Ms Josephine Nyamhovsa
-v-
Boss Worldwide Promotions
1. Claim
1.1. The case concerns a claim by Ms Josephine Nyamhovsa that Mr Steven Broadey, owner and manager of Boss Worldwide Promotions, directly discriminated against her on the grounds of gender and race contrary to Section 6(2)(a) and 6(2)(h) of the Employment Equality Acts 1998 to 2004, in subjecting her to harassment, discriminatory treatment with regard to promotion and terms and conditions of employment, and discriminatory dismissal.
2. Background
2.1. The complainant is a black woman of Zimbabwean nationality. She submitted that the respondent subjected her to a derogatory remark in front of one of her trainees; that he treated her different from white staff on his team in terms of team assignments; that he demoted her without explanation; that he treated her more poorly after May 2005, and that he dismissed her without notice or explanations on 17 October 2005, which she submitted amounts to discriminatory dismissal on grounds of gender and race.
2.2. The respondent submitted that the Tribunal has no jurisdiction in this claim, since there was no employer/employee relationship.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 17 February 2006. On 21 June 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, 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. A submission was received from the complainant on 18 June 2007. No submission was received from the respondent. A joint hearing of the claim was held on 12 October 2007. At the hearing, the complainant's representative submitted 43 pages of additional written evidence, much of it printed material. The respondent submitted the complainant's contract. Further evidence was offered from the respondent at the hearing, which was received by the Tribunal on 24 October 2007. In addition, the respondent, who was unrepresented, was given a two-week period, until 26 October 2007, to make any additional representations to the Tribunal in relation to the complainant's written evidence, as well as matters canvassed at the hearing. The respondent did not avail of this opportunity.
3. Summary of the Complainant's Case
3.1. The complainant commenced working for Mr Steven Broadey, owner and manager of Boss Worldwide Promotions Ltd, on 5 January 2004. She submitted in oral evidence that the position was a commission-based sales role, which included going door-to-door to sign people up as donors for a variety of charities. She submitted that she mainly worked on behalf of the development charity, Gorta.
3.2. At the hearing, the complainant submitted a recruitment brochure used by the respondent, in which she was pictured. The brochure outlines a five-stage "business development programme" to potential applicants: 1. Field Representative; 2. Leader; 3. Crew Leadership; 4. Assistant Ownership; 5. Ownership. The complainant submitted that she started as a field representative, progressed to leader, and subsequently moved into Mr Broadey's office. A further promotion was agreed if she hit her target, which she submitted occurred in September 2004, and that she was promoted to Stage 5. However, the complainant also submitted a brochure in evidence from Cobra Group Ltd, the umbrella company of which the respondent's company was a franchise, and she is not listed there as one of the employees promoted to Assistant Ownership or Ownership in 2004. Furthermore, she had training materials for stages 1 to 3 in her possession, which in evidence, she made available to the Tribunal. In view of the fact that the complainant herself made this written evidence available to the Tribunal, I do not infer that she sought to mislead the Tribunal over how much progress she made in the respondent organisation, but rather that she suffered confusion over this matter while giving evidence. However, in the light of the foregoing, I will assume that her promotion in September 2004 was to Stage 3, Crew Leader.
3.3. The complainant submitted that as crew leader, she would have had a significantly enhanced ability to generate an income for herself, as part of the commission awarded to her team members was paid out to herself. Therefore, a greater team meant greater earnings, in addition to the sales commission she earned individually.
3.4. The complainant further submitted that after her promotion, in September 2004, she went to Zimbabwe for a month, and that on her return she found herself with no crew to lead, just one male co-worker, and that she was offered no explanation for this move. She submitted that this signified a demotion to stage 2, leader and in the absence of explanations, amounts to discriminatory treatment in relation to access to promotion. She submitted that this meant she would sustain a loss of earnings, although she did not specify to the Tribunal the extent of this loss.
3.5. When asked at the hearing about her general terms and conditions of employment, the complainant submitted that she worked a 12-hour day, 6 days a week. Her starting times shifted between 9:30 am and 11 am. Her work day ended when her team finished their jobs. She submitted that she could not let anyone else stand in for her to do her work. She did not use any equipment of her own to perform her work. There was no basic obligation to report for work, but that it was generally understood that anybody who wished to progress within the organisation would be obliged to report for work. She submitted that in terms of tax details required by the respondent, she was asked to provide her PPS number. She was paid on commission: if a doorstep customer committed to a €10 monthly donation, she would receive €24, and more if the customer committed to more. She received only pay from the respondent and no benefits in kind, and paid self-assessed income tax.
3.6. The complainant submitted training materials for stages 1, 2 and 3 of the 5-stage development plan for field representatives. Each of the training plans is highly detailed and leaves virtually no part of the doorstep interaction with a potential donor to the discretion of the field representative. Examples of training categories include: "5 Steps - Introduction, Presentation, Short Story, Close, Rehash", "Selling yourself - Icebreakers, Conversation/Relating, Body Language, Building Rapport", or: "Impulse Factors - Guilt, Indifference, Fear of loss, Tone of Voice/Sense of Urgency, Sheepfactor/Joneses".
3.7. The complainant also submitted a "Field issue form", which she was obliged to fill out for any incident that involved members of her team during the doorstep sales process. She submitted that she herself had no authority to resolve complaints directly with the client charities.
3.8. Ms Nyamhovsa submitted that she was very successful in her sales representative role. In the brochure from Cobra Group Ltd, referred to in para 3.2 above, which reviews business successes and senior promotions within the group in 2004, Ms Nyamhovsa is praised as being the most successful employee among the entire group of franchises in the category "Donations raised per Fundraiser". The brochure highlights that she raised £281,988.61 (€405,749.48 ) in 2004. On the other hand, Boss Worldwide Promotions does not rank among the top five franchises of Cobra in terms of "Donations raised per Office", whereas the top performing franchise also features the 3rd and 5th best performing individual fundraisers.
3.9. The complainant submitted that she was subjected to harassment when Mr Broadey said to her: "You will be on the field for seventy gazillion years", while her trainee listened. This occurred one day when she had forgotten her field representative badge in her car.
3.10. The complainant further submitted that a conference took place in Portugal in May 2005, in which senior management of Cobra Group Ltd met. She was only permitted to attend this conference after making representations to Mr Broadey. She submitted that she approached Mr Michael Scully, Vice-President and Product Owner of Cobra Group Ltd, whom she described as "Mr Broadey's superior" to ask him what she could do to achieve further promotion, given that she was already hitting her targets. She submitted that Mr Scully advised her that he had already spoken to Mr Broadey about the possibility of her running a satellite office of the organisation. A meeting then took place at the margins of the conference between her, Mr Scully and Mr Broadey.
3.11. The complainant submitted that once the meeting had taken place, she experienced a significant change in Mr Broadey's attitude towards her. The only trainees assigned to her from that point onwards were black Africans or non-English speakers, and that this subjected her to ridicule among her colleagues. However, when I asked her in oral evidence, she clarified that the composition of her teams made no difference in terms of sales she could achieve. She submitted this constituted discriminatory treatment in her conditions of employment.
3.12. The complainant submitted that her colleague told her that Mr Broadey had no intention of promoting her any further. I indicated to the complainant and her legal representative that this statement amounted to hearsay evidence and I would treat it as such.
3.13. The complainant submitted that on 17 October 2005, she was told: "Steve wants you upstairs", and that when she saw Mr Broadey in his office, she was told to leave. She submitted that this turn of events was totally unexpected, that she was given no reasons for her dismissal and that no paperwork was completed with regard to her departure from the company. She submitted that subsequently she had difficulties receiving outstanding monies due to her, but that Mr Broadey's secretary eventually processed payment in December 2005, after she had complained to Cobra Group Ltd Headquarters. She submitted that this amounts to discriminatory dismissal.
4. Summary of the Respondent's Case
4.1. The respondent denies that the Tribunal has jurisdiction in the above complaint. He maintains that the complainant, like the other sales representatives who worked for his business, was a self-employed sole trader with whom he was trading, and therefore not an employee for the purposes of the Acts. He repeated this position in response to a considerable number of questions, and under cross-examination.
4.2. He submitted that the company had only two employees, himself as manager and his administrator. The number of field representatives would vary greatly, between zero and twenty. He estimated that during the complainant's time with the company there would have been 15-20 field representative of various ethnic backgrounds, with a small percentage of Irish contractors also present. He submitted that at the date of the hearing of the complaint, there were no field representatives working in the company, and that the only employees at that time were himself and his secretary.
4.3. He submitted that work targets were only a suggestion, and that people who would not reach their targets might have continued with the company. He submitted that people would cease trading due to low commission earnings.
4.4. He submitted that training attendance was voluntary.
4.5. He denied the existence of any kind of promotional structure based on the five stages described in the company's literature, and therefore denied that the complainant had been demoted following her trip to her homeland in September 2004.
4.6. He submitted that any field representative was free to interact directly with the company's clients, and that in terms of team composition, any independently trading field representative was free to trade with any other field representative in the company.
4.7. However, with regard to the "Field Issues form" of which the complainant had submitted a copy, the respondent stated to the Tribunal that this was a feedback form for the client charities in case a donor or potential donor complained about a field representative. The respondent further stated that these forms would be submitted to him, as he had an agreement with the client charities to look after the customer service they received. Depending on how complaints were handled, the client charities would decide whether would continue to avail of the services of Boss Worldwide Promotions.
4.8. In cross-examination by the complainant's legal representative, Mr Broadey admitted making the remark about the complainant's abilities which is referred to in para 3.9 above, and offered the complainant his apologies during the course of the hearing.
4.9. He denied treating the complainant differently after the conference in Portugal described in para 3.10 above.
4.10. He agreed that he dismissed the complainant on 17 October 2005 without explanations. He submitted that he had reserved the right to cease trading with any field representative at any time, with no reason, on either verbal or written notice, and that this was a business decision that needed no justification.
4.11. At the hearing, the respondent offered the explanation that he considered ceasing trading himself at the time, and that he ceased trading with about ten individuals in October 2005. He submitted that the complainant was not singled out for her race or nationality in having her contract terminated, since most of the other individuals with whom he ceased trading during that time were non-Nationals also.
4.12. On 24 October 2007, the respondent submitted additional written evidence, which shows that apart from the complainant, he ceased trading with nine people, three Irish, two Nigerians, one Moroccan, one Estonian, one Slovakian and one citizen of the Czech Republic. The evidence took the form of a list on a single sheet of paper, containing names and nationalities.
4.13. In evidence, he submitted the complainant's contract, named "Master Field Representative Agreement". The respondent did not seek to rely on the contents of the contract during the course of the hearing, and I indicated to both parties that I would need to study the document further. The contents of the documents are therefore outlined in the next part of this decision, which states the considerations of the Equality Officer.
5. Considerations of the Equality Officer Jurisdiction
5.1. The first issue I have to consider is whether the Tribunal has jurisdiction to investigate and decide on the complainant's case. The question is whether the contract between the complainant and the respondent constitutes a contract of employment, and therefore, whether she was an employee for the purposes of the Acts. S. 2(1) of the Acts defines "contract of employment" as (a) a contract of service or apprenticeship, or (b) any other contract whereby - (i) an individual agrees with another person personally to execute any work or service for that person [...] whether the contract is express or implied and, if express, whether oral or written."
5.2. The main test, under Irish law, for assessing this in work situations such as the complainant found herself was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998 1 IR 34]. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. Keane J stated: "[...] in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit he or she derives from the business is dependent on the efficiency with which it is conducted by him or her."
5.3. Murphy J added: "Whether Ms M. was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant and not upon any statement as to the consequences of the bargain."
5.4. I therefore propose to examine the contract between the complainant and Boss Worldwide Promotions Ltd.
5.5. The contract states: "This Agreement is governed by Irish law." It also states, "Nothing contained in this Agreement shall be construed to have effect as constituting any relationship of employer and employee between the Company and the Field Representative."
5.6. However, most of the remaining clauses in the contract are highly prescriptive in how the Field Representative performs his or her tasks. Contractually regulated behaviours include: Full cooperation with disciplinary procedures; compliance with all campaign instructions; provision of daily operational reports; not making "any representation, claim, or commitment, or give any warranty, guarantuee [sic] or assurance"; not "issue any advertisement, undertake any promotion, offer any incentives, or undertake any other activities in connection with any Campaign"; not "criticise any other organisation, service or product, alter any Campaign Materials, or use any materials other than Campaign Materials."
5.7. Under "Campaign service responsibilities", the contract states that the field representative is obliged to "return all issued application forms (including all completed, partly completed, damaged and blank application forms), promotional materials, Group Products and any other form of property to the Company, the Group Company or the Client to the Company at the end of each Campaign Working Day." The field representative is also obliged to report "every instance of a complaint or potential complaint" immediately to the company.
5.8. Under the heading "Obligation to attend training", the contract states: "The Field Representative shall in good faith undergo any training the Company is to provide."
5.9. The contract also contains a competition clause, stating: "The Field Representative shall not during any Campaign engage in any sales/marketing activities which are, directly or indirectly in competition with the Campaign Services (whether as principal, agent, reseller or though [sic] or on behalf of any third party; or after involvement in any Campaign for a reasonable period and within a reasonable territory, each prescribed in the relevant Campaign Agreement (whether as principal, agent, reseller, or through or on behalf of any third party) be involved in the provision of directly marketed services or products which are or may be in competition with services or products which were the subject of relevant Campaign Services."
5.10. Termination is dealt with in para 4.4. of the contract, and also in Section 14. Para 4.4 reserves the right to terminate or suspend the Field Representative if a client or Group Company consider him or her unfit or unsuited to provide campaign services, with a right to request re-training from the Field Representative for the continuation of the contract. Section 14 outlines the other circumstances under which the contract can be terminated: fundamental breach of contract; breach of contract that is not remedied within a prescribed period; insolvency of the Field Representative; any change in law in relation to direct marketing; a serious complaint, or more than one complaint, about the Field Representative is received from any customer or customers; material breach of a code by the Field Representative; failure to provide campaign services without reasonable explanation for a continuous period of ten days. It is notable that there is no provision in the contract for the Company to terminate the services of the field representative without giving reasons.
5.11. I find that the contents of the contract directly contradict statements made by the respondent in oral evidence, viz. that training attendance was not compulsory (para 4.4 above); that field representatives were free to interact with clients directly (para 4.6 above); and that he had the right to terminate the contract without giving reasons for doing so (para 4.10 above). I wish to note that I attach greater weight to the terms of the written contract, not only because it is in writing, but also because it was agreed and signed by both parties at a time when no dispute had arisen between them. I therefore find it credible that the terms and conditions of the contract where intended to govern the working relationship between the complainant and the respondent. In the absence of any other corroborating evidence, I do not find the statements made to the Tribunal by the respondent to be credible. I find it reasonable to infer that they were only offered as a way to challenge the Tribunal's jurisdiction.
5.12. Taking into account, then, the complainant's oral evidence, and the terms of the written contract in existence between herself and the respondent, I find that:
- The complainant was supplying her labour only, but no materials, premises or other investment;
- The respondent provided her with work materials, and she was under a contractual obligation to account for same materials, at the end of each working day, with the greatest accuracy;
- The complainant had virtually no discretion in how to carry out her work; she was contractually obliged to undergo training, which identified performance of her work tasks in minute detail;
- The complainant was prohibited from carrying out similar services for any business concerns the respondent would identify as competitors; both during and after the work relationship;
- The complainant could not engage employees on her own account; she was limited to working with persons engaged by the respondent and - here I accept the complainant's evidence as more credible than the respondent's - was in fact dependent on working with whoever the respondent assigned to work in her team;
- The complainant could not address any complaints with the respondent's clients directly; she was contractually obliged to notify the respondent immediately of such complaints, and any complaints arising could be a reason for termination of her contract.
5.13. I therefore find that the complainant's terms and conditions of work are fully covered by the test developed in Denny, and that her contract with the respondent constitutes a contract of service within the meaning of the Acts. Therefore, the complainant is the respondent's employee and I hold I have the power to investigate and decide on her complaints.
The Substantial Complaint
5.14. The complainant is alleging discriminatory treatment pursuant to S. 8(1)(b) (conditions of employment) and (e) (promotion or re-grading), discriminatory dismissal pursuant to S. 8(6)(c), and harassment pursuant to S. 14A(7)(a) of the Acts, on grounds of gender and race pursuant to S. 6(2)(a) and (h), respectively.
5.15. A person making an allegation of discrimination under the Acts has to present prima facie evidence of his or her allegation. Prima facie evidence has been described as "[e]vidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred." [Gillespie & ors V Northern Health and Social Services Board & ors [1996] ECJ C342/93]. In the context of the Tribunal's jurisdiction, this has been interpreted to mean that the complainant has to prove, on a civil standard of proof, that the alleged events occurred; and that someone to whom the discriminatory grounds applied differently would not have been so treated.
5.16. Once a prima facie case of discrimination has been established, the burden of proof then shifts to the respondent pursuant to S. 85A of the Acts, which states in subsection (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."
5.17. The first limb of establishing a prima facie case is to prove, on balance of probabilities, that the events complained of actually occurred. In this regard, I note that the respondent conceded the occurrence of two of the alleged incidents, viz. his remark "You will be on the field for seventy gazillion years" (see paras 3.9 and 4.8, above) and the fact that he terminated the complainant's employment without notice or explanation (see paras 4.10 and 4.11 above).
5.18. With regard to the complainant's allegation that she was demoted following her stay in Zimbabwe, I have already noted that in oral evidence, she was probably mistaken about the extent to which she had progressed in the company and that it was likely that she had only progressed to stage 3 (see para 3.2 above). However, I do not accept as credible the respondent's assertion that there was no promotional structure in the company (see para 4.5 above), and that therefore the complainant could not have been demoted, since printed material from his own company and from Cobra Group Ltd clearly outlines the five-stage structure of which the complainant gave evidence, and expressly speaks of "promotion" with regard to stages 4 and 5. On the balance of probabilities, I find it credible that the complainant experienced having team members taken from her team to the extent that it equalled a demotion from stage 3, crew leader, to stage 2, leader, of the promotional structure within which she was working, that she was not given any explanation for this action, and that it adversely affected her ability to earn sales commissions to an unspecified amount.
5.19. Also in relation to the matter of her demotion, the complainant submitted written evidence to the Tribunal which shows that on 13 November 2004, she was again leading a team of seven field representatives. Therefore her demotion only lasted a comparatively short amount of time.
5.20. With regard to the complainant's allegation that she had only black Africans and non-English speakers assigned to her teams, I also accept this statement as true in light of the fact she was not permitted to hire her own staff independently of the respondent; that both as an employee and as a team supervisor she was working under highly detailed instructions; and because of the promotional structure that existed at the company, as evidenced in the written documentation submitted. In view of these, the respondent's assertion that anyone in his company would have been free to trade with anyone else in the company (see para 4.6 above), does not seem credible. However, I also note the complainant's evidence that the composition of her teams made no difference in sales. Therefore I do not find sufficient evidence for less favourable treatment of the complainant under the Acts, with regard to specific employees assigned to her team.
5.21. The complainant also alleges that these team assignments occurred after the Cobra Group Ltd conference in Portugal, where her further promotion prospects were discussed between Mr Michael Scully, Steven Broadey and herself, and that in general, Mr Broadey treated her fundamentally differently than before. However, as noted, she did not provide specific evidence of detriment with regard to persons assigned to her team, and she did not provide any specific detail as to other differences in treatment by the respondent. I also note that this was the only allegation of the complainant that the respondent strongly disputed in oral evidence. In total, I find there is insufficient evidence to infer discriminatory treatment by the respondent after May 2005.
5.22. The complainant identified a colleague as her comparator, whom she described as "white French" and who, she submitted in evidence, was not harassed, did not receive discriminatory treatment, and was not discriminatorily dismissed in the manner she alleges in relation to herself. The complainant also submitted that a white, Irish male would never have received the same treatment from the respondent.
5.23. The respondent did not dispute the complainant's general description of his treatment of the colleague, he only clarified that she was a French citizen of Moroccan ethnic origin, and therefore not "white" in the sense of a Caucasian ethnic origin. He offered this fact as evidence to the Tribunal that he does not discriminate against his workers on the basis of race.
5.24. Since it is common case between the parties that the colleague is of different nationality and different ethnic origin to the complainant, and that she was treated differently by the respondent, I find that the complainant has established a prima facie case of discrimination on grounds of race in relation to her allegations of harassment, demotion, and discriminatory dismissal.
5.25. I further note that following the Labour Court's decision in Citibank v. Massinde Ntoko (Determination EED045), I am also entitled to assume a hypothetical comparator in order to weigh the complainant's allegation that the respondent would not have treated a white, Irish man in the same manner as he treated her, as the complainant submitted I should do.
5.26. I will therefore proceed to consider how the respondent's treatment of the complainant compares to how he would have treated, on balance of probabilities, a white Irish male, and it is for the respondent to rebut the allegations of the complainant and to prove that his treatment of her was for reasons other than her race and gender.
5.27. In relation to the complainant's allegation of harassment, I already noted that the respondent admitted to making the alleged remark (para 4.8 above). In terms of how the respondent's remark is connected to the complainant's race and gender, I wish to note that in general, blatantly racist and sexist remarks appear to be declining, as public awareness of their offensiveness increases. However, I find that the remark of the respondent is directly connected to the complainant's race and gender in that it links to longstanding, persistent stereotypes of black people as being less intelligent than white people , and similarly, of women being less intelligent than men.
5.28. I find that putting a black woman employee down in front of a trainee for such a trifling matter, in the way described above and as is common case between the parties, does constitute harassment as defined by S. 14(7)(a) of the Acts, being "conduct which ... has the ...effect of violating a person's dignity and creating a ... humiliating environment for the person" on the ground of race and gender. I am satisfied that the respondent would not have made such an undermining remark to a white, Irish man in front of a trainee. I am further satisfied that while the respondent might have commented on such a man's forgetfulness, he would have been conscious of not undermining that man's authority in front of a subordinate.
5.29. I note that the respondent did offer his apologies, but he did not offer an explanation that would rebut the presumption that it was made on grounds of race or gender, or that he would not make such a comment to an employee who was not black African, or a man. I therefore find that he failed to rebut the complainant's allegation of harassment of her.
5.30. In relation to the complainant's allegation of demotion, constituting discriminatory treatment under S. 8(1)(d) of the Acts, I already noted that the respondent's contention that the complainant could not have been demoted because of an absence of a promotional structure, is in direct contradiction to printed evidence of his own company and Cobra Group Ltd. and therefore not credible. The respondent offered no other explanation for the complainant's demotion and I do not think a white Irish man would have found himself similarly without a team and with reduced responsibilities solely as a result of taking a holiday. I therefore find that the respondent failed to rebut the complainants allegation of discriminatory treatment in relation to promotion or re-grading pursuant to S. 8(1)(d) of the Acts.
5.31. In relation to the complainant's allegation of discriminatory dismissal, I note that the respondent acknowledged dismissing the complainant without notice or giving reasons, but that he insisted that in terms of his contractual relationship with the complainant, he was entitled to do so. Again, I note that this is in direct contradiction to the written contract between himself and the complainant, which he submitted in evidence. While the contract does not state any notice period, it does outline the reasons for which the agreement may be terminated by the respondent with sufficient clarity. There is no clause which permits the respondent to terminate the agreement for no reason whatsoever.
5.32. While it is not within the jurisdiction of the Tribunal to make a finding on this, I therefore note that it appears that in terminating the complainant's work without giving reasons, the respondent was in breach of his own contract. Clearly his statement that he was entitled to do so does not amount to a rebuttal under the Acts, of the allegation that he was discriminatorily dismissing the complainant on the ground of race and gender.
5.33. The respondent further submitted that in October 2005, he terminated the contracts of a number of other field representatives at his company, and that most of them were not Irish. He submitted that he terminated their contracts because he considered ceasing trading. I note in this context that at the date of the hearing of the complaint, he was still trading (see para 4.2 above).
5.34. He submitted that this showed the complainant was not singled out on grounds of her race. As noted above, on 24 October 2007, the respondent submitted additional written evidence, which shows that apart from the complainant, he terminated the contracts of nine other employees, three Irish, two Nigerians, one Moroccan, one Estonian, one Slovakian and one citizen of the Czech Republic. I do not find this evidence to be a conclusive rebuttal of the complainant's allegation. The fact that 70% of terminations conducted in a single calendar month affected non-Irish workers could equally demonstrate a generalised bias against non-Irish workers who were let go first when the respondent considered closing his business. I further note that in his additional evidence, the respondent did not submit details of the circumstances that attached to the termination of those contracts and therefore did not rebut the complainant's allegation that she received less favourable treatment compared to other workers in his company.
5.35. I am also mindful of the fact that the complainant was one the respondent's most successful employees (see para 3.7 above) and that she made a very significant contribution to the success of the respondent's business. I find that there is no business rationale for terminating such a person's contract ahead of those of other employees. I furthermore fail to see how any amount of business rationale could serve as justification to deprive a successful worker, against whom no complaints had been made, of her livelihood literally from one moment to the next, with no notice, no reasons, and no warning.
5.36. I therefore find that the respondent failed to rebut the complainant's allegation of discriminatory dismissal pursuant to S. 8(6)(c) of the Acts.
6. Decision
6.1. Based on the foregoing, I find that the respondent discriminated against the complainant in terms of harassment pursuant to S. 14A(7) and discriminatory treatment - promotion and re-grading - pursuant to S. 6(1)(d) and discriminatory dismissal pursuant to S. 8(6)(c) of the Employment Equality Acts 1998 to 2004, on grounds of race and gender.
6.2. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent:
(i) pay the complainant the sum of € 5000 in compensation for harassment and discriminatory treatment and
(ii) pay the complainant the sum of € 45,000 in compensation for discriminatory dismissal.
6.3. This award relates to compensation for the distress and breach of rights under the Acts and is therefore not subject to tax. In calculating the compensation to be paid to the complainant, I am guided by the major contribution she made to the success of the respondent's business, by the extraordinary set of circumstances that attached to her discriminatory dismissal, and by the finding of the Labour Court in Citibank v. Ntoko, that "an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive".
______________________
Stephen Bonnlander
Equality Officer
6 December 2007
1 http://www.xe.com currency converter, accessed 4 November 2007, 11:40am.
2 See, for example, the controversial remarks made as recently as 17 October 2007 by Nobel Laureate James Watson to the Sunday Times newspaper, that black Africans are less intelligent than Europeans: http://www.timesonline.co.uk/tol/news/uk/article2677098.ece