THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 069
Mr Aleksandr Kirillov
(represented by Richard Grogan & Associates)
SAP Landscape Ltd.
(represented by Peninsula Business Services (Ireland) Ltd.)
File Reference: EE/2008/013
Date of Issue: 4th April, 2011
Headnotes: Employment Equality Acts, 1998 & 2004, section 6 and 8 - Race ground, Section 6(2)(h), Dismissal, Section 8(6)(c) - Conflict of evidence - Direct evidence - Credibility - No prima facie case - Employment of foreign nationals because not aware of rights
1.1. This case concerns a complaint by Mr. Aleksandr Kirillov (hereinafter referred to as "the complainant") that he was discriminated against by SAP Landscape Ltd. (hereinafter referred to as "the respondent") on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to dismissal contrary to section 8(6)(c) of the Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 19th December, 2007, alleging that the respondent had discriminated against him on the ground of race.
2.2 Written submissions were received from both parties. On the 19th May, 2010, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts (hereinafter referred to as "the Acts"), on which date my investigation commenced. A hearing of the complaint was held on Tuesday, 18th January, 2011. Further information was sought from the respondent and final correspondence in this respect was received on 15th February, 2011.
3. Summary of the Complainant's case
3.1. The complainant is an Estonian national who submitted that he was employed from 22nd October 2007 until 14th November, 2007. The complainant said he did his job well and there were no problems with his performance. He denied ever receiving any verbal warnings in that respect.
3.2. The complainant submitted that he was subject to threats because he had contacted his trade union, SIPTU, about an issue that arose in relation to his pay. Specifically, he stated that his Supervisor, Mr A, came to him at lunchtime on 14th November, 2007 and told him in Russian that if he phoned SIPTU again he would be fired. The complainant submitted that, nonetheless, he rang SIPTU later that day. Consequently, he said that, at the end of the day, Mr. A told him that it was his last day working for the respondent.
3.3. Subsequent to being dismissed, the complainant submitted that he met with SIPTU and the respondent on 19th November, 2007. He said that, at this meeting, Mr A got his evidence "mixed up" and the respondent could not prove that he did not do his job well or that he was smoking in unauthorised areas. He added that, at that point, he was not smoking at all. He said that the respondent also stated that the complainant had been dismissed because he had been on the phone too long. He said he did not agree with the respondent that his dismissal was unrelated to his phone calls to SIPTU. He said that the outcome of the meeting was that he was provided with an additional two weeks pay but was still dismissed.
3.4. The complainant said that the people he was working with confirmed what he was saying and that these people believed him, but they did not attend the meeting in question and he could not recall if he had made this point to the respondent. However, he said that SIPTU believed him because of this.
3.5. The complainant also submitted that he was dismissed without any proper reasonable procedure. In this respect, he stated that the respondent had an all foreign national workforce and there was a complete lack of documentation from it. In those circumstances, he submitted that the Tribunal should consider what the situation would be relative to a notional Irish comparator. In this context, he said that, in so far as he made inquiries with SIPTU with regard to his rate of pay and was threatened with dismissal and ultimately dismissed because of it, that this would not be done to an Irish worker. He submitted that its submission with regard to a notional Irish comparator is strengthened in the context that notice was not given and the complainant was summarily dismissed. He said that this would tally more with the complainant's version of events which were contradicted by the respondent.
3.6. The complainant also submitted that at no stage was he advised of his right to raise a grievance as is required by the Code of Practice and Grievance and Disciplinary Procedures and therefore no method was open to him to raise any issues. He submitted that special measures may be necessary in the case of a foreign national to ensure that they are advised of their basic employment law rights and that the failure to do so amounts to discrimination.
3.7. In summary, the complainant submitted that he was effectively threatened with dismissal for contacting a trade union to make inquires with respect to his rate of pay, when it was reasonable that a foreign national would be entitled to query matters with a trade union. He said that he was ultimately dismissed because of this and that this would not be done to an Irish worker. He said that it is no coincidence in that respect that the respondent only employs foreign nationals. He also said it was too easy for an employer to "keep foreign nationals in the dark".
3.8. The complainant also made a number of other allegations which he withdrew at the hearing.
4. Summary of the Respondent's case
4.1. The respondent stated that its workforce at the time was, apart from management, almost entirely made up of foreign nationals and submitted documentary evidence in that respect. It stated that, at the time in question, Irish people were not coming to work in landscape companies, such as the respondent's. It stated it had only one Irish worker at that time and he was a senior foreman. It submitted that, where possible, it employed people with a good level of English. In the case of the complainant, it submitted that it ensured that he was working on site with his direct supervisor, Mr A, who was able to communicate with him in his own language.
4.2. The respondent submitted that the complainant approached Mr A for employment in October 2007 and that he was employed as a labourer on one of its smaller sites.
4.3. Mr B, the respondent's Contracts Manager, and the Manager in overall charge of the complainant at the time and to whom Mr A reported, said that the reason the respondent terminated the complainant's employment was because of three complaints made about him. In relation to the first of these complaints, he said a client had made a complaint that someone, with no authority to be there, was standing smoking in a house he was trying to complete. Mr B said that he asked Mr A to give the person responsible (i.e. the complainant) a verbal warning.
4.4. Mr B said he then received complaints with regard to the use of his mobile phone by the complainant viz. that the complainant was using his phone on site. He said that this was a health and safety issue. He said it was also an issue from an employment perspective as the practice was that personal business was carried out at break-times whereas the complainant was using his phone during working hours. He said he instructed Mr A to give the complainant another verbal warning with respect to this complaint.
4.5. Mr B said an additional issue arose in relation to the complainant arriving late for work. He said Mr B investigated a complaint from a client who found that he had not been provided with the agreed number of workers on site. He said he found that the complainant had arrived late and so had not been counted by the client as being on site for that day. He said that this was not the first occasion on which the complainant turned up late. He said that the complainant stated that he had been late because his bus was late, but he submitted that another worker who was travelling from a similar location was on time. Furthermore, he said that all other workers on the site were on time and were not delayed by buses.
4.6. Mr B said that these complaints, coupled with issues for which he did not receive warnings, such as not wearing his Personal Protective Equipment (PPE), led the respondent to dismissing the complainant.
4.7. The respondent submitted that, on 14th November, 2007, it received a phone call from a SIPTU official who told it that one of its employees had been in contact with it claiming that he should be in receipt of the rate of pay according to the Registered Employment Agreement (REA) for the construction industry. It submitted that it told SIPTU that it would investigate which site the complainant was working on and what type of duties he was carrying out. It submitted that, in the meantime, Mr A had been instructed to dismiss the complainant because of the complaints already outlined. The respondent submitted that, at that stage, "management in the office" were unaware that the complainant had been dismissed and "management at the site" were unaware that a call had been made to the office by SIPTU.
4.8. Ms C, the respondent's HR Manager, said that no disciplinary hearing was held prior to the dismissal of the complainant. However, the respondent submitted that it agreed to meet with SIPTU with respect to the situation even though it did not officially recognise SIPTU. The respondent submitted that Mr B and Ms C were both present at this meeting and Ms C said that Mr A recalled at that meeting the three incidents already described. She said that the respondent felt that it could not re-employ someone of whom there were so many complaints in such a short period of time. Ms C said that, by the end of the meeting, SIPTU were happy that the complainant had been dismissed for these reasons and not for any other reason.
4.9. The respondent submitted that an agreement was made between it, SIPTU and the complainant that he would be paid one week in lieu of notice and also an extra weeks pay as a token of goodwill and that, as far as it was concerned, that was the end of the matter.
4.10. The respondent said that the phone calls to SIPTU had no bearing on the respondent's decision to dismiss the complainant. In that respect, Mr B denied that Mr A made any threat that the complainant would be dismissed because he contacted SIPTU. He said that he would have no authority to make such a threat, and he considered he would not be someone who would do so without such authority. The respondent also totally refuted the allegation that the complainant was dismissed because of his association with a trade union. In this respect it outlined its dealings with trade unions as well as outlining its treatment of all its employees, particularly with respect to pay, which, it submitted, showed that it did not discriminate on the ground of race.
4.11. In relation to the respondent's disciplinary procedures, Ms C stated that if a Manager has an issue with a particular employee, that person is invited to a disciplinary hearing where (s)he is entitled to have a representative present. Mr B stated that supervisors have the authority to make verbal warnings on site and a disciplinary hearing is held in such instances only when the employee objects to the warning. At this hearing, both the Manager and the employee give their side in relation to the incident and a decision is made within a few days as to whether action is taken in relation to the matter or not. She said that this procedure is not invoked very often because they do not have many disciplinary issues but is generally applied for persons who are with them for a while.
4.12. The respondent said that, while the disciplinary procedures were not employed properly with respect to the complainant, it was because he was only with it a short period of time (i.e. a few days), it did not use the procedure very often and he had displayed a blatant disregard for the company's rules and procedures. In that respect, it said that the complainant was on probation for six months but it had several complaints about him in the first three weeks.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. In the first instance, it requires the complainant to establish facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that 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. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)...". Section 6(2)(h) of the Acts defines the ground of race as being "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he was Estonian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of dismissal. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.4. It is clear that there is a serious conflict of evidence between the parties as to what actually occurred in the context of this complaint. I found Mr B's evidence to be more credible than that of the complainant. I am satisfied that there were a number of incidents involving the complainant where he engaged in behaviour he knew was not acceptable and I am satisfied that he was provided with verbal warnings in that respect. I am also satisfied that he continued to ignore the warnings he was given until the respondent considered that it was left with no alternative but to dismiss him.
5.5. I note that Mr B's evidence with respect to the complainant's allegation that he was told by Mr A that he would be dismissed if he contacted his trade union was based on supposition and his knowledge of Mr A's character and behaviour, rather than on his direct experience of the matter. However, I do not consider the evidence of the complainant in this respect to be credible, particularly given that I found the complainant's evidence with respect to the matters mentioned in the previous paragraph not to be credible. Therefore, I do not believe that Mr A made the statement in question. Nor do I believe that any other threats were made by Mr A with respect to the complainant's membership of a trade union.
5.6. It is clear, then, that the respondent's dismissal of the complainant was based solely upon his behaviour and was unrelated to any contact he made with his trade union, or any attempt by him to make such contact. More importantly, with respect to the present complaint, it was also unrelated to his nationality.
5.7. However, it is also clear that the procedure that was followed in relation to the dismissal was inconsistent with the procedure that was normally followed in such cases and which was notified to the complainant. Those procedures are exceptionally clear, robust and thorough and the respondent was ill-advised to stray from them. It did so, firstly, by failing to take a contemporaneous record of the complainant's verbal warnings. More seriously, it did so by not providing him with "a full opportunity with accompanying representative to present his case" in relation to his dismissal. Such a meeting was eventually held, but it was only at the instigation of the complainant's trade union and was, therefore, not in the context of the respondent's disciplinary procedures.
5.8. However, the remit of the Tribunal in this respect is to consider whether there is less favourable treatment on the ground of race. I note that the respondent said it did not follow the correct procedure in relation to the complainant because he had only been with it a short period of time yet, despite being on probation for six months, he had displayed a blatant disregard for the company's rules and procedures to the extent that it had several complaints about him in his first three weeks working for it. It also said that it did not use the procedure very often. While they are no excuse for failing to follow the correct procedures, I find, on balance, that it was for these reasons, and not for reasons related to the nationality of the complainant, that the correct procedure was not followed with respect to his dismissal.
5.9. It is also important to note that I am entirely satisfied that the complainant was well aware that he had been given verbal warnings and was fully conscious at all times that he was in breach of the respondent's regulations. Furthermore, I am satisfied that he was well aware that by continuing with his flagrant breaches of these regulations he could fully expect to be dismissed.
5.10. Therefore, I find, on balance, that the complainant has failed to establish that the failure of the respondent to follow its own established procedure with respect to his dismissal amounted to discrimination on the ground of race (with respect to nationality), contrary to the Acts.
5.11. The complainant also alleged that the respondent seeks to hire foreign nationals because they would not be aware of their employment rights. In effect, he alleges that it did so in order to be able to exploit them at will. However, given that I am satisfied that the failure to follow the procedure in relation to the dismissal of the complainant was unrelated to his nationality, there is not a jot of evidence to support this allegation. I would add that I am satisfied that the complainant was fully aware of his rights. In that context, it should be said that the complainant's allegations in this respect are wholly without foundation. In any event, I accept the respondent's submission that it employed foreign nationals because, at the time in question, Irish workers were not seeking work with it.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of dismissal, contrary to section 8(6)(c) of the Acts.
6.3. Accordingly, the complainant's case fails.
4th April, 2011