DEC-E2008-071 - Full Case Report

Equality Officer’s Decision

DEC-E2008-071

 Lina Kartunaviciute

(Rep. by P.C. Moore & Co. Solicitors)

v

E.C. Tynan Ltd.

(Rep. by Reidy Stafford Solicitors)

Date of issue: 23 December 2008            

File reference: EE/2006/308                  

1.        Dispute

1.1       This case concerns a complaint by Ms. Lina Kartunaviciute, a Lithuanian national, against E. C. Tynan Ltd trading as Centra in relation (i) discriminatory treatment in conditions of employment (ii) discriminatory dismissal and (iii) a claim of discrimination in relation to a collective agreement on grounds of race and gender in terms of and contrary to Sections 6(2) of the Employment Equality Acts 1998-2004 and in contravention of Section 77(b) of those Acts.

2.        Background

2.1       The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 10 August 2006 alleging that the respondent had discriminated against her on grounds of race and gender when it dismissed her for being 3 minutes late for work and not saying ‘thank you’ to a customer.  The respondent disputes this and maintains that the complainant was dismissed because of her poor attitude, time-keeping and not turning up for work.

2.2       In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 23 September, 2008 to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts 1998-2008. This is the date I commenced my investigation.  Written submissions were received from both parties. A hearing on the complaint was held on 18 November, 2008.

3.        Summary of the Complainant’s case

3.1       The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 alleging discriminatory treatment in (i) conditions of employment, (ii) discriminatory dismissal and (iii) a claim in relation discrimination in a collective agreement on the grounds of race and gender.  On the day of the hearing, the legal representative for the complainant stated that the complaint was in fact in relation to discriminatory dismissal on the grounds of race and no arguments were put forward regarding discrimination on gender grounds.  In addition, no arguments were put forward in relation to discriminatory treatment in relation to a collective agreement.

3.2       The complainant states that she commenced employment with the respondent on 7 October 2005 as a deli operative and was dismissed on 28 June, 2006.  The complainant claims that she was told by the shop manager that she was 3 minutes late for work and she did not say ‘thank you’ to a customer and was told to finish work that week.  The complainant maintains that she asked the deli manager why she was being fired and was advised by the manager that a Polish girl was coming back to work and that was the reason the complainant was being let go.

3.3       The complainant submitted that she did not receive any warning in writing, did not receive any notice of a disciplinary meeting and was not given an opportunity to challenge the dismissal. The complainant submits that the company’s disciplinary procedure has not been complied with.

3.4       The complainant maintains that the contract of employment was in English but as the complainant is a foreign national there is an obligation on an employer to furnish documentation in a language likely to be understood by the complainant.  The representative on behalf of the complainant referred to the case Five Complainants v Hannon’s Poultry Ltd DEC/E2006/050 where the Equality Officer found that the respondent failed in its duty of care to its foreign workers because translated employment contracts were unavailable.  The respondent also referred to the cases relating to Campbell Catering Ltd v Rasaq, Citibank v Ntoko and Davis v D.I.T. in support of the complainant’s case.

4.        Summary of the Respondent’s case

4.1       The respondent submits that the employment interview with the complainant was conducted in English and that all discussions and negotiations took place in English.  The respondent maintains that the complainant has good English and at no stage in the course of her employment did she allege that she did not understand any document which was given to her.  The respondent states that when the general manager read the contract to her paragraph by paragraph, she stated that she clearly understood it and signed the contract.  The respondent submits that the complainant was offered a contract of employment in Lithuanian but that the complainant replied there was no need as she understood the English version.          

4.2       The respondent submits that the complainant was issued with a verbal warning by the general manager on 15 November, 2005 following a customer complaint about her manners and tone of voice and advised her that failure to meet the required standard would result in a written warning.

4.3       A disciplinary meeting was held with her on 3 January, 2006 and the complainant was issued with a first written warning letter concerning her poor performance and attitude toward customers.

4.4       An employee appraisal was carried out on the complainant on 9 February, 2006 and she was advised that there was room for improvement with her service and that it should be polite and professional.  The complainant was advised that the deli manager would be observing her on a day to day basis and that her customer service should be more friendly and easy going.

4.5       The respondent submits that in or around the 6 June, 2006, the complainant was due to commence employment at 7.00 am but the complainant turned up for work one and a half hours after the time.  The duty manager asked the complainant why she was late; however, she could not offer any explanation.  The duty manager reprimanded her regarding her lateness and advised that there should be no further reoccurrence.

4.6       The respondent maintains that in or about 7 June, 2006, the complainant was once again late for work, this time by three hours.  The duty manager had tried to contact the complainant by telephone and left a number of messages on her mobile.  The respondent contends that the duty manager questioned the complainant regarding her lateness for work but that the complainant offered no excuse or explanation.

4.7       The solicitor on behalf of the respondent stated at the start of the hearing that ultimately the reason the complainant was dismissed on 28 June, 2006 was due to the fact she did not turn up for work on Monday 26 June despite many efforts to contact her on her mobile.  The respondent further contends that no excuse or explanation was given to the employer for the absence. The respondent submitted that the complainant was dismissed due to her continuing poor conduct, disciplinary record and not turning up for work.

5.        Conclusions of the Equality Officer

5.1       The issue for decision in this claim is whether or not the complainant, in relation to her conditions of employment and the manner of her dismissal, was treated less favourably because of her race contrary to Section 6 of the Employment Equality Acts, 1998-2008.  In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.  

5.2       Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination.  It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘ evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’

5.3       In relation to the issue of the contract of employment, when questioned at the hearing the complainant stated that she understood the contract of employment in English and signed a copy of same and although the general manager offered her the contract in Lithuanian, she declined stating that she understood the English contract. On the day of the hearing, I found that the complainant had a reasonable standard of English.  I am satisfied that the complainant has not established less favourable treatment on the grounds of race in relation to the contract of employment.

5.4       The solicitor on behalf of the respondent stated at the start of the hearing that ultimately the reason the complainant was dismissed on 28 June, 2006 was due to the fact she did not turn up for work on Monday 26 June despite many efforts to contact her on her mobile.  The respondent further contends that no excuse or explanation was given to the employer for the absence.  The solicitor maintains that the reason this information was not in the earlier submission was that the general manager was only in a position to contact the duty manager recently as he has left the store some time now to set up his own business.  

5.5       In relation to the contention by the employer that the complainant turned up for work one and a half hours late for a 7.00 am shift and three hours late for a subsequent shift, the complainant disputes this assertion and replied that she would have been late by at most one hour.  The complainant further contends that she had trouble starting her car and tried to make contact by telephone to state she would be late but that there was no answer from the shop.

5.6       The respondent furnished a copy of a verbal warning (copy submitted in evidence) issued to the complainant on 13 November 2005 following a dispute between the complainant and a customer.  The respondent submits that a dispute ensued between the complainant and a customer at the deli counter and the complainant told the customer to f__ off.  The general manager apologised to the customer and advised that s/he could have the food for free.  The complainant was brought into the general manager’s office in the presence of the deli manager and was advised that she would be monitored and there should be no reoccurrence of this type of behaviour.  On the day of the hearing, the complainant confirmed that this incident occurred and accepted she received a verbal warning but stated she apologised to the manager about the incident. 

5.7       The respondent states that a further dispute between the complainant and a customer at the deli counter occurred wherein the manager alleges that the complainant used abusive language to a customer culminating in a written warning (copy submitted in evidence) being issued to the complainant on 3 January, 2006.  The complainant disputes that she used abusive language on this occasion, however she has signed the written warning which states that ‘this is your first written warning against you for bad performance with customers’.  On balance, I find the respondent’s evidence more compelling with regard to this incident and that referred to at 5.6 above.  

5.8       The respondent submitted rosters purporting to be originals that were on the wall relating  to 6 and 7 June where the complainant did not turn up for work at the required time and arrangements had to be made to get another staff member to fill in the shifts.  It shows that the complainant was due to start her shift at 6.45 on 6 June 2006 but this was crossed out and 9.00 am inserted in.  The duty manager stated that he contacted another member of staff and requested her to fill in for the complainant.  On the following day 7 June 2006, the complainant was due to start at 6.45 and this was crossed out and 12.00 noon inserted in as when the complainant arrived at 9.30 am or thereabouts, she was told to go home and start at 12 noon as they already had got another staff member to carry out the 6.45 shift.

5.9       The solicitor on behalf of the complainant raised the issue of the late submission of the respondent which was received 1 week before the hearing.  He further stated that there was no mention of the complainant not turning up for work on 26 June, 2006 in the submission and this information was only brought in at the start of the hearing.  I accept based on the information received on the day of the hearing that the respondent had difficulties in contacting the duty manager as he had left the store some time ago to set up his own business and this was the reason that this information was not in the submission.

5.10     On the day of the hearing, the complainant contends that she was contacted by the duty manager on 21 June 2006 and advised that the following week would be her last days working in the company.  However, in the complainant’s submission, she has stated that that she was told by the duty manager that she was 3 minutes late for work and she did not say ‘thank you’ to a customer and was told to finish work that week which commenced Monday 26 June.  The respondent stated the complainant did not turn up for work on Monday 26 June 2006, when questioned the complainant stated that she could not remember, when pressed for an answer, she stated that she swapped that shift as she had a meeting with her solicitor on that Monday.  The respondent disputed this evidence and stated that only a manager could authorise changing a work shift. The respondent stated that the duty manager tried to contact her on her mobile a number of times on Monday 26 June, 2006 but to no avail.  The respondent maintains that the following day, Tuesday 27 June the complainant was called into the office by the duty manager and advised that due to her continuing poor performance and not turning up for work on the Monday 26 June without any excuse or explanation that she was being dismissed.  Overall, the complainant has accepted that she was late on a few occasions but stated that it was not more than an hour.  She also confirmed after being pressed on the issue regarding her work shift on 26 June that she did not attend for work on that day.  I find the evidence of the respondent more compelling in relation to the complainant arriving late for work and the circumstances leading up to her dismissal.  

5.11     The solicitor representing the complainant brought up the issue of the employee appraisal form wherein it stated that a language barrier and cultural differences constitute reasons for any lack of success with regard to the complainant’s  performance and where improvements were suggested; it stated that the ‘complainant will try to understand Irish culture and improve her English’.  He further contends that this form was completed by the deli manager who would have been au fait with the complainant’s work while working with her on a daily basis.  The respondent replied by stating that the complainant’s standard of English was good and that only persons with a good standard of English would be placed on the deli counter as the deli is the customer service point where there would be a lot of interaction with office persons, builders etc coming in for their sandwiches, rolls etc and having conversations with them enticing the customers back in for repeat business.   I am satisfied based on the evidence regarding the contract of employment and the information given on the day of the hearing that the complainant has a reasonable standard of English in order to carry out her duties as a deli operative.  

5.12     The complainant’s solicitor also raised issues relating to grievance and disciplinary procedures not being complied with.  The general manager stated that he regretted that there was no paperwork available regarding the complainant’s dismissal but that at that time he was busy opening another store and the duty manager was in charge and unfortunately the disciplinary procedures were not complied with, in that, there was no letter of dismissal.  Although the complainant has argued that fair procedures were not complied with in relation to her dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of race in relation to her dismissal.  The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal; the complainant needs to prove that it was on the grounds of race.

5.13     In this claim, it is alleged that the complainant was treated less favourably on the grounds of her race.  Having regard to all the evidence, I am satisfied that the complainant has not established that she was treated less favourably on the grounds of her race in relation to her dismissal from the respondent organisation.

Decision

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2008; I find that the complainant has failed to establish the facts from which it may be presumed that there was discrimination on grounds of race in relation to her dismissal.

Therefore, I find against the complainant.

__________________

Valerie Murtagh

Equality Officer        

23 December, 2008