THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-014
Aidotas Gedrinas
(represented by PC Moore and Co. Solicitors)
versus
Mulleadys Ltd.
(represented by Arra Human Resources Development)
File reference: EE/2006/395
Date of issue: 13th March 2009
Keywords: Employment Equality Act, Discrimination, Race, Discriminatory Dismissal, Harassment, Conditions of Employment.
1. Dispute
1.1 This dispute concerns a complaint by Mr. Aidotas Gedrinas, a Lithuanian national, against Mulleadys Ltd. The complainant was employed by the respondent as a general operative. The complainant alleges that during his period of employment he was discriminated against and harassed on the grounds of race in relation to his conditions of employment leading to discriminatory dismissal contrary to the Employment Equality Acts 1998 to 2008.
1.2 Through his legal representative, the complainant referred his complaint under the Employment Equality Act 1998 (as amended) [hereinafter referred to as ‘the Act’] to the Director of the Equality Tribunal on 17th October 2006. In accordance with her powers under Section 75 of the Act, the Director delegated the case on 22nd 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 28th November 2008 as required by Section 79 (1) of the Act. The last piece of correspondence was received on 15th December 2008. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
2. Summary of the complainant’s case
2.1 Mr. Gedrinas was employed on a week-to-week basis by the respondent from 23rd May 2005 until October 14th 2005. He was reengaged on 5th December 2005 until his contract was terminated on 2nd June 2006. The complainant submits that he was not given a contract of employment. He was not provided with an employee handbook or with details of the respondent’s disciplinary or grievance procedure.
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 complainant submits that the respondent breached the Safety, Health and Welfare Work Act 2005 by failing to provide health and safety material in a ‘form, manner and language that is reasonably likely to be understood by an employee’.
2.2 The complainant submits that he was dismissed without fair procedures. At the time of his dismissal, the complainant was employed as a general operative on a bin lorry. Mr Gedrinas maintains that Mr. B (driver of lorry) and Mr. C (general operative on lorry) used to shout regularly at him and call him names. An example of some of the comments the complainant alleges to have been said to him is ‘Foreigner get out of here’. The complainant submits that Mr. B and Mr. C used to make the complainant empty the bin every time into the lorry rather than take turns. According to the complainant, the events leading up to his dismissal were as follows:
The bin lorry pulled up near a hotel in the town. I and an other Lithuanian (I cannot remember his name) jumped out to lift the bin. It was overloaded and we could not manage it. Mr. B pushed me away and said ‘You don’t know how to do it’. I told him to Fu*k Off. He said the same back to me. When I went back to the site I started driving the forklift. Mr. A [Managing Director of Mulleadys Ltd.] approached me and told me I was fired. I did not know why. I went home.
2.3 After a build-up of harassment, the complainant reacted by using abusive language to Mr. B. The complainant was dismissed that day. No notification of any disciplinary hearing was given to the complainant. The complainant was not advised of his rights under S.I. 148 of 2000[2]. Mr. Gedrinas was not given notification of his dismissal in writing nor was the opportunity given to him to mount a full defence including his right to representation.
2.4 The complainant contends that when there is a mixed workforce of Irish and non-Irish nationals that there is a positive duty on an employer to put in place procedures to ensure the dignity of all workers in the workplace is respected. The complainant submits that his outburst would not have taken place if procedures existed that allowed an employee to make a complaint in a structured way if that employee is being subjected to harassment. No effort was made by the respondent to ascertain the complainant’s version of events. Instead when a complaint was made by an Irish worker, the complainant (who is a foreign national) was dismissed.
2.5 Cases cited were Campbell Catering Ltd and Aderonke Rasaq,Francis and Dublin Bus, Five complainants v Hannon’s Poultry Export Ltd and Ning Ning Zhang v Towner Trading.
3. Summary of the respondent’s case
3.1 From 23rd May until 14th October 2005 the complainant was employed as a general operative on a week-by-week basis. Due to business needs, a number of staff including the complainant were laid off at that time. Mr. Gedrinas made no complaints of harassment or bullying during that time.
3.2 In early December 2005, the complainant made entreaties to Mr. A, Managing Director of Mulleadys Ltd., for work up to Christmas. All of those conversations (approximately 4 in total) were conducted through English without difficulty. The respondent submits that Mr. A took pity on the complainant’s personal situation and reemployed him on a week-to week basis from 5th December 2005.
3.3 The respondent submits that the complainant was dismissed for gross misconduct after he verbally abused a foreman in the yard and subsequently refused to carry out reasonable work requests from that foreman. The respondent submits that it carried out an enquiry and did not find any example of discrimination. In response to a request by the Equality Officer, the respondent submitted as evidence a diary entry by Mr. A:
June 2nd (Friday)
Sacked Excuse Me [the complainant] for telling Mr. D and Mr. B to F off on bin lorry. He came back to the yard, Mr D, Deputy Supervisor, was loading a container with forklift, Mr. D got off forklift to do something else, Excuse me got up on it, Mr D shouted at him. He told Mr. D to F off. Pat came into me very annoyed and told me. He also told me that this wasn’t the first time, I was very annoyed. I went out. He was in the forklift. I said to him why did you tell Mr. D to F off. He said he didn’t. I said it again. He said he didn’t understand English. I told him he was dismissed. He got off the forklift and he left the yard.
June 5th (Monday)
I talked to Mr. D again regarding Excuse me. He said that he would do nothing he was asked. All he wanted to do is drive the forklift. I asked him again about him telling him to F off. He said this was an everyday thing. I said why did you not tell me. Mr. D said he didn’t want to get Excuse me into trouble. I said well he is gone now. Mr. D said good. I don’t want to see him again.
Mr. D is Deputy Supervisor and he worked for us for years. He is a quiet man and everybody respects him.
We call Aidotas Gedrinas Excuse me because he often says Excuse me and it’s easier than saying Aidotas.
3.4 In relation to the contract of employment, the respondent submits that a rights commissioner has already issued a recommendation on this[3]. In mitigation, the respondent submits that employment was on a week-to-week basis. The complainant never requested his terms and conditions of employment in writing. At that time, no employee (Irish or foreign national) had a written contract of employment. Therefore Mr. Gedrinas was not treated less favourably than an Irish national.
3.5 The respondent rejects the allegation that a Health and Safety Statement was not available. As part of its submission, the respondent attached a copy of the safety statement in accordance with the heath and safety legislation which applied during Mr. Gedrinas’s employment. Mr Gedrinas received personal instruction regarding safety at work was issued with boots, gloves, and high visibility jackets in accordance with heath and safety requirements. The respondent submits that maintaining a safe work environment is a priority with Mulleadys Ltd as evidenced by an accident-free record during Mr. Gedrinas’s employment. The respondent points out that in Decision a Rights Commissioner did not find any breach of the Safety, Health and Welfare at Work Act 2005 by the respondent against the complainant[4].
3.6 The complainant’s submission states that he was harassed by a man called Mr. B who shouted and cursed at him as well as calling him names. The respondent denies this. Mr B was his supervisor on the bin lorry during both periods of employment. The respondent submits that the complainant sought his job back despite the alleged harassment by Mr. B.
3.7 The respondent maintains that the complainant was not a great worker and had more interest in admiring ladies while working on the bin lorry than completing the task in hand. The respondent submits that the only task Mr. Gedrinas was enthusiastic about doing in the yard was driving the forklift.
3.8 The respondent submits that it now has in place contracts of employment as well as disciplinary and grievance procedures and in over 30 years of operation it has had no complaints under the Employment Equality legislation. At the time of the complainant’s employment, the respondent had a workforce of approximately 60 people. Half of these were foreign nationals. The respondent submits that most of these are still working with Mulleadys Ltd. Mr. A submits that he has only dismissed three people since 1969. The other two were Irish and were for being verbally abusive to him or his family.
3.9 The respondent refers to Corys v Igor Kurakin Transport Ltd[5] where the Equality Officer found than an Irish notional comparator would have been treated no differently to the complainant in the same circumstances. Reference is also made to Vytuatas Stostus v Goode Concrete[6] where the respondent submits the complainant was dismissed because of vulgar and abusive behaviour. The respondent points out that in Francis v Dublin Bus case cited by the complainant, the Equality Officer found against the complainant on every count.
4. Conclusions of the Equality Officer
4.1 There are three issues for me to decide:
(i) whether the complainant suffered discriminatory treatment in relation to his conditions of employment on the grounds of race in relation to his contract of employment and safety in the workplace
(ii) whether the complainant’s treatment by his work colleagues amounts to harassment contrary to Section 14A (7) of the Act and whether the respondent has a viable defence against a claim of harassment pursuant to Section 14A (2) of the Act
(iii) whether the termination of the complainant’s employment amounts to discriminatory dismissal on the grounds of race contrary to Section 8 (6) (c) of the Act.
Conditions of Employment
4.2 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 ground in this case is race. In relation to the lack of a written contract of employment, I accept the respondent’s defence that Mr. Gedrinas was not treated differently than the respondent’s Irish employees. I am also satisfied that the complainant was not treated less favourably than the Irish nationals working in Mulleadys regarding safety in the workplace. However, 14A of the Act states that harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. I will deal with this in the following paragraph.
Harassment
4.3 Section 14 (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.4 In deciding whether or not harassment occurred I am guided by the seminal Labour Court Decision Citibank and Ntoko:
…A person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.[7]
I found Mr. Gedrinas to be a credible witness. He was able to give specific instances of hostile and degrading treatment of him (See Paragraph 2.2). On the other hand, Mr. B was evasive. Mr. C was not present at the hearing. Therefore, I am satisfied that the complainant was harassed within the meaning of the Act.
4.5 Under Section 14A (2) if harassment occurs in the workplace it is a defence for the employer to prove that the employer took reasonably practicable steps to prevent the person from harassing the victim or any class of persons which includes the victim or where such harassment occurs to prevent the victim from being treated differently in the workplace and if and so far as any such treatment has occurred to reverse its effects.
4.6 I note that Mr. A, the Managing Director of Mulleadys Ltd, in his diary said that ‘we’ refer to the complainant as ‘Excuse me’ because it was easier to pronounce than the complainant’s name. The complainant was in his employment for almost a year. Nobody else (reference is made to various employees and suppliers – all have Irish names) in the diary entry is referred to by a nickname. S.I. 78 of 2002 sets out the approved Code of Practice on Harassment at Work:
Prevention is the best way to minimise sexual harassment and harassment in the workplace. An effective policy and a strong commitment to implementing it is required. The purpose of an effective policy is not simply to prevent unlawful behaviour but to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur.[8]
A Managing Director identifying an employee by a moniker, which could be interpreted as derogatory, affronts the employee’s dignity. In oral evidence, the respondent admitted it did not have a formal ‘Dignity in the Workplace’ policy at the time of Mr. Gedrinas’s employment. No evidence was presented to me than an investigation took place into Mr. Gedrinas’s allegations of harassment. Therefore, I do not find that the respondent took reasonably practicable steps to prevent harassment from occurring or to reverse the effects of it. Consequently it cannot avail of the defence in Section 14A (2) of the Act.
Discriminatory dismissal
4.7 There are major inconsistencies between the complainant’s and respondent’s version of events as to why the complainant was dismissed. The complainant maintains he was dismissed following an altercation between himself and the driver of the bin lorry, when after being pushed out of the way, the complainant told the driver to fu*k off. The driver responded using the same expression. According to the complainant, he was summarily dismissed when he returned to the yard.
4.8 The respondent stated in its written submission that ‘it [the dismissal] had nothing to do with his work on bin lorries’. According to the respondent, Mr. Gedrinas was dismissed because he did not follow a reasonable instruction by the Deputy Supervisor and told him to fu*k off. The respondent’s account is outlined in the following diary entry:
June 2nd (Friday)
Sacked Excuse Me [the complainant] for telling Mr. D and Mr. B to F off on bin lorry. He came back to the yard, Mr D, Deputy Supervisor, was loading a container with forklift, Mr. D got off forklift to do something else, Excuse me got up on it, Mr D shouted at him. He told Mr. D to F off. Pat came into me very annoyed and told me. He also told me that this wasn’t the first time, I was very annoyed. I went out. He was in the forklift. I said to him why did you tell Mr. D to F off. He said he didn’t. I said it again. He said he didn’t understand English. I told him he was dismissed. He got off the forklift and he left the yard.
June 5th (Monday)
I talked to Mr. D again regarding Excuse me. He said that he would do nothing he was asked. All he wanted to do is drive the forklift. I asked him again about him telling him to F off. He said this was an everyday thing. I said why did you not tell me. Mr. D said he didn’t want to get Excuse me into trouble. I said well he is gone now. Mr. D said good. I don’t want to see him again.
Mr. D is Deputy Supervisor and he worked for us for years. He is a quiet man and everybody respects him.
We call Aidotas Gedrinas Excuse me because he often says Excuse me and it’s easier than saying Aidotas.
After the first sentence I do not find this note to be contemporaneous. I am satisfied that additions were made after Mr Gedrinas made a complaint under this Act. There are five reasons that I believe this:
(i) the nature and location of the insertions and deletions make the note appear redacted.
(ii) the respondent said that Mr. Gedrinas’s dismissal had nothing to do with the altercation with Mr. B but it is the first thing mentioned in the diary entry.
(iii) Mr. D (Deputy Supervisor) was not asked to be a witness by the respondent at the hearing but Mr. B (lorry driver) was.
(iv) A different supervisor was mentioned in the respondent’s written submission. He was not present at the hearing either.
(v) As this was Mr. A’s diary it would be unusual for it to be read by anybody other than him. (It was only submitted to me after I requested it at the hearing.) Therefore it should not have been necessary for him to explain to himself the role of Mr. D or why the complainant was called ‘Excuse me’. Mr. Gedrinas did not lodge a complaint with the Equality Tribunal until 4 months after this diary entry was supposedly written.
Disregarding an instruction and using vulgar language to a supervisor would generally be regarded as gross misconduct. A heated exchange between co-workers may not. On the balance of probabilities, I find the complainant’s version of events leading up to his dismissal more compelling.
4.9 Whether the complainant was dismissed for using profanities to a supervisor or a co-worker and while not condoning aggressive and offensive language, the procedures followed by the respondent in coming to the decision to dismiss the complainant appear to me to be discriminatory. By the respondent’s own admission, the complainant was not told that his dismissal was being considered before the decision was taken. Mr. Gedrinas was not informed of his right to be represented at any disciplinary hearing and it appears to me that there was no investigation in any meaningful sense into the allegations made against the complainant. Having evaluated all of the evidenced adduced before me, I am satisfied that the complainant was treated less favourably than an Irish employee facing allegations of similar misconduct was or would be treated.
Decision
I have concluded my investigation of Mr Gedrinas’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 respondent did not discriminate against the complainant in relation to his conditions of employment regarding his contract of employment and safety in the workplace on the grounds of race;
(ii) the respondent discriminated against the complainant in relation to his conditions of employment contrary to S. 8(1)(b) of the Acts by not taking reasonable and practicable steps to prevent his harassment on ground of race contrary to S. 14A(7) of the Act;
(iii) the termination of the complainant’s employment amounts to discriminatory dismissal on the grounds of race contrary to Section 8 (6) (c) of the Act.
In accordance with Section 82 of the Act, I therefore order that the respondent
(a) pay the complainant €5000 in compensation for the harassment endured
(b) pay the complainant €15,000 in compensation for discriminatory dismissal.
This award is in compensation for the infringement of Mr. Gedrinas’s statutory rights and, therefore, not subject to income tax.
______________
Orlaith Mannion
Equality Officer
13th March 2009
[1]ED/02/52 Determination No. EED048
[2]Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000
[3]r-047050-te-06/JT
[4]r-047052-06/JT
[5]DEC E2008/014
[6]DEC E2008/020 Equality Officer note: In this case, Mr Stoskus received a final written warning for vulgar and abusive behaviour but his dismissal was solely related to criminal activity
[7]ED/01/13
[8]Section 4 of S.I. 78 of 2002 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002