Mr. Rimantas Paskauskas
(Represented by SIPTU)
vs
The Sofa Factory/Opus Design Limited
(Represented by Ken Stafford Management Consultancy Services)
1. DISPUTE
1.1 The dispute concerns a claim by SIPTU, on behalf of Mr. Paskauskas, that he has been subjected to discriminatory treatment, discriminatory dismissal, harassment and sexual harassment by The Sofa Factory/Opus Design on the grounds of sexual orientation, disability and race within the meaning of Sections 6(1) and 6(2) of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts. It is also contended that the respondent failed to provide the complainant with reasonable accommodation in accordance with Section 16(3) of the Employment Equality Acts, 1998-2007.
2. BACKGROUND
2.1 The complainant is Lithuanian and he commenced employment with the respondent in 2002 as an Upholsterer. He alleges that he was never given any work as an Upholsterer and was moved around the respondent organisation to do different jobs. It is the complainant's contention that throughout the duration of his employment he was subjected to harassment and sexual harassment on the grounds of race and sexual orientation. He further alleges that he was subjected to discriminatory treatment on the grounds of disability and the respondent failed to provide him with reasonable accommodation. The complainant alleges that in August, 2005 he was subjected to discriminatory dismissed by the respondent without any notice. The respondent denies all the allegations.
2.2 Consequently the complainant referred his complaint of discriminatory treatment, discriminatory dismissal, harassment and sexual harassment to the Director of Equality Investigations on 4th October, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 16th March, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 19th September, 2007. Further information was received from both parties with the final information being received on 2nd November, 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant states that he came to Ireland in March, 2002 and was hired by the respondent initially as a Upholster/Frame Maker. It is the complainant's submission that even though his English was poor at the time he was able to understand specific words and commands related to his duties. The complainant says that after some time he was moved to the Delivery Department and he also worked as a driver's assistant in the Goods In/Goods Out Department. Then in 2004 he was again moved back to work in the factory. It is the complainant's submission that during his employment with the respondent organisation his health deteriorated dramatically and in 2005 he had to take a six weeks break from work to return to Lithuania to undergo a series of medical examinations and treatments. The complainant says that when he first joined the respondent organisation he was a fit man but within 3 years became an invalid having being diagnosed with Diabetes Type 1, Pancreatitis as well as Diabetic Neuropathy and Osteo-Arthritis of both knees and shoulders. Two reasons the complainant says caused this namely the physical and psychological exhaustions of his body and mind.
3.2 The complainant says that he was insulted directly and indirectly on an every day basis during different work situations. He alleges that he had to work under constant pressure doing not only his own duties but also the duties of other employees e.g. sweeping the factory floor. The complainant says that he did not have his employment contract for a long period in 2002 and 2005 so he was constantly asking about his duties and responsibilities to which he always received an indefinite answer. He says that he had to do everything according to the supervisor's words including carrying heavy items despite the problem with his knees of which the respondent was aware. The complainant says that on occasion when it was not busy he was asked to carry out the same job twice or even three times a day e.g. he had to carry boards 4 times a day just for the sake of working. Furthermore there were times when the complainant says that he was asked to do the same job a few days in a row.
3.3 The complainant alleges that he was constantly insulted and called 'gay' in front of other employees. The complainant notes that he is not gay and has a wife and a grown family. He says that they made his co-workers believe that he was homosexual so that other employees started to dislike him and avoid him. The complainant says that every time he was working with the Frame Making Manager he stood behind him (the complainant) imitating sexual moves of a homosexual, which resulted in everyone insulting him (the complainant) and laughing at him. It is the complainant's submission that he was never shown work plans and as a result he never knew which model and how many had to be produced. The complainant says that his colleagues were told not to talk to him and were publicly warned not to communicate with him. According to the complainant his tools were constantly hidden and eventually he had to purchase his own tools. In the middle of one job the complainant says that he could be asked to do another job and this could happen at least three times a day.
3.4 The complainant says that on one occasion he brought his diploma into work but that the Frame Making Manager said that the only job he could have was that of cleaning. It is the complainant's submission that he was rarely given a hand while carrying or moving heavy parts of furniture. He says that others were deliberately screwing different parts of sofa improperly and then saying that it was his fault. The complainant further alleges that other employees scratched the walls in customer houses and blamed him for it. According to the complainant the driver could forget the documents and then was obliged to drive the whole way back to get them and this was also blamed on him. The complainant says that his worst experience was when he was transferred as an assistant to the driver where he had his belonging thrown out of the van. He alleges that he was pushed from the stairs while carrying a sofa and was lucky not to fall. The complainant notes that while in the van the driver could do anything, as there were no witnesses. He also alleges that the Dispatch Manager continuously called him 'F... Russian' even though he knew he was from Lithuania. The complainant says that the Dispatch Manager hated foreigners and disrespected other nations. On a journey to Belfast the complainant says that he asked the driver to stop so that he could go to the toilet. After a long time the driver stopped in the middle of a roundabout and said that the complainant could go ahead if he still needed to go to the toilet. The complainant says that this was humiliating and that the Frame Making Manager and the Dispatch Manager were later told that he had disrespected Irish Society. According to the complainant he was twice shown the finger - in August, 2003 in front of 20 other employees and told to return to work and again in May, 2004 when Lithuania joined the European Union, this was the way he was welcomed into the EU.
3.5 The complainant says that every time he received a payslip the envelope was opened and checked to make sure that he was not earning more than the others. According to the complainant there was no difference in his wages regardless of his duties or his hours.
3.6 The complainant says that in January, 2005 his knees became very sore and he continued to work even though he could barely cope with the pain. He states that no-one, including the manager, asked him what the problem was in order to make his job easier. According to the complainant the Frame Making Manager seemed to enjoy his condition and he says that the Frame Making Manager wanted him to become handicapped. It is the complainant's submission that the Frame Making Manager was always laughing and humiliating him when he was sweeping the floor. The complainant says that in August, 2005 he was diagnosed with Diabetes Type 1 and he had no choice but to tell the truth to his manager as he could not continue to lift heavy objects. It is the complainant's submission that he thought that the manager and staff would be more understanding and supporting but instead he was shown more disrespect and victimisation. The complainant says that he was asked to clean ceilings, which he physically could not do because of his knees. To undertake this task the complainant says that he would have had to climb up the ladder with a vacuum cleaner in his hand. The complainant says that the manager told him that he had two choices either clean it or get out. It is the complainant's contention that the Managing Director was aware of what was happening as he showed him the ladder, brush and vacuum cleaner as well as how to clean the ceiling. It was because the complainant refused to undertake this task he was dismissed and he notes that he did not receive either written notice or redundancy payment.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent organisation is the manufacturing arm of the Sofa Factory. Its premises are located in Ballyfermot where about 40 people are employed with a further 15 people employed in the Sofa Factory. The respondent organisation manufactures the bulk of the sofas that are sold using skilled Cutting, Sewing and Upholstery personnel. According to the respondent the workforce is a mixture of nationalities and, at the time the complainant was dismissed, there were several other non-national employees in the organisation.
4.2 The respondent emphatically rejects the complainant's claim that he has in any way been treated in a manner that is in breach of the Equality Legislation. It is the respondent's view that the complainant was, if anything, treated better than circumstances warranted during his employment in the respondent organisation. The respondent says that it made allowances for the complainant's lack of skills in the area in which he was employed and it could have terminated his employment at an early stage as it quickly became clear that the upholstery skills that he claimed to have did not exist to any great extent. According to the respondent the complainant was afforded the opportunity of working in several different areas but he did not take to any of them with any great enthusiasm. The respondent states that it would be entirely accurate to assert that the complainant was not treated in a lesser way than any other employee but rather that he was treated in a better way than could reasonably have been expected. In the events that took place around the complainant's dismissal the respondent states that the complainant was treated in exactly the same way, using the same procedures, as any other employee would have been in similar circumstances. The respondent submits that the complainant has resorted to making false allegations against the respondent and its management in support of his claims. According to the respondent these allegations show certain inconsistencies and the complainant has not offered any witness to any of the allegations.
4.3 The respondent states that the complainant was originally employed as an Upholsterer/Framemaker on the basis that he had the relevant experience and he was hired to work as an Upholsterer. According to the respondent after a short period it became clear that the complainant was not sufficiently skilled as an Upholsterer and that he could not be allowed to continue in that capacity. Rather than terminate his employment the respondent says that it was decided to transfer him to the job of lining up frames. Unfortunately he was not skilled in this operation and it was then decided to transfer him to the Frame Making Department where he worked for about a year. The respondent says that the situation did not operate satisfactorily as management found the complainant to be somewhat difficult to deal with. As a result the respondent decided to transfer the complainant to the Goods In/Goods Out Department and his duties were to include acting as an assistant on the delivery of sofas to customers. The respondent submits that there was a problem with the complainant's performance while working in this area namely he tended not to follow instructions, he was somewhat awkward and he did some damage to customer houses. It is the respondent's position that the complainant was entirely capable of understanding the work conversations and instructions but he was simply somewhat difficult in his dealings with management.
4.4 According to the respondent the complainant suffered some health problems including diabetes. The respondent states that it does not know when this was first diagnosed but notes that it was not disclosed when the complainant first joined the organisation. It is the respondent's submission that the complainant suffered a further debilitating condition, which affected his knees and it is the respondent's understanding that the complainant may need replacement knee joints. The respondent says that the complainant on joining the respondent organisation disclosed no such condition but it became known later on that he had had problems with his knees prior to joining the respondent organisation. It is the respondent's submission that in order to assist the complainant his work was reduced to the role of factory cleaning which did not include any heavy work. It is noted by the respondent that the complainant has not been replaced in his job and the work involved now takes about 3 hours per day. The respondent states that in May, 2005 the complainant sought annual leave along with extra time off to return to Lithuania for medical assessments. This leave was granted and the complainant was absent from work for six weeks.
4.5 The respondent says that as a result of a Health and Safety Audit it was required to carry out some specific cleaning and hoovering work. A specialised hoover with extended reach was hired for the purpose of this work. The respondent says that on 16th August, 2005 the complainant was asked to carry out the cleaning work and was shown precisely what was required. According to the respondent the work was of a simple nature and did not require any serious physical exertion including any climbing because of the reach of the hoover. The respondent says that the work did not in any way present any risk to the health and safety of the person carrying it out. It is the respondent's contention that the complainant refused to carry out the work saying that he was not trained for it, but this was not a valid reason. The respondent notes that this work allocation had come about because of the complainant's lack of skills and health limitations and if he could not have performed the most basic of tasks then there would have been nothing left for him to do in the respondent organisation. It is the respondent's submission that after repeated refusal to carry out the task by the complainant the Production Manager discussed the situation with the Managing Director and it was decided that the complainant would be told that repeated refusal to carry out the task would mean his dismissal as per the Company Handbook. The respondent says that the Production Manager explained this to the complainant but he still refused to carry out the work. In the circumstances the complainant was then dismissed (on 16th August, 2005). The respondent rejects all the allegations of discriminatory behaviour and states that the termination of the complainant's employment was entirely based on his own unfortunate behaviour.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment, discriminatory dismissal, harassment and sexual harassment by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 on the grounds of his sexual orientation, race and disability. I must also address the issue of reasonable accommodation. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 The complainant is Lithuanian and was employed by the respondent from March, 2002 until his dismissal in August, 2005 (some 3 years and 5 months). He was initially employed as an Upholsterer given that he claimed to be a fully qualified Upholsterer. At the commencement of his employment the complainant did not present any apprentice books and he was taken at his word that he was fully qualified. After two days in the organisation the Production Manager, who has many years experience in the area, was satisfied that the complainant was unable to perform the job of Upholsterer. The respondent accepts that it did not put in writing its concerns about the complainant's inability to perform. However it was decided to move the complainant to the area of Lining Up Frames in an attempt to develop his skills so that he could possibly be in a position to undertake the job of Upholstery. However after six weeks it was very clear that the complainant was not capable of performing the basic tasks.
5.3 Rather than dismiss the complainant at that stage, the respondent decided to try and accommodate him and in this regard he was moved to the Frame Making Department. According to the respondent the reason for this move was clearly explained to the complainant by way of an informal meeting on the factory floor and the respondent was satisfied that he understood the reason for the move and he accepted it. The Frame Making Department makes frames for the Upholstery Department. It is a team effort requiring 2 or 3 persons to finish a frame with no one person doing one job. It was considered that the complainant would be suitable for this work as he claimed to have Upholstery and Frame Making experience. Over time the complainant was reluctant to assemble frames and he was asked to assist a colleague (who was also Lithuanian). The complainant refused and insisted that his job was to clean. It was explained to the complainant that the Department did not require a cleaner but he still refused to assist his colleague. It was, at that point (after some six months) that it was decided to move the complainant into the Goods In/Goods Out part of the Transport Department. The complainant was teamed up with the most experienced person in that Department (this person had 9 years experience). According to the respondent the complainant was heavy handed with furniture and complaints were being received from customers. No complaints had ever been received about the person with whom the complainant was assigned to work. However complaints were received after they started working together. Hence only after two months in the area of Goods In/Goods Out the respondent assigned the complainant the task of cleaning the factory, which he did until his dismissal in August, 2005.
5.4 The outline of the complainant's work history with the respondent organisation as outlined above by the respondent was disputed in some respects by the complainant. The complainant said that he never worked a single day as an Upholsterer. He alleges that he was never told what to do and he was given no training. According to the complainant he worked for two months in the Lining Up Frames Department and not six weeks as stated by the respondent. It is the complainant's contention that no-one checked his skill levels and he noted that he had worked in a factory in Lithuania for 5 years. The complainant says that when he moved into the Frame Making Department he was not told what to do. It is he contention that he was told not to touch any of the materials or the tools, just to tidy up.
5.5 It is clear that the respondent was not satisfied that the complainant could undertake the duties associated with the job of Upholsterer. I note that, at the time of the complainant's employment, the respondent had a number of non-nationals in its employment including four Lithuanians, one of whom worked in Upholstery and two of who were based in Frame Making. I accept that the respondent had a vacancy in Upholstery and recruited the complainant to fill this position. However there is no evidence to suggest that the complainant was not allowed to do the job of Upholsterer for any discriminatory reasons.
5.6 The complainant alleges harassment and sexual harassment on the grounds of race and sexual harassment. He alleges that management told his colleagues not to talk to him. He further alleges that, early on in his employment, the Production Manager asked him if he was 'gay' and references were made to the fact of his being 'gay' every day thereafter. At the hearing of this claim the complainant stated that he wore aftershave and he was told that he smelt like a 'lady'. The respondent denies these allegations. The complainant was accompanied at the hearing of this claim by a witness. This witness stated that he had worked with the complainant while the latter was working in the Frame Making Department. According to this witness the work environment in the respondent organisation was difficult for non-nationals and they got bullied by their Irish colleagues and management failed to intervene. He stated that he did not make any complaints about it because he wanted to keep his job. With regard to the complainant he noted that he (the complainant) was not given any work in the Frame Making Department, apart from cleaning. He stated that he was not aware of the reason for this but that it did not happen to him. The witness stated that other Irish employees would hid the complainant's clothes so that he could not find them after work and they would make gestures behind the complainant's back and the manager would laugh. In relation to references to the complainant being 'gay' the witness stated that he could not recall any such references. In conclusion the witness re-affirmed that it was a difficult place to work and that managers were not fully aware of the reality in the workshop/on the shop floor.
5.7 During the course of this investigation the complainant had named a number of persons who could be contacted to collaborate his evidence. The complainant was clearly informed in writing that the onus was on him to establish a prima facie claim and in that regard he could bring witnesses to the hearing of this claim. The complainant only brought the one witness whose evidence has been outlined above. This witness has stated that the respondent organisation was a difficult place to work for non-nationals as their Irish counterparts bullied them. He did not complain about it because he needed to keep his job. I can appreciate that non-nationals may find themselves being bullied but not wanting to complain for fear of making their situation worse for themselves or even being dismissed. Management must endeavour to ensure that situations like this do not arise. In the circumstances of this case I believe that the complainant was subject to harassment by his Irish colleagues but it is unclear how much management was aware of it. It is also my belief that the harassment arose for two reasons namely the complainant's nationality and the fact that he was unable to perform the tasks for which he was originally employed. In terms of sexual harassment I am satisfied that the complainant has failed to establish a prima facie case in this regard. I note that the complainant's witness could not recall any comments to the complainant about his sexual orientation and if this was happening every day, as alleged by the complainant, the witness would have clearly recalled it especially as he had worked with the complainant for a period of time.
5.8 The complainant has stated that he suffered from a disability and that the respondent failed to provide him with reasonable accommodation in his work having regard to that disability. The complainant has further alleged that his disability was as a result of stress caused to him by his work environment. The respondent denies this and says that the complainant was accommodated with the easiest job in the workplace because he was unable to perform the duties for which he was recruited. It is the respondent's submission that it could legitimately have dismissed the complainant because he was unable to carry out the duties associated with the job for which he was employed.
5.9 The complainant suffered from Diabetes Type 1, Pancreatitis, Diabetic Neuropathy and Osteo-Arthritis of both his knees. At the hearing of this claim he stated that the Osteo-Arthritis of his knees was caused by his Diabetes and then later in the hearing he said the reverse. When challenged on this he confirmed that he did not know as he was not medically qualified and he also confirmed that he could not say for certain that his disability was caused by his work. Under the Employment Equality legislation it is not necessary for a complainant to establish that the work environment caused the disability. Rather where an employee suffers from a disability the onus is on the respondent to provide reasonable accommodation to enable that person perform their work. In the present case the complainant was unable to say what impact, if any, his diabetes had on him in relation to the performance of his duties. In terms of the problem with his knees the complainant says that he was unable to lift and move heavy items of furniture. According to the respondent it was only aware from about January, 2005 that the complainant had a problem with his knees because it was at that time that he started limping. The respondent denies that the complainant was involved in any heavy lifting at that time and says that his job was to clean. It is the respondent's submission that this task, which took the complainant all day, is now being done in three to four hours. The respondent also noted that the complainant had very little sick leave during the course of his employment. On one occasion he sought extended leave of absence to return to Lithuania for medical assessments but apart from that the complainant was rarely absent on sick leave and the respondent has no medical certificates for the complainant stating that he was unable to attend for work due to sickness. Given that the complainant was performing the most basic job in the respondent organisation there is no evidence that the respondent failed to provide him with reasonable accommodation especially in circumstances where he was afforded all day to do a job which could be completed in three to four hours. In the circumstances I do not find that the respondent failed to provide the complainant with reasonable accommodation in terms of Section 16(3) of the 1998-2007 Acts.
5.10 The complainant alleges that he was subjected to discriminatory dismissal on the grounds of his disability. The facts are that on 16th August, 2005 the complainant was asked to carry out a specific task which he refused to do. He became aggressive with management and was dismissed. The complainant denies that he became aggressive. A Health and Safety Audit had taken place in the organisation and as a result of that Audit the walls and ceiling of the Frame Making Department had to be hoovered. The complainant was asked to do this job but he refused, as he could not climb ladders given the problem with his knees. It is the respondent's evidence that it had hired a vacuum cleaner with an extended reach so that the walls and ceiling could be cleaned. According to the respondent there was no requirement on the complainant to climb a ladder and at the hearing of this claim the Managing Director stated that the complainant was only asked to hoover the walls (and not the ceiling) whereas it is the complainant's evidence that he was being asked to do both the walls and the ceiling. Having regard to the facts I am not satisfied that the complainant's dismissal was discriminatory on the grounds of disability as alleged.
5.11 The complainant stated at the hearing of this claim that the respondent had not provided him with a Contract of Employment. After the hearing of this claim the respondent submitted a copy of the Terms and Conditions of Employment, which it says was given to the complainant on the commencement of his employment and it notes that the complainant's own documentation in his claim confirms that he received this contract as in his documentation he stated that he had not received a contract from 1st May, 2004. The respondent notes that the complainant's terms and conditions were not altered each time he was moved to another area in the organisation and, therefore, he was not given another contract. Following the hearing of this claim the complainant submitted in writing that prior to 1st May, 2004 (the date that Lithuania joined the European Union) he needed a work permit to work in Ireland. He states that his reference to pre 1st May, 2004 was to work permits not to Contracts of Employment and he denies ever having received a Contract of Employment. I note that in subsequent correspondence the respondent was adamant that the complainant did receive a Contract of Employment. For the avoidance of ambiguity in this regard the respondent should, in future, ensure that all of its employees are in receipt of Terms and Conditions of Employment on the commencement of their employment and a mechanism should be put in place to ensure that all new members of staff understand all of the terms of that contract and preferably sign a statement of confirmation. This will prove more challenging for the respondent in terms of non-national employees.
6. DECISION
6.1 Having regard to the foregoing I find that Mr. Paskauskas was not subjected to discriminatory treatment, discriminatory dismissal or sexual harassment as alleged on the grounds of race, disability or sexual orientation in terms of Section 6 and 14A of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.
6.2 I further find that the Sofa Factory/Opus Design Limited did not fail to provide Mr. Paskauskas with reasonable accommodation in the context of Section 16 of the Employment Equality Acts, 1998-2007.
6.3 I find that Mr. Pakauskas was subjected to harassment on the grounds of race in terms of Section 14A of the 1998-2007 Acts. I am satisfied that the respondent had some knowledge of the harassment, however limited, and there was no evidence of any action being taken as a result.
6.4 In the circumstances of the above and in accordance with Section 82 of the Employment Equality Acts, 1998-2007 I hereby order that
- The Sofa Factory/Opus Design Limited pay Mr. Paskauskas the sum of €7,000 by way of compensation for stress suffered as a result of the harassment;
- The Sofa Factory/Opus Design Limited draft a policy on the prevention of harassment and sexual harassment in the workplace in accordance with the Equality Authority Code of Practice on Sexual Harassment and Harassment at Work (The Code was given legal effect by Statutory Instrument entitled 'Equality Act, 1998 (Code of Practice) (Harassment) Order' (S.I. No. 78 of 2002)); take appropriate measures to communicate the policy to all its employees and display it permanently in a prominent position in the workplace;
- that all staff receive training in the provisions of the Employment Equality Acts, 1998-2007 with particular emphasis on harassment.
______________________
Gerardine Coyle
Equality Officer
5th November, 2007