THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009 - 099
PARTIES
Ms Lyndsey Glennon
(represented by Ms Sandra Lawlor)
and
Bormac Ltd., t/a Carboni's Café (in liquidation)
(represented by Kavanagh Fennell Insolvency)
File Reference: EE/2007/211
Date of Issue: 28th October 2009
Claim
1.1. The case concerns a claim by Ms Lyndsey Glennon that Bormac Ltd., t/a Carboni's Café (in liquidation) discriminated against her on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of being dismissed from the respondent's employment when she was their only Irish employee, while two non-national workers took up employment around the same time.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 27 April 2007. A submission was received from the complainant on 21 July 2008. A submission was received from the respondent on 10 October 2008. On 12 May 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 21 October 2009.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that while she was in the employment of the respondent, she was denied her holiday pay entitlements and took a case to the Labour Relations Commission about same.
2.2. She submits that shortly after the conclusion of this matter on 14 April 2007, her employment was terminated. The reason she was given was that there was not enough work for her to do. However, she notes that between the dates of 9 and 15 April 2007, and again between 16 and 22 April 2007, two new staff members who were not of Irish nationality took up employment with the respondent.
2.3. It is the complainant's case that because she was the only Irish national in the employment of the respondent, and had been specifically hired for her fluent English; that her dismissal was related to her nationality.
2.4. The complainant further submits that she was barred from the respondent's premises, and that her former work colleagues were forbidden to have contact with her, after she lodged her complaint with the Tribunal.
3. Summary of the Respondent's Written Submission
3.1. The respondent did furnish a written submission to the Tribunal, but the respondent's directors did not subsequently attend the hearing of the complaint to confirm their submission in evidence.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and discriminatorily dismissed on the ground of race within the meaning of the Acts, and whether she was victimised by the respondent after lodging a complaint with the Tribunal.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. The hearing of the complaint was attended by the complainant and her mother; and by a representative of the liquidator. The former directors of the respondent were not in attendance.
4.4. The complainant confirmed her experiences in direct evidence. She had been employed in a part-time position as a counter assistant due to being Irish and a native speaker of English, which put her in a position to communicate with the respondent's customers. She started to work for the respondent on 21 November 2006, and her employment was terminated on 15 April 2007. The complainant was the only Irish national employed by the respondent. All other workers on the premises were non-Irish nationals, most of whom had rather poor English and would not have been able to fill the complainant's role successfully. The complainant made a successful complaint to the Rights Commissioners on holiday pay owed to her. The complainant stated that one of the respondent's directors, Ms M., took her aside and asked her not to speak to the non-Irish nationals about their legal entitlement. One week later, the complainant was dismissed. The reason given at the time was that there was no work for her to do. The complainant further stated that she learned of new workers being hired at the time of her dismissal from finding their names on the roster.
4.5. The respondent's liquidator provided additional documentary evidence on this matter, which clearly shows that one week after the complainant's part-time employment was terminated, a Chinese national took up a position of full-time employment with the respondent. According to the complainant, the complainant's position working the counter was filled by her colleague Thomas, an Eastern European national.
4.6. I found the complainant to be a credible witness, and I am satisfied the facts she has stated in evidence - her successful complaint to the Rights Commissioners, being asked not to inform her colleagues about their entitlements, and her dismissal shortly thereafter, together with the fact that the respondent hired a Chinese national on a full-time basis at the same time and deployed a non-national worker to her former counter duties - give rise to an inference that the complainant was indeed dismissed because she was Irish and in possession of the language skill and able to stand over her rights successfully. I therefore find, based on the evidence that is before me, that the complainant has established a prima facie case of discriminatory dismissal on the ground of her nationality, and that this has not been rebutted. The complainant is therefore entitled to succeed.
4.7. I now turn to the complainant's case that she was barred from the respondent's premises after lodging a complaint with the Tribunal. It is the complainant's evidence that when she entered the responses premises as a customer, her colleague Thomas told her, on behalf of the directors, that she was barred from the premises, and asked her to leave the premises. This occurred on 30 April 2007, which is three days after the complainant's complaint had been received by the Tribunal. The complainant's EE2 form, through which she had sought additional information from the respondent, is dated 24 April 2007. I am therefore satisfied that the complainant was barred from the respondent's premises after the respondent had become aware that the complainant was taking a complaint under the Acts.
4.8. I am further satisfied that the respondent was aware that this treatment formed part of the complainant's complaint, as it was clearly described in the complainant's written submission, received by the Tribunal on 21 July 2008 and copied to the respondent.
4.9. In determining whether barring the complainant from the respondent's premises under these circumstances constitutes victimisation within the meaning of the Acts, I am having regard to the definition of "employee" as given in S. 2 of the Acts as somebody who -
has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment [...].
4.10. "Victimisation" is defined in S. 74(2) of the Acts as adverse treatment of employee by his or her employer which occurs as a reaction to
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant
[...]
4.11. Since "employee" is defined in the Acts in a manner which extends the protection afforded by the Acts to workers whose employment relationship with a respondent has ceased, I am satisfied that the complainant has established a prima facie case that she was victimised by the respondent within the meaning of the Acts by being barred from their premises after her dismissal, keeping in mind that her place of employment was a café to which members of the public normally have access. This has not been rebutted.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did discriminatorily dismiss the complainant on the ground of her nationality contrary to S. 8(6) of the Acts and
(ii) the respondent did victimise the complainant contrary to S. 74(2) of the Acts by barring her from its café premises after the complainant filed a complaint about the termination of her employment with the Tribunal.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant €5000 in compensation for her discriminatory dismissal and €1000 in compensation for her victimisation. These awards are in compensation for the distress experienced by the complainant in relation to the above matters, and are not in the nature of pay, and therefore not subject to tax.
_______________________
Stephen Bonnlander
Equality Officer
28 October 2009