EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-167
PARTIES
Mr. Sebastian Kostrzewski
(Represented by SIPTU)
-V-
C&F Automotive Ltd t/a Iralco
(Represented by Mr. Thomas Harrington, Legal Advisor)
File reference: EE/2013/521
Date of issue: 30 December 2015
HEADNOTES: Employment Equality Acts – Race – Discriminatory dismissal
1 DISPUTE
1.1 This dispute concerns a claim by the Complainant that he was dismissed in a discriminatory manner by C&F Automotive Ltd. on the grounds of race contrary to Section 8 of the Employment Equality Acts.
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on the 27th of September 2013 under the Employment Equality Acts. On the 12th of August 2015, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Shay Henry, 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. Submissions were received from both sides and in accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on the 26th August 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 27th October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The Complainant was employed by C&F Automotive LTD from 19 August 2013 on a fixed-term contract to end on 18 February 2014. He was dismissed without notice on 30 August 2013.
2.2 After a week’s training in Ireland, on 26th August he was transported to a factory owned by C&F Automotive LTD in the Saarland region of Germany. On arrival he was taken to the factory and worked a shift finishing at 8.pm. He was then brought to the accommodation provided by his employer which he found to be unsatisfactory as he was sleeping in a kitchen, separated from others by a curtain.
2.3 On 27th August he was advised by colleagues to raise the matter with Ms. Ella Coffey a manager in that factory. He subsequently sought to ask Ms. Coffey both about the accommodation and the rate of pay but was met with shouted and foul abuse about Polish people. The Complainant was shaken by the abuse and by a subsequent confrontation initiated by Ms. Coffey during his break, in which she put her finger up to his face and instructed him never to speak to her like that on the factory floor. In reply to a question from Ms. Coffey as to whether he had been working in Ireland, The Complainant replied that he had done so for seven years and had never been spoken to like that.
2.4 On 29th August at around 4.pm. the local manager summoned the Complainant to his office and told him that he would be flown back to Ireland the next day. The Complainant asked why this decision had been made and was told that it was the decision of Ms. Coffey and that he (the local manager) had no problem with the Complainant’s work. He said he would speak to the co-owner of the company about another job in Ireland.
2.5 The Complainant was flown back to Ireland on Friday 30th August. Prior to leaving Germany he rang the HR Department in Ireland and informed the HR representative of what had taken place. His understanding was that they would consider another position for him in Ireland.
2.6 On Monday 2nd September he again telephoned the HR Department in Ireland. Shortly afterwards he received a letter signed by Ms. Nicholson, the HR Manager, and dated 3rd September stating that his contract had been terminated ‘for business reasons on 30th August 2013’.
2.7 It is the complainant’s contention that the nature of the harassment directed towards him by Ms. Coffey, the subsequent acknowledgement by the local manager that the decision to return him to Ireland was that of Ms. Coffey and not based on any reasonable cause, and the correspondence from Ms. Nicholson, the HR Manager, stating that he was dismissed for unstated business reasons are facts sufficient to shift the burden of proof and to raise a presumption of discrimination. It is noteworthy that there is no mention of misconduct, poor performance, incapacity or even redundancy as a reason for the dismissal.
2.8 Clause 2 of the Complainant’s contract of employment states;
Although this is a contract for a fixed term it may be terminated by you or by the Employer within the fixed term by the giving of one week’s notice of such termination.
Such termination may be carried out by the Employer at its sole discretion without the necessity to disclose reasons and without recourse to the Disciplinary Procedure or Grievance and Disputes Procedure as set out in the company terms and conditions handbook……
The employer reserves the right to terminate your employment without notice or pay in lieu of notice in the event of any serious misconduct or breach on your part of the terms and conditions of your employment.
It is the Complainant’s contention that this clause is an attempt to contract out of section 14(4) of the Unfair Dismissals Act and that the provision for dismissal without notice or pay in lieu of notice is reserved for instances of serious misconduct which has never been alleged. It follows therefore that the Complainant was treated less favourably by the employer than other employees. This is sufficient in itself to shift the probative burden on to the employer to show that the Complainant was not discriminated against on grounds of his race. The connection between the Complainant’s nationality and his dismissal is that Ms. Coffey harassed him on the grounds of his nationality on 27th August, he was sent home on 29th at the behest of Ms. Coffey and was dismissed on 30th August.
3 Respondent’s submission.
3.1 C&F Automotive Ltd is a company incorporated under the laws of Ireland whose registered office is at Collinstown, Mullingar, Westmeath, Ireland employing approximately 400 employees. C&F Automotive Germany GmbH is a company incorporated under the laws of Germany with its business seat at Boxbergweg 6, Neunkirchen, Sarland, Germany, employing approximately 300 employees. They are separate companies and Ms. Coffey is employed as a senior manager in Germany and is not employed by the respondent.
3.2 The Complainant was employed by the Respondent under a fixed term contract as a temporary general operative commencing on 19 August 2013 and automatically terminating without notice on the week ending 18 February 2014. It was understood and agreed from the outset that he would be seconded to C&F Automotive Germany GmbH for the duration of his contract.
3.3 The Respondent has always had an excellent record in respect to the hiring and retention of non-national workers.
3.4 It is agreed that, after accepting the position, the Complainant underwent training in Collinstown before being flown to Germany and that on arrival he worked a shift from 2.00pm until 8.00pm before being transported to his accommodation which was provided by C&F Automotive Germany GmbH. It is agreed that the Complainant was very vocal in his dissatisfaction with his accommodation and angrily confronted Ms. Coffey on this subject in work the very next day in an aggressive and abusive manner which was physically threatening to Ms. Coffey. It is denied that Ms. Coffey shouted abuse at the Complainant and it is specifically denied that there was any reference or statement whatsoever made to the Complainant’s race or nationality.
3.5 The Respondent has no knowledge relating to the alleged discussion with the local manager.
3.6 It is admitted that the Complainant was flown back to Ireland on 30th August. At 9.30 that morning the Complainant phoned the Respondent and spoke with Ms. Una McHugh of HR at Collinstown. Ms. McHugh duly made a contemporaneous file note of the conversation, the pertinent content of which is set out below.
Una asked if Sebastian thought things were working out for him over there and if he knows the reason why he may be coming home. He said he had asked Ella some questions about hours and stuff and she was not happy about that. She went to him on his break and told him never to speak to her like that again. But he thought he had asked simple questions politely but she was very angry. Also the accommodation was not good. Sebastian said Ella hates Polish people and treated me like a dog. Una asked if she had said to him directly that she dislikes Polish people and he said no. He said everyone else is very nice and he thought he was getting on well. Una confirmed that Ella is the senior manager over there and she must have thought things weren’t working out with him working there so we have to carry out her wishes and he is to return to Ireland.
3.7 On 2nd September the Complainant again phoned HR and spoke with Sandra Nicholson, HR Manager who made a contemporaneous note of the conversation the pertinent content of which is set out below;
When he arrived he was able to leave his bags and brought straight to work from 2.pm that same day. Later in the same week he asked others who should he speak to regarding his pay and accommodation and he had some questions. He was told to speak to Ella. He said he asked her about the accommodation as it was not what he was told in the arrangement. He was sharing with someone he did not know.
Ella told him to ‘go back to work’ and repeated, shouting, ‘go back to work’. About 2 hours later when he was on a break she approached him and told to never speak to her on the production floor again like that.
He explained that he hadn’t known who she was but felt he was treated like a dog. Nothing else was said to him and he was told later in the week that a one way ticket was purchased for him to return to Ireland. He spoke with Hans who told him he didn’t have a problem with his work and that he didn’t do anything wrong but Ella was in charge of the employees from Ireland sent to help in NK. He was carrying out her wishes.
3.8 The Complainant did not complain to the Respondent that he had been discriminated against because of his race or make any grievance whatsoever under the Respondent’s grievance procedures. The Respondent’s first notice of the Complainant’s intention to bring a complaint under section 77 of the Employment Equality Act 1998 was contained in the letter from SIPTU dated 27th September 2013.
4 Conclusions of Equality Officer
4.1 The Respondent has argued that the Complainant was seconded to the German company and that, if a case exists at all, it should be against that company. Having reviewed the evidence I am satisfied that the Complainant may more properly be described as having been deployed by the Respondent, with his agreement, to work in Germany. The Respondent continued to pay him and does not claim that the employment relationship terminated when he was deployed in Germany. Their duty of care to him as an employee and obligations under the Employment Equality Acts therefore continued.
4.2 The Respondent has argued that the Complainant did not complain that he had been discriminated against because of his race or utilise the Grievance Procedure. The Complainant received induction training on 19th August 2013. This training, which was of a half day’s duration, covered more than 60 different topics of varying degrees of complexity, including Grievance Procedures. The Complainant has given unrefuted evidence that he was not given a copy of the company handbook which contained this procedure among others.
4.3 The Complainant made two phone calls to the HR Department of the Respondent; on Friday 30th August 2013 and 2nd September 2013. Records were made of both conversations by company representatives although neither is signed or dated. It is clear from both of these records that an incident occurred and that, in the opinion of the Complainant, he was harassed. In particular, in his first contact, he alleged that Ms. Ella Coffey hated Polish people and treated him like a dog. On neither occasion was he advised of the grievance procedure or that he could use it. The Respondent has confirmed that if he had initiated a grievance it would have been investigated. It is reasonable to conclude therefore, that had he been successful in processing a grievance that the decision to dismiss him would not have been taken. It was therefore a fundamental requirement that he understood the procedure available to him.
4.4 In the case of Campbell Catering v. Rasaq, (Labour Court, EED048) the Labour Court found that, in not affording the complainant fair procedures in the investigation of serious misconduct alleged against her, the respondent had treated her less favourably than other employees facing similar allegations and concluded that this finding was sufficient in itself to shift the probative burden on the respondent, which it was unable to discharge. The Court acknowledged the special difficulties faced by many non-national workers arising from a “lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture” and stated that, in the case of disciplinary proceedings, employers had a positive duty to ensure that all workers “fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation”. The Court concluded that, in such cases, “applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination”.
4.5 The Respondent made no effort to investigate the incident until after they received notice of these proceedings. Ms. Coffey’s version of events was then given informally through a third party some time after 27th September 2013. The references made by the Respondent to the Complainant’s alleged threatening behaviour towards Ms. Coffey could not therefore have formed any part of the decision to dismiss him as the Respondent was unaware of her version of events at the time that decision was taken.
4.6 No reason was given to the Complainant for his dismissal and it is not clear how he was informed that he was being dismissed. The Respondent contends that he was given notice on 30th August. There is no written record of this. The only record that exists is the hand written account of the telephone conversation between the Complainant and the HR representative and again there is no reference to notice being given.
“He asked if he would need to go back to Germany or Galway or will he be working in Mullingar. Una said she would look into those details for him and confirm them later.”
4.7 The Respondent contends that it had no obligation to use its disciplinary procedures before dismissing the Complainant. In this regard the Respondent relies on clause 2 of the contract of employment relating to termination within the fixed term which states;
“Although this is a contract for a fixed term it may be terminated by you or by the Employer within the fixed term by the giving of one week’s notice of such termination.
Such termination may be carried out by the Employer at its sole discretion without the necessity to disclose reasons and without recourse to the Disciplinary Procedure or Grievance and Disputes Procedure as set out in the company terms and conditions handbook……”
4.8 The Respondent contends that this clause applied equally to all fixed term employees regardless of race. The Respondent cannot contract out of its statutory obligations under the Employment Equality Acts. In addition, as the Respondent gave evidence that this clause is only in fixed term contracts and not in the contracts of permanent employees, it is therefore not a legal provision.
4.9 Clause 12 of the contract relating to disciplinary procedures states;
“Details of the Employer’s disciplinary procedure are available in the Company Terms & Conditions Handbook a copy of which will be provided to you.”
As the handbook is described as part of the terms and conditions, it has contractual status. The disciplinary procedure contained in the handbook makes no distinction between fixed term and permanent employees.
4.10 Separately, in evidence the Respondent confirmed that the disciplinary procedure would be used in all instances and was unable to provide an example of where it had been bypassed in any other instance. Therefore, the dismissal without use of the disciplinary procedure appears to have occurred only in the Complainant’s case.
4.11 It is clear that the incident which occurred in Germany, which resulted in the Complainant being recalled, was directly linked to the subsequent dismissal. The incident was not investigated and no opportunity was provided to the Complainant to defend himself before a decision to dismiss him was taken. Such an opportunity was or would have been afforded to all other employees when disciplinary issues arose. Accordingly, my conclusion is that the Complainant was dismissed in a discriminatory manner on the grounds of his race.
5 DECISION OF THE EQUALITY OFFICER
5.1 I have investigated the above complaint and make the following decision Having investigated the above complaints, I hereby make the following decision in accordance with section 79 of the Employment Equality Acts, and section 41(5)(a)(iii) of the Workplace Relations Act 2015 that:
The Complainant was dismissed in a discriminatory manner in breach of Section 77(1) (b) of the Act and in breach of Sections 6 /8 of the Act.
In accordance with s.82 of the Act, I order the Respondent pay the Complainant:
The sum of € 10,000 (the equivalent of 26 weeks’ pay) in compensation for the discriminatory dismissal.
5.2 The total award is redress of The Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.
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Shay Henry
Adjudication/Equality Officer
30 December 2015