THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 248
PARTIES
Mr Sergej Klimenkovs
(represented by Richard Grogan and Associates, Solicitors)
and
Matrix Foods Ltd
(represented by Ms Gergana Tormanova of the respondent's in-house legal service)
File Reference: EE/2008/227
Date of Issue: 14th December 2010
Claim
1.1. The case concerns a claim by Mr Sergej Klimenkovs that Matrix Foods Ltd discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of discriminatorily dismissing him.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 15 April 2008. A submission was received from the complainant on 1 October. A submission was received from the respondent on 21 November 2008, and an additional submission was received from them on 25 November 2010. On 1 April 2010, in accordance with his 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 30 November 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he was dismissed without proper procedure. He accepts that he violated a rule of his employment whereby free food was only provided to staff members by giving some to a friend, yet contends that the way in which he was dismissed occurred because of his Latvian nationality and therefore constitutes discriminatory dismissal on the ground of race.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant. It states that the complainant was first suspended, and then had his employment terminated on the basis of gross misconduct. The respondent specifies that free meals and hot drinks are only available to staff members, and only to those who work certain long shifts. The respondent further states that the complainant, who worked for them as a driver of a courtesy bus between Dublin airport and the respondent's hotel, used the fob for the respondent's car park, which was given to him for the parking of the courtesy bus, to let a friend avail of the respondent's parking facilities.
3.2. According to the respondent, the provision of a meal and the free parking to a third party constitute misuse of company property, and a severe breach of trust. The respondent therefore deems these acts to be gross misconduct, for which dismissal without notice is warranted. However, the respondent notes that the complainant would have had the right to appeal his dismissal, yet did not avail of this opportunity.
3.3. The respondent submits that the complainant has at all times accepted his misconduct, and that he has failed to shift the burden of proof that his dismissal is in any way connected with his race.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of race within the meaning of the Acts.
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. From the evidence adduced at the hearing, it is clear that the complainant was dismissed without notice for gross misconduct, and that his nationality did play no part in the respondent's decision to terminate his employment. The complainant had given a free meal to his brother, something only staff were entitled to, and had let his brother use the car park free of charge. As Mr D. for the respondent explained, the respondent's car park was a commercial operation which generated as much as 30% of the entire revenue for the respondent in its Dublin airport location. Free use of the facility by persons who were not so entitled therefore directly impinged on the respondent's revenue.
4.4. However, differences emerged from the evidence of the complainant, and the evidence of Mr D., in terms of how such a termination of employment was handled for the complainant, and for an Irish employee who was dismissed for the same reasons.
4.5. According to the complainant, when he was called into a meeting with the night manager and the manager on duty, his behaviour was discussed, and he was given three pieces of documentation at once. These were: A written statement which outlined his wrongdoing, and a letter stating that he was suspended with pay. That was at 2am, which was a normal work time for all three staff members involved. The complainant did not mention that he was told he could bring a witness. As for the signing of the confession, he was given to understand that he might continue to work for the respondent. According to the complainant, the respondent's manager Mr W. said to him: "If you sign this, probably you'll keep working for us." Mr W. was not present at the hearing to rebut this evidence. The complainant was then sent home, and later the same day, he received the letter which terminated his employment. He also received his P45 and a reference.
4.6. The complainant did not appeal the decision to dismiss him because he said he did not understand the content of the termination letter which advised him of his right of appeal. However, the letter was not particularly complicatedly worded, and the complainant's English, while not entirely fluent, was good enough for him to dispense with the services of an interpreter during the hearing of the complaint. According to the complainant, he did not know who he could have turned to for help with understanding the document.
4.7. Later in the hearing, the complainant sought to state that he also received his termination letter at the same 2am meeting; however, I prefer his earlier evidence in this regard. At any rate, I am satisfied that the complainant's suspension with pay was very short, and that his employment was terminated only hours later on the same day, as is also evidenced by the date on all three documents, which is 14 March 2008.
4.8. Mr D., general manager for the respondent, described in evidence how an Irish staff member had his employment terminated for gross misconduct. According to Mr D., he had to terminate two members of staff for gross misconduct in his tenure as general manager, and both were Irish. The respondent has always employed a mix of Irish and non-Irish staff members - at present, there are 41 Irish and 84 non-Irish staff in its employment on the relevant site, and the non-Irish staff members come from a variety of EEA and non-EEA countries.
4.9. The Irish staff member about whom Mr D. spoke in evidence had 20 year's service with the respondent company. He was observed on camera to carry out unauthorised financial transactions, and also to remove food from the premises. These behaviours were monitored for a while. Once the wrongful behaviour was clearly established, the staff member was called to a meeting with Mr D. and the Financial Director and offered to have a witness present, which he declined. When confronted, the staff member owned up to his wrongful behaviour. He was given the opportunity to write and sign his own confession statement, and it was intimated to him that his employment with the respondent could not continue. This ended the meeting.
4.10. However, the paperwork was only processed a number of days later, on Friday, which was the normal payday. In Mr D.s estimate, two to three days passed between the meeting and the letter of termination. Mr D. was anxious to stress in his evidence that the staff member was at all times "treated like a gentleman".
4.11. From the above evidence, I am satisfied that a different level of courtesy was afforded to the complainant and to an Irish staff member in the same situation. Having to terminate a staff member for gross misconduct is a difficult and challenging process for all involved. But the Irish staff member was clearly communicated with, and he had something of a grace period of a number of days, rather than just hours, until his employment was actually terminated, which gave him time to adjust to his situation.
4.12. However, looking at the overall situation of the complainant and his comparator, I am not convinced the reason for the difference in treatment was connected to race or nationality. The complainant stated in evidence that he had worked for the respondent for 8 months. The comparator had been in the respondent's employment for more than 20 years. It appears therefore much more likely that the comparator's length of service was the reason for the courtesies afforded to him by the respondent in the process, as Mr D. also underlined in his evidence. I further note that the complainant did not adduce evidence of similar difference in treatment with regard to an Irish comparator with a length of service similar to his own. In fact, the complainant had no evidence of any comparator, and the evidence summarised above was entirely provided by Mr D., for the respondent.
4.13. Accordingly, I find that the complainant has not established a prima facie case of less favourable treatment on the ground of his nationality, with regard to the manner in which his summary dismissal was effected.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Matrix Food Ltd did not discriminate against Mr Sergej Klimenkovs on the ground of race contrary to S. 6(2)(h) of the Acts, in the manner in which it carried out his dismissal, and that its reasons to dismiss Mr Klimenkovs were not connected to his race.
______________________
Stephen Bonnlander
Equality Officer
14 December 2010