Ms Ning Ning Zhang
(Represented by O'Mara Geraghty McCourt Solicitors)
AND
Towner Trading (trading as Spar Drimnagh)
(Represented by John Sherlock & Co Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Ning Ning Zhang that she was discriminated against in relation to her conditions of employment and dismissal by Towner Trading on the ground of race in terms of Section 6(2)(h) of the Employment Equality Acts, 1998 - 2007 and contrary to Section 8 of those Acts.
1.2 The complainant referred her claim of discriminatory dismissal to the Director of the Equality Tribunal on 27 April 2007 under the Employment Equality Acts 1998 and 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, 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. Submissions were sought and received from the parties, a hearing was held on 22 October 2007 and information was provided by the respondent on 30 November 2007.
1.3 A Chinese Mandarin interpreter was present at the hearing and assisted the complainant and two witnesses to give evidence.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that she started work for the respondent in June 2006 and on Monday, 26 February 2007 she received the following mobile phone text message from the respondent:
" I have u on camera robbing bus tickets. If that money or the tickets are not returned, I have your work and home address. I will call to your work and the police and show them the tape. You have until 5 o'clock tomorrow."
The complainant checked that the text had not been sent to the wrong person and then arranged to meet the respondent that evening.
2.2 At the meeting the complainant was accused of stealing 16 bus tickets, which she denied. She was shown CCTV footage which the respondent considers shows her stealing the tickets but she denied that this showed her stealing bus tickets. She submits that what was in her hand was a different colour to the bus tickets but could not remember what was in her hands. The complainant submits that she was not advised of her rights at this meeting. She was again told that she could give back what she had stolen.
2.3 Later that day the complainant received a text from a colleague advising that her name had been taken off the roster.
2.4 On Wednesday, 28 February 2007, as it was the next day that she was due to work, the complainant sent a text to the respondent asking if she was working. The respondent replied by text message:
"You are not working here anymore."
The complainant arranged to meet the respondent that evening and brought a friend and colleague to help her with her English as she sometimes had problems and needed help. At the meeting the respondent said they would have to investigate the alleged theft before the complainant could return to work. The complainant repeated that she had not stolen the bus tickets. At the end of the meeting the complainant understood that a further meeting was arranged for the next Saturday to see clearer CCTV footage. The friend and colleague gave evidence that the respondent said the complainant was not working in the shop at the moment and was encouraged to admit the theft.
2.5 The respondent sent a subsequent text:
"Tony cannot come down to you on Saturday. We have no job for you anymore. We have to get full time people now. Thanks."
There was no further contact between the complainant and the respondent.
2.6 The complainant submits that she was discriminated against in relation to her conditions of service by the non-application of an appropriate disciplinary procedure and the failure to consider whether she needed any special measures because of language difficulties, leading to her discriminatory dismissal on the grounds of her race.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent rejects the allegation of discrimination on the grounds of race and submits that they treat all staff equally. At the time of the hearing they employed 7 Irish staff and 6 Chinese staff. Of the Irish staff, the manager has worked for them for 22 years and two others for 18 and 8 years. Of the Chinese staff one has worked for them for 5½years and one for 4 years. A Chinese member of staff gave evidence that he had worked in the shop for 5½ years and all staff are treated equally.
3.2 This same member of staff saw the complainant acting suspiciously on the security screen and reported this to the respondent. The next day, 26 February 2007, the manager opened the shop and carried out a routine stock take of high value items and found 21 bus tickets missing. Sometimes one ticket goes missing but 21 tickets had not gone missing before. The respondent examined the CCTV footage and submits that it shows the complainant stealing the tickets. The respondent confirms that they then sent the first text message to the complainant.
3.3 The respondent submits that the complainant had been working in the shop for nearly a year and had a good understanding of English. However, at the first meeting to discuss the alleged theft the complainant's English was quite poor. The respondent considered the meeting to be part of an investigation so they explained that they considered the complainant to have stolen the tickets and showed her the CCTV footage. The complainant was asked what happened to the tickets and she replied that she was holding a piece of paper. Following this meeting the complainant was taken off the roster and the respondent confirms that they did send the second text.
3.4 At the second meeting the respondent said they would have to look into the situation but given the circumstances did not feel they could let the complainant back to work. Then they decided that they did not need the complainant anymore as they wanted to employ full time staff. They confirm that they sent the third text.
3.5 The respondent denies discrimination.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant in this case alleges discriminatory treatment in relation to her conditions of employment and dismissal by Towner Trading on the ground of race in terms of Section 6 (2) (h) of the Employment Equality Acts, 1998 - 2007 and contrary to Section 8 of those Acts. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The respondent gave clear evidence that 21 bus tickets were stolen and in their view the CCTV footage shows that the complainant stole them. They said the discrepancy was highlighted by the stock-take. Following the hearing the respondent submitted a stock-take sheet which showed that 21 bus tickets each to the value of €3.20 were unaccounted for on 26 February 2007.
4.3 The complainant gave clear evidence that she did not steal the bus tickets and was dismissed unfairly, and that she considered the dismissal to be unfair in terms of her race.
4.4 The CCTV of the alleged theft was shown at the hearing. The complainant was behind the shop counter with another member of staff and it shows her picking up a small item from a box and putting it down somewhere else behind the counter. The other member of staff was about six feet away with her back to the complainant.
4.5 Theft from an employer is commonly deemed to be gross misconduct and such an accusation would often start at the last stage of a disciplinary procedure and, if proven, will often lead to dismissal. However, it is still necessary to operate fair procedures. The respondent confirmed at the hearing that they do not issue written contracts, which may be in breach of the Terms if Employment (Information) Acts 1994 and 2001, and do not have written disciplinary procedures which it could follow. They also submitted that they have not dealt with this sort of incident before.
4.6 The complainant was made aware of the allegations by means of the first text which shows that the respondent considered her guilty of the offence at that time. The first meeting was not initiated by the respondent as part of an investigation within a disciplinary procedure but was at the request of the complainant when she protested her innocence. At the meeting the respondent showed the CCTV footage and repeated the accusation of theft. The complainant said she was innocent. From the evidence of both the respondent and the complainant there was no conclusion to the meeting and the respondent gave no indication that they were carrying out an investigation. During the hearing the respondent confirmed that no one else was questioned about the incident, as they did not consider it necessary. Some bins were searched but nothing found.
4.7 Following the meeting the complainant was taken off the roster and did not work for the respondent again. The evidence, therefore, is that the complainant was dismissed at this point.
4.8 When the complainant received the second text, which confirmed that she was not working for the respondent anymore, she requested the second meeting. At the meeting the respondent said they would investigate the theft but the complainant could not work for them in the mean time. At the end of the meeting there was an agreement for a further meeting which would look at clearer CCTV footage.
4.9 The respondent cancelled that meeting and said they wanted to recruit full time staff. There was no further contact between the respondent and the complainant.
4.10 In Campbell Catering v Rasaq¹ the Labour Court held that: "It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination."
4.11 The complainant was made aware of the accusation but it is clear from the first text that the respondent already considered the complainant guilty. The respondent did not initiate an investigation through disciplinary procedures. They only met when the complainant requested a meeting. They dismissed her by taking her off the roster and only advised her of the dismissal when she made an enquiry. At the second meeting requested by the complainant they again said they would investigate the situation but there is no evidence of any investigation. Furthermore, they cancelled the agreed third meeting and repeated the dismissal; adding as a reason that they were looking for full time staff.
4.12 The respondent did not follow fair procedures, they did not carry out an investigation and they denied the complainant the opportunity to seek representation, prepare a defence and attend a disciplinary hearing. She was, therefore, treated less favourably by the respondent than another employee facing similar charges would be. The complainant has therefore proved a prima facie case of discriminatory treatment and claims that it is on the grounds of race. Therefore, under section 85A of the Employment Equality Acts 1998 - 2007 the burden of proof passes and "it is for the respondent to prove to the contrary." Having evaluated all the evidence I find that the respondent has failed to discharge that burden.
5. DECISION
On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of race in terms of section 6 (2) of the Employment Equality Acts, 1998 - 2007. In accordance with section 82 of those Acts I award the complainant €15,000 in compensation for the discriminatory treatment suffered. I also order the respondent to issue a disciplinary procedure for all staff that complies with S.I. 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures.
_____________________
Hugh Lonsdale
Equality Officer
16 January 2008
1 Campbell Catering Limited v Aderonke Rasaq, Labour Court ED/02/52