Mr. Kunnar Trel
(Represented by the Equality Authority)
(Represented by IBEC)
Mr. Trel (complainant) Represented by the Equality Authority vs AIBP (respondent) Represented by IBEC:
Equality Officer Decision DEC-E2007-001 (Coyle G.) 11th January, 2007
Employment Equality Acts, 1998-2004 Section 6 - Employment - Discriminatory Dismissal - Race
The complainant is an Estonian National and has lived in Ireland since 2002. He commenced employment with the respondent organisation in May, 2004 on a 6 months contract. After two weeks working with the respondent he was told that he was being sent home, he no longer worked for the respondent because he had been observed sitting down during his shift. The complainant alleges that he was dismissed on the grounds of race because he was a non-national. The respondent denies the allegation.
Conclusions and Decision:
Having examined all the evidence the Equality Officer held that the complainant was not discriminated against on the grounds of race in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Acts, 1998-2004 when he was summarily dismissed. The Equality Officer found that the complainant was not afforded fair procedure and due process in the manner of his dismissal and she recommended to the respondent that it put in place proper procedures of notification/warning to employees in respect of dismissible offences, to carry out investigations of allegations and to afford employees the right of response in the event of an employee being dismissed.
1.1 The dispute concerns a claim by the Equality Authority, on behalf of Mr. Trel, that he was dismissed by AIBP on the grounds of race within the meaning of Section 6 of the Employment Equality Acts, 1998-2004 and in contravention of Section 77(b) of those Acts.
1.2 The complainant referred his complaint of discriminatory dismissal to the Director of Equality Investigations on 23rd November, 2004 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 12th September, 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 2nd November, 2006. Further information was received from the parties and the final information was received on 8th January, 2007.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant is a national of Estonia and has lived in Ireland since 2002. He commenced employment with the respondent organisation in or about 10th May, 2004 and attended work until 26th May, 2004 without incident. He arrived to work on 27th May, 2004 and he, along with another member of staff from Poland, were told to go home by the supervisor as they were no longer working for the respondent. When the complainant queried why he was been sent home he was informed that one of the managers in the respondent organisation had seen him and his Polish colleague sitting down during a previous shift. The complainant denied this and requested a written explanation for his apparent dismissal but this was refused. The supervisor undertook to pass on the complainant's telephone number to the manager who could contact him directly to clarify the matter. Later that day when the complainant had not heard from the manager he returned (with his colleague) to the respondent organisation and had a meeting with the manager who refused to give him any details of the allegation that he had been sitting down with a colleague during a previous shift. According to the complainant he expressed the view that this was very unfair. The complainant says that the manager stated that he was a bad worker and was being dismissed. It is the complainant's submission that he refuted the allegation that his work was unsatisfactory and that this was the reason for his dismissal. The complainant asked that the allegation be put in writing but this was refused. When the complainant stated that he would approach the Equality Authority about this matter the complainant says that the manager responded by saying that he did not care because "he had friends". This was the last direct interaction the complainant had with the respondent.
2.2 The complainant is from Estonia and he alleges that the fact and manner of his dismissal constitutes discrimination on the race ground as no Irish worker with the respondent organisation was, or would have been, dismissed in similar circumstances, and in the same summary fashion as himself and his colleague. It is the complainant's submission that he was unfairly selected for dismissal and the manner of his dismissal constitutes discrimination on the grounds of race. Because the complainant is a non-national it is his contention that the respondent assumed that he would not be aware of his rights and even if he had some awareness of his rights he would not have the capacity to seek redress. According to the complainant he can be regarded as being in a vulnerable category of worker as recognised by the Labour Court in the case of Arantronics v Svetlanan Kojoukharenko(2) .
3.2 In terms of the burden of proof the complainant submits that there was no objective reason in relation to his work performance for his dismissal and the only reasonable inference that can be drawn from the facts is that the complainant was dismissed for a discriminatory reason, that being on the ground of race. In this regard the complainant cites the approach of the Labour Court in the case of Citibank v Massinde Ntoko (3) and submits that this approach should be adopted in this case. The complainant asks the Tribunal to consider, in line with the decision cited above, the evidence in relation to the dismissal and in particular the summary manner of the complainant's dismissal and draw an inference of discrimination.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent is involved in the processing and distribution of meat which operates throughout Ireland and provides employment for up to 2,000 full time and part time employees. The plant in Cahir, Co. Tipperary employs 380 and has been in operation since 1972. The respondent notes that the complainant commenced employment on 10th May, 2004 as a general operative in the boning hall and this work involved the preparation of meat.
3.2 The respondent states that as the complainant was sitting down on three occasions, when he should have been at work, it was decided by the plant manager to terminate his employment on 27th May, 2004. According to the respondent this decision followed a series of two occasions when he was observed and warned verbally by his supervisor that such behaviour was unacceptable. In making this decision the respondent says that the plant manager was aware of the requirements and need to have a high level of commitment to work at the plant.
3.3 The respondent states that the complainant was employed on a temporary work contract for a period of six months. He was issued with a copy of the works agreement (which included the rules and conditions of employment). The respondent says that under these rules Para 12 clearly indicates the requirements of new employees and the length of the probationary period. It states that the company has the right to terminate the employment if the employee was found unsuitable. According to the respondent the complainant was spoken to on a total of three occasions for taking unauthorised breaks and the decision to terminate his employment was based on his unsuitability as a result. It is the respondent's contention that it was reasonable and fair that the company should expect the highest standards from its employee and the complainant was aware of this requirement. The respondent says that the nature of the work involves a full commitment and the fact that he had taken such breaks did not indicate this commitment to the company. It is the respondent's submission that the work rules were fully explained to the complainant on his commencement of employment and he was made fully aware of the work standards and requirements needed while working in the respondent organisation. The respondent's position is that the taking of unofficial breaks by clearly sitting down and avoiding work when he (the complainant) should have been working was unacceptable.
3.4 In response to the complainant's submission the respondent denies that the complainant was dismissed because of his nationality and says that he was dismissed for not being at his place of work and for the taking of unauthorised breaks. It is the respondent's submission that it has terminated the employment of other employees for similar issues and has never used the issue of race as a deciding factor. According to the respondent each employee is issued with a contract of employment as well as a copy of the rules and conditions of employment and the probation period is clearly explained and the requirements and standards sought. The respondent says that it employs a variety of nationalities and is appalled at the accusation of such a decision being based on race. According to the respondent in May, 2004 111 non Irish employees from 9 different countries were employed out of a total workforce of 330 employees. It is the respondent's contention that it operates strict rules and procedures with regard to employment to which all staff are subjected regardless of nationality.
3.5 The respondent denies that the plant manager indicated that he would be in a position to influence the outcome of any complaint and says that the plant manager made the complainant aware of his rights in this area to take such a complaint. The respondent denies that the plant manager stated that "I didn't care who they went to and that I had friends" and says that he is most upset with such a claim as the plant is proud of how it treats its non Irish employees. According to the respondent non Irish employees are provided with basic requirements on arrival, ensured accommodation is of a good standard and competitively priced, provided transport to and from the plant for a nominal fee and paid the exact same rates of pay and holiday allowances as Irish employees. The respondent denies that the complainant would not have been aware of his rights by means of his nationality as he received the same induction as his colleagues. The respondent further denies the suggestion that he was dismissed because the respondent assumed that he would not have recourse to legal redress. It is the respondent's submission that such a claim is untrue and without foundation and lacks any element of truth or fact. According to the respondent the complainant's work was not satisfactory and that he had been spoken to on two occasions prior to the decision to end his employment. The respondent denies that the complainant was unaware that he had a probationary period as he clearly signed his contract and received instruction on his terms and conditions of employment. The respondent also denies that there were no objective reasons for which to end the employment of the complainant or that the respondent treated him in an unfair way by denying him natural justice.
3.6 In conclusion the respondent states that the complainant has failed to establish a prima facie case of discrimination on the grounds of race. He has also failed to give details or names of individuals who stated that the termination was solely based on race. Furthermore the respondent says that the complainant failed to give any evidence to substantiate the allegations. The respondent says that it treats all its employees in a fair and reasonable manner and does not treat them differently because of race. According to the respondent it has dismissed Irish employees for similar work related issues in the past. The respondent states that the allegations are unsubstantiated and are unproven.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of race within the meaning of Section 6 of the Employment Equality Acts, 1998-2004 when he was summarily dismissed. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
4.2 The complainant was employed by the respondent to work in the Retail Packing Room. Employees working in this area were required to wear protective clothing when entering and leaving this area, hence employees had to disrobe when going for a break or when going for lunch. They entered and exited the area through the main entrance. However there was another door off the Retail Packing Room which led to the pallet or dirty area and, according to the respondent, no employee (with the exception of a designated employee) had permission to exit or re-enter through this door. The designated person had the task of keeping the Retail Packing Room clean and was not handling meat.
4.3 The complainant and a Polish colleague were based at the start of the process. This meant that, at times, they had spare capacity on their stations and, in these circumstances, were expected to assist their colleagues at other work stations. It is alleged, however, that on occasion when they had spare capacity they left the Retail Packing Room through the door which lead to the pallet or dirty area without removing their protective clothing. According to the respondent the first occasion occurred on 12th May, 2004 when the complainant and his Polish colleague were seen in the pallet or dirty area by the Quality Control Manager who warned them not to exit the Retail Packing Room again through this door. The respondent says that the Production Manager (their supervisor) saw them in this area on two further occasions on 18th and 26th May, 2004. On both occasions he warned them that this behaviour was unacceptable and that they would have to change into clean protective clothing before re-entering the Retail Packing Room. The respondent noted that the consequences of decontamination in the Retail Packing Room were serious as the site would be closed by the Department of Agriculture and Food.
4.4 At the hearing of this claim the Production Manager stated that, on the second occasion, when he saw the complainant and his Polish colleague in the pallet or dirty area in their protective clothing he approached the Quality Control Manager to ask him to observe these two employees as he had seen them in the pallet or dirty area on two occasions. The Production Manager stated that it was then that the Quality Control Manager stated that he had seen them in this area on a previous occasion (on 12th May, 2004) and given them a warning. On hearing this, the Production Manager told the hearing that he informed the Plant Manager who made the decision that these two employees should be dismissed forthwith. In evidence the Plant Manager stated that he made his decision on the basis of what he was told by the Production Manager as the Production Manager and the Quality Control Manager were senior personnel in the organisation and he trusted them.
4.5 It is the complainant's allegation that he was dismissed because of his race. He contends that he was summarily dismissed for no apparent reason. In his submission he says that the Production Manager informed him that he no longer worked for the respondent organisation because he had been seen sitting down by the Plant Manager during a previous shift. The complainant denies this and says that he was told by the Plant Manager that he was a bad worker but he was not given any details or written explanation for his dismissal. Furthermore no investigation took place into the allegation and the respondent did not follow a disciplinary procedure.
4.6 There are conflicts between the parties as to the facts of this case. It is the complainant's evidence that he was told by the Production Manager that he and a Polish colleague had been seen by the Plant Manager sitting down during a previous shift. He alleges that he was told by the Plant Manager that he was a bad worker. It is also the complainant's submission that he was not aware that there was a probationary period applicable to his post. The respondent, for its part, says that the complainant received three verbal warnings (one from the Quality Control Manager and two from the Production Manager) that he has no permission to go out to the pallet or dirty area wearing protective clothing. According to the respondent it was for this reason that the respondent decided to terminate the complainant's employment.
4.7 In relation to the complainant's submission that he was not aware that he was subject to a probationary period I note that the respondent pointed to the document entitled "Retail Packing Room - Rules and Conditions of Employment" in which at paragraph 12 it states:
"All new employees will serve a probationary period of 150 working days or when mutually agreed, an extended period. During the probationary period the company have absolute right to terminate his employment if he/she is deemed unsuitable."
At the hearing of this claim the complainant confirmed that he was given a copy of the Rules and Conditions of Employment to read along with a document about Hygiene and a document entitled "Temporary Work Contract" and he signed the latter document which stated that he had read the Rules and Conditions of Employment. During the course of the hearing of this claim the complainant confirmed that he had indeed read the Rules and Conditions of Employment document and that he had understood it. The respondent stated that employees are not given a copy of the Rules and Conditions of Employment but they are posted up on walls around the plant and are available in languages other than English namely Polish and Russian.
4.8 In his submission the complainant alleges that he was unfairly selected for dismissal as he was not an Irish national and, as such, the respondent assumed that he would not be aware of his rights and even if he was aware of them he would not have the capacity as a non-national to seek redress. In this regard the complainant cited the Labour Court Determination in the case of Arantronics v Svetlanan Kojoukharenko(4) . At the hearing of this claim the complainant referred to the Labour Court Determination in the case of Campbell Catering Limited v Aderonke Rasaq(5) in which the Labour Court referred to procedural fairness and the complainant held that the respondent failed in this regard in relation to his dismissal.
4.9 In this case the reason, according to the respondent, for the complainant's dismissal was because he was seen in the pallet or dirty area having exited through a door from the Retail Packing Room and he was still dressed in protective clothing. In a two week period he was seen in this area on three occasions and had been given verbal warnings on each occasion. It is very clear that employees working in the Retail Packing Room are required to wear protective clothing and that they are obliged to change out of their protective clothing when leaving albeit for a break or for lunch. The complainant accepted that this was the practice and he understood the reasons for it. It is alleged that he was seen on three occasions outside the Retail Packing Room in Protective Clothing. The complainant denies this. At the hearing of this claim the complainant stated that he was aware that employees were not allowed to leave the Retail Packing Room other than for break or lunch. However he confirmed that he did exit this door from the Retail Packing Room into the pallet or dirty area and he alleged that he did so at the direction of the Production Manager to clear away crates. The respondent stated, in its evidence, that only one employee was designated to tidy up the Retail Packing Room. This employee was not dressed in protective clothing, did not handle meat and was the only employee charged with exiting the door to the pallet or dirty area. I cannot accept that the Production Manager asked him to clear crates to the pallet or dirty area while wearing protective clothing given the implications of so doing both for himself and for the organisation. I am also satisfied that the complainant did not misunderstand any instruction by the Production Manager as he had a good command of the English language and an understanding of the hygiene importance in the Retail Packing Room. On the basis of the evidence I am satisfied that the complainant was in the pallet or dirty area in protective clothing, that he was seen there and that he was given verbal warnings.
4.10 At the hearing of this claim the respondent stated that it adhered to the Labour Relations Commission's Code of Practice in relation to disciplinary and grievance procedures. I cannot accept this as the procedure followed by the respondent, in coming to the decision to dismiss the complainant, did not conform to what could reasonably be expected from an employer. The respondent should have forewarned the complainant of the possibility of dismissal. It is alleged that he was given three verbal warnings in a very short period of time. Yet, despite these verbal warnings the complainant was not made aware of the potential consequences of his action. Furthermore there was no investigation into the allegation and no opportunity given to the complainant to defend his action. Having said that there is no evidence that the reason for the dismissal had anything to do with race.
4.11 In this claim it is alleged that the complainant was treated less favourably than an Irish national. For the complainant to be successful in his claim I must be satisfied that he was treated less favourably than an Irish national is, was or would be treated in similar circumstances. Where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination. In 2004 the respondent employed a total of 330 employees of whom 111 were non Irish employees from 9 different countries. The respondent started recruiting non-nationals from the Spring of 2000. The complainant commenced employment with the respondent organisation in May, 2004. He was assigned to the Retail Packing Room and at that time he was one of 81 employees in that area of which 39 were Irish and 42 were non-Irish. The respondent noted that a total of 62 of these employees (31 Irish and 31 non-Irish) were permanent (i.e. over 6 months service) while the remaining 19 of these employees (8 Irish and 11 non-Irish) were temporary (i.e. less than 6 months service). At the hearing of this claim the respondent stated that in the period from 1998 to 2004 a total of 5 non-nationals were dismissed including the complainant. It was the respondent's submission that 3 were dismissed for gross misconduct and 2 (including the complainant) for performance issues. The respondent stated that during the same period some 25-30 Irish nationals were dismissed and some of these dismissals were for performance issues. In follow-up material from the respondent after the hearing the respondent noted that in the period from 1998 to 2004 a total of 25 employees had their employment terminated for disciplinary reasons. Of these 25 employees 18 were Irish and 7 were non-Irish. All of these employees who were dismissed were on probation like the complainant. While I note the discrepancy between the two sets of statistics I am satisfied that these statistics provide no evidence of discriminatory treatment on the grounds of race. Having regard to all the evidence I am satisfied that the complainant was not discriminated against on the grounds of his race when he was dismissed from the respondent organisation. In the dismissal of an employee, irrespective of their race, the respondent should follow open and transparent procedures and due process.
4.12 In a further written argument from the complainant he contends that, on the basis of figures provided by the respondent, it appears that 40% of the total number of non-Irish workers at the time of his dismissal were on temporary short term contracts for 6 months whereas only 10% of the total number of Irish workers were on such contracts. The complainant states that the evidence at the hearing of his claim was that workers on short term six month contracts were on probation and therefore subject to a truncated form of disciplinary and grievance procedures. In other words the complainant notes that 90% of Irish workers and only 60% of non-Irish workers had moved on to permanency. The complainant, therefore, concludes that the impact of having less procedural safeguards in relation to dismissal was borne by a larger proportion of non-Irish workers than their Irish counterparts at the time of his dismissal. I am satisfied that all workers irrespective of whether they were Irish or non-Irish were treated the same while on six months contracts. I note that the complainant has used statistics of Irish and non-Irish workers at the time of his dismissal. This was at a time when there were more non-nationals were being employed by the respondent. I do not find any discrimination on the grounds of race arising from this additional argument by the complainant.
5.1 On the basis of the foregoing I find that AIBP Cahir did not discriminate against Mr. Trel on the grounds of race in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Acts, 1998-2004 when he was summarily dismissed.
5.2 I recommend that the respondent puts in place proper procedures of notification/warning to employees in respect of dismissible offences, to carry out investigations of allegations and to afford employees the right of response in the event of an employee being dismissed.
11th January, 2007
(1) This Summary is provided for convenience only and is not part of the Decision for legal purposes.
(2) Labour Court Determination - EED024
(3) Labour Court Determination - EED045
(4) Labour Court Determination - EED024
(5) Labour Court Determination - EED048