THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2012
Decision - DEC-E2013-060
PARTIES
Marco Van Vliet
-V-
Old Head Golf Club
(Represented by Stephen O'Donoghue B.L. instructed by T.J. Hegarty and Sons, Solicitors)
File Reference: EE/2010/065
Date of Issue: 19 June 2013
Headnotes: Employment -- Discriminatory dismissal -- Discrimination on gender and race grounds -- Equal pay -- Burden of proof -- Harassment -- Victimisation -- Employment Equality Act 1998-2012, ss 6(2)(a),(h), 8, 14A, 19 and 74 (2).
1 Dispute
This dispute involves a claim by Mr Marco Van Vliet (hereinafter "the complainant") that he --
(a) was discriminated against by Old Head Golf Club (hereinafter "the respondent") on grounds of gender and race within the meaning of section 6 of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to conditions of employment contrary to section 8 (1) (a) of the Acts,
(b) was not paid the same rate of remuneration as a named female comparator employed to do like work, contrary to section 19 of the Acts;
(c) was dismissed on the grounds of gender and/or race, contrary to section 8 (6) (c) of the Acts;
(d) was harassed on the ground of race contrary to section 14A of the Acts; and
(e) was victimised within the meaning of section 74 (2) of the Acts.
2 Background
The complainant referred his complaints under the Acts to the Director of the Equality Tribunal which were received on 25 January 2010. A written submission was received from the complainant on 29 July 2010. A written submission was received from the respondent on 8 September 2010. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 9 October 2012.
3 Summary of complainant's case
3.1 The complainant is a qualified and experienced worker in the hotel and catering sector. He is of Dutch nationality. He was employed by the respondent as a night porter from June 2008 until 24 August 2009 at a rate of 12 euro per hour. He worked on average 20 to 30 hours per week in the season from March to October. The complainant maintains that he worked by strict standards, which was not the case with other employees, many of who were not qualified in hotel and catering. The complainant has from time to time criticised the standards of other employees and brought these to the attention of management.
3.2 The complainant did the same work as an Irish female colleague Ms D. The complainant claims that Ms D had a higher income than he did because their employer facilitated her getting money from social welfare dole as a single mother. He also claims that he was denied a clothing allowance and overtime due.
3.3 The complainant claims that he did not get a contract of employment or copies of policies and procedures.
3.4 The complainant states that he was harassed and victimised when untrue remarks about his timekeeping were written into an official journal called the steward's book. The complainant also alleges that he was harassed by being excluded and not being communicated with.
3.5 The complainant alleges he was treated less favourably on the grounds of gender and race by being dismissed summarily after an altercation on 18 August 2009 with another staff member. He claims that the respondent accepted a female Irish colleague's version of the altercation over his.
3.6 His version of the incident with his colleague, Ms C, a receptionist, according to a note he made the following day is as follows:
"Last night I came into work on time When C was already running out and I said "Sorry C, hold on please, would you mind not writing in the steward's diary and keep your opinion about my timekeeping to yourself please." I thought I recognised her handwriting. She seemed not to know what I was talking about so I showed her the writing on the 16th of August page. She crossed it out and said she "didn't write that." I asked her "Whose writing is it then?" and she said she didn't know.
I said "I break my back working here at night and I don't think I deserve this; can you say the same?" No answer. I said that I was going to find out who did write it and have a serious talk with him/her."
I clocked in (too late) walked to reception and started work. C came after me and said she "would report me!" I responded "if you are in such a rush to get out you'd better leave. Drive slowly 'cos it's foggy outside." Still sweating from my hot shower 15 minutes earlier my good mood was immediately destroyed which lasted days. All I wanted to know was WHY? And I realise that I should be on time."
3.7 The complainant was called to a meeting with the General Manager, Mr B, and the Assistant General Manager, Ms L on 24 August 2009. Mr B read out a letter of complaint from Ms C about the altercation she had with the complainant on 18 August 2009. He did not show the complainant the letter. The letter was produced in evidence at the hearing. The letter stated as follows:
"19 August 2009
Reference [name of complainant]
Dear Mr B [General Manager]
I wish to make a formal complaint regarding [complainant's] threatening behaviour towards me last evening.
{Complainant] arrived into the clubhouse with his arm outstretched, up in the air and immediately began accusing me of writing about him in the steward's book.
He used the f word continually with his voice raised. I told him to calm down, as we had guests in-house and tried to explain that I had no idea what he was talking about. This only seemed to make him worse. He went on about how he was "on to me", and how he would f-in sort me out. I asked him to show me where I was supposed to have written in the book.
He banged down on the book and started leafing through the pages furiously until he came to last Sunday 17th. I told him I was not on duty that evening. He then demanded to know whose hand-writing it was, all the time shouting and cursing. At this stage the sweat was popping off his face and he was in a rage. I was frightened by him.
He then said, I was to let whoever it was know, that whoever wrote about him, he would be on to him and they had better watch out and there would be slaughter in the clubhouse. He repeated this a number of times.
I returned to the reception desk and he followed me, shouting abuse. I again reminded him of our guests. He said he did not give a f***. He then began ranting and raving about how hard he works and how nobody gives a f*** and he was sick of it.
He said he was working six nights, not four like he was promised. I was then told to f-off out of the clubhouse.
I told him that I intended to report him to both Mr B [General Manager] and Ms F [reception manager]. He told me to get the f*** out and have a good one, as it was lovely and foggy outside.
I was quite terrified walking down to my car as I felt completely threatened. I felt he was out of control and I was worried that he would come after me at any second.
In my opinion [complainant] is a time bomb ticking, just waiting to explode.
I will not work the same shifts with him again, I would be too frightened."
3.8 The complainant denied that he was abusive to Ms C. In particular he denied that he had his arm outstretched. He denied using the F word. He said it was possible he banged down on the book. He said that it was possible he posture might be intimidating - he was not a small man. He denied he said "slaughter in the clubhouse". He was sweating after his shower and because he had run to work, not because he was angry or out of control. He denies following her out to the reception area - the whole incident took place in the steward's room.
3.9 The complainant claimed he was summarily dismissed without proper procedures being followed. There was no proper investigation of the complaint. The written complaint from Ms C was not shown to him but read out. He was not given the right of reply nor afforded the opportunity to be accompanied to the meeting by a representative or fellow worker. There was no proper investigation of the complaint from Ms C. The decision to dismiss him was taken on the day he was advised of the complaint. He was not advised of any right of appeal.
The complainant claimed that an Irish colleague who was stealing from the respondent was helped secure a new job in another hotel while nothing was done for him.
4 Summary of respondent's case.
4.1 The respondent admitted that the complainant did not get a contract of employment or copies of staff policies and procedures but claimed that no seasonal staff received these.
4.2 The respondent denies that the complainant was discriminated against by them on the grounds of gender or race.
4.3 As regards the equal pay claim, the respondent claimed that the named comparator was paid 10 euro an hour, less than the 12 euro an hour paid to the complainant and produced payslips to prove this. As regards his claims about clothing allowance and overtime, no employees were paid clothing allowance and the complainant was not due overtime payments.
4.4 The respondent states that the complainant has established no prima facie case of harassment or victimisation on the ground of race in that there is nothing to link the alleged behaviour complained of (untrue remarks about his timekeeping written into an official journal and being excluded and not being communicated with) with his nationality.
4.5 As regards his dismissal, the respondent claims that the incident with Ms C was only the last of a series of altercations involving the complainant. On 19 July 2009 the gatekeeper (Mr J) got an abusive phone call from the complainant at his home at 4am. Mr J contacted the General Manager on 21 July 2009 to complain about the complainant's behaviour. The complainant denied making the call.
4.6 On 25 July 2009 the complainant emailed the General Manager about an altercation he had with a taxi driver. The taxi company had complained to the respondent about the complainant's behaviour. The complainant explained in an email dated 25 July 2009 his view of the incident, stating "I refuse to take any more verbal (or physical for that matter) abuse; the next time I will go for the attack (that is call the person out of bed), rather than having to defend myself through an email such as this."
4.7 The General Manager at a meeting on 10 August 2009 with the complainant addressed the complaints made by Jack and the incident with the taxi driver. The General Manager took exception to the phrase "next time I will go for the attack" and said that this type of language was unacceptable. The complainant, according to the General Manager, replied that it was just a figure of speech. The General Manager said that warned the complainant that "any such reports/complaints would not be tolerated." The complainant denied that this meeting took place.
4.8 The respondent states that not only Ms C but the complainant's supervisor Ms F refused to work any longer with the complainant.
4.9 As regards the meeting with the complainant at which he was dismissed, the General Manager acknowledged that he read out Ms C's letter to the complainant but did not show it to him. The General Manager explained at the hearing that this was to hide Ms C's home address (which was on top of the letter) from the complainant. The respondent claimed that the complainant accepted that "50 per cent" of what Ms C alleged was true. (This was denied by the complainant). The respondent claimed that the complainant attempted to defend his behaviour towards Ms C, Mr J and the taxi man by making serious allegations against them. The respondent claimed that the General Manager put to the complainant that a guest had observed his altercation with Ms C; that he told the complainant that staff were intimidated or traumatised by him. These were denied by the complainant. The respondent claims that the complainant said that money didn't matter but he was concerned about his good name and that the respondent promised the complainant a "suitable" reference. The respondent claims that an ex-gratia payment of 4 weeks' pay was discussed and subsequently paid.
5 Consideration
5.1 Section 6(1) of the Acts provides that discrimination shall be taken to occur where "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)....." Section 6(2) (a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons ... that one is a woman and the other is a man" and section 6(2) (h) defines the ground of race "as between any 2 persons... they are of different race, colour, nationality or ethnic or national origins".
5.2 Section 8(6) (c) of the Acts provides that an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
5.3 Section 14A provides-
(1) For the purposes of this Act, where --
(a) an employee (in this section referred to as 'the victim') is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as 'the workplace') or otherwise in the course of his or her employment by a person who is --
(i) employed at that place or by the same employer,
(ii) the victim's employer, or
(iii) a client, customer or other business contact of the victim's employer and
the circumstances of the harassment are such that the employer ought
reasonably to have taken steps to prevent it,
or
(b) without prejudice to the generality of paragraph (a) --
(i) such harassment has occurred, and
(ii) either --
(I) the victim is treated differently in the workplace or otherwise in the
course of his or her employment by reason of rejecting or accepting
the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated,
the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.
...
(7) (a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds,
...
(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.
5.4 Section 19 (1) provides that it shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer, where A is a woman and B is a man and vice versa.
5.5 Section 2 (b) defines "remuneration", in relation to an employee as including any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment.
5.6 Section 74 (2) defines "victimisation" as occurring where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another
employee for any of the purposes of this Act or any enactment repealed by
this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions
mentioned in the preceding paragraphs.
5.7 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a Determination the Labour Court1 , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the 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 85A 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 this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.8 It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Equal Pay Claim
5.9 The complainant was paid more per hour than the named comparator. Whatever, if anything, the comparator received from social welfare is not to be included as pay or remuneration for the purposes of equal pay comparisons since it was not received directly or indirectly, in respect of her employment, from her employer. I conclude therefore that the complainant was not paid less than the comparator for the same work or work of equal value.
Harassment
5.10 As regards the allegation of harassment, no evidence was produced by the complainant that the unwanted conduct complained of was related to his nationality. Therefore I conclude that he was not harassed within the meaning of the Acts.
Victimisation
The Labour Court has explained the concept of victimisation as follows2. The definition of victimisation contained in the Acts contains essentially three ingredients. It requires that: -
1. The Complainant had taken action of a type referred to at s.74 (2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.
What constitutes a protected act is defined, at s.74 (2) (paragraphs (a) to (g) inclusive, as set out above at para. 5.6).
In the present case the complainant had left his employment before he took any steps to progress his claim of discrimination. Therefore nothing that happened to him during his employment could constitute victimisation under the Acts.
Discriminatory dismissal
5.12 In Ntoko v Citibank3 the Labour Court noted that "a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence the normal rules of evidence must be adapted so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent's capacity of proof". And the Labour Court found that where infringement of the company policy on the making of personal calls was not regarded as serious misconduct by the respondent and the claimant was singled out for special treatment, it is reasonable to believe that he was treated less favourably than another agency worker of a different racial origin would be treated.
5.13 In the case of Campbell Catering v. Rasaq4 , the Labour Court found that, in not affording the complainant fair procedures in the investigation of serious misconduct alleged against her, the respondent had treated her less favourably than other employees facing similar allegations and concluded that this finding was sufficient in itself to shift the probative burden on the respondent, which it was unable to discharge. The Court acknowledged the special difficulties faced by many non-national workers arising from a "lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture" and stated that, in the case of disciplinary proceedings, employers had a positive duty to ensure that all workers "fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation".
5.14 The Court concluded that, in such cases, "applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination".
5.15 In this case it is clear to me that the employer failed to apply proper procedures in investigating the complaint against the complainant. Moreover the respondent failed to provide the complainant with his terms and conditions of employment and information on disciplinary and grievance procedures. The respondent states that it was not their policy to provide part-time staff with such information. However, the question for me is not was the complainant unfairly dismissed but was he dismissed in circumstances where a female or an Irish person would not have been dismissed.
5.16 In the cases of Rasaq and Ntoko, the relatively trivial nature of the breaches of discipline, in the first case the alleged theft of three bananas and in the second the making of one private phone call from an office phone raised questions about whether or not an Irish person would have been sacked in similar circumstances. In the present case the allegation was very serious, that of threatening behaviour towards colleagues. I am in no doubt that such behaviour would be considered a sacking matter if alleged against a female or an Irish employee.
5.17 In Rasaq the Labour court found
"In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand the allegation of misconduct and the consequences of same. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled. Applying the same procedural standards to a non-national worker as apply to an Irish worker could in itself amount to discrimination."
In the case of Rasaq the complainant came within a category of non-national workers who may encounter special difficulties in employment arising from a lack of knowledge concerning their rights together with differences of language and culture. In this case unlike in Rasaq the complainant has excellent English. He was a member of a trade union which made representations on his behalf after he was dismissed. Therefore no special measures over and above what would have been made available to an Irish person were required in this case.
5.18 I therefore distinguish this case from Rasaq and Ntoko. Having listened to the oral evidence of the complainant and Mr B the General Manager, Ms L the Assistant General Manager and Ms C the person who made the allegations against the complainant, I am convinced that if the same allegations were made against an Irishman or woman in similar circumstances the respondent would have acted the same, that is summarily dismissed the person. I conclude therefore that the complainant was not dismissed on the grounds of his race or his gender, but solely because of the allegations of threatening behaviour made against him. The complainant argued that by accepting a woman's version of events over his, the employer was discriminating on the gender ground. This is not valid because, if true, it would be impossible for any employer to reach a conclusion in any case where a man and a woman gave contradictory evidence.
Discrimination in conditions of employment
5.19 The respondent failed to provide the complainant with his terms and conditions of employment and information on disciplinary and grievance procedures. The respondent states that it was not their policy to provide part-time staff with such information. Compliance with the Terms of Employment (Information) Act is not a matter under the jurisdiction of the Equality Tribunal unless the complainant can show that other employees of a different gender or nationality received such documentation. No such evidence was produced.
6 Decision
6.1 I find that the complainant:
1. was not discriminated against on grounds of gender and race in relation to conditions of employment.
2. was not paid less than the rate of remuneration paid to a named female comparator employed to do like work;
3. was not dismissed on the grounds of gender and/or race;
4. was not harassed on the ground of race; and
5. was not victimised within the meaning of section 74 (2) of the Acts
Niall McCutcheon
Director
19 June 2013.
Footnotes:
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.
2 Department of Defence v Barrett EDA1017
3 Ntoko v Citibank [2004] 15 E.L.R. 116.
4 Campbell Catering Ltd (respondent) v Aderonke Rasaq (claimant) [2004] 15 E.L.R. 310