FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2007 PARTIES : MULLEADYS LIMITED (REPRESENTED BY ARRA HUMAN RESOURCES DEVELOPMENT) - AND - AIDOTAS GEDRIMAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 To 2007
BACKGROUND:
2. The Company appealed the Decision to the Labour Court on the 15th April, 2009. A hearing took place on the 2nd October, 2009, in Longford. The following is the Court's determination:
DETERMINATION:
This is an appeal by the Company against a decision of an Equality Officer in a claim which Mr. Aidotas Gedrimas brought against his former employer Mulleadys Limited alleging discrimination on the race ground in relation to his conditions of employment leading to harassment and discriminatory dismissal contrary to the Employment Equality Acts, 1998 and 2004 (the Acts).
For ease of reference the parties are referred to in this Determination using the designations prescribed at S77 (4) of the Act. Hence, the Company is referred to as the "Respondent" and the worker is referred to as the "Complainant".
Introduction.
The Complainant is of Lithuanian nationality. He was employed as a general operative initially by the Respondent from 23rd May, 2005, until 14th October, 2005. He was subsequently re-engaged working mainly as a helper on the bin lorry from 5th December, 2005 until his employment was terminated by the Respondent on 2nd June, 2006.
The Equality Officer did not find in favour of the Complainant’s case in relation to his conditions of employment regarding his contract of employment and safety in the workplace, however, she did find that the Respondent discriminated against him 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 and awarded him the sum of €5000 in compensation. Furthermore, she found that 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 and awarded him the sum of €15,000 in compensation for discriminatory dismissal.
The Company appealed the latter two findings to this Court. There was no cross-appeal by the Complainant.
The Complainant’s Case
Mr. Richard Grogan, Solicitor for the Complainant alleged that he had been subjected to verbal abuse by the driver of the lorry (Mr. G.) who used to shout at him and call him names. He stated thaton 2nd June, 2006, the complainant had reacted to a build-up of harassment by using abusive language to Mr. G. and was subsequently dismissed on that day without any fair procedures being applied. He held that the Complainant was not given any notification of a disciplinary hearing, he was not advised of his rights, he was not given notification of his dismissal in writing nor was he given the opportunity to mount a full defence including his right to representation. He held that the dismissal procedures were not carried out in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000.
Mr. Grogan told the Court that at the hearing before the Equality Officer when Respondent’s Managing Director produced his diary entries for the dates surrounding the dismissal, it became known that the Complainant was referred to by the proprietor by a nickname“Excuse me”.He submitted that use of such a nickname was an indication of the manner in which the Complainant was treated and submitted that it was consistent with the treatment that he received on the bin lorry from other workers. While he accepts that the Complainant never made any complaints concerning the use of the nickname, he submitted that the employer had a duty to create a workplace free from discrimination and free from abuse of a racial character.
Mr. Grogan stated that the Respondent had no disciplinary/ grievance procedure and no dignity at work policy and consequently the Complainant had no means of making a complaint.
In support of his case Mr. Grogan relied uponCampbell Catering v Rasaq[2004] 15 ELR 310, where the Labour Court held:
- “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.”
The Respondent’s Case
Mr. Michael O’Sullivan, HR Consultant on behalf of the Respondent stated that the Company employed many non-nationals. He denied that any form of discrimination on the race grounds took place against the Complainant and held that his termination of employment did not amount to discriminatory dismissal.
Mr. O’ Sullivan told the Court that the Complainant’s employment had terminated in October, 2005, when he was laid off due to a shortage of work. However, due to the pleadings of the Complainant it was decided to re-employ him before Christmas that year as the proprietor took pity on his personal situation due to his need to support his family. Later on when a vacancy arose on the bin lorry he was employed on those duties.
Mr. O’ Sullivan said that the allegation of harassment referred to related to an incident which occurred on 2nd June, 2006, when Mr. G told the Complainant to **** off and the complainant said the same thing back to him.
Mr. O’ Sullivan submitted that the treatment of the Complainant and the treatment of all other employees was entirely consistent. He stated that in the multicultural environment in which the Complainant worked in all staff were treated in the same manner. In any event the dismissal of the Complainant on 2nd June 2006 was directly related to events which took place in the yard after he had returned from his bin lorry collection rounds. The Complainant was dismissed on that day for gross misconduct after he verbally abused a foreman in the yard and subsequently refused to carry out work instructions. The dismissal had nothing to do with his work on the bin lorry. He submitted that the dismissal was similar to two previous dismissals of Irish nationals which had occurred some years previously, where workers were instantly dismissed without recourse to procedures.
Information was provide for the Court which showed that at the pertinent time in June 2006, the Respondent employed 58 employees, 22 of whom were non-nationals.
Witness Testimony
Mr. Mulleady’s Evidence
Mr. Mulleady Proprietor told the Court that the Complainant did his work and that he had no problem with him up until October, 2005. He decided to take him back before Christmas 2005 after he had pleaded with him and explained his need to support his family.
Mr. Mulleady gave evidence of the events of Friday 2nd June, 2006, which led to the Complainant’s dismissal. He said that at approximately 4.00 p.m. that day Mr. K. (Deputy Supervisor based in the yard) came to his office, clearly annoyed and white in the face,“I never saw him so upset before”. Mr. K. explained that he had been working in the yard on the forklift truck when the Complainant arrived in and jumped onto the forklift while he had momentarily vacated it. Mr. K. told him that as far as he was concerned the Complainant was joyriding on the forklift. When Mr. K. shouted at him to vacate it, as he needed it to complete his work, he said that the Complainant used abusive language towards him, refused to get down from the forklift and drove around the shed at speed. Mr. K. said that this was not the first occasion that this had happened. Mr. Mulleady told Mr. K. that he would deal with the matter. Then Mr. Mulleady decided to telephone Mr. G. for feedback on the Complainant’s work and performance. Mr. G. told him that the Complainant regularly used abusive language towards him.
Mr. Mulleady told the Court that with this confirmation he then proceeded to dismiss the Complainant with immediate effect.
The following Monday Mr. Mulleady again spoke to Mr. K who told him that the Complainant would do nothing he was asked and all he wanted to do was to drive the forklift. He told him it was an every day occurrence for the Complainant to use abusive language and when asked why he did not report him Mr. K. said that he did not want to get him into trouble.
In cross examination, Mr. Mulleady accepted that prior to 2nd June, 2006, he had no problem with the Complainant’s work, he accepted that he was always polite and sociable with him, he was always saying “excuse me”, hence the reason he gave him the nickname as he had found it difficult to pronounce his name. He said that he used this nickname for him but that others did not do so, however, he agreed that it was known around the workplace. He gave details of others with nicknames e.g. “The Big Boss”, “Hitler”, “Lead Dog”, “Fast Johnny” – all of Irish nationality.
When questioned how he would treat an Irish national in similar circumstances, Mr. Mulleady said that he trusted the word of Mr. K. Mr. K. was someone who had worked for him for many years and he had great respect for him. Therefore, he said that it made no difference whether he was Irish or not; his decision to fire him there and then for gross misconduct towards Mr. K. was the sole reason for his dismissal.
Mr. Grogan questioned Mr. Mulleady about the contents of his diary, which gave an account of events on Friday and Monday 2nd and 5th June, 2006. He put it to Mr. Mulleady that the entries were not contemporaneous and consequently they could not be held as an accurate account of the events of those days, thereby questioning his credibility as a witness. Mr. Mulleady replied that he had made the entries at the end of the days in question.
Mr. Mulleady told the Court that the Complainant never made any complaint to him of harassment or discrimination.
Evidence of Mr. K Deputy Supervisor
Mr. K. gave an account of the events of Friday 2nd June, 2009. He recounted how the Complainant arrived back to the yard and took over the forklift despite the fact that he had been using it and needed it to finish his work. When he asked the Complainant to give it back he was subjected to verbal abuse and despite the fact that he had been subjected to such abusive language from him before, he decided this time to report the matter, which he duly did and heard no more about it until the following Monday when Mr. Mulleady told him that the Complainant had been dismissed.
Mr. K. told the Court that a number of workers in the yard are of Lithuanian nationality and that everyone gets on well with one another. However, with the Complainant he said there were a number of difficulties with his performance and use of bad language and he could not take it anymore.
Mr. K. told the Court that the Complainant never made any complaint to him of harassment or discrimination.
Evidence of Mr. G. Lorry Driver
Mr. G. told the Court that the Complainant was a good worker although he would regularly use abusive language to him and tell him to **** off whenever he instructed him from the lorry to pick up a bin that had not been left out on the pavement. He said that the other helpers on the lorry would not use this kind of language.
He denied the Complainant’s version of events, which the Complainant had claimed took place at 7.24 a.m. on Friday 2nd June, 2006, while lifting a bin at a hotel in the town. He denied that there was any altercation between himself and the Complainant and said that there was no difficulty with lifting the bin and there was no need for him to get out of the lorry. He said that he did not make any complaint about his behaviour as he did not want to get him into trouble.
He told the Court that Mr. Mulleady telephoned him on the 2nd June, 2006, and asked him about the Complainant’s behaviour and work performance and he informed him about his constant use of abusive language.
In cross-examination he denied that he got out of the lorry on the morning of 2nd June, 2006 and denied that he had pushed the Complainant.
When asked what name did he call the Complainant by he answered that he had no need to refer to him by name and that he was aware of the nickname “Excuse Me” but that he did not refer to him by that name.
Mr. Gedrimas’ Evidence,
Mr. Gedrimas (the Complainant) gave evidence that on 2nd June, 2006, he was working as a helper on the bin lorry when at one pick up at 7.24 a.m. at a hotel in the town both he and another helper (Mr. C.) had difficulty picking up a bin from a commercial premises as the bin’s microchip did not activate the lifting mechanism. The driver of the lorry had to come and assist them and in doing so used abusive language and pushed the Complainant out of the way.
When he finished the bin collection that day he said that he came back to the yard at 4.00 p.m. and commenced overtime work. He said that there were two forklift trucks in the shed and he took one to do his work when Mr. Mulleady approached him and told him he was fired and told him to leave the premises.
In cross-examination he said that during his first period of employment with the Respondent (23rd May - 14th October, 2005,) he had not suffered any abuse from any of the workers. He said that the problem commenced when he started working with the lorry driver Mr. G. He said that Mr. G was always shouting at him and making hand gestures at him to show him how to do the work.
He said that in retaliation he used abusive language to Mr. G. However, he denied using abusive language to Mr. K. the Deputy Supervisor in the yard when he took the forklift truck.
He said that he did not know the reason for his dismissal, but assumed it had to do with the incident on the bin lorry that morning.
When asked how he got on with his work colleagues, he replied that he had no problem working with both his Irish and non-national colleagues. However, he said that the only person he had difficulty working with was Mr. G. whom he felt clearly did not like him. He said that Mr. G. got on well with the other helper on the bin lorry (also Lithuanian) as they were of the same age. Mr. Gedrimas was of the view that as he was younger Mr. G. had no time for him.
He said that he had no problem with the use of the nickname “Excuse Me” he said that he did not react to being called by that name at all.
Burden of Proof
It is for the Complainant in the first instance to establish as facts the assertions upon which the complaint is based, and having thus established aprima faciecase of discrimination, the burden of proof rests with the Respondent to demonstrate that discrimination did not take place. It is well established that the Court requires the Complainant to establish the primary facts upon which the assertion of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the Respondent must then prove the absence of unlawful discrimination (seeMitchell v Southern Health Board [2001] ELR 201): -
- "The complainant must prove on the balance of probabilities the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if those primary facts are regarded by the Court is being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
- 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
Conclusions of the Court
Section 85A places the burden of establishing the primary facts on the Complainant, he must submit facts on credible evidence of sufficient significance to raise a presumption of discrimination.
Therefore there is a requirement on the Complainant to prove the primary facts relied upon in respect of his allegations of both discriminatory treatment and discriminatory dismissal. Mr. Grogan submitted to the Court that as the Complainant is a non-national he was treated differently than an Irish worker would have been treated as he was dismissed without recourse to normal disciplinary procedures and he was subjected to abuse from the driver of the bin lorry. He submitted that the diary entries were not contemporaneous and consequently Mr. Mulleady was not a credible witness.
However, the Complainant presented no evidence of racial discrimination to the Court. The Court is not satisfied that others of a different nationality to that of the Complainant were/would be treated any differently. The Court has dealt with many cases where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland.
Mr. Grogan contended that where there is a mixed workforce of Irish and non-Irish nationals there is a duty on the employer to have in place appropriate procedures to ensure the respect and dignity of all workers and he relied upon theCampbell Catering Ltdto substantiate his position.However, in that case, the Court also held that
“Before the complainant can succeed in her claim, the Court must be satisfied that she was treated less favourably that a comparator of a different racial origin is, was or would be treated in similar circumstances as those arising in the present case. The general approach which should be adopted in considering cases of racial discrimination was laid down by the House of Lords in Glasgow City Council v Zafar [1998] 2 All ER 953. This case was subsequently adopted in this jurisdiction by Quirk J in Davis v Dublin Institute of Technology, High Court, Unreported, 23rd June 2000 . In Zafar Lord Browne-Wilkinsonpointed out that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination and it is for the respondent to provide a non- discriminatory explanation. This approach was adopted by this Court in Natoko v Citibank[2004]ELR 3 116 wherein the Court explained its underlying rational as follows:
This approach is based on the empiricism that 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.
This approach is entirely consistent with the procedural rule formulated by this Court in Mitchell v Southern Health Board [2001] ELR 2001 and which is normally applied by the Court in all cases of discrimination. Under this rule, a complainant bears the onus of proving facts from which discrimination may be inferred. If that onus is discharged, the respondent bears the burden of proving, on the balance of probabilities, that there has been no infringement of the principle of equal treatment.That is the approach which the Court has adopted in this case.”
The Court is not satisfied that facts have been submitted in this case from which discrimination can be inferred. Other than the allegation that Mr. G. and himself engaged in an exchange of abusive language, the Complainant has submitted no further evidence that he was harassed and discriminated against and no evidence that it was on the grounds of his nationality.
While the Court is of the view that there were certain procedural defects in the dismissal procedures, which were clearly not in compliance with the Code of Practice on Grievance, and Disciplinary Procedures S.I. No 146 of 2000, however, the claim before the Court concerns an allegation that the Complainant was dismissed on race grounds. The Court is satisfied from the evidence given that the dismissal was for disciplinary reasons and no evidence had been produced to substantiate the claim that it was on the grounds that he was a non-national. While the dismissal may have been unfair, the Court cannot see any basis upon which it could be deemed a discriminatory dismissal.
The Court notes that it was the Equality Officer who introduced the reference to the nickname from the entry in Mr. Mulleady’s diary which read :“We call Aidotas Gedrimas “excuse me” because he often says excuse me and it is easier than saying Aidotas”.Mr. Mulleady accepted that this was an accurate account and gave evidence to the Court that a number of other workers also had nicknames, many of whom were of Irish Nationality.
Mr. Grogan said that the Complainant had no opportunity to make a complaint about the Respondent’s use of the nickname, however, the Complainant in his own evidence, stated that he had no difficulty with the use of the nickname. Furthermore, the Court finds it significant that this matter was not mentioned in either the complaint made to the Equality Officer, in the submission put forward at Equality Tribunal or in the submission to the Court. For those reasons while the Court regards it as an inappropriate form of addressing a person whose name is difficult to pronounce due to their non-national status, it cannot however find that this fact alone is sufficient to raise aprima faciecase of discrimination on the race ground.
Mr. Grogan submitted that the Complainant’s outbursts would not have taken place if procedures had existed which allowed him to make a complaint in a structured way. However, as there were no policies or procedures in place for either nationals or non-nationals, there is nothing to infer that he was treated any differently because of this nationality. The Court notes that the Respondent has since this claim was initiated, introduced policies and procedures for dealing with grievances and complainants of harassment in the workplace.
DETERMINATION
In all the circumstances of this case, the Court is satisfied that the Complainant has failed to establish facts from which it may be inferred that he was harassed on discriminatory grounds and that he was dismissed on the grounds of his race.
Accordingly, the Court overturns the Decision of the Equality Officer and upholds the Respondent’s appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th October, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.