DEC-E2009-009 - Full Case Report

Equality Officer’s Decision

DEC-E2009-009

 Valerijs Kukajs

(Rep. by Richard Grogan & Associates)

v

Technical Support Services Ltd.

(Rep. by Joan Devine & Co. Solicitors)

Date of issue: 16 February 2009           

File reference: EE/2006/386                 

1.       Dispute

1.1       This case concerns a complaint by Mr. Valerijs Kukajs, a Latvian national, against Technical Support Services Ltd. in relation to discriminatory dismissal on the grounds of race in terms of and contrary to Sections 6(2) of the Employment Equality Acts 1998-2004 and in contravention of Section 8 (6)(c) of those Acts.

2.        Background

2.1       The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 11 October 2006 alleging that the respondent had discriminated against him on grounds of race when it dismissed him from employment and gave him no reasons as to why he was being dismissed.  The respondent disputes this and maintains that the complainant was dismissed because of poor workmanship and an aggressive incident which occurred on 4 August, 2006.

2.2       In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 29 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 13 January, 2009.

3.        Summary of the Complainant’s case

3.1       The complainant commenced employment with the respondent on 16 August 2004 as a refrigeration engineer.  His duties involved fitting tail lifts and refrigeration units on to trucks.  He is a Latvian national with limited English.  His employment was terminated on 11 August, 2006.  His legal representative states that the respondent gave no reasons to the complainant as to why he was being dismissed.  He further states that fair procedures were not applied, in that, he was not called to a disciplinary hearing and he was given no letter of dismissal.  The legal representative also questions the level of interpretation and translation given by an employee of the respondent organisation who was used to translate for Russian speaking employees with the company including matters relating to the complainant.

3.2       He also contends that given the workforce of Technical Support Services comprise fifty per cent non-Irish nationals, fair procedures must be adhered to.  He states that no attempt was made to put a disciplinary procedure in place, no letter of dismissal was issued and the complainant was not given a right of appeal.  He also states that a reference given to the complainant dated 12 September 2006 stated that he was a valued member of the team and the respondent would have no difficulty in re-employing him.  The legal representative referred to cases relating to the Labour Court decision ED/02/52 Campbell Catering Ltd. v Rasaq, Equality Officer decision DEC/E2008/001, Ms. Ning Ning Zhang v Towner Trading and High Court decision Davis v D.I.T. in support of the complainant’s case.

4.        Summary of the Respondent’s case

4.1       The respondent states that the complainant was given a contract of employment which he signed on 15 September 2004.  The respondent states that, in or around January, 2006, management started to notice that there were issues in relation to the some of the work carried out by the complainant which they maintain was of poor quality.  They further contend that he caused serious damage to the respondent’s machinery and that of some of their clients.  The respondent states that on 20 January 2006, an incident occurred where the complainant was using a grinder to carry out work on the front of a truck but in doing so, he caused serious damage to the windscreen of the truck next to him.  When another employee told him to cease the work he was carrying out, the complainant launched a verbal attack on him and continued using the grinder.  The respondent maintains that another employee, an eastern European national had to intervene to calm the situation down.  The complainant was issued with a written warning on this date by his manager due to his behaviour.

4.2       In March 2006, the complainant and another employee were sent to Northern Ireland to carry out work on a truck.  Following the work being carried out, the company in Northern Ireland sent a letter of complaint enclosing photographs to Technical Support Services stating that the work carried out was not acceptable and was sub standard.  When the respondent investigated the matter and spoke to the complainant and his colleague who had carried out the work, they found that the complainant was responsible for the sub standard workmanship.  On this occasion, the complainant was issued with a verbal warning by his manager.  The manager in question, on the day of the hearing stated that the respondent organisation had great difficulty in persuading the company to continue to use their services as a result of the incident.

4.3       On 31 May 2006, the complainant fitted a tail lift and cable onto a truck, however it transpired that the cable was fitted incorrectly and caused damage to the new truck which resulted in it being out of service for a time.  On investigation, the complainant was found responsible and a final written warning was issued by his manager on that date.  On 30 June, 2006 a verbal warning was issued to the complainant for operating a grinder without safety goggles and ear protectors and for using wood to balance steel.

4.4       The incident which led to the complainant’s dismissal occurred on 4 August 2006 in the staff canteen.  The respondent states that the complainant launched a verbal attack on another employee and would not give a mini grinder to his colleague, stating it was his property.  His manager came upon the scene and instructed the complainant to hand over the grinder to the other employee.  The respondent states that the complainant started shouting and roaring and his behaviour was threatening and abusive.  The manager explained that the grinder was company property and that he could not take ownership of it.  The manager maintains that following this incident, there was terrible tension between the complainant and his co-workers and on the workshop floor due to the complainant’s aggressive behaviour.  The manager further stated that other employees refused to work with the complainant due to his alleged poor workmanship and aggressive behaviour.

4.5       The respondent submits that the complainant was going on holidays shortly after the incident on 4 August but that management decided given his record of poor workmanship, the alleged aggressive incident which happened on 4 August and the fact the other employees refused to work with him, they had no alternative but to terminate his employment.  He was called to a meeting on 8 August, 2006 with his manager in the presence of another employee, Mr. B, a Ukrainian national who carried out translation and interpretation for Russian speaking employees and was advised that for the reasons listed above, he was being dismissed.  The respondent states that the complainant was not issued with a letter of dismissal but that he had requested a reference and as a goodwill gesture, they gave him a favourable reference dated 12 September, 2006.

5.        Conclusions of the Equality Officer

5.1       The issue for decision in this claim is whether or not the complainant, in the manner of his dismissal, was treated less favourably because of his 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       In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.

 5.3      The respondent states that when the complainant commenced employment, he was given a contract of employment in English.  The respondent contends that the complainant took it home with him and spoke to his co-employee, Mr. B who is a Ukrainian national who he was teamed up to work with.  Mr. B lived in the same house as the complainant at the material time.  The respondent maintains that the  complainant discussed the contract with Mr. B who carried out translation for him regarding various aspects of the contract.  The respondent states that Mr. B carried out translation for Russian speaking employees in the respondent organisation.  The complainant accepted that this was a fact.  The complainant subsequently signed and dated the contract and gave it back to management.  I am satisfied, based on the evidence, that the complainant had an opportunity to discuss his contract with his co-worker, Mr. B and was aware of his terms and conditions as laid down in the contract of employment.

5.4       The respondent gave evidence in relation to 2 verbal and 2 written warnings given to the complainant.  Copies of the 2 written warnings and a note regarding the verbal warnings were submitted in evidence on the day of the hearing.  The complainant’s manager came to the hearing and gave evidence in relation to the complainant’s performance during his employment and the incident of 4 August 2006 which culminated in his dismissal.  He referred to the verbal and written warnings issued to the complainant for poor workmanship and the difficulties they had in getting a company in Northern Ireland to continue to use their services as a result of sub standard work which was carried out by the complainant.  He also gave evidence in relation to the alleged aggressive incident which took place in the canteen on 4 August 2006 where the complainant launched a verbal attack on a colleague and used threatening and abusive behaviour.  The respondent submitted witness statements from two other employees who were present in the canteen in support of the manager’s version of events on that date.  The complainant did not challenge the veracity of the statements submitted.  The manager stated that as a result of the poor workmanship and the complainant’s alleged aggressive behaviour, other employees would not work with him.  The respondent states as a result they had no option but to terminate his employment.  In relation to the incident on 4 August 2006, the complainant stated that he did not want to give the grinder to his colleague as he did not know how to use it and was afraid that his colleague would damage it.  The complainant further stated that when he was instructed by his manager to give the grinder to his colleague, he got angry and protested about having to do so.  Given the evidence, I am satisfied that the complainant was verbally abusive and reacted in a threatening manner towards his colleagues on 4 August, 2006.

5.5       In relation to the issues raised by the complainant’s legal representative regarding his limited English and that fair procedure were not adhered to, the respondent stated that the person the complainant was paired up to work with, Mr. B, shared a house with the complainant and was the person who carried out translation for foreign nationals speaking Russian in the company.  The respondent submitted in evidence at the hearing, a letter from Mr. B stating that he acted as a translator for the complainant during his employment with the respondent.  He stated that he explained the terms of the employment contract to him, the installation instructions for fitting lift units and that he translated at disciplinary meetings.  He further stated that he translated and explained fully the health and safety procedures of the company.  The complainant did not challenge the veracity of Mr. B’s statement. The respondent stated that Mr. B has a good standard of English and has been with the company since 2001.  The respondent states that although the complainant had received a final written warning 31 May, 2006, he was subsequently involved in an aggressive incident on 4 August 2006.  As a result, he was called to a disciplinary hearing on 8 August, 2006, in the presence of management and Mr. B (who carried out translation), to discuss his disciplinary record and the reasons why he was being dismissed.  I am satisfied, based on the evidence at the hearing and the written report submitted by Mr. B, that the complainant was aware of the warnings both verbal and written which he received from management and the gravity of those incidents culminating in his aggressive behaviour with his co-workers in the incident in the canteen on 4 August, 2006.

 5.6      Based on the information provided at the hearing together with copies of warnings, the letter from Mr. B who acted as a translator for the complainant and witness statements relating to the incident on 4 August 2006, I am satisfied that the complainant has not established less favourable treatment on the grounds of race in relation to his dismissal from employment.

5.7       The complainant’s solicitor raised issues relating to the grievance and disciplinary procedures not being complied with and the fact the complainant was not issued with a dismissal letter.  He also questions why the respondent issued him with a favourable reference dated 12 September, 2006 if his performance as they stated was poor.  The respondent stated that the complainant was called to a disciplinary meeting in the presence of his colleague who acted as translator and was given comprehensive reasons for his dismissal and given a chance to reply but they stated that the complainant did not appeal their decision.  The complainant requested a reference from the respondent and as a goodwill gesture and due to the fact that the complainant worked with the company for 2 years, they provided a favourable reference to him so that he could seek employment elsewhere.  Although the complainant has argued that fair procedures were not complied with in relation to his 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 his dismissal.  The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal; the complainant needs to prove that it was connected to his race.

5.8       Having regard to all the evidence, I am satisfied that the complainant has failed to establish a prima facie case in relation to his dismissal on the grounds of race.  However, given that fifty percent of the respondent’s workforce comprise non-Irish nationals, it may be beneficial for the respondent to review their procedures to ensure that they comply with best practice in the area.

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 his dismissal.

Therefore, I find against the complainant.

_________________

Valerie Murtagh

Equality Officer        

16 February, 2009