THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011 -58
Ms. Karina Stefanovska
(Represented by Richard Grogan and Associates, Solicitors)
M. Orzet Ltd
File reference: EE/2009/720
Date of issue: 22 March 2011
Headnotes: Employment Equality Acts, 1998-2008 - sections 6 ,8, 14A - race- employment status - conditions of employment - prima facie case - discriminatory dismissal - harassment.
1.1 This dispute concerns a claim by Ms. Karina Stefanovska (hereinafter "the complainant") that she was subjected to discriminatory treatment on the grounds of her gender and race in terms of Section 6 of the Act and contrary to Sections 8 of the Employment Equality Acts by M. Orzet Ltd. (hereafter "the respondent"). The complainant maintains that the respondent discriminated against her in relation to her conditions of employment and training. She also maintains that she was discriminatorily dismissed.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 28 September 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 31 January 2011 the date the complaint was delegated to me. A submission was received on behalf of the complainant. No submission was received from the respondent. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 17 February 2011.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Latvian national, states she was employed by the respondent from June 2008 to 31 August 2009 as an administrator/cashier in a barber shop. She normally worked five days a week and was paid €380 a week. She submits that she did not receive a contract of employment, health and safety documentation nor training. She contends that she never received any tax documentation. She further contends that on 31 August 2009 she was pushed out of the respondent's premises by a person who had come to work there. She alleges that the owner regularly used foul and abusive language to her. She states that the owner spoke Russian and addressed her using Russian slang terms which are derogatory and demeaning towards women. She also alleges that she was discriminatorily dismissed. The complainant contends that this constitutes unlawful discrimination on grounds of race and gender contrary to the Acts.
3. Summary of the Respondent's Submission
3.1. The respondent did not engage with the investigation. No submission was received from the respondent nor did the respondent attend the hearing.
4. Conclusions of Equality Officer
4.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race and gender in terms of section 6 of the Acts and contrary to Section 8 of the Acts. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 Section 6(1) of the Employment Equality 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....."
Section 6(2)(a) of the Acts defines the discriminatory ground of gender - "as between any 2 persons, ... that one is a woman and the other is a man" and section 6(2)(h) of the Acts defines the discriminatory ground of race - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
It follows therefore that the complainant must be the subject of less favourable treatment in terms of gender because she is a woman or on grounds of nationality because she is Latvian.
4.3 Section 85A of the Employment Equality Acts 1998- 2007 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. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of her, her case cannot succeed.
4.4 The first issue raised by the complainant relates to the respondent's alleged failure to furnish the complainant with a written contract of employment, health and safety documentation or training. In the first instance, it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal.
4.5 At the hearing the complainant confirmed that she received a contract of employment in July 2009. The complainant stated that there were about ten people employed there while she worked there, of whom there were three men and seven women. Her colleagues were of various nationalities including Latvian, Lithuanian, Polish, Moldovian and Estonian. The complainant could not say whether any worker among the respondent's staff had a contract of employment before July 2009 or whether any worker had received health and safety documentation or training.
4.6 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 the instant case, in relation to the provision of a written contract of employment, the complainant was unable to show a difference in treatment between her and any other employee on this matter.
4.7 In Toker Developments v Edgars Grods the Labour Court confirmed it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation."
In the instant case, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination on either the race or gender ground in respect of the provision of a contract of employment, health and safety documentation or training could be inferred.
4.8 The next issue raised by the complainant was her allegation that one of the owners Mr. R who worked on the premises from June 2008 to July 2009 used foul and abusive language to her on a constant basis. She gave examples of the terms used in both her submission and at the hearing. I found the complainant a credible witness and she was clearly upset when translating the abusive terms used by Mr. R in addressing her and in speaking about her. She stated that Mr R also addressed other women in these terms. I accept the complainant's evidence on this issue and I am satisfied that the language used is a form of abuse specifically directed at women. I am satisfied that the complainant has adduced evidence from which a prima facie case of discrimination on grounds of her gender can be inferred The conduct of Mr. R falls within the definition of sexual harassment set out in Section 14 A of the Act. While the section on harassment was not ticked by the complainant in the complaint form referred to the tribunal I note that the outline of the complaint included a reference to the manager using foul and abusive language towards her. Further details were provided in the submission received on behalf of the complainant and copied to the respondent on 4 March 2010. I am satisfied therefore that the respondent was on notice of the complaint. The respondent's failure to attend at the Hearing means that it cannot avail of the defence provided at section 14A(2) of those Acts and the complainant is therefore entitled to succeed in respect of this element of his complaint. In light of the foregoing I find that the complainant was sexually harassed contrary to the Employment Equality Acts, 1998-2007.
4.9 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. In relation to this, at the hearing the complainant stated that a new woman, Ms A, started to work in the company in July 2009 and she covered the complainant's days off. The complainant understood that Ms A was employed to cover her days off. At this time the complainant worked five days a week Friday, Saturday, Sunday, Monday and Tuesday. The complainant's working time was then reduced to four days a week as she was told that the salon was not busy enough. It was then reduced to three days a week. She queried why her hours were reduced and this other woman had been taken on. She subsequently learned that Ms A was one of the owners. On 31 August 2009 on her day off she went in to check the roster and Ms A told her she should not be there and pushed her out of the premises. She was very upset and rang the manager. He told her that everything would be fine but when she again queried her hours being cut he told her that if she did not like her hours she could leave. She consulted her solicitor and then took this case. The complainant stated that she was not aware of any other employees having their hours cut or being dismissed. The other employees were all hairdressers; she was the only administrator/cashier.
4.10 I have carefully examined the evidence presented by the complainant in the instant case and although the complainant has argued that fair procedures were not complied with in relation to her dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of her race or gender in relation to her dismissal. The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal, the complainant needs to prove that it was influenced by her race or gender. I am not satisfied that she has adduced evidence to support her assertions that her nationality or gender was a factor which influenced the respondent's behaviour. The legal representative for the complainant submitted that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in the circumstances. I have carefully considered the arguments advanced by the complainant's solicitor on this matter and I am not satisfied that they provide the evidential basis to enable me to conclude that an Irish employee would have been treated more favourably in the circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race or gender contrary to the Acts. Therefore the complainant's claim of discriminatory dismissal on the grounds of gender or race fails.
5. DECISION OF THE EQUALITY OFFICER
5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision.
(i) 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 her conditions of employment (in relation to the provision of a contract of employment, health and safety documentation) and training contrary to section 8(1) of the Acts.
(ii) 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.
(iii) the respondent discriminated against the complainant on the gender ground in relation to her conditions of employment contrary to section 14A of the Acts
I am satisfied that the appropriate redress is an award of compensation. Pursuant to 82 (1) (c) I order that the respondent pay the complainant €5000 for the effects of the harassment. This award is in compensation for the infringement of the complainant's statutory rights and, therefore, is not subject to income tax as per Section 7 of the Finance Act 2004.
22 March 2011