Mr Ibrahim Waziri
(Represented by Cathal O'Neill Solicitors)
1.1 This dispute concerns a claim by Mr Ibrahim Waziri that he was unfairly dismissed by Penauille Servisair on the grounds of race and gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts.
1.2 The complainant referred his claim of discriminatory dismissal to the Director of the Equality Tribunal on 3 May 2006 under the Employment Equality Acts 1998 and 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, 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. Submissions were sought and received from the parties, and a hearing was held on 27 September 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he started work with Penauille Servisair on 13 March 2006 and following a period of training took exams on 19 March 2006. He was told that he failed three of the exams and would have to re-sit all ten. On the morning of 20 March he reported early, at 7am, to re-sit the exams before the training course started. No one from the Company was around so it was nearly 8am before he was given the exams in a room away from the others on the training course. Two others who had to re-sit exams were not in the same room as the complainant.
2.2 When he had finished the exams he was taken out of the room and told that he had failed one exam and his contract was being terminated immediately.
2.3 The complainant was treated differently from two Irish women who had failed exams but did not have to re-take them and are still working for the respondent. Also he felt humiliated because he was given no opportunity to collect his belongings and say goodbye to other people on the training course.
2.4 The complainant contends that he was treated differently because of his race and gender amounting to discriminatory treatment.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent rejects the allegation of discrimination on the grounds of race and gender. It is an equal opportunities employer and the complainant was treated the same as anyone else in the same circumstances.
3.2 The complainant was recruited to the position of temporary Passenger Services Agent on 13 March 2006. He was advised at interview, by letter, in written induction notes and twice verbally during the training course that it is mandatory to pass all exams with an 80% score to pass the training, and that if he failed any exams he would have one opportunity to re-take them. A second failure would result in his contract being terminated.
3.3 Mr Waziri failed all 6 exams on the Passenger Induction Module. Arrangements were made for him to re-sit the exams at 7am on 20 March 2006. However, as Mr Waziri did not report until just before 8am when the training course was about to start arrangements were then made for him to take the exams in another room. The Training Co-ordinator corrected the exams as he finished them. When she realised that he had failed one of the re-takes she called the Passenger Services Duty Manager. They advised the complainant that he had failed the exam twice and therefore had not met the training requirements and his contract was being terminated.
3.4 The complainant was taken out of the room where he had taken the exams in order that he could be spoken to confidentially, as there were other people in the room. He had all his belongings with him so there was no need for him to return to the training room.
3.5 The records show that two women on the complainant's training course failed one exam. As they only had to re-sit one exam they were able to do this in the main training room and then carry on with new exams that the others on the course were taking. They both passed the re-sit. One of these women was not Irish.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant in this case alleges that he was unfairly dismissed by Penauille Servisair on the grounds of race and gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties. The complainant alleges discriminatory treatment because of his treatment in relation to the re-taking of exams and his subsequent dismissal. He has cited two other people who failed exams and were treated differently.
4.2 There is a difference of evidence in the number of exams that the complainant failed but the respondent did provide a copy of five exam re-takes which the complainant agreed were his. I can therefore conclude that he re-took at least five exams. The two others had only failed one exam and the respondent produced a copy of their re-takes which confirms that they both passed.
4.3 Both sides agree that an arrangement was made for the complainant to start these re-takes at 7am before the normal start time of 8am. If this had happened then the complainant would have re-joined the rest of the training group at the start of their day. The complainant and the training co-ordinator both state they were there in good time but for some reason that could not be satisfactorily explained they did not meet. The complainant therefore could not start his re-takes until almost 8am. The respondent asserts that because of the length of time required for the complainant to re-sit the exams it would have been disruptive for him to do this in the main training room whilst the rest of the class were taking other exams. He was therefore put into another training room to do the re-takes.
4.4 The two others who had only failed one exam took this in the main training room and then went straight on to the new exams.
4.5 As he was treated differently from others who also failed exams I conclude that the complainant has proved a prima facie case of discrimination. Therefore, in accordance with section 85A of the Acts the burden of proof has passed and 'it is for the respondent to prove the contrary'.
4.6 The respondent claims that the complainant was treated the same as anyone else in the same position would have been.
4.7 The respondent states that the complainant, as well as all other new staff, was advised on five occasions that he had two attempts to pass exams and then would have his contract terminated:
4.7.1 at interview; the complainant had no memory of this and the interviewer was not available to verify this,
4.7.2 offer letter issued with contract; the respondent did not have a copy of the offer letter issued to the complainant but showed an example. The complainant provided a copy of his contract, which makes no mention of the exams, but denies receiving the offer letter,
4.7.3 induction notes; the complainant confirmed that he received these but claims they are not explicit regarding dismissal, the relevant portion states:
"All written assessments require an 80% pass mark, with a maximum of two attempts on each written assessment."
4.7.4 verbally during Corporate Induction training; the trainer gave evidence at the hearing that she had told all staff of the need to pass exams and the consequences of failing,
4.7.5 verbally during Passenger Induction training; the trainer gave evidence at the hearing that she had told all staff of the need to pass exams and the consequences of failing.
4.8 The Equality Tribunal does not have the same rules regarding evidence as a court but must give appropriate weight to all the evidence submitted and draw conclusions accordingly. In this instance looking at all the evidence and on the balance of probabilities I conclude that the complainant was given the same information as all other new members of staff. Furthermore, I believe that the consequence of failing the exams was made clear to the complainant.
4.9 The respondent gave evidence that a number of people have failed exams previously and that in 2005 five people had their contracts terminated because of exam failures. I must therefore conclude that they are accustomed to making arrangements for the re-taking of exams.
4.10 I accept the respondent's evidence that the complainant was put in another room to re-take his exams because he had 6 exams to do which would have taken nearly an hour. Whereas the two people the complainant compares himself to had only one exam to re-take, and thus could be accommodated within the main training room. I therefore accept the respondent's contention that any difference of treatment was for reasons other than the discriminatory grounds submitted by the complainant.
On the basis of the foregoing I find that the respondent did not discriminate against the complainant on the grounds of gender or race in terms of Section 6(2) of the Employment Equality Acts, 1998 - 2007.
5 December 2007