The Equality Tribunal
Employment Equality Acts
(Represented by Richard Grogan & Associates)
- V -
Marble & Granite Supplies Ltd.
(Represented by Tiernan Lowey, BL, instructed by DAS Group)
File reference: EE/2008/859
Date of issue: 27 June 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Race - Prima facie case
1.1 This dispute concerns a claim by Mr Mykolas Kliusenkovas that he was subjected to discriminatory treatment and discriminatory dismissal by the respondent on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), 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 12 December 2008 under the Acts. On 21 February, 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to 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 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 4 March 2011. 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 SUBMISSION
2.1 The complainant submitted that he was employed by the respondent and is a Lithuanian national and it is on this basis that this complaint is being taken. The complainant further submitted that he did not receive any proper contract of employment.
2.2 The complainant submitted that he was required to work contrary to the Organisation of Working Time Act.
2.3 The complainant submitted that he was 'dismissed without proper reason or procedure including no redundancy payment nor even a Certificate to enable same to be claimed'.
2.4 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.5 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to his dismissal.
2.6 The complainant submitted that there was a complete lack of documentation which, he contends, requires consideration as to the position of a notional comparator in this case.
2.7 The complainant further submitted that at no stage did the respondent advise the complainant of his right to raise a grievance.
2.8 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted the Tribunal has to consider three issues, whether is discriminated against the complainant in relation to contracts, documentation and training, whether it discriminated against the complainant in relation to being denied terms and conditions of employment to which he was entitled and finally whether the dismissal of the complainant was discriminatory.
3.2 The respondent submitted that it had provided the complainant with a contract of employment, documentation and training in English in or around 15 July 2004 and that as a preliminary issue, any consideration that these items were discriminatory is out of time, given that the claim was lodged on 12 December 2008.
3.3 The respondent submitted that, notwithstanding the foregoing preliminary point, the complainant's level of English was such that no translation was necessary as he had a sufficient level of English to understand the documentation and training provided and furthermore that the complainant had, during the course of his employment as team leader, willingly stepped into the role of de facto translator in relation to other staff members. In addition, the respondent submitted that in the CV provided on application for the original position, the complainant stated that he speaks and writes English.
3.4 The respondent submitted that no case has been put forward in relation to the discrimination in relation to a denial of terms and conditions of employment to which he was entitled.
3.5 The respondent submitted that the complainant was dismissed for gross misconduct following an investigation undertaken in accordance with company policy. The respondent contends that the complainant was given fair and amply opportunity to participate in the investigation and that he was accorded fair procedures.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant was discriminated against and dismissed in a discriminatory fashion by the respondent on grounds of race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts 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 On the preliminary issue relation to the provision of a contract and documentation, the Acts clearly impose requirements concerning the referral of a claim for redress. Section 77 governs this area and, in circumstances where an occurrence of discrimination has taken place, requires a complainant to make a referral within 6 months from the date of occurrence of discrimination (12 months on application to the Director or the Circuit Court in cases where there is reasonable cause). The Acts also allow for investigation extending over longer periods where the complainant can establish the treatment to be on-going discrimination. Section 77(6A)(a) provides for circumstances where discrimination arises by virtue of a term in a contract, discrimination occurs throughout the duration of the contract. Having regard to the foregoing, and, bearing in mind the purpose of these Acts and the language set out in section 6, I am satisfied that provided that the complainant can show facts from which an inference of discrimination can be drawn, a contract of employment may, in certain circumstances, constitute on-going discrimination. I am satisfied that I have the jurisdiction to hear the facts of this case and issue a decision accordingly.
4.4 It was submitted on behalf of the complainant that issuing his contract and documentation in English only amounts to discrimination. I am not satisfied that giving staff members whose mother tongue is not English contracts in English only can amount to discrimination in and of itself. Each case must be considered in light of the circumstances that pertain to the employment relationship in its entirety. Factors such as, but not limited to, the employee's knowledge of the language of the contract, the employees knowledge of the business and the work environment, the employer's knowledge of the employee's mother tongue, the availability of translation services - both formal and informal, the size of the company in relation to the numbers of language spoken, the line management structure within the company (in terms of language competence and nationality) and the common language used within the company, all contribute to consideration of what amounts to discrimination in the circumstances of the employment relationship.
4.5 In this case, the complainant gave evidence in relation to his competence in English. He was employed in a supervisory role. He had studied written and spoken English for five years prior to coming to Ireland and had developed his ability further while in an English speaking environment in Ireland. It was apparent from his evidence that he had developed a reasonable capability in English. It was submitted on his behalf that he had not completely understood his contract. A witness for the respondent submitted that the complainant was initially interviewed in English and could chat at interview quite easily in English. He also stated that he was "a good guy if you were trying to get your point across" to others and that he had an "ability to learn quickly". Accordingly, I do not consider that the complainant would be at a disadvantage when presented with a contract that was only written in English.
4.6 In relation to the issue that the complainant was denied terms and conditions of employment to which he was entitled, no evidence was put before the Tribunal to substantiate any such claim.
4.7 In relation to the dismissal, the evidence before the Tribunal is that the complainant was found to have committed acts that amounted to gross misconduct. He was suspended on full pay while the matter was investigated. He was provided with the opportunity to have a colleague present his case under the company's grievance procedure, and was represented by a colleague. He was given the right to appeal, which he did not exercise. It is not the place of this Tribunal to consider what should amount to gross misconduct but rather to ensure that the complainant in any process is not discriminated against for reasons of one of the nine protected grounds.
4.8 Having regard to the evidence given by both parties as to the complainant's competence in the English language I am satisfied that the complainant had an acceptable level of English such as to understand the employment relationship and grievance process.
4.9 I am further satisfied from the evidence given to the Tribunal that the grievance procedure was uniformly adopted across the company. No evidence to the contrary was proffered by the complainant, however, a number of instances where the procedure was followed were submitted by the respondent.
4.10 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  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 ..."
4.11 Having considered the evidence from both parties in this case in its proper context, I am not satisfied that the complainant has shown that he was treated in a less favourable manner than others. Accordingly I do not consider that complainant has established in the first instance, either in relation to the provision of a contract or in relation to his dismissal, facts from which discrimination may be inferred. Accordingly, no onus shifts to the respondent to rebut an inference of discrimination.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established and this complaint fails.
27 June 2011