EED048

Background.

Ms. Aderonke Rasaq (the complainant) commenced employment with Campbell Catering Limited (the respondent) as a Catering Assistant on 9th April, 2002. She was assigned to work at a hostel at Parnell Square, Dublin, which is used to accommodate refugees and asylum seekers. The complainant is a native of Nigeria and has been resident in Ireland since 1999.

On 9th May, 2002, the complainant was summarily dismissed on grounds of having stolen bananas, the property of the respondent. The complainant denies the allegation of theft. She contends that her dismissal was influenced by her race and she is seeking redress under the Employment Equality Act, 1998, (the Act).

Position of the Parties.

Both parties made comprehensive written submissions on the factual and legal issues arising, and adduced oral evidence before the Court.

The Complainant’s Case.

The complainant gave evidence which can be summarised as follows:

The complainant told the Court that when she commenced her employment with the respondent, she and two other recruits were given an induction course by the manager of the unit, Ms. Lorraine Kelly. They were informed by Ms. Kelly that the Company allowed employees to take as much food as they wanted for consumption on the premises. It was made clear that food could not be taken off the premises and the complainant understood that to do so would be a serious matter.

The complainant said that she was not given a written contract of employment nor was she given written particulars of the terms of her employment. She was not provided with an employee handbook or with details of the Company's disciplinary or grievance procedure. The complainant was asked to sign a document, which she did. She did not know what this document was or what it contained.

A number of residents at the hostel where Nigerian nationals and did not speak English. The complainant often spoke to them in her native language (Yoruba) and was frequently asked to interpret for other members of staff, including the security staff. However, on or about the first week in May, Ms. Kelly told her that she must not speak in her native language at work.

On 8th May, 2002, the complainant, who was then in the early stages of pregnancy, had been feeling nauseous and had not eaten during the course of her working day. At 7.00 p.m., when she had finished her shift, the complainant took 3 bananas from the kitchen which she intended eating in the locker room before she left for the evening. The complainant told the Court that in her native country bananas were part of her stable diet and she would eat a number of them in the course of a day. She had frequently taken fruit from the kitchen to eat and Ms. Kelly had seen her do so on many occasions. Other staff members had frequently taken snacks to eat in the locker room or in the TV room.

According to the complainant, there were two women in the locker room when she entered it. She now knows one of these women to be Ms. Colette Bannon who is a senior manager with the respondent. Ms. Bannon left the locker room and on her return she told the complainant that Ms. Kelly, who was in the kitchen, wished to speak to her. The complainant went to the kitchen and took the bananas with her. Ms. Kelly asked the complainant to serve food to some new arrivals at the hostel. When she had finished doing so Ms. Kelly told the complainant that one of the women in the locker room had seen her with the bananas and had complained to her about it. Ms Kelly told the complainant to put the bananas back, which she did. She then went home.

The next day, 9th May, 2002, the complainant received a telephone call from a manager with the respondent whom she knew as Mark. He told her not to report for work at her usual time of 11.00 a.m. but to come in at 2.30 p.m. When asked the reason for this instruction, Mark told the complainant that he could not discuss the matter over the phone.

The complainant reported at 2.30 p.m. as directed. She met with Mark and Ms. Kelly and was told that she was being dismissed. Ms. Kelly told her that one of the women who had been in the locker room on the previous evening had directed that she be dismissed because of the incident involving the bananas. She was told that she would receive a reference.

The complainant told the Court that she was distraught and crying as she needed the job. She later went with her husband to a citizens' advice information centre. In her presence, an official of the centre telephoned Mark to ask the reason for her dismissal. It was conveyed to her by this official that the reason given for the dismissal was that a senior manager has seen the complainant taking bananas.

The respondent failed to provide the complainant with a reference or a letter giving the reason for her dismissal, in consequence of which she was unable to obtain alternative employment. Her P45 was also retained by the respondent. On 20th May, 2002, she called to the Hostel and refused to leave until she was furnished with a letter giving the grounds of her dismissal. The Guards were called to remove her. Subsequently, on 24th May, 2002 the complainant received an undated letter from Ms. Loretta Carr, Operations Manager with the respondent, stating that the reason for the dismissal was that the complainant had stolen company property.

In cross examination, the complainant denied that she had a bunch of bananas when observed by Ms. Bannon. She further denied that she had placed the bananas in a bag. It was put to the complainant that she had told Ms. Kelly that she intended to eat the bananas on the way home. The complainant denied this. She also denied that she was told that she could have a colleague present at the meeting at which she was dismissed. It was also put to the complainant that Ms. Bannon was alone in the locker room at the relevant time. The complainant reaffirmed her recollection that there were two women present.

The Respondent’s Case.

Evidence was given by Ms. Colette Bannon, which can be summarised as follows:

Ms Bannon has worked with the respondent for five years and has held a number of management positions. At the time material to this case, she was the training and standards manager.

On 8th May, 2002, the witness was at the Parnell Square Hostel to give instruction to staff in manual handling techniques. At around 7.00 p.m. she was alone in the locker room when she observed the complainant entering the room and going to her locker. According to Ms. Bannon, the complainant was carrying what looked like a bunch of bananas. She said that the complainant took a plastic bag from her locker into which she placed the bananas. The witness told the Court that the complainant appeared to be moving quickly and she became suspicious. She left the room and reported what she had observed to Ms Kelly, who was the complainant’s manager. Having been requested to do so by Ms. Kelly, the witness returned to the locker room and told the complainant that she should report to Ms. Kelly in the kitchen. It is Ms. Bannon’s recollection that at that point the complainant had changed out of her uniform and was leaving the premises. She had a rucksack on her back and was carrying the plastic bag into which she had earlier seen her place the bananas.

The witness did not challenge the complainant in relation to what she had observed as she felt that it was not her function to do so. She said that in her experience it is consistent company policy to treat the taking of food off the premises as gross misconduct warranting dismissal. The witness sent an e-mail to Ms. Kelly on the following morning suggesting that she (Ms. Kelly) make out a report on the incident to her manager, Ms. Carr. The witness said that she understood that the complainant had admitted to stealing the bananas and was dismissed for that reason.

Mr John Barry gave evidence which can be summarised as follows:

Mr Barry has represented the respondent in various capacities since 1980. Mr Barry told the Court that the company had always maintained a policy of treating all of its staff equally. He said that within the business the control of food and the monitoring of its use have to be strictly observed. He said that it was the consistent policy of the Company to treat the unauthorised taking of food out of company’s premises as gross misconduct. Any employee found doing so would be dismissed. According to Mr Barry this policy is accepted by SIPTU, which represents the Company’s staff. The witness gave examples which he had encountered where employees were dismissed for such transgressions as eating food in a wash-up area during working hours, taking a bar of chocolate off the premises, taking fruit off the premises and taking cold meat off the premises. He said that he had represented the Company in disciplinary proceedings in those cases and in each case the decision to dismiss was upheld.

Mr. Barry confirmed to the Court that the Company has a disciplinary procedure which conforms to the rules of natural justice in the investigation of disciplinary matters. He said that in the case of the complainant, he understood that she had admitted to taking the bananas and further investigation was unnecessary.

Mr. Barry further confirmed that it was Company policy to prohibit employees from speaking in a language other than English while at work. The Company has employees of a variety of nationalities and unless a common language is used, communication can be hindered.

Deliberations of the Court.

Admissibility of Evidence.

Mr. Barry, on behalf of the respondent, contended that he was seriously disadvantaged by the absence of witnesses whom he considered vital to his case. He asked the Court to take this into account in its consideration of the case and to take into account evidence of others as to what the missing witnesses had told them on material points.

Ms. Kelly was not available to give evidence before the Court and her exact whereabouts is unknown. Her evidence would have been of considerable significance to the respondent’s case. Ms. Carr was also unavailable to give evidence for reasons which were explained to the Court. The Court does not consider that any evidence which Ms. Carr could give would be of great assistance. Ms Carr did not have any discussions with the complainant in the run-up to her dismissal and while she may have been involved in taking the decision to dismiss the complainant, this was based on what she had been told by Ms. Kelly. In the absence of Ms. Kelly, evidence of any discussion between her and Ms. Carr would be hearsay and of no evidential value.

Normally, if a witness vital to one of the parties is unavailable on the date of hearing for reasons which are considered good and sufficient, the Court can entertain an application to take that witness’s evidence at another date. The Court must, however, deal with cases on the basis of the evidence adduced before it and it cannot speculate as to what a particular person might have said had they given evidence. The High Court has held inKiely v Minister for Social Welfare [1971] IR21that tribunals such as this Court are not bound to apply the law of evidence, and in particular the rule against hearsay, with the same strictness as would be found in a Court of Law. However, it would offend against the standard of fairness which this Court is obliged to observe in its procedures if it was to allow hearsay evidence in rebuttal of testimony given on affirmation or oath which was tested by cross-examination and questioning from the Court.

Findings of Fact

Reason for the Dismissal.

Mr Barry has submitted that the reasonableness or otherwise of the respondent’s belief that the complainant was engaging in theft is not material in this case if the Court accepts the evidence that any employee similarly suspected of stealing would be dismissed. The Court fully accepts that the fact in issue in this case is whether the complainant was discriminated against on grounds of her race and not whether she was unfairly dismissed per se. However, in considering the complaint of discrimination, all of the circumstances surrounding the decision to dismiss the complainant need to be examined, including the basis upon which the respondent came to conclude that the complainant was engaged in stealing. Moreover, an allegation of stealing against an employee is of such gravity that it cannot be left unaddressed by the Court.

In the Court's view, even if the respondent’s evidence were to be taken at its height, it could not support an allegation of stealing. Section 1 of the Larceny Act 1916 defines stealing as the offence committed by a person:

• “Who without the consent of the owner, fraudulently and without a claim of right made in good faith , takes and carries away anything capable of being stolen, with intent, at the time of such taking, permanently to deprive the owner thereof”.

The Law Applicable.

Before the complainant can succeed in her claim, the Court must be satisfied that she was treated less favourably that a comparator of a different racial origin is, was or would be treated in similar circumstances as those arising in the present case. The general approach which should be adopted in considering cases of racial discrimination was laid down by the House of Lords inGlasgow City Council v Zafar [1998] 2 All ER 953. This case was subsequently adopted in this jurisdiction by Quirk J inDavis v Dublin Institute of Technology, High Court, Unreported, 23rd June 2000.In Zafar Lord Browne-Wilkinsonpointed out that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination and it is for the respondent to provide a non- discriminatory explanation. This approach was adopted by this Court inNatoko v Citibank[2004]ELR 3 116wherein the Court explained its underlying rational as follows:

• 
  This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof.

Conclusions

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. Accordingly, the complainant is entitled to succeed.

There is, however, another issue arising in this case to which, for the sake of completeness, reference should be made. InCase (C-279/93) Finanzamt Koein- Altstadt v Schumacker [1995] ECR 1-225the European Court of Justice held that it is settled law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations.

It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have 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. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers 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.

Determination.

The Court finds that the respondent herein discriminated against the complainant on the race ground in terms of section 6(2)(h) and contrary to section 8 of the Act. The Court determines that the appropriate redress is an award of compensation. In measuring the appropriate level of compensation, the Court has taken into account the complainant’s financial loss together with the distress and humiliation which she suffered in consequence of the discrimination to which she was subjected. The Court estimates the complainant’s financial loss as being of the order of €4,000 to which the Court adds a further €11,000 compensation for the effects of the discrimination. The total award is, therefore, in the amount of €15,000.




Signed on behalf of the Labour Court



Kevin Duffy
23rd July, 2004______________________
CONChairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.