THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2011 - 178
Mr Adefemi Owoade
Dunnes Stores Ltd.
(represented by Byrne Wallace, solicitors)
File Reference: EE/2009/114
Date of Issue: 22nd September, 2011
Headnotes: Employment Equality Acts, section 6, 8 - Section 6(2)(h), race ground - Section 8(6)(c), dismissal - summary dismissal - disciplinary procedures - notional comparator
1.1. This case concerns a complaint by Mr Adefemi Owoade (hereinafter referred to as "the complainant") that he was discriminated against by Dunnes Stores (hereinafter referred to as "the respondent") contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts") in relation to dismissal, contrary to Section 8(6)(c) of the Acts.
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11th February, 2009, alleging that the respondent had discriminated against him on the ground of race.
2.2 Written submissions were received from both parties. On 8th February, 2011, in accordance with his powers under section 75 of the 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 Acts, on which date my investigation commenced. A hearing of the complaint was held on 28th June, 2011.
3. Summary of the Complainant's case
3.1. The complainant was employed by the respondent on 1st October, 2007 as a night-pack Manager in its premises in Swords and was transferred to the store in Navan in July, 2008.
3.2. The complainant stated that he began work at 8 pm on Monday, 18th August, 2008, as usual. He said that he assigned his staff their jobs and would normally then start packing tissues and paperwares which, under instruction from the General Manager, Mr A, he did upstairs. He stated that he returned from his break 15 minutes late but said that this was because he felt dizzy and unable to return to the floor before that time. He submitted that he continued to supervise the deliveries, which usually come in between 3:30 am and 4 am and that he left the front door open after this so that the cleaning staff would be able to resume their duties in the morning as has been the tradition since he started in Navan.. He stated that he felt dizzy again (at around 4:30 am), and he was afraid he was going to fall down and collapse, so he had to go to rest in the canteen for another 25 minutes just to recuperate.
3.3. The complainant submitted that he went home after concluding this shift (at 5 a.m.). He said he did not visit a doctor as it was fatigue and he just needed to sleep. He said that Mr A rang him at approx. 12 noon to tell him to come in at 4 p.m. that day. He submitted that, when he came in, Mr A asked him to follow him to the office and started to ask him questions about the previous night. Inter alia, he submitted that he asked him why the door was open and he told him that it was open because it was time for the early morning staff to resume duty. He submitted that the Personnel Manager, Mr B, was also present at this meeting.
3.4. The complainant said that, at the conclusion of this meeting, Mr A told him that he was suspending him without pay for two days, that there was going to be an investigation and that he should come back two days later. He said that he was not informed that this meeting was being held under the respondent's disciplinary procedures but said that he was asked if he wanted someone to come and sit down with him at this meeting.
3.5. The complainant stated that he returned two days later as instructed to attend at a further meeting which he was informed was being held under the respondent's disciplinary procedures. He was again asked if he wanted to be accompanied at this meeting but he declined. The complainant said that he "saw the footage and said he knew everything that happened". He said that Mr A mentioned the health and safety of staff, to which his response was that he knew none below eighteen years of age and that he did not think that any of them would want to do anything that is a risk to their health and safety. He said he totally disagreed that what he did was a health and safety risk.
3.6. The complainant said that the respondent's record of this meeting was "not 100% accurate". He said that when the bread delivery arrived, he went out to sort the iron bars for stacking the bread and did not go for a cigarette as claimed by the respondent, though he did have a cigarette outside later on. He also said that immediately upon being asked about taking an extended lunch break, he accepted there and then that he had done so and that, if he was hiding something, he could have clocked in.
3.7. The complainant submitted that the goods inwards Manager, Mr C, had told him it was ok to take deliveries in through the front door and then leave it unlocked so that the cleaning staff would be able to resume their duties in the morning. He said that he was also told this by another manager who he thought was Polish but did not know his name. He also said that the morning in question was not the first time that Mr C would have walked straight in through the door, as alleged by the respondent.
3.8. The complainant also submitted that if he had been felling unwell on a day shift he would have reported this to a higher supervisor but, as there were no other supervisors on duty at this time of night, he proceeded to go back to the floor and made sure that staff carried out their jobs. With respect to why he did not call one of the contact numbers on the list provided by the respondent, he said that he would not want to wake someone up in the middle of the night for something which he did not think was going to become a big issue. In that respect, he referred to an incident while he was working in Swords which he essentially considered to be more typical of the kind of emergency situation that might arise while working as a night-pack manager.
3.9. The complainant submitted that due process was not followed with respect to his dismissal. He submitted that the respondent's disciplinary procedures provided for two verbal warnings, a written warning, suspension and finally dismissal and that he should have been entitled to appeal against his dismissal. He further submitted that he is not guilty of misconduct and therefore should not have been dismissed without any of these warnings and without the respondent's procedures being followed. Furthermore, he said that, since he started working in Dunnes Stores, he never got verbal warnings, he never got written warnings, and that it was unfair that he was dismissed in that context.
3.10. The complainant said that he never had a problem with Mr A before. He said that he was not familiar with the respondent's grievance and disciplinary procedures but had read the handbook. He did not concede that what he did was a serious breach of the company's policies and procedures. He said that there was a list of events that could lead to summary dismissal and what he did was not on that list. He said that it would have been different if he had left the building but he was on Dunnes Stores premises at all times. When asked if he accepted that two employees on night duty were doing something they should not have been doing and he was not available, he said that even when he was there, they could have done it if he was upstairs and "they are all 18 and know about health and safety". He added that "if the cameras looked at it", they should have been punished.
3.11. Finally, the complainant submitted that an Irish Manager would not be treated the same way whereas he is a black African (Nigerian) and that as the reason for his dismissal was minor (i.e. that he left the shop floor unattended for 15 minutes) the dismissal can only be explained as being discriminatory because of his race. He submitted that an Irish Night-pack Manager would not have been dismissed on the basis that he got sick at work and decided to take a break because of his health condition at that point in time. In response to the respondent's submission that his race did not preclude him from being hired in the first place, the complainant said that it was "not individuals who hired him". In short, he submitted that a hypothetical Irish comparator would not have been dismissed in the same or similar circumstances.
4. Summary of the Respondent's case
4.1. Mr A, who was present at the hearing, stated that, on the night in question, the complainant took an extended lunch break, which he did not record, and was absent from the shop floor for that time. He said that the complainant opened the front door at 3:15 and left it open for the remainder of his shift. He said that he also went on two unauthorised cigarette breaks and left the shop floor again for 24 minutes towards the end of his shift. Mr A said that he had investigated the behaviour of the complainant on the night in question as Mr C had brought to his attention that the front door was open when he walked in on the morning of 19th August and that another employee had brought to his attention that the complainant had been asleep in the canteen.
4.2. The respondent submitted that, when initially questioned by Mr A and Mr B about these matters at the meeting which took place on 19th August, the complainant denied taking any extended lunch break until his clocking record was put to him by Mr A. The respondent denied that the complainant made any reference to being unwell or feeling dizzy at that meeting. It also submitted that the complainant, when asked by Mr A whether he had anything to say, responded by saying "I did not do it on purpose". It also submitted that this portion of the complainant's evidence, and other parts of his evidence, was also contradicted by a letter his own solicitor had written on his behalf (the solicitor in question was no longer representing the complainant by the time of the hearing and was not present at that hearing).
4.3. Mr A said that the complainant told him at that meeting that he was aware of the company's policies and procedures and of the seriousness of the door being unlocked and said that he would never leave the door unlocked while off the floor. The respondent submitted that this shows that he was well aware of the fact that the door had to be left locked for health and safety reasons. It submitted that the complainant acted in breach of strict company policy in this respect and had posed a serious security and health and safety risk.
4.4. The respondent submitted that it was at the second meeting on 21st August that the complainant said that Mr C told him that he could take the deliveries in through the front door and then leave the door unlocked. However, Mr A stated that it is not true that Mr C ever told the complainant he could leave the door open and that the complainant's description of what he said was tradition in Navan with respect to the opening and closing of doors was not accurate. He said that it has never been reported to him that the doors are left open at night-time and that is not the policy in Navan to leave it open for the cleaners. He added that the complainant never mentioned to him that opening doors was a tradition. He said he never investigated this claim or spoke to Mr C about it.
4.5. The respondent submitted that the complainant was asked twice at the meetings in question whether or not he would like to be accompanied to the meeting, an offer he declined. It submitted that the complainant was also invited to view the CCTV footage, which he declined.
4.6. The respondent also submitted that that it had CCTV footage of the complainant taking two cigarette breaks. It said that the complainant admitted to taking the second break but not the first. When questioned about the matter, Mr A said that the complainant had told him with respect to the first alleged cigarette break that he was dealing with breadboards and Mr A agreed that they do have breadboards at the side of the building.
4.7. Mr A also said that he had previously pointed out the emergency telephone numbers on the wall in the Manager's office which the complainant could have used in the event of him being unable to carry out his duties due to illness. He said that he did not tell him to pack the paperwares upstairs or to otherwise work upstairs.
4.8. The respondent described what it meant by a "thorough investigation" with respect to summary dismissal of its employees. It stated that there is no written document outlining these particular procedures but, in general, a Manager will telephone and get advice from HR and ultimately make the decision.
4.9. With respect to the complainant's case, Mr A stated that he first viewed the CCTV footage, he then compiled notes, spoke to HR and went back over the CCTV footage for the whole night. He said that he then rang the complainant and asked him could he come in to have a discussion about the matter. He then described what took place at the meetings of 19th and 21st August. He said that, at the end of the meeting of 19th August, he suspended him for two days pending a further investigation and pointed out that this could be up to and including his dismissal. He said that there was a right to appeal in the respondent's procedures but he did not mention it specifically to the complainant.
4.10. Mr A gave a detailed account of why he considered that the conduct of the complainant warranted summary dismissal. He described this conduct as very very serious, and referred, inter alia, to the fact that the shop floor was left unsupervised which resulted in two members of staff "messing" with an electric truck pallet which could have caused a serious health and safety issue. He said that he would have treated any other night manager in the same way and did not treat the complainant any differently in that respect because he was a Nigerian national. He denied that he dismissed the complainant based on a personal hatred for him because he is a black African and not worthy of holding a Managerial position with the respondent. He added that his relationship with the complainant previously had been quite good. He said that he dismissed him because he could not trust him after this incident.
4.11. Mr A stated that he has previously dismissed a security manager and a HR Manager for theft. He stated that the nationality of both these managers was Irish. Mr A described the investigation that was carried out with respect to the dismissal of these employees. Mr A said that the two people who were "messing" with truck pallets were spoken to but no formal procedure was invoked against them. He said that one of these people was Irish but could not say what nationality the other person was. He described the behaviour in question.
4.12. Finally, the respondent submitted that it is an equal opportunities employer that does not discriminate on nationality or race. It pointed out that the seventh largest ethnic group working for it was Nigerian and said that there can be no suggestion that the respondent has an issue with Nigerians. It added that the complainant's race did not preclude him from being appointed in a managerial position in the first instance. It submitted that the complainant was dismissed as a consequence of acting in serious breach of the respondent's policies and posing a health and safety threat both to him and employees of the respondent. It submitted that he was dismissed in accordance with the disciplinary policy included in the Company Handbook, which applies to all employees regardless of race. It submitted that the complainant has failed to provide prima facie evidence and that his complaint therefore fails.
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. 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 him/her. If he/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. Therefore, in deciding on this complaint, I must first consider whether the complainant has established the existence of a prima facie case. 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..." Section 14A of the Acts defines harassment as being "any form of unwanted conduct on any of the..grounds...which has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." Section 77(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to (a) a complaint of discrimination made by an employee to the employer"
5.3. The issue for me to decide in this case, then, is whether the complainant was subject to less favourable treatment in comparison to another person on grounds of race (i.e. because he is Nigerian) with respect to his dismissal. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.4. The complainant submits that his conduct was not identified in the handbook as being conduct which would lead to summary dismissal. In those circumstances, he submitted that I must therefore conclude that the only reason why the procedures were not properly followed in his case was because of his race. On the other hand, the respondent submits that the preponderance of evidence in the case related to procedure and that there was no evidence to say that there was discrimination on the grounds of race.
5.5. There were undoubtedly serious flaws in the procedure that was followed in relation to the complainant's dismissal. Nobody other than the complainant was interviewed and none of his defences were followed up on or given due consideration by the respondent. I also note the respondent's over-reliance on CCTV footage which was exposed on at least one occasion when it became clear to me at the hearing that the respondent had drawn an incorrect conclusion that the complainant had taken a cigarette break when he was, in fact, supervising a delivery of bread. In short, the respondent's own procedures provide that a full investigation be carried out where the consequence for an employee is summary dismissal whereas I am satisfied that such an investigation was not carried out.
5.6. However, this is a claim of discrimination. In order for the complainant to shift the burden of proof to the respondent with respect to such a claim, he is required to provide evidence of sufficient significance to show that a person of a different race is, was or would have been treated more favourably in the same or similar circumstances. In short, he must show that the respondent's failure to provide for a full and proper investigation before his dismissal was related to his race.
5.7. The complainant states that he would have been treated differently if he had been Irish in that greater account would have been taken of his previous record working with Dunnes Stores, and the procedure would have been followed so that he would have received a written and/or verbal warning rather than being summarily dismissed. In making such a submission, the complainant effectively calls on the Tribunal to consider a notional comparator. However, a notional comparator should only be considered if there are no suitable real comparators. Therefore, I must first look at whether there are any real comparators, and I have identified three Irish people who were referred to by the parties who could be considered in that context.
5.8. There were two Irish people who were dismissed for gross misconduct. I note the extent of the investigation of both of their dismissals which was clearly quite extensive, although also relying primarily on CCTV footage. However, I also note that, in both cases, they were dismissed for theft, a criminal offence and one which is specifically identified as a reason for summary dismissal by the respondent in its handbook. On the other hand, the reason for the complainant's dismissal was not specified in the disciplinary procedure, though it is also acknowledged that the list of behaviours in question (i.e. those that warrant summary dismissal) is not exhaustive and that this is stated before the list is set out.
5.9. I also note the workers, at least one of whom was Irish, who carried out the "messing". I note that they were treated quite leniently given the seriousness the respondent attached to the health and safety issues at stake. However, I also note that they did not have responsibility as supervisors.
5.10. It can be said that none of these real comparators are eminently suitable as the similarity of their circumstances to those of the complainant is limited. Nonetheless, I am satisfied that consideration of the evidence with respect to them assists in providing a picture of the treatment of Irish persons in disciplinary procedures by the respondent, and by Mr A in particular. Therefore, I have considered the circumstances of their treatment by the respondent in that context. However, given the difficulty with finding suitable comparators in this instance, I have also given consideration to the complainant's submissions as to the ways in which he would have been treated differently had he been Irish and in that sense taken account of his argument with respect to a notional comparator (see par. 5.7).
5.11. The burden of proof is on the complainant to show, on the balance of probabilities, that the application of the respondent's disciplinary procedures to the complainant would have been significantly different had he been Irish. In that context, and in all the circumstances of the present case, and having considered the above, I am not satisfied that there is evidence of sufficient significance that would allow the complainant to discharge his burden of proof with respect to this claim. In short, I am not satisfied that the evidence presented indicates that the complainant would have been treated differently than he was had he been Irish. Consequently, the complainant has failed to establish a prima facie case of discrimination and his claim 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:
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 s.8(6)(c) of the Acts
6.3. Consequently, the complainant's case fails.
22nd September, 2011