FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : FRYLITE DUBLIN LTD. (REPRESENTED BY PENINSULA BUSINESS SERVICES IRELAND LIMITED) - AND - VYTAUTAS SILGALIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007
BACKGROUND:
2. The worker referred his case to the Labour Court on the 27th August, 2009, in accordance with Section 83 of the Employment Equality Act, 1998 to 2007. A Labour Court hearing took place on the 8th June, 2010. The following is the Court's determination:
DETERMINATION:
This is an appeal by the Worker against the decision of an Equality Officer in a claim alleging discrimination on the race ground in terms of section 6(2) of the Employment Equality Acts 1998 –2008 (hereafter the Act), brought by the Complainant. The Complainant is a native of Lithuania. He commenced employment with the Respondent as a driver on 11th September 2006 and he left his employment on 16th February 2007.
The substance of the Complainant’s case is that while driving the Company’s van he had an accident and the Company treated him less favourably that an Irish worker would have been treated, when it sought to deduct €150.00 per week from his wages as reimbursement for the costs of the damage to the van and threatened him with dismissal if he did not sign a form authorising such a deduction from his wages. The issue of dismissal was not before the Court.
The complaint was investigated by an Equality Officer of the Equality Tribunal pursuant to Section 79 of the Act. The Equality Officer found that the Respondent discriminated against the Complainant on the race grounds and awarded him compensation in the amount of €2,000.
The Complainant appealed against the quantum of compensation awarded. There was no cross-appeal by the Respondent.
The Complainant’s case
The gist of the Complainant’s case is that in the circumstances where there was an admission by the Complainant that there was an accident it was not acceptable for the Respondent to make deductions in respect to damage to the vehicle, without conducting a proper disciplinary hearing. Furthermore, no investigation was conducted into the impact that such a level of deduction would have on the Complainant.
The Complainant submitted that the Respondent’s intention to deduct a sum of €150.00 per week from his gross earnings of €495.18 was excessive in all the circumstances. It was submitted on the Complainant’s behalf that the Court should infer that an Irish worker would not have been subjected to similar treatment.
He submitted that in the case of an Irish national, the Respondent would have conducted an investigation, carried out a disciplinary hearing and would not threaten him/her with dismissal if they refused to sign a form authorising such a level of deduction from their wages. In any event he submitted that an Irish national would not have been expected to forfeit that level of his wages.
It was submitted on the Complainant’s behalf that the effect of having a proposed salary reduction of in excess of 40% of his weekly wage effectively forced him to leave his employment. Whereas he submitted that the level of deductions for Irish nationals was at a significantly lower level.
With regard to the threat of dismissal, the Complainant contends that he was not advised at any stage of the Respondent’s disciplinary/grievance procedure. It was submitted on the Complainant’s behalf that as a foreign national the Complainant should have been provided with special measures to ensure that he was advised of his basic employment law rights and the failure to do so amounted to discrimination. Counsel for the Complainant stated that the dismissal of the Complainant was not an issue before the Court, however, the threat of dismissal and the lack of appropriate procedures was. The Complainant had declined to sign the authorisation form on a number of occasions and threatened that if he did not sign he would be dismissed.
Counsel for the Complainant submitted that the quantum of compensation awarded by the Equality Officer was not adequate or reasonable in all the circumstances of the case. Reference was made to the decision of the ECJ inVon Colson and Kamann -v- Land Nordrhein Westfalen 1984 ECR 1891which held that sanctions for breaches of Community rights must ensure that they are effective and have a deterrent effect, and must amount to more that purely nominal compensation.
The Respondent’s case
A Representative for the Respondent stated that the Complainant while using the Company’s vehicle outside of Company hours had crashed it causing significant damage. He then abandoned the van at the scene (which had the Company name on it) and the Garda� had to contact the Company’s Managing Director. The Respondent sought to recover the costs involved in repairing the damage through deductions from the Complainant’s weekly wage, in accordance with its procedures.
The Respondent denied that the difference in the manner in which monies were recouped from other employees was explicable by reference to race either directly or indirectly, but was entirely related to the gravity of the offence, the degree of loss caused and the behaviour of the Complainant following the incident which caused the loss to the Company. It contended that by his actions, the Complainant breached his contract of employment and warranted his dismissal. However, the Respondent was reluctant to dismiss him and instead offered to allow him pay for the damage caused. He refused to do so and terminated his own employment. No monies were ever recouped and the loss had to be written off.
The Respondent denied that an Irish national would have been treated in a different manner as alleged by the Complainant. The Company Handbook states as follows:
- “Any damage to vehicles or property (including non-statutory safety equipment) that is the result of your carelessness, negligence or deliberate vandalism will render you liable to pay the full or part of the cost of repair or replacement”
The Respondent stated that this policy applies equally to all employees irrespective of race. Details of deductions made in respect of an Irish worker were submitted to the Court. These deduction made on a weekly basis, ranged from €15.00 to €95.00 per week on a gross earnings of €495.00.
The Respondent accepted that the Company’s documentation was somewhat incomplete at the time and consequently did not seek to appeal the Equality Officer’s decision. However, the Representative for the Respondent stated that the Company has since introduced comprehensive formal procedures, with translation services available to foreign nationals.
It was submitted on behalf of the Respondent that the Complainant’s appeal of the quantum of the Equality Officer’s award in citingVon Colsonwas an attempt to seek recovery of his legal costs and the Court has no jurisdiction under the Act to do that.
Quantum
The Equality Officer found that the Complainant did suffer discrimination when the Respondent sought to deduct in excess of 40% of his net weekly salary in order to recoup the costs involved in the damage to its vehicle. The Equality Officer found that this level of deduction was considerably higher than deductions from the salaries of Irish nationals in similar circumstances which were in the region of between 3% and 15% and consequently found that he had been discriminated against. The Respondent has not appealed against that finding and it is not in issue in this appeal. The Complainant has, however, submitted that the quantum of the award made by the Equality Officer is inadequate.
The jurisdiction of the Equality Tribunal, and of this Court on appeal, to award redress is grounded on section 82 of the Act. Section 82(1)(c) of the Act provides that the Court may make an order for compensation for the effects of acts of discrimination. Where this mode of redress is decided upon the Court is required to follow the decision of the ECJ inVon Colson andKamann[1984] ECR 1891. Here the ECJ held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. This means that the compensation awarded must fully compensate the complainant for the economic loss which he or she sustained as a result of the breach of his or her Community rights. It must also contain an element that reflects the gravity of the infringement and acts as a disincentive against future infractions.
The Court has no jurisdiction under either the Act or the dicta inVon Colson andKamanntomake an award of costs or an order for the recovery of expenses incurred in the prosecution or defence of a case under the Act. Therefore, the Court has no jurisdiction to increase the award made by the Equality Officer in order to allow for recovery of all or part of those costs.
The Court notes that the Complainant fully accepted that his behaviour was wholly attributable to the circumstances leading to the accident and he accepted that he failed to report it to the Garda�. Furthermore, he accepted that deductions would be made from his salary, in accordance with the Company’s procedures, to off-set the costs involved. The Respondent submitted to the Court that the Complainant’s actions warranted dismissal, however, as it was reluctant to dismiss him it offered to allow him pay for the damages instead. The Court has taken cognisance of this point, which is not unreasonable, in considering the matter of quantum. The Complainant refused to make the deduction sought and instead terminated his own employment. No monies were ever recouped and the loss had to be written off by the Respondent.
The Court is satisfied from the details submitted on behalf of the Respondent that the outcome of the Equality Officer’s decision has had a deterrent effect and to ensure against future infractions the Respondent submitted details of various new employment related policies and procedures which have since been introduced; which it submitted are available to employees in their own language.
In these circumstances the Court is satisfied that the award made by the Equality Officer is adequate.
Determination
For all of the reasons set out above the Court can see no basis upon which it could interfere with the Decision of the Equality Officer. Accordingly the within appeal is disallowed and the Decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st June, 2010______________________
CON/MGDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.