The Equality Tribunal
Employment Equality Acts 1998 to 2008
Decision DEC-E2009-011
PARTIES
Oksana Shaskova
(Represented by PC Moore & Co)
- V -
Goode Concrete Ltd.
(Represented by Reidy Stafford Solicitors)
File reference: EE/2007/641
Date of issue: 27 February 2009
Keywords - Employment Equality Acts 1998 to 2008 – Discriminatory Treatment - Harassment – Discriminatory Dismissal – Race – Gender - Redundancy
1. DISPUTE
1.1 This dispute concerns a claim by Ms Oksana Shaskova that she was subjected to discriminatory treatment, discriminatory dismissal and harassment by Goode Concrete Ltd. on the grounds of gender and race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2007 and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 6 December 2007 under the Employment Equality Acts 1998 - 2007. On 19 March, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - 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 1998-2007 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 9 October 2008. Additional written information in support of the respondent’s case was received on 11 December 2008 and was copied to the complainant for observations. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was employed by the respondent from 6 November 2005 until she was dismissed on 18 October 2007. The complainant submitted that on 18 October 2007 the respondent wrote to her advising her that her position was being made redundant. The complainant further submitted that she wrote to the company requesting particulars as to the grounds on which she was dismissed and how her position was made redundant given that she was a payroll administrator.
2.2 The complainant submitted that she was never given information concerning redundancy and how she was selected for redundancy. The complainant submitted that the respondent stated that her role had been outsourced.
2.3 The complainant submitted that the work she undertook for the employer was very varied and included payroll duties, an element of a Human Resources role and a translation element.
2.4 The complainant submitted that the redundancy package was not a redundancy per se but was a dismissal packaged up to look like redundancy. The complainant submitted that this arose out of an argument with the Director of the respondent firm. The complainant submitted that the Director would not have spoken to an Irish national in the same way. Following this argument, the complainant submitted that she went out on stress related sick leave for a week. During this period of sick leave, the complainant was let go from her position.
2.5 The complainant submitted that respondent used CCTV and that this amounted to harassment. The complainant further submitted that the use of CCTV in the manner which the respondent used it would not have been acceptable to an Irish national. The complainant submitted that the installing of a covert CCTV camera is a form of harassment that places a female employee in an extremely vulnerable position. The complainant suggested that the foregoing is indicative of an employment which is oppressive of a foreign national.
2.6 The complainant submitted that following the reasoning of the Tribunal and the Labour Court in a number of cases where a foreign national who is having their employment terminated, the employer has a positive duty to ensure that the employee fully understands the issues, is given the opportunity to mount a defence, and has a right of representation. This was not done in this case.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant was employed as a payroll administrator, translator and human resources assistant.
3.2 Citing the case of Francis v Dublin Bus, the respondent noted that “it is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture”. The respondent submitted that the complainant has perfect English and acted as translator at all times for the company when such translation was needed. The respondent further submitted that it is not clear how the complainant was discriminated as she was so proficient in English, and had a good working knowledge of employee’s entitlements.
3.3 The respondent submitted that the Tribunal is not entitled to make a finding of discrimination on the ground of race simply on the basis of a suspicion that a person’s race motivated their treatment and cited the decision of the High Court in Mulcahy v Waterford Leadership Limited and the Minister for Justice, Equality and Law Reform [2002] 13 ELR 12.
3.4 The respondent submitted that the claimant was made redundant when the payroll administration aspect of her job was being outsourced.
3.5 The respondent submitted that it vehemently denied that there was any argument with the respondent director as alleged by the complainant or at all.
3.6 The respondent submitted that the complainant did not provide the sick certificate to her employer as alleged or at all and that the allegations that the argument was about the medical certificate are entirely fabricated.
3.7 The respondent denied that there was a hidden camera watching the applicant and further submitted that there is a sign on the gate to its premises indicating that there are CCTV cameras throughout the premises.
3.8 The respondent submitted that if the complainant alleges that she was unfairly selected for redundancy then she had her remedy under the Unfair Dismissals Acts, which she chose not to pursue.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Ms Shaskova on grounds of gender and race, in terms of section 6 of the Employment Equality Acts, 1998 to 2007 and contrary to section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts 1998 to 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”. In considering evidence submitted by both the complainant and the respondent, a number of uncontested facts emerged:
· The complainant is a female, non-Irish national
· The complainant was dismissed from her position
· The explanation for that dismissal offered by the respondent is that the complainant’s workload was outsourced giving rise to a redundancy situation
· The complainant’s workload was never outsourced, and
· The workload is still being carried out by employees of the respondent.
4.4 Having regard to the foregoing facts, I am satisfied that the evidence before me is sufficient to establish a prima facie case. Accordingly the onus to rebut the inference of discrimination shifts to the respondent.
4.5 During the course of the hearing, the complainant’s legal representative admitted that this case does not primarily relate to the gender ground. I note that three of the other four employees in the office were female and one of those employees is currently administering the payroll. The complainant submitted that the installing of a covert CCTV camera is a form of harassment and places a female employee in an extremely vulnerable position. In reply, the respondent stated that the use of CCTV was flagged by signage at the entrance to its premises, that the camera was pointing into an open plan office, and that male and female employees worked in the open plan office. On the basis of the evidence presented to me, I accept that the office was staffed by a mixture of nationalities and genders and that no-one of a particular gender was targeted by the use of the CCTV cameras.
4.6 Based on the foregoing, I am not satisfied that the complainant has established facts from which I can conclude that she was discriminated against on the basis of her gender. On that basis, the gender element of this complaint fails. In addition, I am not satisfied that the claimant has demonstrated that harassment has taken place, on either gender or race grounds.
4.7 The respondent submitted that the complainant was employed as a payroll administrator, translator and human resources assistant. In evidence, the complainant stated that the major part of her duties revolved around the payroll administration. The respondent stated that it was these duties which were outsourced. Following questioning by the Equality Officer, it became apparent that no such outsourcing had taken place, however the respondent reiterated that the complainant was made redundant on the basis that this work was outsourced. When the respondent was asked what proof there was to support its contention, it admitted that there may be some diary entries which would indicate that it had begun to make efforts to outsource the payroll. (Copies of redacted diary entries to support this proposition were received by the Tribunal post hearing.) However at the hearing the respondent accepted that the payroll is still administered by the administrative staff of the company and has never been undertaken by an outside agency. In the circumstances, I am satisfied that the payroll administration was not, in fact, outsourced at any stage.
4.8 The respondent submitted a number of cases for consideration on the issue of the level of care due to a non-Irish national employee. The respondent also submitted that the complainant had a very good level of English, had attended meetings with legal advisors on employment rights in the role of translator, and was educated to third level standard. Having reviewed the arguments and caselaw put forward by the respondent, I find that in this case, where a non-Irish national employee is very competent in one of the national languages, has a reasonably thorough knowledge of employment rights and procedures, and could reasonably be expected to familiarise themselves with employment rights, there is no additional onus on the employer to ensure that the employee understands those rights and procedures, over and above the onus on an employer relative to an Irish national.
4.9 No evidence of the use of any redundancy selection procedures was submitted to the Tribunal. The respondent submitted that the mere coincidence that a person who was made redundant was a non-Irish national does not automatically give rise to a finding of discrimination. However, in the circumstances where the complainant has been dismissed where the defence of redundancy due to outsourcing does not stand up and where no alternative has been put forward by the respondent to explain the basis of the different treatment, on the balance of probabilities, I am persuaded that discriminatory dismissal took place.
4.10 The complainant’s case is that the unfavourable treatment is based on her race. It is acknowledged that the other three employees doing comparable work were Irish and female. None of those employees were subjected to similar treatment. The respondent has not provided any satisfactory reason to rebut this suggestion. Therefore, on the balance of probabilities, I am persuaded that the discriminatory dismissal took place on the basis of the complainant’s race.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I am satisfied that the complainant has proved as a matter of probability that she was singled out for special unfavourable treatment by the respondent, that other employees of a different racial origin were not so treated and that her dismissal arose as a direct consequence of the special treatment to which she was subjected. Having regard to all of the surrounding circumstances this is a fact of sufficient significance to raise a presumption of discrimination. The Tribunal has considered the respondent’s explanation of what occurred and in light of the evidence as a whole, finds it unconvincing. Accordingly the respondent has failed to satisfy the Tribunal that its decision to dismiss the complainant was not racially motivated and, therefore, the complainant is entitled to succeed.
5.2 Having considered all the written and oral evidence presented to me, I find that no link between the unfavourable treatment received by the complainant and the gender ground has been established and this aspect of the complainant’s claim therefore fails.
5.3 On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008. In accordance with Section 82 of those Acts I award the complainant €20,000 in compensation for the discriminatory dismissal suffered. As this award does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
27 February 2009