Case Number: DEC-E2016-026. Workplace Relations Commission

• Judgment Date: 01 February 2016
• Year: 2016
• Docket Number: DEC-E2016-026
• Court: Workplace Relations Commission
• Parties: OLUMIDE SMITH -v- CISCO SYSTEMS INTERWORKING (IRELAND) LIMITED.

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-026 PARTIES OLUMIDE SMITH AND CISCO SYSTEMS INTERWORKING (IRELAND) LIMITED. (Kate O’Toole BL, instructed by Lewis Silkin LLP) File Reference: EE/2013/605 Date of issue: 18th February 2016

HEADNOTES: Employment Equality Acts, Section 6, Discrimination on grounds of race. Equal pay

DISPUTE

The complainant referred his claims to the Director of the Equality Tribunal on 28 November 2013 under the Employment Equality Acts 2000 – 2105. On 15 September 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, 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. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 23 September 2015.

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.

PRELIMINARY APPLICATION.

1.1 The Complainant alleges he was discriminated against by the respondent on the grounds of race pursuant to section 2 (2) (h) of the Act.

1.2 The respondent alleges that all but one of the complaints are statute barred.

Allegation 1

It is alleged that the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 24 January 2008 to December 2008. Pursuant to Section 77 this claim should have been referred on or before 29 June 2009. It was referred over four years after that date.

Allegation 2

The Complainant also alleged that “a Major and a minor unnatural challenges encountered in the Respondent’s premises in May 2008 which could have impaired” his performance. The most recent date the Complainant refers to in respect of this claim is 22 May 2008. Pursuant to Section 77 this claim should have been referred on or before 21 November 2008. It was referred five years after that date.

Allegation 3

That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2009 to December 2009. Pursuant to Section 77 this claim should have been referred on or before 29 June 2010. It was referred over three years later.

Allegation 4

The Complainant also alleged that “another Unnatural Event/Service failure” occurred on 10 February 2009. Pursuant to Section 77 this claim should have been referred on or before 9 August 2009. It was referred more than four years later.

Allegation 5

That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2010 to December 2010. Pursuant to Section 77 this claim should have been referred on or before 29 June 2011. It was referred over two years after that date.

Allegation 6

That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2011 to December 2011. Pursuant to Section 77 this claim should have been referred on or before 29 June 2012. It was referred over one year after that date.

Allegation 7

The Complainant makes specific allegations of discrimination in respect of the Satellite Sec Con. The most recent date to which the Complainant refers is 2 November 2011. Pursuant to Section 77 this claim should have been referred on or before 1 May 2012. It was referred over one year after that date.

Allegation 8

That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2012 to 2 July 2013. The Complainant refers to a number of incidents. The first incident took place on 2 February 2012. Pursuant to Section 77, it should have been referred on or before 1 August 2012. It was referred over one year later.

Allegation 9

The second incident took place between 13 March 2012 and 16 April 2012. It should have been referred on or before 15 October 2012. It was referred over one year later.

Allegation 10

The third incident took place between 27 July 2012 and 31 July 2012. Pursuant to Section 77 it should have been referred on or before 29 January 2013. It was referred over nine months later It is alleged the Complainant has not provided a justifiable reason for an extension of time to be granted. The complainant stated that he was relatively new to the company and didn’t want to cause trouble for himself so he decided not to file the claim at that time.

Allegation 11

That the Complainant was treated unfairly and differently to other named employees in connection with the annual performance reviews and appraisal report rating for 2008, 2009, 2010 and 2011. The performance review for 2008 is dated 13 August 2008. Pursuant to Section 77 this claim should have been referred on or after 12 February 2009. It was referred four years after this date.

Allegation 12

The performance review for 2009 is dated 31 August 2009. Pursuant to Section 77 this claim should have been referred on or after 27 February 2010. It was referred three years after this date.

Allegation 13

The performance review for 2010 is dated 27 August 2010. Pursuant to Section 77 this claim should have been referred on or after 26 February 2011. It was referred two years after this date.

Allegation 14

That the Complainant was treated unfairly and differently to other named employees and was ambushed or subjected to malicious, unfounded, libelous and surprise feedback from his manager on 6 August 2009 and was allegedly threatened by his manager approximately two weeks after this date. The Complainant also refers to 28 August 2009 and 29 November 2010 in respect of this claim. Pursuant to Section 77 this claim should have...