Case Number: DEC-E2016-027. Workplace Relations Commission

• Judgment Date: 01 February 2016
• Year: 2016
• Docket Number: DEC-E2016-027
• Court: Workplace Relations Commission
• Parties: Robert Kandharsingh -v- HSE South

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-027 Robert Kandharsingh (Represented by Deirdre Cummins BL, instructed by Murphy Solicitors) v HSE South (Represented by Comyn, Kellegher & Tobin Solicitors) Date of Issue: 9 February 2016 File No. EE/2010/907

Keywords

Employment Equality Acts - discriminatory treatment - race - promotion - prima facie case

1. Dispute and delegation

1.1 This dispute concerns a claim by Mr. Robert Kandharsingh (hereafter "the complainant") that he was subjected to discriminatory treatment in his working conditions contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2011, in relation to access to promotion to the position of Acting Clinical Nurse Manager 2 (A/CNM2) on grounds of race during the course of his employment with HSE South (hereafter "the respondent").

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 16 December 2010 under the Employment Equality Acts. On 21 May 2014, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 31 October 2014. Final documentation was received on 3 November 2015.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Summary of Complainant’s case

2.1 The complainant is a psychiatric nurse by profession and is employed as a mental health staff nurse. He commenced full time permanent employment with the HSE in August 2002 where he worked at Location A. He was subsequently transferred to Location B in October 2006. He commenced work in Psychiatric Unit C (Ground Floor) in February 2007. The complainant worked on a rota whereby every six months staff would rotate from one rota to another, i.e. from January to June staff would work Monday, Tuesday, Wednesday and alternate Sundays and then from July to December staff would work Thursday, Friday, Saturday and alternate Sundays. Prior to 4 July 2010, the complainant was on compassionate leave for a week and on his return, he checked the rota in accordance with his usual practice and noted that his name was listed as working on the First Floor of Psychiatric Unit C which provides long-term psychiatric care. The complainant asserts that transfers between different floors in a Psychiatric Unit do not happen regularly and in the event that there is a shortage of staff on one floor, staff on another floor would cover. The complainant contends that it was highly unusual for him to be named on the rota as being moved to the First Floor of Psychiatric Unit C.

2.2 The complainant states that he was changing rota (described as changing “pass”) on 8 July 2010 at which point he would be transferring to a rota whereby he would work Thursday, Friday, Saturday and then alternate Sundays for the following six month period. The complainant was aware of the fact that on the Thursday rota, Mr. M, who was Acting Clinical Nurse Manager 2 (A/CNM2) was due to be promoted to Acting Assistant Director of Nursing. As a consequence, his post would have been vacant and the complainant submits that he would therefore have been the next most senior person on the rota and would have been promoted to Acting/CNM2 as he was the most senior and longest serving staff member on the male ward, having worked on the ground floor for the past four years. The complainant contends that it was custom and practice that posts were not advertised in the respondent organisation and accordingly by moving the complainant to a different ward, it resulted in an opening for promotion to Acting/CNM2 for another psychiatric nurse, namely Mr. O, who had lesser service and experience than the complainant.

2.3 The complainant submits that none of the other staff on the male ward on the ground floor were moved to any other ward apart from the complainant. He asserts that there is no rotational policy in the respondent organisation. The complainant states that he attended the office of the Acting Assistant Director of Nursing, Mr. C and he requested an explanation with regard to his move/transfer to the First Floor of Psychiatric Unit C. The complainant asserts that Mr. C did not give him an explanation but merely confirmed that there were no problems or complaints about the complainant’s work and confirmed that he would also be moving other staff. The complainant states that the result of him being transferred to the First Floor meant that he would not get the promotion to Acting CNM2 on the Thursday rota/pass and was therefore at a loss of €4000 per year. Mr. C (Acting Assistant Director of Nursing) confirmed to the complainant that the decision had been agreed by Mr. K, the Acting Director of Nursing. The complainant confirmed that he was happy to remain where he was. Mr. B, staff nurse (who was replacing the complainant on the ground floor) confirmed to the complainant that he did not want to work on the Ground floor.

2.4 The complainant submits that there are no written procedures for promotion, no interview process or scoring/marking sheets and there is a complete lack of transparency in promotions. The complainant asserts that posts are not advertised. The complainant submits that there are clear procedures set out on the Psychiatric Nurses Association website in terms of applying for posts and promotions and that those procedures are not followed by the respondent. The complainant asserts that he was discriminated against on the grounds of his race and transferred to an alternative position so as to purposely deprive him of promotion. The complainant is Mauritian and non-white. The complainant states that the person who got the promotion, Mr O, has less service and experience than the complainant. The complainant submits that the fact he was moved from his post, with no history of a rotational policy, immediately prior to him being in a position to be promoted to Acting CNM2 is a fact of sufficient significance to raise the presumption of discrimination. The complainant cites the following caselaw in support of his case Massinde Ntoko v Citibank [2004] 15 ELR 116, Melbury Developments Ltd v Valpeters DEC-E2009-019, Davis v Dublin Institute of Technology and Health Board v Mitchell [1999] ELR 120.

2.5 The complainant submits that in the case of Jennifer Mey v St. James Hospital, DEC-E2007-016, the complainant in question was from South Africa and was non-white. She commenced work in the respondent organisation in February 2001 and was assigned to the Rheumatology department in May 2001. In September 2004, the position of Rheumatology Clinical Nurse Specialist was advertised and the job title was subsequently changed to Rheumatology Clinical Nurse Manager II. The complainant was one of two applicants interviewed for the position. The other applicant who was of Irish nationality was successful in her application. The complainant argued that she was better qualified and had more experience than the successful candidate. The complainant submits that in this case, the Equality Officer found that the respondent had failed to implement fair, open and transparent procedures in the interview process. The Equality Officer also found that the complainant was both better qualified and had more experience than the successful candidate and found in favour of the complainant.

2.6 The complainant makes the point that the table submitted by the respondent in evidence regarding the nine staff members transferred is undated and unsigned and he highlights that it would seem to have been compiled subsequent to the oral hearing in the case. The complainant submits nothwithstanding this, it does not serve to support the respondent’s assertion that the complainant would not have been the member of staff with the longest period of service on the male ward (Ground Floor Unit C - Thursday pass) for the purposes of promotion to Acting CNM2 but for his transfer to the First floor Unit C in July 2010. The complainant’s representative states that the table provided by the respondent appears to suggest that the complainant was employed on Ground floor Unit C for a mere two months before being transferred to First Floor Unit C where it suggests he has been employed for a period of 53 months. The complainant’s representative states that this is completely inaccurate and that in fact the complainant began working on the male ward Ground floor Unit C in February 2007 and every six months he rotated from the Monday Pass to the Thursday Pass but always remained on the Ground floor. The complainant’s representative states that the column relating to length of time of the complainant at previous location in Ground Floor Unit C should read 41 months.

2.7 The complainant was shocked and disappointed to be transferred to the First Floor Unit C on 4 July 2010. He was rostered on the First Floor for a period of six months after which he was rostered back on the...