THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013-092
(Represented by Blazej Nowak of the Polish Consultancy Enterprise)
(represented by Amanda Manley IBEC)
File Reference: EE/2010/704
Date of Issue: 9th August 2013
Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment , - Section 6(2)(h) - Race, Section 8- discriminatory dismissal, Section 8(6), no prima facie case.
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), and 6(2) (h) of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to dismissal. At the start of the hearing the complainant withdrew his complaints about discriminatory treatment in relation to conditions of employment.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 21st September 2010 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 21st February, 2013 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 14th February 2011 and from the respondent on the 16th June 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 6th March, 2013 and the final correspondence was received from the parties on the 17th April 2013.
3. Summary of the Complainant's Case
3.1 The complainant is a Polish national and was employed by the respondent, an employment agency, from the 23rd August 2010 until the 14th September 2010. He was assigned to work as a general operative in Musgrave's warehouse driving a vehicle (a PPT) picking goods. He submitted that he had specific targets to meet. On 14th September 2010 he was picking goods when another driver (Mr. A who is Irish) crossed the aisle and left his vehicle in the way. The complainant said that he could not pass with his PPT and he asked him to move. Mr. A refused to move and he said something else which he did not understand. He said that Mr. A was a permanent employee of Musgrave's and he did not have the same targets to meet as he did. The complainant said that he got very angry with Mr. A and he called him an "asshole". He said that he reversed back out of that aisle and went to a different section. About 30 minutes later Mr. A approached him and asked for an apology. The complainant told him that he did not feel guilty and was not going to apologise. He said that Mr. A then threatened him that he would get him sacked. About 2 hours later his supervisor asked him about the incident and told him to put his explanation in writing. Another Polish employee wrote out the explanation for him and he gave it to the supervisor.
3.2 The complainant worked until the end of the shift. He said that he was not called for work again by the respondent and after 2 days he got a telephone call to say that he was getting his P45 and the respondent did not offer him any other work. The complainant stated that there was about 100 staff in Musgraves both Irish and Polish. The Irish tended to do the day shift and the Polish did the night shift. He said that the complaint was not investigated properly and he was treated differently than an Irish person would have been treated.
4 Respondent's Case
4.1 The respondent submitted that they had a contract with Musgraves to supply staff. The complainant was employed and he was assigned to Musgraves. His job involved driving a battery operated vehicle (PPT) with a crate picking goods for the various orders. All staff, regardless of their nationality and where they were employed, had to meet the same targets in that they had to pick 100 cases per hour in order to meet the minimum standard and they were paid a basic rate of €9.71 for every hour worked. A bonus system operated for operatives who picked more than 100 cases per hour.
The respondent submitted in evidence that they got a telephone call from Musgraves requesting the d-listing of the complainant from the site because he had called a member of staff an offensive name. They were informed that the altercation between the complainant and Mr. A was observed by the supervisor. The complainant was called to a meeting and he admitted that he did call Mr. A an offensive name. Ms. B the respondent's operation manager said that she took the decision to dismiss the complainant based on the fact that he had been d-listed by Musgraves for his behaviour. She stated that the work they had for him was based on the Musgrave contract and they had no other work for him so a decision was taken to dismiss him because they could not put him back on the Musgrave site.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the race ground, in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, and contrary to section 8(6) in relation to dismissal.
Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
Section 8 of the Act provides that discrimination in specific areas includes:
8. -- (1) In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective
employee and a provider of agency work shall not discriminate
against an agency worker.
(2) For the purposes of this Act, neither an employer nor a provider
of agency work shall be taken to discriminate against an agency
worker unless (on one of the discriminatory grounds) that agency
worker is treated less favourably than another agency worker is, has
been or would be treated.
(3) In subsections (4) to (8), references to an employee include
references to an agency worker and, in relation to such a worker,
references to the employer include references to the provider of
(4) A person who is an employer shall not, in relation to
employees or employment --
(a) have rules or instructions which would result in discrimination
against an employee or class of employees in
relation to any of the matters specified in paragraphs (b)
to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would
be likely to result in any such discrimination.........................
(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different."
Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. The matter I have to consider is whether the termination of the complainant's employment was motivated by discriminatory factors relating to his nationality.
5.3 It is the complainant's case is that he was dismissed from his employment by the respondent following an argument with another worker who was employed by Musgraves and that worker was Irish. It was also submitted that the respondent failed to follow fair procedures. Therefore it can be inferred from the evidence that the dismissal was for reasons connected to his race. I was refereed to the Labour Court case of Campbell Catering Limited and Aderonke Rasaq Det No. EED048.
"The evidence before the Court disclosed that it is normal practice to afford employees accused of serious misconduct fair procedures in the investigation of the allegations against them. On the basis of its findings of fact, the Court is satisfied that the complainant was not afforded fair procedures in the investigation of the misconduct of which she was accused. She was, therefore, treated less favourably by the respondent than another employees facing allegations of serious misconduct were or would be treated. This finding is sufficient in itself to shift the probative burden on to the respondent to show that the complainant was not discriminated against on ground of her race. Having evaluated all of the evidence adduced before it, the Court finds that the respondent has failed to discharge that burden."
It was submitted on behalf of the complainant that there was no investigation carried out by the respondent into the altercation which took place. The complainant gave his version of events but there was no investigation carried out by the respondent with Musgraves to establish the other workers version of events and to allow the complainant a right of response.
5.4 It was submitted by the respondent that the complainant admitted in writing that he was involved in an altercation with an employee of Musgraves and that he called that person an offensive name. A complaint was made against the complainant and the respondent was advised by Musgraves that they would not tolerate such behaviour. The complainant was d-listed from Musgraves at the request of the supervisor of Musgrave's who witnessed the incident. The respondent's contract was with Musgrave's and they had no other work for him at that time.
It was also submitted that the complainant's contract of employment specified that he was on probation for a period of 6 months and that the termination of the contract within the probationary period was at the discretion of the company. It was further submitted that the complainant was fully aware that he was still within his probation period and should his work or conduct have been unsatisfactory that it would result in the termination of his employment in line with the probationary procedure.
5.5 I am satisfied that the complainants employment came to an end because the respondent had no other work for him and they could no longer place him as an agency worker on the Musgrave site. I note that the complainant's contract of employment stipulated that he would be assigned to Musgraves and his continued employment was contingent on that contract continuing. It is clear that the complainant's behaviour was not acceptable to the respondent's client and that this was the reason his employment terminated and that it had nothing to do with his nationality. Under Section 8(2) cited above, the complainant, in order to establish less favourable treatment under the Equality Acts, has to compare himself with an employee of the respondent, that is another agency worker, and not an employee of their client. I am satisfied that if another employee of the respondent had behaved in such a manner he/she would have also been d-listed by Musgraves. The complainant has to establish facts from which discrimination can be inferred. He has provided no evidence that a person of a different nationality employed by the respondent was treated or would have been treated more favourably. The complainant's allegations about discrimination on the nationality ground have not been backed up by any facts. In considering this point I have considered the reasoning in the case Melbury Developments and Valpeters (Det. No. EA AO917) where the Labour Court stated:
"Section 85A of the Act 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."
5.6 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discrimination unsupported by any evidence of sufficient weight. Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory treatment.
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. I find that the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts and contrary to section 8 of the Acts in relation to his dismissal.
9th August 2013