THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 028
Ms Mariola Asiewicz
(represented by Richard Grogan and Associates, Solicitors)
One Complete Solution Ltd.
(represented by IBEC)
File Reference: EE/2007/530
Date of Issue: 9th March 2010
1.1. The case concerns a claim by Ms Mariola Asiewicz that One Complete Soluction Ltd. discriminated against her on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment and harassment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 9 October 2007. A submission was received from the complainant on 15 September 2008. A submission was received from the respondent on 17 November 2008. On 15 July 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 24 February 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant is Polish and worked for the respondent as a cleaner at the time of her submission. She submits that she did not receive a contract of employment, in Polish or at all, that she did not receive a copy of the staff handbook in Polish, and that she received no health and safety documentation. She further complains that she was not advised that the JLC for the cleaning industry applied to her. She contends that she was subjected to a disciplinary hearing after making complaints about working conditions, but that she was not advised of her rights with regard to disciplinary processes, in particular the right to union representation.
3. Summary of the Respondent's Written Submission
3.1. The respondent contends that the complaint is out of time pursuant to S. 77(5) of the Acts. Furthermore, it states that the matter of furnishing a contract of employment to the complainant has already been addressed by a Rights Commissioner.
3.2. In response to the specific issues complained of by the complainant, the respondent states that the complainant did receive a contract of employment within two months of starting work with the respondent, and that the contract conformed to the JLC for the cleaning industry. The respondent further submits that the complainant properly received the staff handbook, which also contains the respondent's health and safety policy; and that her command of English, when she was interviewed for the position with the respondent, was adequate, and that there was no need to provide her with these documents in Polish.
3.3. With regard to the disciplinary meeting to which the complainant was called, the respondent submits that she was advised of it by letter, and that she was also advised of her right to bring representation. The respondent further states that the complainant did in fact bring a union official to represent her at the meeting.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether certain aspects of the case are in time as defined by S. 77(5) of the Acts, and if so, whether the complainant was discriminated against and harassed on the ground of race within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. At the hearing of the complaint, the respondent produced a carbon copy and a photocopy of the contract which the complainant had signed on 24 April 2006, one week after she commenced work for the respondent. The respondent further produced a signed slip sheet that confirmed that the complainant had received the staff handbook. The complainant stated that she had never received either the handbook or the contract, and denied that the signature on the slip sheet was hers. She did not deny that the signature on the contract was hers, and only stated that she had not received a copy of the contract. Her representative demanded that the person who had handed the complainant the contract and the handbook be produced as a witness for cross-examination. The representative of the respondent argued that the signatures proved that the documents had been handed to the complainant. He further contended that the Rights Commissioner, in a complaint brought under the Terms of Employment (Information) Act 1994, found that the complainant did receive a contract of employment as required by S. 3 of that Act.
4.4. With regard to the matter of the signatures on the contract and the slip sheet, I compared both of them from the original slip sheet document and the contract carbon copy, respectively, and am satisfied that they are identical, and both the complainant's. I am further satisfied that as per the signed, dated documents produced by the respondent, that the documents were given to the complainant on 24 April 2006. This means that the question of whether the documents should have been provided to the complainant in Polish arises outside of the time limits specified in S. 77(5) of the Acts, and I do not have jurisdiction to investigate this matter. I am satisfied that the complainant's representative has not demonstrated a chain of events between the contract issue and the disciplinary meeting that gave rise to the complaint being filed on 9 October 2007, to bring the matter within time pursuant to the findings of the Labour Court in Department of Health and Children v. John Gillen [EDA0412].
4.5. With regard to the provision of health and safety information, the complainant stated in direct evidence that no health and safety information was provided to staff at the time preceding the filing of the complaint, and that in 2008, written booklets on health and safety were provided to staff in English and Polish simultaneously. Accordingly, I find that the issue of less favourable treatment does not arise with regard to the provision of health and safety information, in languages that the respondent's staff were competent in.
4.6. With regard to the complainant's claim of harassment, it emerged from her evidence that her relationship with her Spanish manager, Mr. A., was somewhat conflicted. However, the complainant provided no evidence that Mr A harassed her, within the meaning of the Acts, on the ground of her race or nationality. Accordingly, I find that the complainant has not established a prima facie case of harassment and that this part of her claim must fail.
4.7. Turning to the disciplinary meeting that the complainant was called to, the respondent adduced evidence that it was re-scheduled twice and eventually took place on 22 October 2007, some two weeks after the complainant's complaint was received by the Tribunal. This was not challenged by the complainant, and the complainant made no claim of victimisation to the Tribunal. Accordingly, I find I can only make a finding on her complaint that she was not advised of her right to representation, or due process with regard to the meeting, and that this was due to her nationality.
4.8. However, the complainant's representative submitted a copy of the letter which initially advised the complainant of the meeting; it reads as follows:
You are formally notified that a disciplinary meeting under the Company's disciplinary procedure will take place on ... at ..., to discuss the following allegations made against you:
[paragraph detailing allegations]
You may be accompanied at the meeting which will be heard in my presence. Your companion can either be a work colleague or an employee representative of your union.
Please ensure that you bring with you any documents that may be of relevance to the meeting.
4.9. The disciplinary procedure is further outlined in the staff handbook which, as noted above, I am satisfied the complainant received. The respondent submitted that at the meeting, the complainant was accompanied by a SIPTU representative. This was not denied by the complainant. At the hearing, the complainant's representative sought to change the complaint to the fact that no interpreter was provided for the complainant; however, he could not adduce any evidence that one was sought either by the complainant or her union representative. I also note that this argument had not previously been part of the complaint.
4.10. Accordingly, I find that there was no less favourable treatment of the complainant on the ground of her nationality in terms of how the notification of her disciplinary meeting was handled by the respondent, and that this part of her complaint must therefore fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against the complainant in her terms and conditions of employment, including harassment, pursuant to S. 8(1) of the Acts, on the ground of her race or nationality pursuant to S. 6(2)(h) of the Acts.
9 March 2010