Equality Officer’s Decision
DEC-E2009-001
Ieva Cilinska-Snepste
(represented by P.C. Moore and Co. Solicitors)
versus
Rye Valley Foods Ltd.
(represented by Irish Business and Economic Confederation)
File reference: EE/2006/243
Date of issue: 19th January 2009
1. Dispute
1.1 This dispute concerns a complaint by Ms. Ieva Cilinska-Snepste, a Latvian national, against Rye Valley Food Ltd. The complainant was employed by the respondent as an operative in their food production plant in Carrickmacross, Co. Monaghan. The complainant alleges that during her period of employment she was discriminated against on the grounds of race and gender in relation to access to employment and that she was discriminatorily dismissed on the same grounds contrary to the Employment Equality Acts 1998 to 2008.
1.2 Through her legal representative, the complainant referred her complaint under the Employment Equality Act 1998 (as amended) [hereinafter referred to as ‘the Act’] to the Director of the Equality Tribunal on 10th July 2006. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 29th May 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 9th September 2008 as required by Section 79 (1) of the Act. The final piece of correspondence was received on 16th October 2008.
2. Summary of the complainant’s case
2.1 Ms. Cilenska-Snepste was employed by the respondent from 13th December 2005 until 31st March 2006. The complainant submits that no prior notification was given to her that she was being laid off. Ms Cilenska-Snepste maintains that she was called to a meeting with approximately 50 others where she was asked to hand in her keys. This meeting was about the laying-off of a number of employees including the complainant. Ms Cilenska-Snepste contends it was conducted in English. The complainant maintains that the company doctor and her colleagues were aware that she was pregnant at the time. The complainant submits that she found the sudden announcement about being laid off more upsetting as she was pregnant. The complainant is aware that respondent claims that the laying-off was necessary and that the Last-In-First-Out (LIFO) rule was applied. The complainant maintains that she has limited English and had no knowledge of the LIFO rules. Therefore the complainant submits that Campbell Catering Ltd. and Aderonke Rasaq is relevant in this case:
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 facilitates 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.[1]
The Labour Court case A Company v a Worker was also cited:
The court strongly recommends that companies employing non-nationals recognise the difficulties that may arise, provide proper induction courses and that they make resources available to enable them to deal with any social and cultural differences which may arise in these situations.[2]
Reference was also made to Citibank and Massinde Ntoko[3].
2.2 The complainant contends that when there is a mixed workforce of Irish and non-Irish nationals there is a positive duty on an employer to ensure that procedures applied are fully explained to the foreign workers. The complainant submits that she was not aware of any grievance procedure or whether the laying-off could be challenged. The complainant submits that ensuring that there is trade union representation regarding lay-offs may be acceptable in the case of Irish nationals. However, the complainant maintains that there is an obligation on the employer to ensure that non-Irish employees fully understand their rights in a lay-off situation.
2.3 At the meeting, a representative of the respondent stated that if there was an upturn in business in the future some people may be re-employed. Some people were re-engaged later by the respondent. The complainant was not.
3. Summary of the respondent’s case
3.1 The respondent submits that Rye Valley Foods Ltd. employs 700 people and that 64% of them are foreign nationals. The company recognises Services Industrial Professional and Technical Union (SIPTU) for representation and collective bargaining purposes.
3.2 Ieva Cilenska-Snepste was interviewed on 23rd November 2005. The respondent submitted as evidence that the interviewer noted on the complainant’s application form that her English was good. She also underwent an assessment with the Occupational Health Advisor (a nurse) on 29th November 2005 and was considered fit to undertake work on the production line. The complainant was 12 weeks pregnant at that time – a fact that would have emerged as part of the assessment. The respondent submits that the complainant was employed by the respondent in the full knowledge that she was pregnant. The complainant commenced employment on 13th December 2005. In common with all new recruits, the complainant was given induction training as well as guidance on manual handling techniques and health and safety training prior to commencing work on production line. The complainant’s training record shows that in addition to her own language, Latvian, she was also competent in reading and understanding English and Russian. The respondent makes available a version of the manual handling assessment in Russian and the complainant received a mark of 100% on the test. The induction assessment is in English and the complainant achieved a score of 90%. Ms Cilenska-Snepste signed to indicate that she received her copy of the Health and Safety Statement. The respondent submits that this statement is also available in Russian.
3.3 The respondent lost an important contract to a competitor and it submits that a reduction of its workforce was necessary. The respondent advised the SIPTU sectoral organiser (a paid official) that employees selected for redundancy would be on a LIFO basis. All of the employees selected for redundancy were members of SIPTU including the complainant. The SIPTU representative did not object to this proposal.
3.4 On 31st March 2006 a meeting was held with the members of staff to inform them that they were being made redundant. The respondent submits that the complainant is factually incorrect when she stated that the meeting was conducted entirely through English. A member of staff translated what was being said during the meeting into Russian. The respondent maintains that it ensured all those affected by the redundancy were proficient in either Russian or English. Employees were informed that they were free to leave after the meeting and were given a week’s pay in lieu. They were asked to return company property before leaving the premises. Prior notice was not given of the meeting because in a previous lay-off situation an employee who was aware that he was to be made redundant sabotaged the production line by contaminating the food products. The respondent submits that all employees were invited to discuss any issues with a member of the Human Resources team at any stage following the announcement.
3.5 The complainant’s husband continues to work in the Carrickmacross plant. The respondent submits that Mr. Snepste enquired a few times as to why his wife was selected for redundancy. In response, a member of the Human Resources team in Rye Valley Foods Ltd. Explained the LIFO rule and asked him could he identify anybody with shorter service than his wife who was retained. The respondent maintains that he was unable to do this as the laying off was carried out on a strictly LIFO basis. The respondent submits that the complainant’s husband also raised this matter with his union representative but did not take the matter any further as the union representative corroborated the respondent’s explanation. The respondent also submits that information about the company’s grievance procedure was given during the complainant’s induction training.
3.6 The respondent submits that the complainant’s pregnancy or nationality had no bearing on her selection for redundancy. She was selected on the same basis as 19 male and 25 female employees. The nationalities of those made redundant were Filipino (1), Estonian (1), Russian (1), Polish (2), Irish (3), Latvian (9) and Lithuanian (27). The respondent maintains that the criterion used was her commencement date in accordance with established industrial relations practice. The respondent submits that neither was there a breach of the Redundancy Payments Acts 1967 - 2007.
3.7 Regarding Campbell Catering Ltd. and Aderonke Rasaq andCitibank and Massinde Ntoko which the complainant cited, the respondent submits that both of these cases refer to a disciplinary situation. The respondent submits that it fully subscribes to this policy in relation to disciplinary matters. However, in a redundancy situation the employee is not put in a position of defending an allegation or responding to a complaint. The respondent maintains that there was no obligation on Rye Valley Foods Ltd. to discuss, consult or agree redundancy criteria with any individual employee.
3.8 Regarding A Company v a Worker the respondent did provide the complainant with induction training and submits the attendance sheet and presentation used as documentary evidence. The respondent contends that the complainant did not present any evidence that can suggest that her selection for redundancy was in any way based on her gender or nationality.
3.8 The respondent stated that three or four others who were laid off at the same time re-applied for positions a few months later. As business had increased slightly, they were re-employed. The complainant did not re-apply for a position after the termination of her employment on 31st March 2006.
4. Conclusions of the Equality Officer
4.1 The two issues for me to decide are:
{a} whether the complainant was discriminatorily dismissed on the grounds of either (i) race and/or (ii) gender
and
{b} whether the complainant suffered discriminatory treatment in relation to access to employment on either of the grounds of race or gender.
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory grounds in this case are gender and race.
4.3 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.
Discriminatory dismissal on the grounds of race
4.4 Generally I found the evidence of the witnesses associated with the respondent at the hearing to be more compelling than the complainant. In oral evidence taken at the joint Hearing, the complainant initially said that the meeting regarding the redundancy situation was conducted entirely through English. She later admitted that a member of staff was present to interpret the proceedings into Russian. Ms Cilinska-Snepste also said that she had not been a member of a Trade Union but during cross-examination she conceded that she had been a member of SIPTU.
4.5 The complainant stated that she was not aware that she could obtain more information on the laying-off situation after the meeting on 31st March 2006. However, the respondent submitted as evidence notes of two meetings between the complainant’s husband and an employee in the Human Resources section of Rye Valley Foods Ltd. At both meetings, Mr. Snepste did not identify anybody with shorter service than his wife who was retained by the respondent. A witness statement from the SIPTU sectoral organiser confirmed that the union official was advised that the laying off would be done on a LIFO basis. The complainant has not submitted any evidence that shows the respondent departed from the LIFO rule or that the application of this method discriminated against Ms. Cilinska-Snepste because of her nationality. 7 different nationalities (including 3 Irish people) were selected to be laid off. Throughout her employment, the respondent made reasonable efforts to ensure that, as a Latvian national, she was not disadvantaged e.g. provision of training material in Russian and the interpretation service at the meeting on 31st March 2006. Therefore, I find that she was not discriminatorily dismissed on the grounds of race by the respondent
Discriminatory dismissal on the grounds of gender
4.6 By virtue of 18 (1)(b) of the Act, pregnancy-related discrimination is gender discrimination. The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the European Court of Justice Decisions in Webb v EMO Air Cargo (UK) Ltd,[4]Brown v Rentokil Ltd[5]and Dekker v Stichting Vormingscentrum[6]. Ms. Cilinska-Snepste submitted that she was made redundant when she was approximately seven months pregnant. Her employer knew that she was pregnant. These facts were not contested by the respondent. From these facts, I am satisfied that the complainant has established a prima facie case. In the A Company versus A Worker Labour Court states:
A worker cannot be discriminated against or be dismissed while pregnant except in exceptional grounds unconnected with the pregnancy.[7]
I find that losing such a significant contract which necessitates laying off 44 people is an exceptional circumstance unconnected with her pregnancy. 19 men and 24 women were selected using the Last-In-First-Out methodology. Neither the complainant (in the Hearing) nor the complainant’s husband could identify anybody who was retained with shorter service than the complainant. The LIFO rule is an established practice used when determining who is to be made redundant. I am satisfied that Rye Valley Foods Ltd. applied in a transparent manner. Therefore I find the respondent has rebutted the inference of discrimination on the grounds of gender against the complainant.
Access to employment
4.7 No evidence was presented by the complainant that she was discriminatorily treated on either gender or race regarding access to employment. The respondent was aware of her nationality and pregnancy when Ms. Cilinska-Snepste commenced employment. By the complainant’s own admission, she did not seek to be reengaged by the respondent subsequent to the termination of her employment on 31st March 2006. Consequently, I do not find that the complainant was discriminatorily treated on the grounds of race or gender regarding access to employment.
Decision
I have concluded my investigation of Ms. Cilinska-Snepste’s complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2008. I find that
(i) the complainant has failed to establish the facts from which it may be presumed that she was discriminatorily treated regarding access to employment or that she was discriminatorily dismissed on grounds of race
(ii) the respondent has rebutted the inference that she was discriminatorily dismissed on grounds of gender
(iii) the complainant has failed to establish the facts from which it may be presumed that she was discriminatorily treated regarding access to employment on the grounds of gender
Therefore, I find against the complainant.
______________
Orlaith Mannion
Equality Officer
19th January 2009