Case Number: DEC-E2016-055. Workplace Relations Commission

• Judgment Date: 01 March 2016
• Year: 2016
• Docket Number: DEC-E2016-055
• Court: Workplace Relations Commission
• Parties: Sacha -v- Seaview Hotel Ltd.

Adjudication Officer/Equality Officer’s Decision No: DEC-E/2016/055 Parties Sacha (Represented by Mr/ Kirk Boylan BL Instructed by McDonald Solicitors) -v- Seaview Hotel Ltd. (Represented by Peninsula Business Service (Ireland) Ltd) File No: EE/2011/711 Date of issue: 29th March, 2016 1. DISPUTE

This dispute involves a claim by Ms. Martha Sacha (“the complainant”) that she was (i) discriminated against by Seaview Hotel Ltd. (“the respondent”) on grounds of disability and/or race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment; (ii) harassed by the respondent on grounds of disability and/or race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts and (iii) victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011.

2. BACKGROUND

2.1 The complainant, who is a Polish national, commenced employment with the respondent as a full-time Kitchen Porter on 28 June, 2008. She states that she suffered an accident at work in July, 2009 and was on sick leave from then until March, 2010. She adds that on her return to work at that time her hours were reduced and that this practice continued for the remainder of her employment despite her requests that it cease. She submits that this amounts to less favourable treatment of her on grounds of race and disability contrary to the Acts. She states that she was diagnosed with depression in July, 2011 and she informed Mr. X (the Head Chef) of her condition. The complainant adds that she was treated less favourably on the same grounds in relation to other aspects of her employment – rostered for unsocial hours, assignment of the more menial and heavy duty tasks and refusal of her breaks and annual leave requests. The complainant also alleges that she was harassed on grounds of race and disability contrary to the Acts. In this regard the focus of her allegations is Mr. X. Finally the complainant alleges that she was victimised by the respondent contrary to section 74(2) of the Acts. The respondent rejects the complainant’s assertions in their entirety. It adds that it operates a robust Dignity at Work Policy and states that the complainant never invoked this Policy prior to referring her complaint to the Tribunal. It adds that the complainant never raised her concerns, in particular the alleged treatment of her by Mr. X, with any other member of Senior Management prior to the lodgement of the complaint to the Tribunal.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 11 October, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 17 May, 2013 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 15 August, 2013, 6 November, 2013, 7 April, 2014 and 8 April, 2014. A number of issues required further correspondence between the parties and the Equality Officer for several months subsequent to the Hearing.

2.3 At the Hearing on 6 November, 2013 it was noted that the submission filed on behalf of the complainant detailed alleged acts which dated back to March, 2010 and post-dated the referral of the complaint to the Tribunal. I gave the parties the opportunity to make oral submissions on the relevance, if any, that the Labour Court Determination in Hurley v Cork VEC[1] might have to the complaint. Having considered the arguments advanced I decided that my investigation would focus, in the first instance, on the alleged acts of unlawful behaviour which occurred between 12 April, 2011 and 11 October, 2011 - the six month period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts. If I considered any of the alleged incidents within that period to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident(s) within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incidents within the six months preceding the referral of the complaint not to be well founded the earlier alleged incidents would be statute barred. In addition, I decided to take evidence on those alleged incidents which occurred subsequent to 11 October, 2011. However, this evidence would only be considered in terms of any probative value it might have for events encompassed by the complaint and no redress could be awarded for them should they prove unlawful.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant, who is a Polish national, states that she commenced employment with the respondent as a full-time Kitchen Porter on 2 June, 2008. She adds that she suffered an accident at work on 18 July, 2009 and remained on sick leave following this incident until March, 2010 when she was certified fit to resume duty by her GP (Dr. B), although this certification was qualified in that she was only able to work a maximum of nineteen hours per week. The complainant states that she was never rostered for the full nineteen hours per week and that the practice of reduced hours continued for the remainder of her employment. She adds that her GP (Dr. B) certified her fit to resume full duties on 9 November, 2012 and that during this period (March, 2010-November, 2012) she did not furnish any medical evidence to the respondent which altered the original recommendation in any way. In the course of the Hearing on 7 April, 2014 the complainant stated that the first occasion she had sought more than 19 hours per week was November, 2012 after Dr. B had certified her fit to resume full duties. In the course of the Hearing on 6 November, 2013 the complainant confirmed that she had signed the contract of employment dated 22 July, 2008 and had attended at the Induction Training provided by the respondent on 9 July, 2008 which included a module on the respondent’s Staff Handbook (these documents were furnished to the Tribunal by the respondent). The complainant further confirmed that the Job Specification (also exhibited by the respondent) accurately reflected the duties attached to the role of Kitchen Porter. She contended that her English was poor and that she did not understand these documents at that time. In the course of the Hearing on 6 November, 2013 she confirmed that she did not mention this to any member of the respondent’s Management at that time or subsequently adding that as time went on her understanding of English improved. Notwithstanding this she confirmed that she was aware of the respondent’s Dignity at Work Policy and contended that she had invoked this Policy verbally sometime in April, 2011. In the course of the Hearing on 7 April, 2014 the complainant stated that she did not invoke the respondent’s Dignity at Work Policy in writing at any stage and clarified that the day she invoked the Policy verbally was the day of the altercation with Mr. X - which she accepted was 29 May, 2011 and not April as she had previously stated.

3.2 The complainant states that she was diagnosed as suffering with depression on 19 July, 2011. In support of this the complainant furnished two undated documents - the first is a medical report at Part II of a Department of Social Protection claim form which was completed by her GP (Dr. A) and the second is a report from Dr. B which is a review of the complainant’s medical records prepared at the request of the complainant’s solicitor - who states that this report was prepared on 6 September, 2013. The complainant was unable to say if, or when, the former medical report was furnished to the respondent. In the course of the Hearing on 6 November, 2013 it was noted that the first reference to her depression contained in the submissions referred to the Tribunal on her behalf indicates that she advised Mr. X of her condition in the course of an altercation sometime in May, 2011. In response to a question as to how this reconciled with her medical documentation mentioned above the complainant stated that she felt she was suffering from depression at that time. She added that she informed Mr. X of the symptoms she was experiencing – unable to sleep, sluggishness and lack of interest in work. Moreover, neither the complainant nor her representative was able to offer any explanation as to why there is no reference to her disability (i.e. depression) in a letter dated 27 July, 2011 from her solicitor to the respondent, when her Polish nationality is mentioned. Finally, a further submission furnished on the complainant’s behalf states that she advised Mr. X she was suffering from depression in the course of another altercation in or around early July, 2011. In any event it is submitted on behalf of the complainant that the respondent was aware of her disability.

3.3...