THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-012
Ms. Laima Daugintiene
(represented by Richard Grogan & Associates)
and
Faughan Foods Ltd.
PARTIES
Ms. Laima Daugintiene
(represented by Richard Grogan & Associates)
and
Faughan Foods Ltd.
(represented by Noonan & Son Solicitors)
File Reference: EE/2006/289
Date of Issue: 5 March 2009
1. Dispute
1.1 This case concerns a complaint by Ms. Laima Daugintiene, a Lithuanian national, against Faughan Foods Ltd. in relation to discriminatory dismissal on the grounds of gender and race in terms of and contrary to Sections 6(2)(a)(h) 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 9 August 2006 alleging that the respondent had discriminated against her on grounds of gender and race when it dismissed her from employment and gave her no reasons as to why she was being dismissed. The complainant further submitted that an Irish female was hired whom she helped train in and three weeks later she was dismissed. The respondent disputes this and maintains that the complainant was dismissed because of her repeated failure to comply with critical standards relating to food safety and hygiene which could have resulted in significant damage to the respondent’s business.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 17 July, 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 3 February, 2009.
3. Summary of the Complainant’s case
3.1 The complainant commenced employment with the respondent on 26 January, 2006 as a general operative. Her duties involved food preparation and packing of cooked meats. She is a Lithuanian national with limited English. Her employment was terminated on 26 May, 2006. Her legal representative states that the complainant was asked to train in an Irish female into the job and when she was trained in, the complainant was dismissed. The complainant feels that she was dismissed in order to make way for an Irish employee and was fired in such a manner because she is a foreign national. The complainant contends that her supervisor, J called her to his office on Friday 26 May and stated that following her return from holidays in Lithuania, she did not look happy in the job and he had been talking to the managing director about her situation and they both agreed that the complainant should go.
3.2 The complainant submits that the respondent had no procedures in place, in that,
· no grievance and disciplinary documentation was produced
· no notification of any disciplinary procedure was furnished to the complainant
· no notes of any disciplinary hearing was furnished
· the complainant was not given an opportunity to be represented
· no notification of any warnings were furnished
· no dismissal notice was furnished
· no dismissal notice giving a right of appeal was ever furnished
· no evidence of any disciplinary hearing which would comply with the Code of Practice was furnished
3.3 The complainant stated that there were only two females employed at the material time, herself and a Bulgarian national. The Bulgarian national had been with the company since September 2002. The legal representative contends that as the complainant is a non-Irish national female with limited English in a male dominated workforce, she felt vulnerable. In addition, it is submitted that documents which were shown to her in induction training were not fully translated for her and only the main points of same were translated and therefore she was not fully aware of her responsibilities or her rights and entitlements.
3.4 The complainant admitted that she chewed gum on some occasions but did not feel that this was so serious to warrant dismissal. She stated that on one occasion on her return from a holiday in Lithuania, she was wearing stick-on nail extensions and was requested by her supervisor to carry out work with a metal tool. She felt that the supervisor was mocking her, in that, normally this work is carried out by males in the company and she also felt this was dangerous for her to carry out this work due to the stick-on nails. She stated that later that day, her supervisor requested her to cut her nails in the interests of food safety and hygiene and she did so that evening. She also refers to another incident where she was lifting a heavy box and a Polish employee offered to assist but her supervisor insisted that she could do it herself.
3.5 The legal representative questions the level of translation given to the complainant in her induction training given that on the day of the hearing, the Bulgarian national stated that she translated the main points but that there were some phrases and words she was unable to translate. The legal representative also questions the accuracy of records kept by the company, in that, the respondent submitted a document stating that the complainant had undergone a Manual Handling training course but it transpired on the day of the hearing that she was not in work the day the training was carried out and this document was inaccurate.
3.6 The legal representative also had issues with the EE 3 form submitted by the respondent signed on 10 August 2006 where it is stated that ‘it is the policy of Faughan Foods to adhere to the established Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000)’ and stated that this was done with the intention of being misleading as no such policy existed at that time.
3.7 The legal representative further submitted that given the respondent is in business 40 years and has 45 employees working in his organisation, sixty per cent of which comprise non-Irish nationals, fair procedures must be adhered to. The complainant submits that she was discriminated against 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 gender and race. The legal representative referred to cases relating to the Labour Court decisions ED/02/52 Campbell Catering Ltd. v Rasaq, ED/01/13 Citibank v Massinde Ntoko, 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 employed as a general food preparation operative which involved the maintenance of strict standards of hygiene in the context of food handling for poultry packaging. The standards of hygiene are prescribed by the European Union and since 1998, it has been a legal requirement for all food businesses to have a food safety management system based on the principle of HACCP which is in operation in the respondent’s factory.
4.2 The respondent contends that the complainant was dismissed because she was caught by her supervisor, J and his brother, D (assistant manager) on a number of occasions chewing gum and on one occasion wearing false nails which in the circumstances of her job constitute poor hygiene practices and could jeopardise the business. The respondent maintains that despite the complainant being regularly told not to chew gum in the factory, she persisted in doing so. The respondent submits that on the day of the complainant’s dismissal, 26 May 2006 she was once again chewing gum while at work in the Red area of the factory, (Red area was handling food that was going directly to the consumer where strict HACCP guidelines were applied). The respondent states that she was approached by her assistant manager, D who told her to spit the gum out. D advised her he could not overlook this matter any longer and ‘something would have to be done’. Later that day, she was requested to attend her supervisor J’s office and was dismissed for her failure to maintain proper hygiene standards.
4.3 The respondent contends that the complainant’s CV was in English and under the heading of language skills, she had stated ‘Lithuanian, very good Russian and good English’. They further contend that during the complainant’s induction training, she was brought through a list of documents with the assistance of Y who is a Bulgarian national who speaks Russian. The documents included the Personal Hygiene Policy which makes reference to the fact that ‘staff must refrain from unhygienic practices such as spitting, chewing gum, eating and drinking in work areas....’. The policy also states that ‘employees shall wear their fingernails short, clean and free from nail varnish and refrain from unhygienic practices in food operation’ which includes an order that ‘Employees shall never smoke, chew gum, spit, pick nose, cough, sneeze..’ The policy expressly states that ‘failure to obey the food hygiene rules will result in disciplinary action and possible dismissal’. The respondent submits that the complainant signed Induction Level 1 which comprised the Personal Hygiene Policy on 27 January, 2006. They further submit that she signed a ‘Personal Equipment Form’ verifying that she had received the appropriate equipment to allow her to work.
4.4 The respondent denies that the complainant was dismissed and was replaced by an Irish female employee. They agree that the complainant assisted to train her into the job but state that the complainant was dismissed for non-compliance with hygiene regulations. The respondent admits that at the time of the complainant’s dismissal, there were no procedures in place, i.e. no contracts of employment were issued and no grievance or disciplinary procedures were in existence. They further state that no formal written warnings were issued and no written procedures were in place with regard to dismissals. The respondent denies that they discriminated against the complainant and state that she was addressed by her supervisor J and assistant manager D about chewing gum and on one occasion in relation to wearing false nails and her dismissal was a result of failure to comply with hygiene standards. The respondent referred to Equality Officer Decision DEC/E2008/014 Gorys v Igor Kurakin Transport Ltd. in support of their case.
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 her dismissal, was treated less favourably because of her gender and 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 did not issue the complainant with a contract of employment. In relation to the induction training provided in the presence of Y, a Bulgarian employee, it transpired on the day of the hearing under cross examination that she was unable to translate certain words and phrases and only translated the main points of the document to the complainant. In relation to the respondent’s assertion that on her CV, she possessed good English language skills, the complainant explained that in order to try and get a job, she stated in her CV she had good English skills although in reality her English language skills were limited. I am satisfied, based on the evidence, that the complainant’s command of the English language was limited and given that the Bulgarian employee admitted there were certain aspects of the induction training documents she was unable to translate as she did not understand the words; the complainant was not made fully aware of the requirements of these documents.
5.4 The respondent has stated that no grievance and disciplinary procedures were in place. They further state that the complainant was addressed on a number of occasions by her supervisor and assistant manager in relation to chewing gum and on one occasion wearing false nails. While the complainant admits that there were some occasions that she was chewing gum and on one occasion, she admitted to wearing false nails, she states that it was never made clear to her of the gravity of these incidents. The Bulgarian employee, Y gave evidence on the day of the hearing to state that the complainant was chewing gum on a number of occasions and was requested by management to spit out the gum and refrain from this practice. Y further states that on the day of the complainant’s dismissal, the assistant manager, D caught her chewing gum while working in the Red area and chastised her for doing so and threatened that management ‘would have to do something about it’. However, the respondent does not have specific dates of when management addressed the complainant in relation to these breaches of hygiene regulations, no contemporaneous notes of same exist and no written warning was issued. I am satisfied based on the evidence that at no stage did the respondent bring the complainant into the office, sit her down, explain the gravity of her alleged actions and the consequences of continuing to disregard the food hygiene regulations and give her an opportunity to rectify her behaviour. I would expect that any reasonable employer would follow this course of action.
5.5 On the day of the hearing, the complainant stated that she felt she was dismissed to make way for an Irish employee who was hired in April 2006 but as the hearing progressed, she asked the respondent is it correct that she was dismissed for chewing gum to which they replied in the affirmative. Given the evidence, I am satisfied that the Irish female employee was taken on in early May, 2006 about a month prior to the dismissal of the complainant and therefore I can find no evidence to substantiate the claim that the complainant was dismissed to be replaced by the Irish female employee. However, I am also satisfied that the complainant was treated less favourably and was not aware of the reasons for her dismissal on 26 May 2006. In addition, she had no interpreter present and was not given a right of representation or a right to mount a defence and was totally unaware of her rights and entitlements.
5.6 In CampbellCatering v Rasaq, 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 worker 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." In addition, in King v Great Britain China Centre (1992 I.C.R. 516) it was held that "It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases, the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’."
5.7 Taking into account the above case relating to CampbellCatering v Rasaq, I conclude that the respondent did not follow proper procedures, in that, 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. Furthermore, I conclude that the reasoning in King v Great Britain China Centre as outlined at 5.6 is very relevant to this case. I find that the complainant was treated less favourably by the respondent than another employee for example an Irish employee who would have been aware of their rights and entitlements. The complainant has therefore proved a prima facie case of discriminatory dismissal and claims that it is on the grounds of race.
5.8 Under section 85A of the Employment Equality Acts 1998 – 2004, the burden of proof shifts and "it is for the respondent to prove to the contrary." The complainant’s supervisor stated that she was a very good worker, punctual, quick at the work but that due to her breach of the hygiene regulations i.e. chewing gum on many occasions and on one occasion wearing false nails, they had no option but to dismiss her. However, I am satisfied based on the evidence that the complainant was not told of the possible consequences of her chewing gum and she therefore did not realise that she could have been dismissed.
5.9 The respondent further stated that in 40 years of being in business with 45 employees, 60 percent of which comprise non-Irish nationals, this is the first time they have had a claim of alleged unlawful discrimination. The managing director further stated in response to a question by the complainant’s legal representative in relation to fair procedures for employees that ‘he was not in the business of employing people but that of producing high quality cooked meats’. It also transpired on the day of the hearing that a document been relied upon by the respondentstating that the complainant had undergone a Manual Handling training course was incorrect as the complainant stated that on the day of the training course, she was on leave and the respondent admitted that this indeed was the case and the document was inaccurate. Having evaluated all the evidence, I find that the respondent has failed to discharge the burden of proof.
5.10 The complainant has argued that she was discriminated against on the grounds of her gender in relation to her dismissal. Based on the information provided in the submissions and at the hearing, I am of the view that while the complainant may have been vulnerable due to the fact only herself and another Bulgarian female worked in a mainly male workforce and as a result when the Bulgarian employee went on 2 weeks holidays, the complainant resorted to having her breaks in her car and felt isolated, I can find no evidence to substantiate the allegation of discriminatory dismissal on the grounds of her gender. I find that the incident outlined at 3.4 where the complainant was asked to use a metal tool was a once off and her supervisor asked her only on this occasion as there was no other employee available to do so. In relation to the incident regarding the complainant picking up a heavy box and her Polish colleague wanting to assist her but the complainant stated that her supervisor stated that she could do it herself; the supervisor in question J has no recollection of this incident and stated that he would not have reacted in such a manner. Based on the evidence, I am satisfied that the complainant has not established less favourable treatment on the grounds of her gender in relation to her dismissal from employment.
Decision
Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2004;
(i) I find that the complainant has established the facts from which it may be presumed that there was discrimination on grounds of race in relation to her dismissal. In accordance with section 82 of those Acts, I award the complainant €5,000 in compensation for the discriminatory treatment suffered.
(ii) I find that the complainant has failed to establish facts from which it may be presumed that there was discrimination on the grounds of gender in relation to her dismissal.
(iii) 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. The disciplinary procedure should be translated into appropriate languages, communicated comprehensively to staff and placed on the notice board or other prominent area in the workplace.
_________________
Valerie Murtagh
Equality Officer
5 March, 2009