The Equality Tribunal
Employment Equality Acts
(Represented by Colm O Cochlain & Co, Solicitors)
- V -
Trade Mouldings Distribution Limited
(Represented by Denis I Finn, Solicitors)
File references: EE/2008/208
Date of issue: 1 March 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Race - Prima Facie case
1.1 This dispute concerns a claim by Mr Mariusz Laks that he was subjected to discriminatory treatment and harassment by Trade Mouldings Distribution Ltd on the grounds of his race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal on 4 April 2008 under the Employment Equality Acts. On 8 July 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases 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 17 November 2010. Additional written evidence was submitted to the Tribunal on 24 November 2010. 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 he was employed by the respondent from 8 May 2006 until 28 February 2008. The complainant is a Polish national and it is on this basis that this complaint is being taken.
2.2 The complainant submitted that he was ridiculed due to his strict religious belief. He submitted that he was mocked and laughed at for not drinking alcohol and not eating meat on Fridays.
2.3 The complainant submitted that he was constantly being laughed at by employees and management as he could not understand conversations due to the language barrier.
2.4 The complainant submitted that he and a Polish co-worker were made to lift more that their notional Irish comparators.
2.5 The complainant submitted that he was not paid for Christmas holidays and was told by a manager that holiday pay was only for the Irish employees.
2.6 The complainant submitted that he was subjected to a member of the management team breaking wind in his personal space, the manager and a co-worker would then laugh about the incidents.
2.7 The complainant submitted that he was dismissed without the proper grievance procedure being followed. The appeal to the dismissal was conducted by the same individual who conducted the initial disciplinary hearing, which is a clear violation of the Respondent's employee handbook. In addition, an interpreter was not provided at his disciplinary hearing.
2.8 The complainant submitted that he did not receive a contract of employment from the respondent.
2.9 The complainant contended that following the decision in Campbell Catering, there would be a requirement to take special measures to advise foreign nationals of their employment rights
2.10 The complainant submitted that the respondent failed to furnish him with a safety statement under the Safety Health and Work Act and that following the case of 58 named Complainants v Goode Concrete Limited there is a requirement to furnish a foreign national with a health and safety statement.
2.11 The complainant submitted that they must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.12 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant was employed as a warehouse operative from 8 May 2006 until 28 February 2008 and that during his last 12 months, his competence and capability descended to unacceptable levels. The respondent submitted that they had received complaints from customers about the errors and they were obliged to take remedial action.
3.2 The respondent submitted that it introduced a bonus scheme whereby employees received a bonus if the number of their mistakes was under a certain level. The respondent submitted that the complainant was consistently exceeding the permitted number of mistakes and that it was obliged to invoke its Disciplinary Procedure as laid down in its Employee Handbook.
3.3 The respondent submitted that it followed its disciplinary procedure to the letter, giving the employee a verbal warning at first followed by a written warning. When there was no improvement in the standard of the complainant's work, the respondent proceeded to convene a disciplinary hearing. Following that hearing, one of the respondent's Directors reviewed the matter and made the decision to terminate the complainant's employment with immediate effect. The respondent accepts that the nature of the complainant's conduct did not warrant a summary dismissal and that it should have given the complainant two weeks notice.
3.4 The complainant appealed that decision and the respondent assigned another Director to hear the appeal. The appeal hearing was postponed on a number of occasions at the complainant's request. The respondent submitted that the complainant was accompanied to the appeal hearing by a lady who was there to interpret on his behalf. The respondent submitted that at no time did the complainant ask the interpreter to translate anything for him.
3.5 The respondent submitted that the appeal process concluded that there were no grounds to reverse the decision to terminate the complainant's employment and he was so informed.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether or not the respondent subjected the complainant to discriminatory treatment and harassment on grounds of race, in terms of Section 6 and 14A of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality 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 At the hearing of this matter the complainant submitted that colleagues made fun of him for not being able to attend a Christmas party/meeting on a Friday. He stated that he could not attend because he does not drink on a Friday. It was contended that this is a very common thing in Poland and that this belief comes from his religious belief which stems from his ethnic background. When the matter was queried with the complainant, he stated that perhaps 5% of Polish people do not drink on Friday, and that in his particular case his mother did not drink on a Friday, although he conceded that his father did consume alcohol on a Friday. In reply, the respondent stated that for the subsequent years Christmas party (also on a Friday) the complainant had no problem with attending the pub and consuming alcohol, in that instance being one of the last to leave the licensed premises. This statement was not contested. The Tribunal notes from the EE1 form that this case is being taken on the race ground and does not indicate discrimination on the basis of religion. In addition, the complainant submitted that he was made fun of because he did not understand English and could not follow the work banter. The respondent noted that as the majority of its employees on the site were Polish, most of this banter was in Polish. This statement was not contested. Accordingly, in the circumstances presented to me, I cannot consider that the foregoing amounts to facts from which discrimination may be inferred on the basis of race.
4.4 The complainant stated that he was treated differently to other employees, that his supervisors swore at him and that one of them broke wind in his direction and that this behaviour amounts to harassment. Under Section 14A(7) of the Acts, harassment is defined, inter alia, as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.5 The complainant's account is unsupported by documentary evidence, and the witness testimony given directly challenges his assertions in relation to, inter alia, that Polish workers were made to lift more than a notional comparator would have been; that the complainant was told that holiday pay was only available to Irish workers; and that the complainant was subjected to members of management breaking wind in his personal space. Accordingly, I do not consider that the complainant has established facts from which discrimination may be inferred. In the circumstances I cannot accept that the complainant has established a prima facie case such as to shift the onus to rebut the inference of discrimination raised on to the respondent. Accordingly this element of the case fails.
4.6 Although the complainant is not claiming discriminatory dismissal, he appears to be claiming discriminatory treatment in relation to how the dismissal procedure was followed. He stated that he was not provided with translation services during his employment or during his dismissal. The respondent stated that the complainant had enough English to be able to take direction in work and to engage fully with it in all respects. In support of this position, the respondent stated even though the complainant had brought an interpreter to the appeal of his dismissal, he did not have to refer to her once. In response, the complainant confirmed that the person who accompanied the complainant to the appeal hearing and was identified to his employers as his translator was in fact a Polish national working as an "office junior" in the firm of solicitors he had engaged. He did not contest the issue raised that he had not needed to refer to her for translation during the dismissal process.
4.7 Nonetheless, the complainant submits that the respondent was required to provide special measures to him in relation to his employment and the dismissal hearing of as a result of the decision of this Tribunal in the Goode Concrete (DEC E2008-020) case.
4.8 However, before proceeding any further, it is important to note the context of the Goode Concrete case and what the Equality Officer ultimately decided. Because they did not understand their employment rights as outlined in the contract of employment, it was found that the complainants in Goode Concrete were treated less favourably than someone who had a good command of English as such a comparator, notional or otherwise, would automatically be made aware of their rights because they understood the language and were provided with the information in that language. In that context, it is notable that the Tribunal went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees native language, or any other language for that matter. In short, the onus on the respondent in the Goode Concrete case was to make reasonable efforts to ensure that the relevant employee understood their rights and certainly that it ensured that they were not treated less favourably than someone who was made aware of those rights if they did not.
4.9 In Campbell Catering Ltd and Aderonke Rasaq (EED048) the Labour Court stated 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. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation".
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 In relation to the disciplinary proceedings, the respondent stated that from its perspective, the complainant had enough English to engage with it in all respects. That the complainant did not refer to his interpreter during the appeal of the dismissal proceedings was put forward by the respondent as supporting its contention that the complainant did not need the services of an interpreter. In the circumstances, I am satisfied from the evidence given by both parties that it was not unreasonable for the respondent to assume that the complainant could understand the process and possible outcomes.
4.12 The complainant submitted that the disciplinary procedure doesn't allow for the attendance of a solicitor but I note that that the procedure does allow for the attendance of a work colleague. It is settled law that a person who is the subject of disciplinary proceedings is entitled to representation. I note however that the provisions contained in the disciplinary procedure are in accordance with S.I. No. 146/2000 -- Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. In the instant case, I consider the point to be moot in that the complainant did not seek to be legally represented.
4.13 I am not satisfied that any shortcomings in the disciplinary and/or dismissal processes can be attributed to the complainants nationality. Accordingly, I do not consider that the complainant has established facts from which discrimination may be inferred. In the circumstances I cannot accept that the complainant has established a prima facie case such as to shift the onus to rebut the inference of discrimination raised on to the respondent. Accordingly this element of the case fails.
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 accordingly this element of the complaint fails.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the basis of the race ground has not been established and accordingly this element of the complaint fails.
1 March 2011