EED045

Submissions:

The submissions of the party, which were supported by oral evidence, can be summarised as follows: -

The Complainants Case:

The complainant told the Court that he was employed in the sorting and distribution of post. He was referred to Citibank by CPL because he spoke French. He told the Court that he was on three months probation and that he had been advised by CPL that his performance was satisfactory and that he would be retained by the respondent.

On the evening of the 24th November the complainant received a telephone call on his mobile phone. He told the caller that he would ring them back at 5:30pm, which was after working hours. He did not have access to a phone at his own work station but he asked a colleague, Mr Gregory Pepin, for permission to make the call from his phone. The respondent had a log in system in operation on its phone system and Mr Pepin’s phone was already logged in. He told the complainant he could make the phone call and showed him how to log out of the system when he completed his call.

While the complainant was engaged in making the call he was approached by Ms Kathy Olesen, a manager with the respondent, who asked him what he was doing. He responded that he was making a private telephone call. Ms Olesen informed him that it was the respondent’s policy that employees were not allowed use the phones for private purposes. He then terminated the phone call and logged out. The complainant told the Court that two other employees were engaged in making private telephone calls at that point and that this was not commented on in any way by Ms Olesen. On the following Monday morning, 27th of November, he was approached by Ms Jean Fitzhenry, the assistant manager, who informed him that Ms Olesen was furious over the incident on the previous Friday and that he was being dismissed.

The complainant told the Court that at no stage had he ever been informed that it was contrary to company policy for employees to make private phone calls. He said he had never received any induction training from the respondent nor had he been given an employee handbook or details of the respondent’s disciplinary code. He did not believe that he was doing anything wrong in making a personal telephone call and that he understood that it was permissible to do so provided the call was made outside of working hours. The call was international and lasted for 24 minutes. He said that he was not given any opportunity to explain the circumstances in which he came to make the call or to make any representations in his own defence.

Ms Olivia Farrell who was employed by the respondent as a Customer Relations Representative at the material time gave evidence before the Court. She said that in November 2000 she became aware that the complainant had been dismissed for making a personal phone call. She and other colleagues were outraged at what had occurred. Ms Farrell told the Court that a number of staff had stopped work in protest at the complainant’s dismissal and demanded to speak with the manager responsible, Ms Olesen. Initially Ms Olesen refused to meet with them but after they held a work stoppage a meeting was convened in the conference room.

Ms Farrell went on to tell the Court that a number of employees, herself included, had told Ms Olesen that they were all guilty of making personal phone calls and that it was unfair to single out the complainant for having done so. The Witness had also heard Mr Pepin tell Ms Olesen that he had given the complainant permission to use his phone and that if the complainant was to be disciplined so also should he. According to Ms Farrell, Ms Olesen told the meeting that she had “turned a blind eye” to people using the phone for personal reasons but would not do so again. Those present pleaded with her to give the complainant a second chance but she refused to do so. Ms Farrell told the Court that at that time they were seriously overworked and understaffed. There were three managers at the meeting, namely, Ms Olesen, Ms Fitzhenry and a Mr de Decker. It was Ms Farrell’s evidence that none of them gave any reason for the complainant being dismissed other than that he had made a personal phone call.

In cross-examination the witness said that she had been supplied with a copy of the Company handbook (which states that staff are not allowed to make personal phone calls) but had not read it. She was adamant that Ms Olesen had used the words “turned a blind eye” to employees making personal phone calls. The witness told the Court that she had prepared a statement on this matter on the 13th February 2001 when events were still fresh in her mind. She pointed out that in her statement she had put the expression “turned a blind eye” in quotation marks and that she would not have done so if she were unsure that these were the precise words used.

The Respondents Case:

Ms Kathy Olesen gave evidence. At the time material to this case Ms Olesen was manager of the customer services division of the respondent, which included responsibility for the complainant. She outlined the history of her employment by the respondent, which commenced in 1984 in the United States. She held a series of managerial posts which included postings in Belgium, Germany and the UK as well as in the United States. She was posted to Dublin between the years 1998 and 2001. She told the Court that during her career she had dealt with employees and clients of diverse nationalities including Belgians, Germans, French, Pakistanis and Nigerians.

The customer call centre of the respondent, at which the complainant was employed, handled customer complaints from Belgium, France and the Netherlands. There was a wide range of nationalities working together in this section of the business. The complainant was employed as a temporary agency worker to fill a junior clerical position in the Diners Club Business. According to Ms Olesen the complainant was employed on a week-to-week contract. At the material time the sale of the business in which the complainant worked was in contemplation and there would have been no question of the complainant being retained on a permanent basis.

Ms Olesen had little personal contact with the complainant although his desk was situated not far from her office and she would have greeted him in passing. The complainant’s job did not involve any interaction with customers either in writing or by telephone. She told the Court that the phone system in Dublin was set up in such a way that each person who needed to use the phones had a personal identification code. This code then gave access to open the phone lines for outside dialling as well as for incoming calls in some cases. The complainant was not provided with such a code and did not have a phone situated on his desk, as this was not part of his job requirement.

It was Ms Olesen's evidence that all personnel working for the respondent were fully aware that abuse of business systems is an extremely serious issue and would result in disciplinary action being taken. She said that all staff are given orientation when they join the respondent and this orientation specifically includes instruction as to the prohibition on making personal phone calls on the business system. She said that she was certain that all staff knew that they could not make such calls except in the case of an emergency. Whilst she could not say with certainty that all staff observed this rule she was firmly of the view that if it came to the attention of management that any staff member was breaking this rule they would be disciplined for so doing. The witness did not know if the complainant had received orientation. She said, however, that after the initial orientation staff are regularly reminded through daily and weekly staff meetings that no personal calls were to be made. According to Ms Olesen the complainant would have been included at such meetings.

Turning to the events of the 24th November 2000 the witness recalled that while working late she had left her office to take a short break. She noticed that the complainant was not sitting at his own desk but at that of another employee Mr Gregory Pepin. He was using the phone and was speaking in French. She used an option of silent monitoring to listen in on the call. The witness does not speak French but judging by the tone of the conversation she concluded that it was a personal call. She approached the complainant and asked him if he was making a personal call to which he replied in the affirmative. She asked him to disconnect the call and to leave for the evening.

Later the witness asked Mr Pepin if he had given the complainant access to his code for the phone or if he had forgotten to log off before leaving. Mr Pepin said that he could not remember. The witness claimed that it was she who logged out of Mr Pepin’s system that evening after the complainant had left. The witness was not aware that two other employees were in the process of making personal calls at the time she came upon the complainant. She said that she was unaware of any other staff in the vicinity at that time but that both the named employees had access to the phone and could have been dealing with customer queries at the time. She told the Court that she had not been sufficiently satisfied that Mr Pepin was involved in this incident so as to justify disciplinary action against him.

Ms Olesen told the Court that on Monday 27th November 2000 she discussed the incident of the previous Friday with Ms Fitzhenry who was the complainant’s immediate manager. They agreed that he should be dismissed. She understood that Ms Fitzhenry spoke with him and told him that his employment was terminated. The witness took the view that the complainant was a temporary agency worker employed on a week-to-week basis and as such she was entitled to dismiss him without invoking the normal disciplinary procedure. She did so solely because he was found to be abusing a business system. She told the Court that she would have treated any other temporary employee in exactly the same manner. If it had been a permanent worker she would have initiated the disciplinary process and a warning would have been issued.

The witness recalled the reaction of staff when they became aware of the complainant's dismissal. She said that they had become emotional and wanted the complainant reinstated. She explained what had happened and indicated that they all knew that they were not allowed use their phone systems to make personal calls. According to Ms Olesen they agreed that that was the policy but some of those present indicated that they had made calls in contravention of that policy. The witness explained to the meeting that the respondent’s policy was that employees were subject to disciplinary action if they were caught making personal calls.

After this meeting Ms Olesen was again approached by staff requesting another meeting, which was held, and at which she was again asked to reconsider her decision. No member of staff mentioned discrimination at that meeting. The witness also said that she did not consider taking action against those who admitted to using the system for private calls because their transgressions were in the past. The witness specifically denied using the expression “turned a blind eye” to people using the phone for personal reasons. She said she was American and that she would not use such a phrase, which she understood to be an Irish phrase.

Ms Olesen told the Court that she had worked for the respondent for almost twenty years and had worked in a multicultural environment, which she always found to be free from discrimination of any sort. Further, she told the Court there had never been any complaint against her in her entire career and that she had never made decisions which were influenced by the race of those whom she managed. She strongly rejected the allegation that the decision to terminate the complainant’s employment was influenced by racial discrimination. Ms Olesen said that her decision was based solely on the complainant’s blatant abuse of business systems in the Company.

In cross examination the witness accepted that when the call centre was located at Burlington Road in Dublin a special telephone had been installed in the coffee deck area for personal use by employees. She said this had been done to avoid abuse of their business system during working hours. She accepted that this initiative had been taken due to high instances of personal call use on the respondent's system. No such facility had been provided when the call centre moved to its present location. The witness said that she described the complainant’s breach of policy as “blatant” because his demeanour was what she described as “in your face” when she observed him making the call.

The witness accepted that the complainant’s response when challenged in relation to making the call was consistent with his stated belief that he had not done anything wrong. She also accepted that she did not make any enquires as to whether the complainant was aware that the making of such calls was prohibited nor did she seek to interview the complainant or give him any opportunity to speak in his own defence before deciding to terminate his employment. She said that she was not obliged to do so as he was a temporary agency worker. The witness was clear that the making of personal calls was a disciplinary matter and that other employees had been disciplined for breaching that policy.

Ms Olesen accepted that her statement recalling the event material to the case was prepared some three months ago.

Evidence was given by Mr Frazier Mushibwe. Mr Mushibwe had no direct involvement in the events giving rise to this claim but gave evidence as to the practice and policies of the respondent regarding the use of their business systems. He told the Court that he was first employed in 1998 as a Diner Services Establishment Analyst. In 1998 he became a team leader in Diner Customer Services with direct responsibility for thirteen Customer Services Representatives. In May 2000 he was promoted to assistant manager of the customer services division with Diners. In May 2001 he moved to Citibank International Plc as a trust officer. He worked in the trust area up to October 2003 when he was transferred to Citigroup London with direct responsibility for six members of staff. Mr Mushibwe is of black African ethnic origin.

The witness told the Court that in August 2000 he was the customers team leader for Diner Club in Dublin. He was therefore working in the same division as the complainant at the time of his dismissal. He had become aware that the complainant was dismissed for abuse of business systems. He told the Court that it was part of the business culture of the respondent as a whole, that business systems should be used for business purposes only and that there were pop-up warnings on the system to that effect. The witness accepted that as in all business some staff would abuse the system and he was sure that employees of the respondent had done so. However all staff knew of the consequences of so doing.

The witness told the Court that he was never the subject of any racial discrimination and he believed that no one within the respondent considered colour or race to be of relevance. The witness said that he had never known Ms Olesen to make decisions based on considerations of race and that it would be out of character for her to do so.

When asked if he could recall any incident in which an employee had been disciplined for abusing a business system the witness replied that he was aware of an employee having being disciplined for downloading pornographic material from a computer. The witness had no direct knowledge of disciplinary action having been taken against any employees for making a personal phone call.

Ms Moira Lynam also gave evidence. This witness is Country Human Resource Officer for Ireland and has held that position since October 2001. She was first employed by the respondent as a human resource generalist supporting the British operations in Dublin. Prior to this she worked for eleven years as a HR Manager in the financial services sector.

The witness told the Court that she was aware that the respondent had strived to create a business culture whereby all staff were aware that business systems were to be used for business purposes only. She was personally aware that staff members had been disciplined for breaching this policy. Ms Lynam said that since 1997, eighteen members of staff had been disciplined for abuse of business systems. This ranged from the abuse of phone systems to computer e-mail and internet systems. Of this number, seven were dismissed. The witness had prepared a schedule of the individuals who were disciplined and an abridged version of this (which did not contain the names of individuals) was provided to the Court. This schedule also listed the nationalities of the individuals concerned.

In cross-examination Ms Lynam gave details of the misconduct for which the individuals listed had been disciplined. In dealing with phone abuse the witness told the Court that two individuals had received a final written warning for having returned to the office after office hours and leaving an inappropriate message on a colleagues answering machine. The witness accepted that the majority of the incidents recorded related to the inappropriate use of e-mails and the internet. The witness confirmed that apart from the complainant no other individual had ever been disciplined for making a personal call simplicitor. The witness further accepted that in the case of the complainant there had been what she described as “an excess of management”. However she was satisfied that this was because of the complainant’s status as a temporary agency worker and not because of his race.

Findings of Fact

The Court has carefully considered all of the evidence adduced in this case and has reached the following conclusions of fact.

The Court found the complainant an honest and reliable witness who gave his evidence clearly and frankly. The Court accepts that he was never given an orientation session when he joined the respondent nor was he ever told that the use of the phone system for private purposes was prohibited. The Court is further satisfied that in relation to the incident giving rise to his dismissal, the complainant was told by Mr Pepin that he could use the telephone provided he did so after working hours. The Court also accepts the complainant’s evidence that two colleagues were engaged in making personal calls at the time he was approached by Ms Olesen. However, it is not clear if Ms Olesen was aware of this.

The Court also found Ms Farrell’s evidence helpful and reliable. She had prepared and written up a statement concerning the events on which she gave evidence within three months of their occurrence. The Court accepts Ms Farrell’s evidence that a number of employees used the telephone system for their own private use and that during the currency of her employment, staff had not been expressly told that this was prohibited. While it is clear that the staff handbook does refer to such a prohibition the Court is satisfied that this was not systematically enforced through the disciplinary procedure.

The Court is further satisfied that at meetings following the complainant’s dismissal Ms Farrell informed Ms Olesen that other staff had used the phones for private use and that she herself had engaged in this practice. The Court prefers Ms Farrell’s recollection of the ensuing discussion and in particular accepts that Ms Olesen had told those at the meeting that she had turned a blind eye to this practice in the past but would not do so again. The Court also accepts Ms Farrell’s evidence that Mr Pepin stated at this meeting that he had given the complainant permission to use his phone.

Ms Farrell’s evidence with regard to the respondent’s attitude towards the use of the business telephone system for private calls is largely supported by the evidence of Ms Lynam. She accepted that where disciplinary action had been taken for a breach of this kind, it amounted to more than simply making an unauthorised phone call. She also accepted that the disciplinary procedures, which gives examples of serious misconduct likely to lead to dismissal, does not contain any reference to the unauthorised use of telephones. She did, however, point out that this list is expressly not exhaustive. Moreover, on the facts of this case as they were put to Ms Lynam she accepted that the response of Ms Olesen was excessive.

Having considered the evidence of Ms Olesen the Court is satisfied that she was mistaken in a number of material respects. The thrust of her evidence was that where employees are found to be making unauthorised telephone calls, disciplinary action inevitably follows. That is clearly not the case. Ms Olesen also described the complainant's demeanour while making the call as “blatant and in your face”. The Court interprets this as to mean that the complainant had acted in a defiant manner and had shown total disregard for the Company rules. Such a construction is wholly unreasonable. It is clear from the evidence that the complainant did not believe that he was doing anything wrong and that his demeanour when making the call was relaxed and casual. He did not react to Ms Olesen's presence when she approached him, because he had no reason to believe that he was doing anything wrong.

The respondent does have a policy against abuse of its business systems which is enforced through its disciplinary procedure. This, however, mainly relates to inappropriate use of the internet and its e-mail system. Having considered the evidence as a whole the Court is satisfied on the balance of probabilities that while it was the stated policy of the respondent to prohibit staff from using its telephone system for private purposes, this policy was not routinely or regularly enforced at the material time. This is further confirmed by the reaction of the respondent’s staff to the complainant’s dismissal in effectively going on strike in protest and in demanding his reinstatement. The Court does not believe that they would have reacted in this way if, as the respondent contends, it was well known and understood that the making of a private telephone call constituted serious misconduct.

The Court is further satisfied that the complainant was dismissed without being given the slightest opportunity to defend himself although he had a perfectly innocent explanation for what occurred. It is also noteworthy that the complainant was dismissed for the mere fact of having made a private call rather that because of the destination to which it was made or its duration.

The Court accepts from the evidence that the respondent is a reasonable employer committed to the attainment of good practice in its employment policies. For some reason Ms Olesen departed from those standards in her treatment of the complainant which, by any objective standard, was wholly unfair. The question, which the Court must answer, is why.

The Law Applicable.

The complainant is an agency worker within the meaning of section 2(1) of the Act and the respondent is a provider of agency work, in relation to the complainant, within the meaning of section 2(5) of the Act. The respondent accepts that it is an appropriate party to these proceedings.

Section 8(1) of the Act provides that an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker on any of the discriminatory grounds, inter alia, in relation to access to employment or conditions of employment. Section 8(2) of the Act provides that in relation to an agency worker discrimination can only occur where that agency worker is treated less favourably (on one of the discriminatory grounds) than another agency worker is, has been or would be treated.

The complainant must, therefore, make out his case of discrimination by reference to the treatment of a comparator of a different racial origin in circumstances similar to his own and that comparator must be another agency worker. There is no actual comparator in this case but the complainant can rely on a hypothetical agency worker ("or would be treated") of a different racial origin. In establishing how such a hypothetical agency worker would be treated by the respondent, the treatment which it afforded it's permanent employees of a different racial origin to the complainant, in materially similar circumstances to those of the complainant, is of evidential value. (see the speech of Scott L.J. inShamoon v Chief Constable of the RUC [2003] IRLR 285 at paragraph 109).

The respondent submitted that the sanction of dismissal, rather than a warning, was applied in this case because the complainant was a temporary agency worker. However, the Court has no reason to believe that it would be the practice of the respondent to dismiss an agency worker for a transgression which would be overlooked if committed by a permanent employee.

The respondent does not contend that the prohibition on the use of the telephone system is confined to agency workers. It is their case that the company policy in that regard is applicable to all staff regardless of their status. It follows that if infringement of this policy was not generally regarded as serious misconduct by the respondent and that the complainant was singled out for special treatment, it is reasonable to believe that he was treated less favourably than another agency worker of a different racial origin would be treated.

Burden of Proof.

Mr Power BL, for the complainant, submitted that in the circumstances of this case the onus is on the respondent to prove that the dismissal was not on grounds of race. He relied on the determination of this CourtFlexo Computer Stationary Ltd and Kevin Colton (Determination EED0313)in which the Court stated that in all cases of alleged unlawful discrimination a procedural rule similar to that prescribed by Directive 97/80/EC (the Burden of Proof Directive) should be applied. Counsel also referred to Directive 2000/43 (the Race Directive) and contends that this is further authority for his submission that the respondent must bear the burden of proving that the complainant was not dismissed because he is a black African.

Mr Connaughton SC submitted that the there is no basis in law by which the respondent can be fixed with the onus of proving the absence of discrimination. He argued that the Burden of Proof Directive can have no application beyond cases of alleged discrimination on the gender ground and that the Race Directive cannot avail the complainant since it has not been transposed in law and cannot have horizontal direct effect.

Counsel submitted that as a matter of law it is insufficient for the complainant to establish that his dismissal was unfair and that he must prove that it was on grounds of his race. Counsel further submitted that in so far as the decision of this Court in the Flexo Computer Stationary case purported to hold otherwise, it was wrongly decided. In support of this submission the Court was referred to the decision of the House of Lords inGlasgow City Council v Zafar [1998] 2 All ER 953.

Flexo Computer Stationary and Coltonis but one in a line of decisions of this Court which held that where a complainant establishes facts from which discrimination may be inferred it is for the respondent to prove that there has been no infringement of the principle of equal treatment. The Court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination. (seeMitchell v Southern Health Board [2001] ELR 201)

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.

Support for this approach can be found in the speech of Lord Browne-Wilkinson inGlasgow City Council v Zafar,at p. 958, in which he quoted with approval the guidance given to Employment Tribunals by Neill LJ inKing v Great Britain China Centre [1992] I.C.R. 516, as follows:

• 'From these several authorities it is possible, I think, to extract the following principles and guidance.

• “Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them, establish before a Court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

• “In order to reply to that question, it should be observed that, as the Court pointed out inVon Colson and Kamann v Land Nordrhein- Westfalen [1984] ECR 1819, paragraph 26, the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.”

• “Reference was made to the judgement of the European Court given on the 13th November 1990 in Marleasing SA v La Comercial International De Alimentacion SA. That is a far-reaching decision in so far as it determines that national courts are bound to interpret their national laws in the light of the wording and purpose of a relevant EEC Directive even where the national law in question was adopted before the directive was given. That was, as I say, a far-reaching application of the general rule on interpretation which itself is not open to challenge”.