FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2007 PARTIES : GOODE CONCRETE (REPRESENTED BY REIDY STAFFORD SOLICITORS) - AND - OKSANA SHASKOVA (REPRESENTED BY RICHARD GROGAN AND ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. This is an appeal by Goode Concrete Ltd against the decision of the Equality Tribunal in a claim of discrimination on the race grounds taken by Ms Oksana Shaskova under the Employment Equality Act 1998-2008 (the Act). In this determination the parties are referred to as they were in the first instance. Hence Ms Shaskova is referred to as the Complainant and Goode Concrete Ltd is referred to as the Respondent.
BACKGROUND:
2. This is an appeal by Goode Concrete Ltd against the decision of the Equality Tribunal in a claim of discrimination on the race grounds taken by Ms Oksana Shaskova under the Employment Equality Act 1998-2008 (the Act). In this determination the parties are referred to as they were in the first instance. Hence Ms Shaskova is referred to as the Complainant and Goode Concrete Ltd is referred to as the Respondent.
DETERMINATION:
The Respondent is a manufacturer and supplier of concrete. The Complainant was employed by the Respondent from 6 November 2005 until she was dismissed on 18 October 2007. She worked in an administrative capacity. The Complainant is of Russian nationality. A major part of the Complainant’s duties involved administering the payroll function of the Respondent. However, she also carried out duties involving translation and various other administrative duties.
The Respondent contends that the Complainant was dismissed by reason of redundancy when it decided to outsource the payroll function. The Complainant contends that a situation of redundancy did not exist and that the payroll function was not, in fact, outscourced. The Complainant contents that her dismissal was on grounds of race. She claims that it followed on from an alteration, which she had with a Director of the Respondent some days before her dismissal. The Complainant pointed out that other workers who are of Irish nationality were not dismissed.
The Equality Officer found that the Complainant had been selected for dismissal on grounds of her nationality and that she had been discriminated against on the race ground in being selected for dismissal. The Complainant was awarded compensation in the amount of €20,000. It is against that aspect of the decision that the Respondent appealed to this Court.
In her original complaint to the Equality Tribunal the Complainant had claimed discriminatory treatment on ground of gender and harassment on the gender and race grounds. Those complaints were not upheld by the Equality Tribunal. They were not pursued in this appeal.
Position of the Parties:
The Respondent
Evidence was given by Ms Orla Goode who is Human Resources Manager with the Respondent and by Mr Peter Goode who is Director of the Respondent.
Ms Goode told the Court that the Complainant commenced her employment with the Respondent in November 2005. She said that the Company treated the Complainant well and assisted her in obtaining a visa for her husband and provided her with letters confirming her employment status for the purpose of obtaining a home. The Court was told the Complainant had fluent English and that in the course of her employment she became familiar with the requirements of Irish employment law.
The Complainant was employed as an office administrator but approximately 80% of her time was devoted to the payroll function. She carried out other duties as occasion required. The Complainant also provided translation services for the Respondent in its dealings with a number of employees who spoke Russian. In that capacity the Complainant attended at a number of disciplinary interviews involving fellow employees. The witness stated that she was on friendly terms with the Complainant.
According to the witness in or about September 2007 the Respondent came to consider the possibility of outsourcing the payroll function as a cost saving measure. This would have necessarily involved the redundancy of the Complainant who carried out that function. The Court was referred to redacted copies of the witness’s diary for 2nd October 2007, which contained a note to the effect that there had been discussion of possible redundancies and in which the outsourcing of the payroll was identified as a possibility. The Court was referred to and entry on 4th October which recorded that a named Company had been contacted with a view to taking on this role. There was a further entry for 8th October, which again recorded that there had been a discussion on the possibility of outsourcing this function. The witness told the Court that other possible suppliers of this service had also been contacted in this matter.
No further entries appear in this diary relating to the proposed outsourcing. However it appears from e-mails which were opened to the Court that a discussion took place between Ms Goode and a representative of a payroll service provider on or about 23rd October 2007 and a meeting was arranged between them. It is further apparent from an e-mail sent by this service provider to the Respondent on 8th November that by then the idea had been abandoned. Ms Goode told the Court that on further investigation it became apparent to the Respondent that the savings anticipated from outsourcing could not have been realised and it was decided not to proceed with the proposal.
Mr Goode recalled an incident that occurred on 12th October 2007 involving the Complainant and her brother, Peter Goode who is a Director of the Respondent. She said that her office is located a short distance from that of Mr Goode. She heard raised voices coming from Mr Goode’s office and then received a call from her brother asking her to come down to his office. She did so and found the Complainant there in a state of agitation. According to Ms Goode the Complainant was shouting at her brother and she sought to calm her down. The witness told the Court that the Complainant was complaining at being overworked. She was told that an additional staff member had been recruited through an agency to assist the Complainant and that this person was due to commence work on the following Monday.
Accordingly to Ms Goode, in the weeks prior to her dismissal the Complainant’s conduct and general demeanour at work became erratic. She tried to ascertain from the Complainant the reason for her behaviour but the Complainant refused to discuss the matter. Ms Goode came to the view that the Complainant was being intimidated by employees who had been involved in disciplinary proceedings within the employment within the employment so as to provide them with confidential work related information. Ms Goode testified that in light of the Complainant’s erratic behaviour her belief that the Complainant was being intimidated it was decided to advance the redundancy and to dismiss the Complainant forthwith. The Court was told that the final decision to dismiss the Complainant was taken by Mr Peter Flood. Ms Goode also told the Court that while the reason for the dismissal was redundancy, the Complainant’s erratic behaviour was a contributory factor.
Ms Goode told the Court that her concerns relating to the Complainant’s vulnerability to intimidation were later confirmed when she discovered, after the dismissal, that the Complainant had been transferring a large volume of company files to her private e-mail address. She said that this matter was reported to the Garda�.
The witness accepted that she had not previously cited the Complainant’s erratic behaviour as a reason to justify her dismissal.
Mr Peter Goode gave evidence. This witness told the Court that in or about June 2007 he became aware that the company turnover was in decline. He came to the view that a number of staff should be reduced through redundancy. He further concluded that this could best be achieved by outsourcing the company’s payroll function. He discussed the matter with Ms Orla Goode who undertook to investigate the possibilities further.
Mr Goode recalled the incident on 12th October 2007, referred to by Ms Goode in her evidence. He said that the Complainant came into his office and complained at being overworked. He said the Complainant was fairly emotional and was behaving erratically. He said that the Complainant had taken on some of the work of another employee who had left the employment. The witness told the Court that he listened to the Complainant and said nothing. He rang Ms Goode and asked her to come to his office. She did so and sought to calm the Complainant down. He denied that he had made offensive or derogatory comments to the Complainant.
Mr Goode told the Court that he had decided to outsource the payroll function and that in pursuance of that decision it was decided to dismiss the Complainant on grounds of redundancy. The Complainant went on sick leave on 15th October 2007. On 18th October he decided, in consultation with Ms Goode, to terminate the Complainant’s employment. He said that Ms Goode had mentioned to him that the Complainant’s behaviour had become erratic but that this was not a factor, which influenced him in his decision.
In response to questions from the Court Mr Goode accepted that another employee had been recruited, through the agency, to undertake some of the work of the Complainant. He said that the main work of the Complainant was in administrating the payroll and since this function was being outsourced the Complainant’s post was redundant.
The witness denied having received a medical certificate from the Complainant but he did know that she was on sick leave. At the time at which he decided to dismiss her he had no idea when she would return to work.
The witness denied that the Complainant’s nationality was a factor influencing her dismissal.
After the Complainant was dismissed her functions in relation to payroll were assigned to another employee who had previously worked as receptionist.
The Complainant
The Complainant’s submission can be summarised as follows:
The Complainant told the Court in evidence that she is of Russian nationality. She confirmed that she commenced employment with the Respondent in November 2005. Her main roll was that of payroll administrator. However she had a number of other roles including that of interpreter for other workers who spoke Russian. She said that her command of the English language was good but she would not describe it as fluent. She attended at many disciplinary meetings involving such employees. She also undertook HR duties in conjunction with Ms Goode. She said that September 2007 a Mr Kelly left the employment and she was assigned his functions in addition to her own. She said that she was overworked and was extremely stressed.
The Complainant told the Court that she went to see Mr Peter Goode on 12th October 2007 in order to discuss her workload. She said that Mr Goode had told her she would do what he wanted her to do and that she was “nothing”, or similar derogatory words to that effect. The Complainant said that Ms Goode then came into the office and told her that another employee was due to start on the following Monday. The Complainant denied that she was shouting at Mr Goode or that she was behaving erratic in the weeks before her dismissal. She further denied that Ms Goode had raised issues with her concerning her behaviour. The Complainant further denied that she was subject to intimidation by other workers.
In relation to the transfer of company files to her personal computer the Complainant told the Court that due to her workload she had to undertake work at home and for this reason she had e-mailed files from work to home. She said that she was required to translate certain employment related documents outside working hours and was to be paid €3,000 per annum for this additional work. The Complainant said that it transpired that her personal computer did not have the software necessary to open these files and, in consequence, she had not made use of them. The Complainant denied that she had ever passed the information in these files to any other person. Following her dismissal the Garda� came to her home and spent several hours going through her computer.
The Complainant told the Court that she had not received the letter informing her of her dismissal. She returned to work on 23rd October and was refused entry.
The Complainant said that at the time of her dismissal there were four other employees involved in administrative work. She had longer service than three of these employees.
The Facts:
While there is considerable controversy in relation to many aspects of this case, the salient facts are clearly established on the evidence adduced. Those facts are as follows: -
The Complainant was one of five employees of the Respondent engaged in work of an administrative nature. While the Respondent employed a number of non-Irish nationals as drivers and general operatives the Complainant was the only administrative worker who is not Irish.
The Complainant worked for the Respondent for 23 months and during much of the time her employment was uneventful. She also exercised a relatively responsible role within the Respondent’s business. She had full responsibility for the administration of the payroll and also had responsibility for certain personnel functions.
The Court had the benefit of hearing the Complainant give her evidence and in observing her demeanour while giving evidence. The Complainant has a good working command of the English language but is by no means fluent in the language. The Complainant appeared to be of a somewhat nervous and emotional disposition especially when she became confused by language, which she could not understand. The Court found her to be an honest and truthful witness who gave her evidence to the best of her ability.
The Court is also satisfied on the evidence that the Complainant was an excellent employee who took on more work than was required by her job specification and her contract of employment. Amongst the additional duties, which she performed, was that of translator for the Company and other non-Irish workers who spoke Russian. These services were usually provided in disciplinary meetings or similar situations of conflict involving those workers. It appears to the Court, from the evidence of Ms Goode in particular, that this may have been caused her employer to suspect that she might pass confidential information in her procession or power of procurement to those workers which would be of benefit to them in various proceedings being pursued against the Respondent. The Court is however satisfied that there is no objective basis for that suspicion.
In that regard the Respondent placed considerable significance on the fact that the Complainant had e-mailed employee records to her own personal computer. This matter only came to light after the Complainant’s dismissal and could not have been relied upon as a reason for the dismissal. It was, however, assumed by the Respondent that she had done so in order to pass the information to her compatriots and other employees for whom she had acted as interpreter. Having regard to the evidence tendered concerning the extent to which the Complainant was overworked the Court finds her explanation that she had e-mailed these files in order to work from home as entirely plausible.
It is perfectly clear that at the time of the Complainant’s dismissal a redundancy situation did not exist within the Respondent’s Company. Taking the Respondent’s evidence at its height there was little more than a general notion amongst the management that outsourcing could be an option worth pursuing. It was equally clear that beyond making some general enquires as to what was available no firm proposal has emerged on outsourcing and no decision to outsource the payroll function had crystallised. It is also clear that by 8th November 2007, at the latest, any consideration of outsourcing had been abandoned. It is also of significance that in the week before the Complainant’s dismissal another employee had been engaged to undertake work which at that time was being performed by the Complainant.
The Court is also satisfied that in the weeks preceding her dismissal the Complainant was suffering from work related stress. This may have manifested itself in what Ms. Goode interpreted as her erratic behaviour, which she erroneously attributed to intimidation from fellow employees to divulge confidential work related information.
While Ms. Goode told the Court that the Complainant’s change in demeanour was a factor influencing her dismissal, Mr. Goode, who was the final decision maker, told the Court that this had not been mentioned to him in any detail. Mr. Goode told the Court that the Complainant’s behaviour or demeanour was not a factor influencing his decision.
There was significant conflict in the evidence of the Complainant, on the one hand, and that of Mr Goode and Ms Goode on the other, concerning the incident of 12th October 2007. The Court is satisfied on the evidence that the Complainant went to see Mr Goode to discuss her workload. The Court is further satisfied that the Complainant found Mr Goode’s response unhelpful and distressing. This resulted, in part at least, in the Complainant going on sick leave on medical advice suffering from work related stress.
The Complainant was dismissed on 18th October 2007 without notice and on payment of two weeks pay in lieu of notice. The Complainant’s contract of employment provided that the employment could be terminated on one months notice. No explanation was given as to why the Complainant was not afforded her contractual period of notice or why she was not allowed to work out her notice.
It is also clear that no consideration was given to dismissing any of the administrative staff of Irish nationality who had less service than the Complainant.
The law applicable:
Burden of proof
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.
In the jurisprudence of this Court the test for applying this notion is that developed inSouthern Health Board v Mitchell[2001] ELR 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive, upon which Section 85A is now based: -
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
1. The complainant must prove the primary facts upon which they rely in alleging discrimination,
2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination,
3. If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.
The statutory language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This involves a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
In reliance on the Judgement of the High Courtin Mulcahy v Waterford Leadership Limited and the Minister for Justice, Equality and Law Reform[2002] 13 ELR 12 the Respondent submitted that the mere coincidence of the Complainant’s nationality and her dismissal is not sufficient to shift the probative burden from the Complainant to the Respondent. As a general proposition that submission is correct.
However, in the instance case there is more than the fact of dismissal and the Complainant’s nationality relied upon. There is the fact that none of the Irish workers were considered for dismissal and the fact that at the time of dismissal no credible reason or explanation was given. Further, the Respondent subsequently gave as the reason for the dismissal its intention to outsource the work in which the Complainant was engaged. The work was not outsourced and the Court is satisfied on the evidence that at the material time there were no firm plans in place to outsource the work. There is the additional fact that the Complainant was regarded (unjustifiably in the Court’s view) as vulnerable to pressure from her other non-Irish employees to divulge confidential information which could be used by them against the Respondent. In the Court’s view there is a clear nexus between this suspicion and the Complainant’s work as an interpreter and her nationality.
The Court is satisfied that this factual matrix is of sufficient significance to raise an inference of discrimination on the race ground and so shift the burden of proving the absence of discrimination on to the Respondent in accordance with S.85A of the Act.
Where, as in the instant case, the probative burden has shifted to the Respondent, it bears the onus of satisfying the Court, on the balance of probabilities, that the principle of equal treatment has been applied to the Complainant. InWong v Igen Ltdand others[2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson LJ pointed out, in a sex discrimination case, that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. That decision was made having regard to the wording of Article 2 of Directive 2000/78/EC which provides that there shall be no discrimination “whatsoever” on any of the grounds proscribed by that Directive.
The prohibition of racial discrimination is not contained in Directive 2000/78/EC but rather in directive 2000/43/EC. The word “whatsoever”does not appear in Article 2 of that Directive. The Act of 1998 was amended by the Equality Act 2004 so as to transpose both Directives in Irish Law and no distinction is made in the standard of proof required by S.85A of the Act as between cases involving racial discrimination and all other forms of prohibited discrimination. Moreover, the Court does not believe that the Oireachtas (or the Community Legislators) could have intended that a lower standard of rebuttal should be required in a case of racial discrimination than that required in all other forms of discrimination.
The quality of evidence which must be advanced to discharge the burden of proving that the principle of equal treatment was not infringed was considered by the Employment Appeals Tribunal for England and Wales, inBarton v InvestecHenderson Crostwaite Securities LtdIRLM 332.Here it was held that since the facts necessary to prove an explanation would usually be in the possession of the respondent, a tribunal should normally expect cogent evidence to discharge that burden. That dictum is particularly apt where the reasons for a dismissal are in issue. In such cases the question for determination invariably turns on the thought processes of the decision maker which is always within the exclusive knowledge of the Respondent. That decision is of persuasive authority and the Court has adopted a similar approach in the instant case.
In the instant case the only explanation proffered for the Complainant’s dismissal was specious and wholly unconvincing. In these circumstances the Court is fully satisfied that the Respondent has failed to prove that the Complainant’s dismissal was unrelated to her nationality.
In these circumstances the Respondent’s appeal must fail.
Determination:
The within appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
7th October, 2009______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.