Complainant

Respondent

Parties

Rana Shaheer  Ebrahim

Osborne Hq

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Ruairi De Burca De Burca Greene Solicitors LLP

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-00066641-001

11/10/2024

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

CA-00066641-002

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-00066641-002

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.

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, Ms. Bernard Eldic. The Complainant stated that Ms. 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.

Marsha O’ Sullivan took the affirmation and gave her evidence as follows:

The Complainant began a temporary assignment with the National Gallery of Ireland (NGI) on 8 March 2024, arranged through the Respondent under a “Contract of Services for Temporary Workers.” Although the contract referred to a potential four-month assignment, the Respondent made it clear from the outset that the role could end earlier. The contract obliged the Complainant to follow NGI’s rules, regulations, and working hours, and it explicitly allowed for termination of the assignment at any time without prior notice.

During the course of his employment, NGI reported several instances of lateness on the part of the Complainant, including repeated occasions in March, April, and May 2024. Meetings were held with NGI managers regarding this issue, and eventually NGI informed the Respondent of its decision to terminate his assignment. On 8 May 2024, David McCoy, a Senior Recruiter for the Respondent, telephoned the Complainant to inform him of this decision. The Complainant requested written confirmation, and at 12:20 p.m. that day Mr. McCoy sent an email stating that NGI had ended the temporary assignment with immediate effect, and requesting the return of the Complainant’s uniform and ID badge, while offering to discuss possible future opportunities with him.

Just nine minutes later, at 12:29 p.m., the Complainant responded by email. He disputed the termination as premature and unlawful, claiming that the contract guaranteed four months of employment starting 8 March 2024. He argued that contracts are binding agreements and cannot be ended prematurely without just cause unless expressly permitted, which he asserted was not the case here. He described the decision as both a breach of contract and a potential legal violation, and requested a prompt response clarifying the circumstances of the termination and possible resolutions. Notably, at this stage, he raised no allegation of discrimination.

Later the same day, after another phone call, Grainne O’Donnell of the Respondent wrote to the Complainant at 1:14 p.m., reiterating that the contract had ended that day due to repeated lateness. She stressed that, as he was hired in a temporary role, the assignment could be terminated at any time under section 9 of the contract, which she attached for reference. She requested the return of the Gallery badge and uniform, and explained that while the assignment at NGI had ended, Osborne could support him in pursuing other temporary or permanent opportunities. She also offered a letter confirming his employment dates to assist with social welfare payments.

At 1:52 p.m., the Complainant replied, again not raising any allegation of discrimination. Instead, he argued that lateness did not give NGI “unilateral authority” to terminate his employment without just cause. Ms. O’Donnell replied once more at 4:19 p.m., repeating that section 9.1 of his contract allowed termination without notice, confirming that Osborne’s contracts complied with statutory employment laws, and restating their willingness to assist him with future assignments and to provide a letter for social welfare purposes.

The Complainant sent another email at 4:36 p.m., again acknowledging the contractual provision but disputing the fairness of its use. He argued that while the clause allowed termination without notice, it still had to be exercised fairly, and that dismissing him solely for lateness without warnings or due process was arbitrary and contrary to principles of natural justice. He asked for reconsideration of the decision and stressed his openness to further assignments, while noting that the termination had implications for his employment rights and social welfare access.

On 9 May 2024 at 12:00 p.m., the Complainant sent a further comprehensive email in which he repeated his arguments that the termination breached fundamental principles of employment law, particularly due process and fair treatment. He still did not refer to any alleged discrimination. Later that afternoon, at 4:38 p.m., Marsha O’Sullivan of the Respondent replied, making clear that Osborne could not mediate the decision as it had been taken by NGI and would not be reversed. She nevertheless offered to discuss other potential opportunities with him in the future.

There was then a gap of over two months. On 26 July 2024 at 3:28 p.m., the Complainant wrote again, stating that he had been unwell as a result of the termination and seeking clarification on the dismissal terms, support with a claim, and any resources available to him. Once again, he made no mention of discrimination. Ms. O’Sullivan replied on 29 July at 5:23 p.m., expressing sympathy for his ill-health, but explaining that she could not provide further reasoning for NGI’s decision. She advised him to contact a solicitor regarding any potential unfair dismissal claim, noting that a minimum of 12 months’ continuous service is generally required, and recommended that he also consult his GP regarding stress or trauma. She encouraged him to apply for other jobs through the agency.

It was only later that evening, at 6:33 p.m. on 29 July 2024, that the Complainant for the first time referred to Ramadan in his correspondence. In that email, he appeared to shift his complaint toward issues of protected disclosure or claims under the Industrial Relations Act 1969. Prior to this point, in all his extensive correspondence, he had focused solely on contractual and procedural arguments about fairness and legality, and had never suggested any discriminatory motive.

The Respondent therefore concludes that it was never made aware during the Complainant’s assignment, or in the immediate aftermath of his dismissal, of any allegation of discrimination. They maintain that the dismissal arose solely due to repeated lateness, which had been raised with the Complainant directly by NGI, and argue that his failure to mention discrimination in any of his earlier communications undermines the credibility of his later claim.

There has been no written evidence that any of the incidents outlined today by the Complainant every happened.

There was an issue in relation to pay. NGI had adopted a new pay scale which was not immediately acted on by the Respondent. Once NGI informed the Respondent on the October 29th of the new pay scale they immediately rectified the matter, retrospectively applied the correct amount and paid the Complainant what he was owed. That was accepted by the Complainant.

The Complainant herein alleged he the dismissal from his employment was discriminatory on grounds of race and religion. The Respondent, who are the recruitment company, placed the Complainant with the NGI on  a four month temporary contract and  state that it was the NGI who terminated his employment due an issue of ongoing lateness.

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”.

The Complainant outlined several acts that he argued amounted to discrimination on grounds of his race and his religion. He stated that he reported those incidents to the NGI at the material time. He did not report the mattes to the within Respondent. All of the correspondence between the parties was opened during the hearing. Other than the reference to Ramadan in his last email, which was post dismissal, they are silent on the issue of discrimination or discriminatory conduct. The Respondent in this case is a stranger to those alleged events. It would seem that neither the Complainant nor the NGI ever reported the events to the Respondent. In any event, the decision to terminate his contract was made by the NGI and not the Respondent. Any of the alleged utterance complained of by the Complainant, if they were made, were made by employees of NGI and not this Respondent. This Respondent did make attempts to secure new employment for the Complainant following his termination with NGI.

I can find no facts that could lead me to conclude,  on the balance of probabilities, that an unlawful discrimination occurred. 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-00066641-001 The Complaint fails

Discrimination. Race. Religion. Prima Facia case. Balance of Probabilities.