THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-052
(Represented by Richard Grogan & Associates, Solicitors)
Epicom (Ireland) Limited
(Represented by Irish Business and Employers' Confederation)
File Reference: EE/2008/782
Date of Issue: 15 March 2011
Headnotes: Employment Equality Acts, 1998 to 2008 sections (6), (8) and (14A) - discriminatory treatment and harassment - gender, race - conditions of employment - training - discriminatory dismissal - prima facie case.
This dispute involves a claim by Ms Nadezda Kazemaka (hereinafter "the complainant"), who is a Latvian national, that she was (i) discriminated against by Epicom (Ireland) Ltd (hereinafter "the respondent") in relation to training and conditions of employment on grounds of gender, family status and race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") and contrary to section 8 of the Acts; (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, family status and race contrary to section 8 of the Acts and (iii) harassed by the respondent contrary to section 14A of the Acts. At the hearing the complainant's representative withdrew the claim of discrimination on the ground of family status.
2.1 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 18 November 2008. A written submission was received from the complainant on 10 March 2009. A written submission was received from the respondent 23 June 2009. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 2 March 2011. Both parties attended the hearing.
3. Summary of the Complainant's case
3.1 The complainant was employed by the respondent as a packer from 9 June 2008 to 16 September 2008. The complainant stated that she did not receive a written contract nor a statement in writing containing the particulars of her terms of employment, as required by the Terms of Employment (Information) Act 1994. She was given inadequate training in how to do her work and inadequate health and safety training. She did not receive a health and safety statement as required under the Safety, Health and Welfare at Work Acts. The complainant was not advised of her rights under the company's disciplinary code. The complainant states that she was sick at work on 12 September 2008 and was allowed home. She was told to inform management if she couldn't come in the next day. She left a message the next day (13th). She received a text message in reply "Please bring note from your doctor." The complainant brought the note in on Tuesday 16th September 2008. The note stated that she was suffering from flu - like symptoms. She claims that she was told that there was no work for her, that her employment was finished. She claims she was dismissed without being given reasons, without getting a hearing and no procedures were applied. Although her terms of employment entitled her to receive written warnings and to appeal, she was summarily dismissed. The complainant argues that no Irish employee would have been treated in such a fashion, that an Irish employee would have been aware of his rights. She was disadvantaged by her lack of English and her poor knowledge of her rights. She argued that following the Labour Court decision in Campbell Catering Ltd v Aderonke Rasaq there is a requirement to take special measures to advise a foreign national of his/her employment rights.
3.2 In cross-examination, the complainant said that she believed the reason she was dismissed was that the plant manager (Mr A) "did not like her, how she worked". She said that she had one meeting with Mr A at which a Latvian colleague Ms B interpreted. Mr A told her she was not working well. She responded by saying she was not properly trained for the task. She denied that the meeting was about her performance. She denied that she was warned she would be dismissed if her performance did not improve. She also denied that she refused to work. She merely exercised her choice not to work certain shifts. In answer to questions to state in what way the respondent discriminated against her as a woman, she said that she was not sure. She had no complaint about how she was treated by her supervisor, Mr C, but considered that the plant manager, Mr A dismissed her because she was sick and others would not be so treated. As regards the claim of harassment, the complainant considered that Mr A, the plant manager, was rude to her, wanted to get rid of her and replace her with a Polish person. When it was put to her that other Latvians were still in the company's employment, the complainant said that Ms B and her son were there a long time. Other Latvians had left. When asked was she treated differently because of her race, she said no. She said that she was taking the case because she wanted Mr A punished on account of the manner of her dismissal.
4. Summary of the Respondent's case
4.1 The respondent company operates on 5 sites. The Longford plant, where the complainant was employed, packs pet food for a Longford based manufacturer. At the time of her employment there were 82 employees in the company, 46 male and 36 female. The breakdown by nationality was:
4.2 The complainant was referred to the company by another employee, who said she was his cousin. Mr A interviewed her and gave her a comprehensive briefing. Mr A stressed that time-keeping, attendance and cooperation with supervisors and line managers were essential to ensuring that the production line operated efficiently. The complainant was made aware that her first 6 months of employment would be subject to a probationary period, as was every employee in the organisation, before being offered a permanent position.
4.3 The complainant was employed by the respondent for 3 months. During that time the respondent had a number of performance issues with her, including:
Continued refusal to comply with the reasonable requests of her line manager
Attitude to work
Repeated refusal to finish the packing of a unit she was working on
4.4 The supervisor complained to Mr A that the complainant would not cooperate with him on production. After 3 to 4 weeks Mr A had a meeting with the complainant. Ms B was present and interpreted. The complainant acknowledged her shortcomings and promised to cooperate.
4.5 Two months into her employment the supervisor brought to Mr A's attention that the complainant was again uncooperative. She was refusing to finish jobs, leaving the production line to smoke and walking around. The complainant met with Mr A who was accompanied by Ms B who acted as interpreter. The complainant argued that since she was paid on piece rate, she was not paid when she did not work and as such she could choose when she participated on the production line. Mr A explained to her that this was unacceptable. Her lack of cooperation slowed the production line and affected the volume of production and earnings of all. Mr A warned her that she faced dismissal if she continued to be uncooperative. The supervisor, Mr C gave oral evidence of the complainant's poor performance and of the training given to her. Ms B gave oral evidence that she was present as interpreter at 2 or 3 meetings between management and the complainant and that the complainant was warned that she faced dismissal if she did not work normally.
4.6 About the beginning of September 2008 the complainant requested annual leave from 12 to 16 September 2008. Mr A refused because 4 co-workers had already been granted leave for some or all of those days. The purpose of the leave was not explained. The complainant asked again and was refused. On 12 September 2008 the complainant reported for work but shortly into her shift she stated that she was sick and had to leave. She sent Mr A a text message to this effect. Mr A thought it was "coincidental" that the complainant went sick on the day she wished to go on annual leave. Mr A consulted with Mr D, the managing director of the company on 14 September 2008. They agreed to dismiss the complainant because her work was not to the required standard. When the complainant came to the office on 16 September 2008 with her sick note she was told by Mr A that she was nowhere near meeting the required standard. She had been given 3 chances. She asked to be kept on but Mr A refused. She was given 1 week's notice but she declined to work her notice.
4.7 The respondent admits that the complainant was not issued with a written contract or a statement of terms and conditions of employment. The workforce was expanding rapidly and the issuing of contracts was not given priority due to pressure of other work. It was the policy of the respondent at the time to wait for a number of months and then give a group of new employees contracts at the same time. The respondent admitted in cross-examination that the written contract of employment contained a disciplinary code which provided for the issuing of written warnings prior to dismissal and for an appeals mechanism. The complainant was not made aware of her rights under the disciplinary code. The respondent did not follow their own disciplinary code in the complainant's case in that she was, as admitted by the respondent, given no written warnings prior to her dismissal or advised of her rights to appeal.
4.8 The respondent admitted that they failed to furnish the complainant with a Health and Safety statement. They state that no employees received a safety statement. Since the end of 2008 (i.e. after the complainant was dismissed) the respondent has generated and distributed a Health and Safety statement.
4.9 The managing director of the respondent, Mr D gave oral evidence. Mr A contacted him on 14 September 2008 and discussed the complainant's poor performance and her sick leave record. He agreed with Mr A that she ought to be dismissed. In answer to a direct question, Mr D stated that the company had dismissed Irish male workers during their probationary period without giving written notice and without informing them of their right to appeal.
5. Conclusions of the Director
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.1 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. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
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) (a) of the Acts defines the gender ground as follows- "as between any 2 persons that one is a woman and the other is a man". Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
Discriminatory treatment in relation to Conditions of Employment and Training.
5.3 The complainant has raised an issue in relation to the respondent's failure to provide her with a written contract of employment. The respondent has admitted their failure to provide the complainant with a written contract, but state that in this respect they did not treat the respondent less favourably than other employees who were male or not Latvian. It was their policy at the time to delay the issuing of written contracts and issue them in batches. As there is no evidence of a difference in treatment based on gender or nationality, this element of the complaint must fail. It is not a matter for the Tribunal to investigate allegations of breaches of the Terms of Employment (Information) Act 1994.
5.4 The complainant has also claimed that that the respondent discriminated against her by not providing her with a health and safety statement or training. Again the respondent has admitted as much but claims that in this regard the complainant was treated no worse than other employees. The company did not provide safety training or generate a safety statement until after the period of the complainant's employment. As there is no evidence of a difference in treatment based on gender or nationality, this element of the complaint must fail. It is not a matter for the Tribunal to investigate breaches of the Safety, Health and Welfare at Work Acts.
Section 14A of the Acts defines harassment as The Acts define harassment as:
any form of unwanted conduct related to any of the discriminatory grounds, being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
The complainant claims that Mr A was hostile to her in the latter period of her employment but has adduced no evidence to support her contention that his behaviour was in any way related to her gender or nationality. I conclude that any hostility was related to Mr A's perception of her work performance and was not related to her gender or nationality. Therefore her claim of harassment fails.
5.4 Discriminatory Dismissal
The next element of the complainant's claim concerns the allegations that she was subjected to a discriminatory dismissal by the respondent on the grounds of her race and/or gender. The complainant claims that she dismissed without any proper procedures and that the unfavourable treatment was based on personal dislike related to her race and/or gender. The respondent admits that the dismissal procedure fell short of what the complainant was entitled to under her contract of employment. The complainant argues that a hypothetical comparator, an Irish and/or male employee with good English would have been aware of his rights and would not have been treated as unfavourably as the complainant was. The respondent have stated however that they have in fact summarily dismissed Irish male employees without proper procedures having been followed. It is clear that the termination of the complainant's employment fell short of the procedures required by her employment contract or the Code of Practice on Grievance and Disciplinary Procedures. As the Labour Court commented in Aidotas Gedrimas v Mulleadys Ltd it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland."
The complainant's dismissal may well have been marked by procedural defects. However, the claim before me is an allegation of dismissal on the grounds of race and/or gender. I conclude from the evidence before me that the dismissal was for poor performance and not on the grounds of gender or race within the meaning of the Employment Equality Acts. Therefore the complainant's claim of discriminatory dismissal on the grounds of gender or race fails.
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. I find that:
(1) the respondent did not discriminate against the complainant on the gender or race grounds pursuant to section 6(2) of the Acts (in terms of his conditions of employment/training) and contrary to section 8(1) of the Acts;
(2) the respondent did not discriminate against the complainant on the gender or race grounds pursuant to section 6(2) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts; and
(3) the respondent did not harass the complainant contrary to section 14A of the Acts.
Therefore the complainant's case fails.
15 March, 2011