EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 083
(Represented by Sean Ormonde)
File reference: EE/2009/918
Date of issue: 26 June 2012
Headnotes: Employment Equality Acts, 1998-2011 - sections 6,8 and 77 - race- employment status - conditions of employment - prima facie case - discriminatory dismissal - victimisation.
This dispute involves a claim by Mr. Branislav Gajdos (hereinafter "the complainant") who is a Slovakian national, that he was discriminated against by Securikey Ltd (hereinafter " the respondent") in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 (hereinafter "the Acts") and contrary to section 8 of those Acts and dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Acts. The complainant has also made a claim of victimisation under section 74(2) of the Acts.
2.1 The complainant states that he was employed as a security officer by the respondent in mid August 2009 until early December 2009. He further states that during his period of employment, he was treated less favourably as regards his conditions of employment and when he complained about the treatment he was victimised and subsequently dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Slovakian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 14 December, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, 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 16 May, 2012 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 18 June, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Slovakian national, states that he commenced employment with the respondent on 15 August, 2009 as a security officer. He stated that he was only available to do between 8 and 25 hours per week as he was availing of social welfare assistance also. He submits that he signed a contract of employment before he commenced work and understood the general conditions therein but only got about 5 minutes to look through same. The complainant submits that during his employment, his payslips were arriving late to him and while he requested a copy of his contract of employment, it was not provided. The complainant sought the advice of a solicitor. His solicitor wrote to the respondent with details of the complaint and requested a copy of the contract of employment. The complainant submits that he was subjected to victimisation as a result of making the complaint. He states that his work placements became erratic and he was placed in areas far away from his home and for very short shifts. The complainant submitted that he previously had worked in New Ross which was 20 km from his home but he was now moved to Clonmel which was over 50 km from his home.
3.2 The complainant further states that the respondent used to send messages with the rosters by text and sometimes at very short notice and he considered this to be a poor and inadequate way of communicating the employees working hours. The complainant asserts that his representative issued a further letter to the respondent on 28 November and that the complainant received a letter dated 29 November terminating his employment. The complainant submits that following notice of his dismissal, he received three letters from his employer simultaneously regarding his work performance suggesting that the dismissal was related to the complainant's inability to fulfil his roster duties. He states that this was an attempt to justify his rash dismissal.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed with the company as a security officer in mid August 2009 on a probationary period. The security position offered to the complainant was based on the requirement to work in the areas of Clonmel, New Ross and Waterford and was on the basis of working between 8 to 25 hours per week. The respondent states that he has many different nationalities working for him including Irish nationals and that there are no issues of race discrimination within the company and that this is the first time since the inception of the company in 2001 that he has been brought before a tribunal. The respondent states that 2/3 days after he offered the complainant the position, he went through the contract of employment with the complainant step by step including the disciplinary procedure, uniform requirement, appeals process and health section which the respondent states was one and a half pages long and required the complainant to tick boxes. The respondent states that he also went through the security industry joint labour committee documentation with the complainant. The respondent submits that he spent half an hour going through the contract with the complainant and subsequently requested the complainant to sign the contract. The respondent also states that he advised the complainant that he would photocopy same and send him a copy in the post. The respondent submits that he put a copy of the complainant's contract in an envelope and mailed it to him.
4.2 The respondent states that in the space of less than 3 months working with the company, the complainant was absent from work on sick leave on two different occasions, 1 week the first time and on the second occasion, the complainant rang in sick, it was his wife that was ill and he was not in a position to come into work for a week on that occasion. In relation to the roster arrangements, the respondent states that the company send all rosters to employees on the same basis. i.e. by text message. With regard to rostering arrangements, the respondent states that their client decide on the rosters and what hours are required and the respondent asserts that they are not in a position to manipulate these rosters. The respondent refutes the assertion by the complainant that he was subjected to erratic work placements following the letter issuing by the complainant's solicitor to the company. In this regard, the respondent has submitted roster sheets for the complainant and another employee. The roster sheets show that the complainant was requested to work in the three areas of Waterford, Clonmel and New Ross which were interchangeable from the commencement of his employment with the company. The respondent states that he contacted the complainant by telephone around late November and advised him that the situation was not working out as he could not fulfil the requirements of his contract to attend and carry out his duties in Clonmel and on the basis of the short time employed with the company and his sick absences, he advised the complainant that his employment was being terminated and he stated that the complainant was in agreement and stated 'that's fine'. The respondent maintains that the complainant's inability to fulfil the requirements of his contract was the reason his employment was terminated and there was no discrimination on grounds of race.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and (iii) victimised the complainant in respect of section 74(2) 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.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 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) 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... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Slovakian.
5.3 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. 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 he 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 him, his case cannot succeed.
5.4 The first issue raised by the complainant relates to the respondent's alleged failure to furnish him with a copy of his written contract of employment. The complainant states that the employer went through the contract with him but that he only had five minutes to look at it. However, in answer to a question the complainant did state that he understood the general standards of the contract and that he had worked in the construction industry previously. The respondent also points out that in his application form and C.V., the complainant describes his level of English as fluent. The respondent also states that during his short period with the company, the complainant completed a certificate in Guarding skills at basic level which required a high level of competency in reading and written English to which he was awarded the certificate through the Irish Security Institute credited by FETAC.
5.5 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."
5.6 Having taken all the issues into consideration, I prefer the testimony of the respondent and I am of the opinion based on the evidence submitted and the complainant's level of English at the hearing that he was given the contract of employment and was aware of the requirements of the contract. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.7 The complainant submits that following a letter dated 18 November, 2009 which issued by his solicitor to the respondent outlining the complainant's concerns regarding his payslips and requesting a copy of his contract of employment, the respondent retaliated by giving the complainant more erratic work placements and the complainant submits that this constitutes victimisation of him under the Acts. Section 74 (2) defines victimisation:
.....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ......."
The respondent submitted a copy of the job advertisement for the position of security officer and rosters for the complainant, in evidence to the Tribunal. The job advertisement stated "security officers required (Waterford/Clonmel/New Ross area - Part Time). The rosters on behalf of the complainant show that he worked in each of the three areas during his time with the company. l note that prior to the complainant's solicitor issuing a letter to the respondent, the complainant had carried out shifts in the Clonmel base. In addition, the respondent stated that it cannot manipulate the rosters that their client sets down. It stated that the rosters are provided to the company based on their client's requirements and where security personnel are needed. The respondent also states that it was reaffirmed during the interview that the job specification was for security personnel in the areas of Waterford, New Ross and Clonmel. I am therefore satisfied that the complainant was not subject to victimisation as a result of his solicitor issuing a letter to the respondent regarding a complaint of discrimination.
5.8 The complainant also submits that the dismissal was victimisatory. In relation to the dismissal of the complainant; the solicitor on behalf of the complainant wrote to the respondent on the 18 and 28 November, 2009 outlining the complainants concerns regarding late receipt of payslips and requested a copy of his contract of employment and the complainant was issued with a letter of dismissal dated 29 November, 2009. The complainant submits that this is prima facie evidence of discrimination and that this treatment amounts to victimisation under section 74 (2) of the Acts. While I am of the view that this raises an inference of victimisation, I find that on examination of all the facts of this case, the complainant has not provided any evidence to link this treatment to his race and the respondent has rebutted the inference of victimisation. The respondent stated that he contacted the complainant by telephone around late November and advised him that the situation was not working out as he could not fulfil the requirements of his contract to attend and carry out his duties in Clonmel. The respondent further asserts that during this telephone conversation, he advised the complainant that based on his short time with the company and the fact he was on his probationary period and his level of sick absences; his employment was being terminated. The respondent states that the complainant was in agreement and stated 'that's fine'. When I questioned the complainant directly about details in the lead up to his dismissal and his termination of employment, he stated that 'he could not remember as it was so long ago'. I find the respondent's clear account of what happened at the material time more compelling. I am satisfied, taking the totality of the evidence into consideration, that the complainant was not dismissed because of his nationality and I am satisfied that he was not subjected to victimisation under the terms of section 74(2) of the Acts in relation to his dismissal from employment.
5.9 The complainant was with the company a relatively short period of time and was on his probationary period. I find that the complainant's employment was terminated as a result of his sick leave absences together with his inability to fulfil the requirements of the contract which included attending and carrying out duties at the Clonmel site. The job advertisement stipulated that security positions were required for the areas of Waterford, Clonmel and New Ross and the respondent states that this was made aware to the complainant at the time he signed the contract of employment. 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 his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in relation to his 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 his race. I am not satisfied that he has adduced evidence to support his assertion that his nationality was a factor which influenced the respondent's behaviour. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on the grounds of his race.
6. DECISION OF THE EQUALITY OFFICER
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that:
(i) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
(iii) the respondent did not subject the complainant to victimisation under section 74(2)(a) of the Acts.
Accordingly, I find in favour of the respondent in this matter.
26 June, 2012