EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012- 140
(Represented by Cathy Hamilton, B.L instructed by Richard Grogan & Associates, Solicitors)
FS Sub Holdings Ltd
File references: EE/2010/135
Date of issue:25 October 2012
Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8,74 - race -gender - conditions of employment - prima facie case - discriminatory dismissal-victimisation.
1.1 This dispute concerns claims by Ms Dovile Vaivadaitete (hereinafter "the complainant") that she was subjected to discriminatory treatment on the grounds of gender and/or race in terms of Sections 6 (2) (a) and (h) of the Act and contrary to Sections 8 of the Employment Equality Acts by FS Sub Holdings Ltd (hereinafter "the respondent"). The complainant also maintains that she was discriminatorily dismissed and victimised.
1.2 The complainant referred complaints under the Employment Equality Acts to the Equality Tribunal on 24 February 2010 and subsequently on 8 June 2010 she referred a claim of victimisation. 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 3 August 2012, the date the complaint was delegated to me. Submissions were received on behalf of all parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 5 September 2012.
2. Summary of the Complainants' Submissions
2.1 The complainant, who is a Lithuanian national, states that she was employed by the respondent. She submits that she did not receive a contract of employment, health and safety documentation or training. She complains that she was discriminatorily dismissed. The complainant contends that this constitutes unlawful discrimination on grounds of race and/or gender contrary to the Acts. The complainant also contends that, as a result of her issuing proceedings, her sister who is employed by the respondent was called to a meeting and was told by the respondent that he had relatives who were solicitors and that he would sue the complainant and her solicitor. A document was produced for her sister to sign. The complainant contends that this was done to put pressure on the complainant and to victimise her by threats for bringing a claim.
2.2 The complainant also referred to a number of cases in support of her case, including Southern Health Board -v- Dr Teresa Mitchell, Campbell Catering Ltd -v- Rasaq (EED048) and 58 Complainants -v- Goode Concrete (DEC-E2008-020).
3. Summary of the Respondent's Submission
3.1 The respondent states that the complainant was employed as a part-time staff member at one of its stores. In response to the complainant's claim that the manner in which she was dismissed was discriminatory, the respondent contends that she was dismissed from her employment on the basis of gross misconduct in relation to the bullying of another employee who was pregnant. The complainant was provided with a letter explaining her dismissal for gross misconduct.
3.2 The respondent submits that the complainant appears to be claiming that she did not receive adequate health and safety training when she commenced her employment. The respondent states that all staff including the complainant received three days of training which includes health and safety training that is to the standard required by the Health and Safety Authority. The respondent contends that this can be clarified with the Health and Safety inspectors who regularly evaluate their premises and have always been satisfied with the level of training in the store. The respondent denies that the complainant was subjected to discrimination on the grounds of her race and/or gender contrary to the Employment Equality Acts in terms of her conditions of employment. The respondent submits that the complainant has also had claims heard by the Rights Commissioner Service of the Labour Relations Commission. The respondent states that the only claim which was upheld by the Right Commissioner was in relation to relation to the miscalculation of a small level of holiday pay.
3.3 In response to the complainant's claim that she has been victimised by virtue of these proceedings, the respondent states that this relates to a meeting which the Director of the respondent company had with the complainant's sister who continued to work for the respondent. The respondent states that the complainant's sister has consistently been one of its top employees and has never made any complaint to it regarding her treatment or on any other issues. At the time of her sister's dismissal she indicated that this would not affect her intention to continue working with the respondent. The complainant's sister lobbied the Director to re-employ the complainant. The Director explained to her that the employment environment of the other pregnant employee was his primary concern and under no circumstances would he have her sister, the complainant, work alongside the other employee. In this meeting the Director and the complainant's sister discussed the claims that the complainant had subsequently made against the respondent. The complainant's sister was provided with a transcript of her own comments and requested to sign them which she did. The respondent denies that the complainant's sister was forced to sign and certify any documents. The respondent contends that the complainant's claims are part of an overall intimidation tactic aimed at achieving a direct settlement and payment from the respondent. The respondent refutes all allegations in relation to discrimination.
4. Conclusions of the Equality Officer
4.1 At the outset of the hearing of these complaints, the complainant's representative withdrew the complaints relating to discriminatory dismissal. No submission or arguments were made in relation to her complaint on grounds of gender and this complaint was also withdrawn. Accordingly, the only issues for decision in this case are whether or not the respondent discriminated against the complainant on the grounds of race in terms of section 6 of the Employment Equality Acts as regards conditions of employment, training and victimisation.
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)(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 on grounds of nationality i.e. because she is Lithuanian.
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. It requires the complainant to prove the primary facts upon which he/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 him/her, his/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 had been employed by the respondent from October 2008 to December 2009. She stated that she did not receive a contract of employment. She stated that she had received some training during her employment. Her representative submitted that she had not received any health and safety documentation. The complainant stated that there were a number of other people employed while she worked there. Her colleagues were of various nationalities including Lithuanian, Slovakian, Polish and Irish. The complainant could not say whether any worker among the respondent's staff had a contract of employment or whether any worker had received health and safety documentation.
4.9 The Labour Court1, 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.. "
I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination on the race ground could be inferred.
4.13 In Tom Barrett v Department of Defence2 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that
(i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act,
(ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
The complainant alleges that as a result of her issuing proceedings under the Employment Equality Acts, her sister was called into a meeting with the Director. At the hearing the complainant stated that after the meeting her sister was upset and told her that she was forced to sign a document. The complainant's representative argued that this was an attempt to intimate the complainant and prevent her from pursuing her claim. In his evidence at the hearing the Director said that the complainant's sister continued to work with the respondent after the complainant's employment terminated. He understood that the complainant was telling other staff members that her solicitor had told her that she was going to get €20000 to €30000 from the respondent. He contended that the complainant's sister told him that the complainant's solicitor was encouraging her to take these complaints and that she expressed concern for the complainant. Her sister signed a transcript of her own comments. I have not attached any weight to the complainant's evidence regarding the meeting/discussion between the respondent and the complainant's sister on the basis that it is purely hearsay in nature and that the complainant's sister did not attend the hearing to corroborate this evidence. I am not satisfied that the complainant has adduced any evidence in support of her claim of victimisation.
6. DECISION OF THE EQUALITY OFFICER
6.1 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 race ground pursuant to section 6(2)(h) of the Acts, in relation to terms and conditions of employment contrary to section 8(6) of the Acts
(ii) the respondent did not victimise the complainant within the meaning of 74(2) of the Acts.
25 October 2012
1 Melbury Developments v Arturs Valpeters EDA 0917