Maphoso
-v-
Chubb Ireland
1. CLAIM
1.1 The case concerns a claim by Mr. Patrick Maphoso that Chubb Ireland, Dublin, directly discriminated against him on the grounds of race in terms of section 6(2)(h) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Act in relation to his conditions of employment. He also claims that he was victimised within the meaning of section 74(2) of the Acts.
2. BACKGROUND
2.1 The complainant claims that when he reported for duty as a security officer on 20 August 2005, he was not allowed to use the canteen and toilet facilities at his place of employment. He submits that he believes that the reason he was told by the patrol driver not to use the facilities was because he is black. He further submits that he was victimised since filing his complaint and that the respondent was uncooperative in providing him with a service letter which he needed. He submits that when he advised his employer that his work permit had expired, they suspended him. The respondent submits that the complainant is aggrieved at a directive given to him by Chubb managers which was not discriminatory on the race ground.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 2 September 2005. On 17 November 2006, in accordance with her powers under section 75 of the Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 26 June 2006. A submission was not received from the respondent. A hearing of the claim was held on 15 October 2007 and there was no appearance by or on behalf of the respondent.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant claims that he was employed by Chubb Ireland as a Security Officer. He submits that on 20 August 2005, he was posted at the Japanese Ambassador's residence. On his arrival at 21.45, the complainant spoke with the Japanese Ambassador. Shortly afterwards, a Patrol Driver arrived on site to meet the client. On his return, he told the complainant that he did not care whether he had food but that he was not to approach the Ambassador's house. When the complainant asked him about water and toilet facilities, he was told that if he asked again, he would be removed from the site immediately.
3.2 When the complainant asked him again why he was not allowed to use the facilities on site like his Irish colleagues, he was told that he was not wanted on the site and that the client did not want to see him in the canteen. He felt that he was not wanted on the site because of his colour. He submits that he worked for twelve hours with no water or toilet facilities. The next morning, he reported the matter to the day supervisor who promised to tell the manager. However, he received no response on the matter.
3.3 He submits that he believed that he was discriminated against on the race ground because the kitchen and toilet were used by his colleagues who were Irish and white and he is black. He also submits that the supervisor was racist towards him.
3.4 In relation to victimisation, he submits that he advised his employer that his work permit had expired. When he told the HR Manager, the respondent rushed to suspend him instead of applying for a work permit for him. He submits that since filing the complaint with the Equality Tribunal, the respondent was very uncooperative and victimised him. On 23 May 2006, he wrote to the respondent requesting the respondent to write him a letter of service for a lease renewal and to apply for a visa to the US.
3.5 On 12 June, he rang the HR Department and told them about the serious situation he was in. He was about to lose his accommodation and he was promised that the letter would be sent out to him. The next day, 13 June, he received a phone call from an arrogant Mr. B telling him that he was off the roster as he was illegal in the country. He was told that he was not being suspended but was only being taken off the roster. The following day, he received a blank roster for 6 weeks.
3.6 The complainant submits that he faxed through a copy of his residency card confirming his status in the country and he was told that it was not enough and that he must bring his card and passport. He obtained a certified copy of his passport and residency card from a police station and submitted them and was told to resume his duties. His work permit expired in October 2005. He submits that from October 2005 to June 2006, the company did not bother to check his records and knew very well that he would be at their mercy in relation to the work permit. He was still waiting for the service letter at the end of June 2006.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In this case, the complainant alleges that the respondent directly discriminated against him on the race ground and that he was victimised. I will therefore consider whether the respondent directly discriminated against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Acts 1998 and 2004 in contravention of sections 8 of the Acts in relation to his conditions of employment. I must also consider whether the complainant was victimised within the meaning of section 74(2) of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the complainant. As stated at paragraph 2.2 above, the respondent did not provide a written submission on the matter or give evidence at the hearing
Establishing a prima facie case
4.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
4.3 Subsequently, the Labour Court stated in relation to the burden of proof in a case brought on the race and religion grounds:
It is now the accepted practice of this Court that in all cases involving discrimination the probative burden will shift to the respondent in circumstances where the complainant establishes a prima facie case of discrimination.
The test normally used in determining when and in what circumstances the burden of proof shifts to the respondent is that formulated in the case of Mitchell v Southern Health Board [2001] ELR 201. This test provided that the complainant must first prove the primary facts upon which they rely in asserting discrimination. If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.
This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. These regulations provide that the probative burden shifts where the complainant establishes facts from which discrimination may be presumed. The wording used in the regulations, which is derived from Directive 97/80 EC (The Burden of Proof Directive), is now replicated in Article 8 of Council Directive 2000/43 on Equal Treatment between Persons Irrespective of Racial or Ethnic Origin.
The provisions of the Employment Equality Acts 1998 and 2004
4.4 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
..... discrimination shall be taken to occur -
a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds')
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),
4.5 The complainant claims that he was not allowed to use the toilet or canteen facilities at the site where he was working as a security officer on 20 August 2005. The respondent stated by letter dated 4 October 2005 that the complainant "is aggrieved at a directive given to him by Chubb managers. A directive which we strongly believe was correct and cannot in anyway be determined to be of racist intent." The respondent did not attend or give evidence at the hearing and as no further explanation has been provided as to why the complainant was told that he could not use the facilities, I find on the balance of probabilities that the complainant was discriminated against on the race ground.
4.6 The complainant also claims that since filing his complaint with the Tribunal, the respondent was very uncooperative and victimised him. He submits that he asked for a letter indicating his service with the company which he required for the purposes of a visa application and his lease renewal. The complainant submitted in evidence a copy of a letter dated 23 May 2006 which he sent to the respondent when he did not receive the letter following an oral request and that he never received a response to either request. An explanation has not been provided from the respondent in relation to why the complainant was not provided with a service letter. The complainant referred a complaint of discrimination to the Tribunal on 2 September 2005 and made an initial verbal request followed by a written request on 23 May 2006. On the balance of probabilities, I find that the complainant was victimised within the meaning of the Acts by the respondent's failure to provide him with a service letter.
4.7 He submits that he was subsequently told on 13 June 2006 that he was being taken off the roster as his work permit had expired. He submits that his work permit had expired in October 2005 but that he was not suspended until June 2006. The complainant submits that he brought it to the attention of his employer that his work permit had not been renewed. He submits that "Only when I told the new H.R. manager that my work permit was not renewed that some one woke up to peruse my file and rush (sic) to suspend me." It may have been the case that the respondent was not aware of the expiry of the complainant's work permit until he brought it to their attention in June 2006. It is unclear therefore whether the matter of the complainant's suspension from the roster was related to his complaint to the Tribunal or whether it was solely due to the matter of the expiry of the complainant's work permit being brought to the respondent's attention at that time. The complainant submitted that once he sent details of his status to the respondent, he was reinstated on the roster in less than two weeks. On the balance of probabilities, I find that the complainant was not victimised by the respondent in relation to his suspension from the roster pending clarification of his work status.
5. DECISION
5.1 On the basis of the foregoing and on the balance of probabilities, I find that the respondent discriminated against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Act in relation to his conditions of employment.
5.2 On the basis of the foregoing and on the balance of probabilities, I find that the complainant was victimised within the meaning of section 74(2) of the Employment Equality Acts 1998 and 2004.
5.3 In accordance with section 82 of the Employment Equality Acts 1998-2007, I hereby order that the respondent:
(i) pay the complainant the sum of €8000.00 compensation for the effects of the acts of discrimination and victimisation. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and victimisation and does not include any element relating to remuneration (and is not therefore taxable):
__________________
Mary Rogerson
Equality Officer
15 November 2007