residents’ human rights. Ms. Henry stated that she, the Complainant’s Manager and another manager all explained the use of “restrictive practices” to the Complainant. She said that the Complainant’s actions were unfair, given that she had failed to even read the resident’s care plan. She also said that the Complainant had failed to consider other residents’ safety.

Ms. Henry stated that the Complainant had been spoken to about the care plans and that she had been retrained on the use of “Care Monitor”. However, it remained the case that the records / documentation were not being updated. Ms. Henry outlined that on 28 February 2024, the Complainant completed records for only six of the 46 residents; on 4 March 2024, the Complainant completed records for only 14 residents; on 19 March 2024, the Complainant completed records for only seven residents; and from 20 March to 8 April 2024, the Complainant completed no records at all. Ms. Henry stated that a record necessitated only one line and took approximately 10 seconds.

Ms. Henry outlined that around the time of raising the issue of record-keeping with the Complainant, she had not been in “good form”. Ms. Henry stated that she had received reports from the Complainant’s Manager and from others that the Complainant was “snapping and arguing” with other employees, in front of residents. She also received a report from a manager that the Complainant “barged” into his office. She said that there were “constant arguments” with the Complainant, resulting in a poor atmosphere.

Ms. Henry outlined that she received an email from Ms. Boylan, the Operations Executive on 6 March 2024. That same email outlined that the Complainant had approached Ms. Boylan to raise a number of complaints, including a complaint concerning an incident dated 5 March 2024, when the Complainant’s Manager told the Complainant that she had an attitude and that “maybe it was just her nationality, because Polish are ‘fighters’ and that Irish people are nicer and kinder.” Ms. Henry stated that she told Ms. Boylan to seek advice from Peninsula. She said that Ms. Boylan did so. She said that Ms. Boylan discussed the formal and informal options with the Complainant and that on 26 March 2024, Ms. Boylan told her that the matter was closed. Ms. Henry said that she had also been informed by the Complainant’s Manager about the incident by way of an Incident Report dated 15 March 2024. That same Incident Report noted: “On the 5/3/2024 at the end of the meeting with the activities Co Ordinator I made an inappropriate comment re her nationality. It was not meant in the way it came across. No malicious intent was meant. But I know on reflection, it must have hurt her. I do take full responsibility for this.” The Incident Report further outlined that the Complainant’s Manager had apologised; and that the Complainant had accepted her apology. Ms. Henry outlined that, as a result of the incident, “Dignity At Work” training was arranged for all staff on 23 April 2024. She stated that the Respondent also wrote to the Complainant’s Manager on 17 May 2024, stating that this incident could not happen again.

Ms. Henry outlined that the Complainant was not singled out for training on 10 April 2024. She said that 14 employees attended training that day. She said that the Respondent operates in a heavily-regulated industry which necessitates staff training. She said that if staff have to attend training on their day(s) off, they are remunerated accordingly.

Finally, Ms. Henry outlined that the Complainant received “plenty of feedback”. She said that they had “high hopes and expectations” for the Complainant, however she failed to pass her probation. She said that they exhausted every avenue and tried to make it work, however, the Complainant did not meet the standards required.

Cross-Examination:

Ms. Henry confirmed that she had Break Allocation Sheets for every day, for years and that she could provide more regarding the Complainant, if required to do so.

Ms. Henry stated that she was not the person who decided that the Complainant had failed her probation period on 11 April 2024.

Ms. Alisha Boylan – Evidence:

Ms. Boylan outlined that she is the Respondent’s former Operations Executive and that she worked for the Respondent for over five years from May 2019 until December 2024.

Ms. Boylan outlined that her role came with a wide remit, in that she: assisted Ms. Henry in the day-to-day running of the nursing home; oversaw training; dealt with policies; conducted interviews; ensured that documentation for new staff was up-to-date; and assisted in administrative duties regarding HR, inspections and HIQA. Finally, she outlined that she was the Respondent’s Health and Safety representative.

Ms. Boylan outlined that the Respondent has a Dignity and Respect at Work Policy which is outlined in its Employee Handbook. She said that when employees are first inducted, they are given a copy of the same and she said that it is also emailed to employees. She said that the Complainant signed for her copy of the Employee Handbook and that it was emailed to her on 4 December 2023. She also said that a copy is kept in the Lobby, the Boardroom and the Dining Room, so that all staff members can access it when they wish.

Ms. Boylan outlined that the Complainant was not documenting her activities with residents. She said that she was approached in January 2024 by the Complainant’s Manager and a second manager about how to address the fact that the Complainant was not documenting activities. Ms. Boylan told them to set out an improvement plan for the Complainant, which the Complainant’s Manager did. She said that the managers came to her again in February 2024 and stated that the Complainant had failed to improve, for example: she attended to residents in the Day Room but not in their own rooms; and she failed to complete documentation regarding all residents. Ms. Boylan said that she told the managers to approach the Complainant and retrain her, which the Complainant’s Manager did.

Ms. Boylan outlined that everyone is paid for their breaks in case they are required to assist with something during a breaktime. Ms. Boylan stated that there is a Break Allocation Sheet for staff which records and tracks breaks.

Ms. Boylan outlined that the Complainant came to her office and informed her that her Manager had asked her to use her personal credit card. Ms. Boylan told the Complainant that she was not do this. Ms. Boylan stated that there is a company credit card for staff use and that staff can also submit a list of items for purchase.

Ms. Boylan outlined that the Complainant was required to review the residents’ care plans, so that all residents received “appropriate care”. Ms. Boylan outlined that she had a meeting with the Complainant and a manager in early April 2024 when they discussed a resident who was under assessment regarding their mental health. She said that the Complainant confirmed at the meeting that she had not reviewed the resident’s care plan as required.

Ms Boylan outlined that on 5 March 2024, the Complainant’s Manager emailed her to outline that the Complainant was not behaving properly in the workplace. On 6 March 2024, the Complainant reported that her Manager had told her that “Polish people are fighters” and that “Irish people are nicer”. Ms. Boylan outlined that she sought Peninsula’s advice on how to proceed. She then held a meeting with the Complainant on 8 March 2024 and asked her if she wanted to invoke the formal or informal grievance procedure. She stated that the Complainant said that she did not know. Ms. Boylan provided her with a hard copy of the relevant procedures from the Employee Handbook and told her that the matter had been escalated. She asked the Complainant to let her know which procedure she wanted to invoke. Ms. Boylan outlined that she proceeded to enquire with the Complainant every day or two as to what her decision was. She said that the Complainant indicated that she had not decided. On 22 March 2024, the Complainant confirmed that she wished to invoke the informal procedure. Ms. Boylan said that by this stage, the Complainant’s Manager had apologised to the Complainant. Finally, she said that on 26 March 2024, the Complainant confirmed that she was satisfied with this outcome. Ms. Boylan then emailed Peninsula to inform them. She said that the Complainant was sitting beside her when she sent this email. Ms. Boylan outlined that the matter was then closed.

Ms. Boylan outlined that the Respondent noted a number of performance issues with the Complainant in its letter dated 8 April 2024, which was sent to her by registered post. These issues included, inter alia, a failure to document activities for all residents; a failure to carry out reasonable instructions; a failure to carry out activities with all residents; and a failure to review residents’ care plans.

Ms. Boylan outlined that on 11 April 2024, the Complainant had a probation review meeting with the Floor Manager. Ms. Boylan stated that the Floor Manager decided to terminate the Complainant’s employment and that this was within the Floor Manager’s authority. She said that an employment termination letter was handed to the Complainant by the Floor Manager, after the meeting that same day. The Complainant appealed the decision and the appeal was heard on 16 April 2024 by Ms. Samantha Henry, the Director and Mr. Priyalal, the Director of Nursing. Ms. Boylan outlined that the decision to terminate the Complainant’s employment was upheld.

Ms. Boylan outlined that she had been advised to send letters to the Complainant by way of registered post or email. She said that she contacted “An Post” on three occasions to obtain records. She said that she had retrieved records regarding the postage of all registered letters except for the letter dated 8 April 2024.

Ms. Boylan outlined that the Respondent hired “Graphite” to attend the workplace and provide “Dignity at Work” training to all staff on 23 April 2024. Ms. Boylan confirmed that there had been no “Dignity at Work” training for staff prior to that date as there had been no discrimination complaints previously.

Ms. Boylan stated that on 17 May 2024, the Complainant’s Manager was also issued with a “Letter of Concern” regarding her comments. Ms Boylan outlined that this was the step which the Respondent took before issuing a warning to an employee.

Cross-Examination:

Ms. Boylan confirmed that the Complainant attended a Residents’ Committee Meeting on four or five occasions. Ms. Boylan stated that she had nothing to do with the residents’ opinions which were documented and sent to management.

Ms. Boylan stated that she remembered the “Fit February” programme, however she did not remember the physical activities that the Complainant organised. She said that she had nothing to do with them. She stated that she worked in the office and that she was not in the Day Room.

Ms. Boylan stated that she remembered the Complainant hanging Christmas decorations.

Ms. Boylan stated that she did not remember many of the Complainant’s activities with the residents and that it was for the Complainant to document her own activities.

Ms. Boylan stated that the Complainant was required to attend training on 10 April 2024. She stated that the decision to terminate the Complainant’s employment was not taken until 11 April 2024.

Ms. Boylan stated that the Complainant’s Manager and another manager raised performance issues with the Complainant such as failing to document activities. Ms. Boylan said that extra training was provided to the Complainant regarding “Care Monitor” in February 2024. Ms. Boylan stated that the Respondent was concerned that the Complainant was not recording activities for every resident and that this would result in giving HIQA the incorrect impression that not all residents were engaging in activities.

Ms. Boylan stated that the Respondent asked to record the meeting with the Complainant on 8 March 2024 so that it could be shared with Peninsula, the Respondent’s HR advisers. She said that as the Complainant refused, minutes were taken. Ms. Boylan stated that this was the usual procedure.

Ms. Boylan stated that she recalled that the Complainant had reported that her Manager had asked her to use her personal credit card to top up a resident’s phone. Ms. Boylan said that this is not the correct procedure. Further, Ms. Boylan stated that the Complainant knew the procedure as she had previously submitted lists of items to purchase to Ms. Henry.

Mr. Sandeeplal Priyalal – Evidence:

Mr. Priyalal outlined that he is the Respondent’s Director of Nursing. He has been employed by the Respondent since September 2017. He outlined that he manages approximately 23 employees, including health care assistants, nurses, a clinical nurse manager, a physiotherapist, housekeeping staff, laundry staff, kitchen staff and administration staff.

Mr. Priyalal outlined that the Respondent must comply with HIQA requirements and that all staff must attend mandatory training concerning, for example, challenging behaviour and dementia. He stated that all staff are asked to attend and there is no discrimination. He stated that training course attendance is valid for a period of time and so staff may have to retrain in order to continue to work.

Mr. Priyalal outlined that during the Complainant’s employment, he managed the roster. He stated that he oversaw the allocation of breaks. He said that breaks were allocated at least one day in advance, for the next shift. Mr. Priyalal outlined that he worked closely with the Complainant, who took her breaks. He said that the Complainant never raised any issue regarding her breaks, nor did she state that she was unaware of her breaks. He stated that all staff check their break allocation in the morning, at the Nurses Station.

Mr. Priyalal stated that if any employee came to him with an issue, it would be recorded.

Mr. Priyalal outlined that the Respondent’s employees come from many countries, including India, Zimbabwe, Kenya and Nigeria. He said that he was not aware of any discrimination complaints.

Cross–Examination:

Mr. Priyalal stated that the Complainant never came to him concerning her breaks.

Mr. Priyalal stated that he allocates a 15-minute break in the morning and a 30-minute break for lunch.

Mr. Priyalal stated that break allocations are allocated in advance and in accordance with the roster. He stated that was why the Complainant was allocated breaks on 11 April 2024.

Mr. Priyalal stated that some staff members attend training on their days off and are notified in advance.

The Law:

Legislation: Employment Equality Act 1998-2015, as amended (the “EEA”):

Discrimination:

Sections 6 and 8 prohibit employers from discriminating against employees on the ground of race:

“6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

[…]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

[…]

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

[…]

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee […].”

Harassment:

Harassment is defined under Section 14A(7) of the EEA as:

“(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The test is a subjective one and the intention of the perpetrator of the harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. Therefore, the conduct should be viewed from the perspective of the victim. Moreover, these provisions must also be read in conjunction with section 15 of the EEA which fixes an employer with vicarious liability under the EEA for the wrongful acts of an employee committed in the course of that employee’s employment.

Vicarious Liability:

“15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.”

Victimisation:

Victimisation is defined in section 74(2) of the EEA as:

“dismissal or other adverse treatment of an employee by his or her employer” because the employee, inter alia, made a complaint to their employer about possible discrimination; or took proceedings under the EEA; or opposed by lawful means an act which is unlawful under the EEA.

Burden of Proof:

Section 85A of the EEA provides for the allocation of the probative burden between a complainant and a respondent as follows:

“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.”

In Southern Health Board v. Mitchell [2001] ELR 201 (the “Mitchell Case”), the Labour Court held:

“The first requirement […] is that the claimant 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 claimant must prove, on the balance of probabilities, the primary facts on 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 prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Limited v. Valpeters [2010] 21 ELR 64 (the “Melbury Developments Case”), the Labour Court found that:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

What constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of the Respondent, then the inference or presumption is quickly raised and it falls on the Respondent to show that there was no breach of the principle of equal treatment.

Award:

Section 82(1) of the EEA provides for the types of redress which can be ordered, including inter alia, compensation up to a maximum of 104 weeks’ remuneration (where applicable); and a course of action.

In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

Findings and Conclusions:

The Complainant alleges that she was discriminated against, harassed and victimised on the ground of race, in breach of the Employment Equality Acts, 1998 – 2015, as amended. The complaint pertains to the employment period from 4 December 2023 until 11 April 2024.

Discrimination and / or Harassment Allegations:

The Complainant outlined numerous allegations and grievances, such as:

·            She was provided with a contract of employment containing “false information”;

·            She was not provided with a full list of her duties;

·            She was required to do tasks outside of her role, such as resident nail-cutting and feeding residents’ pets;

·            She was not informed of the Respondent’s procedures regarding safeguarding, “restrictive practices” and care planning, despite asking for them;

·            She took issue with the Respondent’s evidence concerning her work and with the Respondent’s evidence concerning her work performance management;

·            She was asked to use her personal credit card to pay for a resident’s phone credit;

·            She received conflicting instructions regarding the use of a chair;

·            She worked unpaid overtime;

·            She was not provided with breaks;

·            She was required to attend mandatory training;

·            She did not receive correspondence regarding her dismissal and appeal;

·            There were inaccuracies in the Respondent’s meeting transcripts;

·            There was a delay in the return of her property; and

·            A Christmas decoration which did not belong to her, was returned to her, after her employment ceased.

The Respondent denied the allegations in full. The Respondent provided detailed oral evidence corroborated by documentary evidence which appeared to rebut many of the Complainant’s allegations and grievances detailed above, such as:

·            On 4 December 2023, the Complainant was erroneously sent a full-time contract, however, this error was rectified that same day when she was sent a parttime contract.

·            During the Hearing, the Complainant’s contract of employment, the Employee Handbook and a five-page document entitled “Job Description” provided to the Complainant on 4 December 2023 were addressed in detail. The Complainant conceded during the Hearing that she had received the email dated 4 December 2023, attaching those documents.

·            Under cross-examination, the Complainant confirmed that she received training regarding safeguarding, “restrictive practices” and care planning.

·            Ms. Boylan gave detailed evidence concerning the Complainant’s work and her work performance management. She outlined that the Complainant was not documenting her activities. She said that she was approached in January 2024 by the Complainant’s Manager and a second manager about how to address this issue with the Complainant. Ms. Boylan told the same two managers to set out an improvement plan for the Complainant, which the Complainant’s Manager did. She said that the managers came to her again in February 2024 and stated that the Complainant had failed to improve. Ms. Boylan told the managers to approach the Complainant and retrain her regarding the “Care Monitor”, which the Complainant’s Manager did. Ms. Henry also gave detailed evidence concerning the Complainant’s performance. She outlined that on 28 February 2024, the Complainant completed records for only six of the 46 residents; on 4 March 2024, the Complainant completed records for only 14 residents; on 19 March 2024, the Complainant completed records for only seven residents; and from 20 March to 8 April 2024, the Complainant completed no records at all. The Complainant, in her own evidence, stated that she was “too busy” to complete all requisite activity records and / or read all resident care plans. Ms. Henry gave evidence concerning complaints from other staff regarding the Complainant’s conduct such as arguing in front of residents, resulting in a poor atmosphere. Ms. Henry outlined that the Complainant’s employment was terminated by the Floor Manager, for performance reasons, as outlined in the letter dated 11 April 2024.

·            Ms. Henry gave detailed evidence concerning the Respondent’s credit card which is used for, inter alia, residents’ purchases. She also gave evidence concerning the Respondent’s Order Form procedure for purchases. It was noted that the Complainant submitted one such Order Form on 14 February 2024, approximately three weeks prior to her grievance that she was told to use her personal credit card.

·            Ms. Henry outlined that staff can claim for overtime where applicable. There was no evidence that the Complainant sought payment for any overtime.

·            Ms. Henry and Mr. Priyalal gave evidence concerning break allocations and the relevant Break Allocation Sheets. The Complainant is referred to in some of those sheets and notably, she entered her own name on the Break Allocation Sheet dated 16 March 2024.

·            Mr. Priyalal gave detailed evidence concerning the fact that the Respondent must comply with HIQA requirements and that all staff must attend mandatory training concerning, for example, challenging behaviour and dementia. He stated that all staff are asked to attend. Ms Henry gave evidence that 14 employees, including the Complainant, were required to attend mandatory training on 10 April 2024.

·            Ms. Boylan provided copies of the “An Post” records concerning the letters that were sent to the Complainant, save for the letter dated 8 April 2024. Ms. Boylan gave credible evidence that she posted that letter herself. The Complainant later conceded that she received the letter dated 29 April 2024, however, she then suggested that the did not receive the same letter as that submitted by way of evidence. She later withdrew this allegation.

Notwithstanding the fact that it appears that the Respondent has rebutted many of the Complainant’s allegations and grievances detailed above, it remains that the complaint before the WRC concerns discrimination, harassment and victimisation on the ground of race. The Complainant was reminded of this, throughout the Hearing.  

I have considered all of the evidence. In applying the test outlined in the Mitchell Case and the Melbury Developments Case, I am satisfied that, even when taking the Complainant’s evidence at its highest, she has made only mere speculation or assertions unsupported by evidence in alleging that the Respondent discriminated against her and / or harassed her on the ground of race, in relation to the above allegations and grievances. It follows that the Complainant has not established a prima facie case of discrimination and / or harassment on the ground of race in relation to these elements of her complaint. Therefore, I find that the Complainant was not discriminated against and / or harassed on the ground of race regarding the above elements of her complaint.

Discrimination / Harassment Allegation - Incident dated 5 March 2024:

It was common case that the Complainant had an interaction with her Manager on 5 March 2024, who told her that she had an attitude and that maybe it was her nationality, as Polish people are “fighters”. The Complainant’s Manager also said that Irish people are “nicer and kinder”. The Complainant was upset as a result. It was common case that the Complainant’s Manager apologised two days later and that the Complainant thanked her for the apology. However, the Complainant disputes that she “accepted” the apology.

There was extensive evidence as regards the Complainant being provided with the Respondent’s Employee Handbook by email at the commencement of her employment on 4 December 2023. The Employee Handbook outlined the Respondent’s policy or “charter” under the heading, “Dignity at Work Charter / Bullying”. It was common case that on 6 March 2024, the Complainant raised a complaint regarding the incident dated 5 March 2024 with Ms. Boylan, the Respondent’s Operations Executive. In response, Ms. Boylan explained the grievance procedures available to the Complainant and also provided her with a hard copy of relevant procedures from the Employee Handbook. It was common case that the Complainant was given some time to consider whether she wished to pursue the formal or informal grievance procedure. On 22 March 2024, the Complainant confirmed that she had chosen the informal procedure. As the Complainant’s Manager had apologised, the grievance procedure concerning this complaint was effectively closed.

On 23 April 2024, all staff were provided with “Dignity At Work” training. On 29 April 2024, the Complainant filed her WRC Complaint Form. On 17 May 2024, the Respondent sent a “Letter of Concern” regarding the incident dated 5 March 2024, to the Complainant’s Manager.

As per section 15 of the EEA, employers are vicariously liable for actions undertaken during the course of a person’s employment, whether or not it was done with the employer’s knowledge or approval. I note that the Respondent has a “Dignity at Work Charter” in its Employee Handbook, which is emailed to all staff, while a copy is also kept in the Lobby, the Boardroom and the Dining Room, for staff reference. I note that the Respondent organised “Dignity At Work” training for all employees on 23 April 2024. However, against this, I also note that such training had not been provided to staff prior to 23 April 2024, as there had been no discrimination complaints previously.

Having considered all of the evidence, I am satisfied that the incident dated 5 March 2024 amounted to discrimination / harassment on the ground of race and that the Respondent is vicariously liable for the Complainant’s Manager’s actions. I therefore find that only this element of the complaint is well founded. In the circumstances, I order the Respondent to:

·            Pay compensation in the amount of €1,800 to the Complainant, which is approximately one month’s pay. This award is just and equitable having regard to all the circumstances; and

·            Review the effectiveness of the arrangements in place to communicate the “Dignity At Work / Bullying” policy to all employees, within six months of the date of this decision.

Victimisation:

Finally, in her WRC Complaint Form, the Complainant indicated that the Respondent discriminated against her in victimising her. I have considered the evidence in full. It is clear from the evidence that performance issues were raised with the Complainant weeks before the incident dated 5 March 2024; and that the same performance issues continued to be raised with the Complainant after that incident dated 5 March 2024. The Complainant provided no evidence of adverse treatment as a reaction to her, inter alia, making a discrimination complaint. Therefore, the Complainant has not established facts from which it may be presumed that there has been victimisation in relation to her, pursuant to section 85A of the EEA.

CA-00063160-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994:

As outlined above, this complaint was withdrawn.

CA-00063160-004 – Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973:

As outlined above, this complaint was withdrawn.

CA-00063160-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998:

For the reasons set out above, I find that only the discrimination / harassment allegation concerning the incident dated 5 March 2024 is well founded. In the circumstances, I order the Respondent to:

·            Pay compensation in the amount of €1,800 to the Complainant; and

·            Review the effectiveness of the arrangements in place to communicate the “Dignity At Work / Bullying” policy to all employees, within six months of the date of this decision.

For the reasons outlined above, I find that the Complainant has not established a prima facie case of discrimination and / or harassment on the ground of race in relation to all other elements of her complaint.

Finally, for the reasons outlined above, I find that the Complainant has not established a prima facie case of victimisation on the ground of race.

Employment Equality Acts 1998 – 2015; Discrimination; Harassment; Victimisation; Race.