Employment Equality Acts 1998-2011
DECISION NO: DEC-E2012-068
Michaelczuk and Klebaniuk
(represented by Grogan and Associates Solicitors)
- V -
Ace Autobody Ltd
(represented by Grainne Gilmore BL)
File references: EE/2009/725 &726
Date of issue: 1 June 2012
Keywords :Employment equality Acts 1998-2008 - Discriminatory Treatment - Conditions of Employment - Discriminatory Dismissal - Race - Prima facie case
1.1. This dispute concerns a claim by Mr. Patryk Michalczuk and Mr Arkadiusz Klebaniuk (hereafter "the complainants") that they were subjected to discriminatory treatment, harassment and discriminatory dismissal contrary to the Employment Equality Acts by Ace Autobody Ltd (hereafter "the respondent") on the ground of their race.
1.2. The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 28 September 2009 under the Employment Equality Acts. On 28 February 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated this case to Elaine Cassidy- 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. As required by Section 79(1) and as part of my investigation, an oral hearing was held on 28 March 2012. Both parties were in attendance, as well as a Polish interpreter.
2. Case for the complainants
2.1 Mr Michalczuk
The complainant worked for the respondent from November 2007 to August 2009 and his job was as a car spray painter. He qualified in this trade in Poland, but he also did other work such as panel beating, when he worked for the respondent. The only training which he received was fire safety training and this was conducted in English. The majority of the employees were Polish although there were some Irish and one Romanian. There was one other employee at the same level as him (a spray painter) and this employee was also Polish. All received the same fire safety training.
The complainant stated that the atmosphere in the workplace was not good and they were shouted at all the time by Mr A, a manager. On one occasion, he witnessed a colleague, who was inexperienced, being called a "fxxxing pxxxk" because he had made a mistake. On another occasion, his manager came nose-to-nose with him shouting and calling him names. He was told to "take the whip" to another staff member, which thought was unfair because he was not a supervisor and the employee in question was 50 years old and could not go any faster. He thought that the manager only shouted at Polish staff and he submitted that Polish staff did twice as much work as Irish staff. He submitted that the Irish panel beater did not have to spray cars, whereas he had to do panel beating if required.
On the day of his dismissal, the complainant was spraying some cars when a senior manager Mr B came in and asked him in an aggressive way why the job was taking so long. He also wanted to know why the complainant was cleaning out the cabin of the car. He blamed the complainant for the other employees not working hard enough. The complainant complained to his line manager, but was told there was nothing to be done. Mr B then returned and asked him to leave the premises. Mr B shouted at him and threatened to call the police. The complainant refused to leave, so they told him to wait in the canteen instead. After three hours waiting in the canteen, he was told not to come back. The complainant understood that he was being fired. He thought it was because they did not have enough work to do and had to get rid of someone. He also thought it was because he stood up for himself and they did not like that. He submitted that the other Polish painter had better English and they liked him better. He did not know who was last to join the organisation, but he thought that he was there longer than the other painter.
2.2 Mr Klebanuik
The complainant worked for the respondent from January 2008 to August 2009 and his job was to help prepare cars to be painted. There were two other helpers - both Polish. He had experience doing this job in Poland and the only training he received was fire safety training in English, which his friend helped him to understand.
The complainant submitted that the Polish employees had to do more work than the Irish employees. Language was a problem for him and his employer did not help him to understand. On one occasion he was called a "fxxxing pxxxk", because he was not doing a good job prepping a car.
The complainant submitted that during his first 6 months of employment, everything was fine. However then the pressure started. Mr A would repeatedly ask him how long it would take to get a job done and then tell him to cut the time by half. He believed that this change in treatment started when he had to refuse overtime on one occasion and this refusal annoyed his manager, Mr A.
The complainant submitted that he had been unfairly suspended on a number of occasions. He did not remember the first time, but the second time was a result of refusing to work overtime. On that occasion he was suspended for 2 weeks. On the third occasion he was suspended for not prepping a car properly.
One the day of his dismissal, the complainant and all other employees were called to individual meetings at the office. He was given a letter which said he had a bad relationship with his manager. As a result he received a low score in his ratings. He submitted that it was all made up to make him look bad and it only focused on the previous few months rather than the whole year. He received the lowest score, so he was dismissed. He was the only person to be dismissed. He submitted that an Irish employee in another branch also got the same low score and he was not dismissed.
2.3 Legal submission on behalf of the complainants
The complainants did not receive any documentation in Polish and there was no official interpreter in the workplace. Both complainants were badly treated and shouted at because they were Polish. Mr Michalzcuk did not resign and he did not return to Poland until one year after his dismissal. The only reason for his dismissal was his nationality. Mr Klebanuik was chosen for redundancy so that the respondent could avoid making him any redundancy payment.
3. Case for the respondent
3.1 Training and conditions of employment
By way of background, the respondent submitted that they were the first employer in their industry to start hiring Polish workers and they arranged English language lessons for their employees. The respondent submitted that it has very strong links with the Polish community; for example they raised €150,000 for the families of two Polish employees who were tragically killed. They submitted that they have a large Polish workforce, that they treat all their staff equally and have never had a complaint before. They submitted a salary matrix for their entire workforce, showing that there is clear career/salary progression for their Polish staff and their highest-paid employee is Polish.
The respondent submitted that there was a very good relationship with the employees at the branch where the complainants worked. They submitted that in the 3.5 years prior to this complaint, only one employee had left their employment. They submitted that the manager Mr B had a very good relationship with the staff. On the issue of shouting, the respondent submitted that employees routinely speak in raised voices as a matter of practicality, because the machinery at the garage is very loud.
Mr A refuted that he ever told the complainant to "take the whip" to another employee and he also submitted that there was no 50-year old at that branch; all the employees there were in their mid-thirties.
The respondent refuted the suggestion that the Polish staff were expected to do more work than the Irish employees and it also disputed that the complainant was asked to halve the time taken to do jobs. The respondent submitted that workrate of every employee and every job is programmed by a computer system which comes from the insurance industry. This computer system is programmed with the precise time required to do every single job and would be impossible to expect an employee to do twice the rate, as it takes the full time allocated in order to do the job properly. The respondent submitted that every employee, regardless of nationality, is expected to work at the precise rate required by the insurance industry. It was submitted that if the employee goes slower, the garage will lose money, because they only get paid at the rate set by the insurance industry. It was also submitted that if the employee goes faster, then the job will not be done correctly because the timings are very accurate.
On the issue of training, the respondent submitted that all employees were trained in health and safety matters and the relevant certificates for both complainants were produced in evidence. The respondent also submitted that the immediate supervisor of both complainants was Polish and a fluent English speaker. He was responsible for ensuring that all the Polish employees understood everything. With respect to job-specific training, both employees were hired on the basis that they were fully qualified in their respective trades. Notwithstanding this, Mr Michalczuk was given training on the specific machine he was using and the respondent produced a certificate of this in evidence. The respondent submitted that the paint manufacturer provided them with free training, so there was no reason at all they would deny an employee training if needed or requested.
3.4 Mr Patryck Michaczuk
The respondent submitted that this complainant started out as a very good employee. However from February 2009 there was a marked deterioration in his performance. This was not a one-off incident, but a consistent decline from that time onwards. The performance issues were raised with him verbally as they happened, but the complainant would just shrug and walk away. On one occasion, he marched off, slamming doors and he was given a formal warning on that occasion. The respondent submitted this written warning dated 12 May 2009, in evidence. The respondent submitted that they were so puzzled by the deterioration in the complainant's work performance that they called in the technicians from the paint manufacturer to see what was going wrong or to see if the complainant perhaps needed additional training.
The respondent submitted that the complainant resigned voluntarily on 31 August 2009. It submitted that the complainant had indicated to them around April 2009 that his wife and child had returned home to Poland and he could not save enough money anymore working in Ireland. Mr A also submitted that they had heard from an employee of the paint manufacturer that the complainant had been buying equipment to set up his own garage in Poland.
The respondent submitted that on the week the complainant resigned, the complainant had been producing very poor jobs all week. Mr A spoke to the complainant about his poor performance and the complainant told the local manager that he was quitting. The local manager told Mr A who prepared the P45. Mr A told the complainant that he could leave immediately and they would pay him in lieu of notice. The complainant refused to leave until the end of the day. The respondent submitted that the complainant told both the local manager and Mr A that he was resigning. They would not have expected a letter of resignation from him, because employees would usually just verbally inform their manager. The respondent submitted that it did not dismiss the complainant and that it is extremely difficult to find painters of his standard. It submitted that it needed the complainant badly and would never have let him go.
3.5 Mr Arkaduisz Klebaniuk
The respondent agreed that it had suspended the complainant, but submitted that it was because of his poor quality work performance and his attitude. On the occasion in question the complainant had not repaired a car properly and the customer was waiting at reception to collect the car. The problem had to be rectified that evening, so complainant was asked to work late, but he refused and his manager had to do it for him instead. The complainant sat and watched the manager until the job was done. The manager found his behaviour to be mocking and disrespectful. A detailed written warning was given to him about this incident and previous incidents, and he was suspended for 2 weeks.
The respondent submitted that the complainant was not dismissed discriminatorily or any other way. It submitted that the company was forced to downsize in September 2009, due to economic conditions. In order to determine who should be let go, the company prepared a 16-point matrix and all employees were given scores under each of the 16 headings. The complainant received the lowest score in the branch where he worked and therefore he was chosen for redundancy. The company submitted that of the 8 employees who were made redundant at that time, 6 of them were Irish. The respondent disputed the existence of an Irish employee in a different branch, who the complainant described as being kept on despite receiving the same score. The respondent submitted the evaluation matrix to the Tribunal in evidence.
5. Conclusions of the equality officer
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 him. If he 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. 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 Employment Equality Acts, 1998 to 2008 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)(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".
5.3 Discriminatory Treatment in relation to Conditions of Employment. The complainants stated that they did not receive contracts of employment, but this was rebutted by the respondent in the case of Mr Michalczuk. The respondent conceded that an administrative error was made in the case of Mr Klebanuik, and that no contract was given to him but he did receive wageslips. I accept that this was an administrative oversight and unrelated to the complainant's nationality. The complainants stated that they were given no Health and Safety training, but this was rebutted by the respondent with the relevant certificates. The complainants stated that they were given no other training, but this was rebutted by the respondent with documentary evidence of the training. The complainants submitted that there was no way for them to understand the English training, but this was rebutted by the respondent who demonstrated that a local supervisor spoke fluent Polish and English and translated documents and instructions for the employees.
The complainants' claims of harassment refer to cursing, shouting and being told to work faster. This comes down to the credibility of the parties and I found the respondent side more credible at the oral hearing. Additionally, even taking the complainant's case at its height, there was no element of the claim of harassment which was linked in any way to the complainants' nationality. It is worth noting, although details cannot be provided here due to commercial sensitivity, that the respondent provided unredacted documentation during the oral hearing, which demonstrated the particularly favourable pay and conditions given to Polish nationals, vis-à-vis all other nationalities including Irish employees.
5.5 Discriminatory dismissal - Mr Klebanuik
Mr Klebanuik's claim that he was discriminatorily dismissed was based on the fact that he felt he was unfairly scored in his performance matrix. It is not my responsibility as Equality Officer to substitute my judgment for that of the employer with respect to the scores given to the complainant vis-a-vis the other employees. It is my responsibility to look first at the process to see if it is tainted by discrimination. I find that an identical process was used for the entire workforce of Ace Autobody, regardless of nationality. I find that the complainant established no link whatsoever between his performance rating and his nationality. The complainant's two co-workers, who also worked in the same role as "preppers" were both Polish, and they were both kept on, because they received a higher score.
Additionally the complainant submitted that he thought that an Irish person in another branch, who received the same score as him, was kept on. The respondent gave credible evidence of the downturn in business and the very specific documented method they used to select the employees to be laid off. They also submitted that 6 of the 8 employees let go in the first round of redundancies were Irish. The respondent's evidence was specific and documented, whereas the complainant's evidence was mere assertion. He did not establish any nexus whatsoever between the redundancy and his nationality. I note the comments of the Labour Court regarding such "mere assertions" in the case of Melbury v Valpeters EDA 0917:
"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 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."
In the case of Mr Klebanuik therefore, I find that he has not established a prima facie case of discriminatory dismissal on the grounds of race.
5.6 Discriminatory Dismissal - Mr Michalczuk
The complainant alleged that he had been dismissed, whereas the respondent alleged that he had voluntarily resigned. This matter was in dispute between the parties. The complainant alleged that they had dismissed him because they didn't have enough work; because the manager Mr A did not like him; because he stood up for himself; because he resisted their method of calculating the workrates (during the hearing he stated that he could do a better job than the computer in working out the appropriate time per job). I note that not one of these reasons for the alleged dismissal relate to the complainant's nationality. It was agreed by both parties that there was a deterioration in the relationship between the complainant and the management in the last 6 months of his employment. It was agreed by both parties that there was an altercation on the 31 August 2009 between Mr A and the complainant. This altercation resulted in the termination of the complainant's employment. I find on the balance of probabilities that the complainant himself resigned in haste and in anger, as a result of this altercation. (Prior to that the respondent had documented detailed performance scores for the employees, and they had documented the verbal and written warnings given to the complainant, so it seems unlikely that they would have taken the final step of dismissal without also putting it in writing.) However even taking the complainant's case at its height (ie: accepting that it was a dismissal rather than a resignation), there were no convincing arguments made by the complainant to link his nationality with the termination of his employment. All of the evidence points to an ongoing deterioration in relationship as a result of disputes about quality of work and length of time taken to do jobs. Therefore I do not find that there was any inference of discrimination based on race or nationality, in the termination of the complainant's employment.
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts: I find that the complainant has been unable to establish a prima facie case of discrimination with respect to either their conditions of employment, harassment or their dismissals. Therefore both claims fail and I find in favour of the respondent.
1 June 2012