The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-252
PARTIES
Vilhelms Teivans
(Represented by Richard Grogan & Associates)
- V -
Principal Construction Services Limited
(Represented by the Construction Industry Federation)
File reference: EE/2008/048
Date of issue: 15 December 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Vilhelm Teivans that he was subjected to discriminatory treatment and dismissal by Principal Construction Services Limited on the grounds of his race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 28 January 2008 under the Employment Equality Acts. On 6 May 2010, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 9 November 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent from August 2006 until 24 November 2007. The complainant is a Latvian national and it is on this basis that this complaint is being taken. The complainant submitted that he has limited English and did not receive a contract of employment of health & safety documentation in his own language. The complainant submitted that he sought additional information from the respondent using the form EE2 but did not receive any response.
2.2 The complainant submitted that he was subjected to a disciplinary procedure and that the procedure was written in English only. The complainant submitted that no documentation of any kind has ever been furnished to him other than two specified letters. He also stated that he was never furnished with notes of the disciplinary meeting.
2.3 The complainant submitted that there is no evidence that notes of any investigation were furnished to the complainant.
2.4 The complainant submitted that the disciplinary procedures were not applied in accordance with the respondent's own procedures.
2.5 The complainant submitted that no effort was made to put documentation into the employees own language or to furnish any documentation in his own language to explain the appeals procedure.
2.6 The complainant submitted that although the respondent states that the complainant was represented at hearing, it was by a fellow worker and the issue is what level of English did that individual have and how the procedures or policy were explained to the complainant.
2.7 The complainant submitted that the reality of matters is that nothing was put in writing explaining matters and nothing was out (sic) to the complainant in advance advising him as to what te complaints were and how thy would be dealt with.
2.8 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.9 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety.
2.10 The complainant submitted a list of authorities citing 6 cases and a European Council directive as follows:
- Khumalo-v-Cleary & Doyle Limited DEC-E2008-003
- Campbell Catering Limited -&-Aderonke Rasaq ED/02/52
- Ning Ning Zhang -&-Towner Trading DEC-E2008-001
- 58 Named complainants -v- Goode Concrete Limited DEC-E2008-020
- Golovan -v- Porturlin Shell Fish Limited DEC-E2008-32
- Council Directive 91-533-EEC of 14 October 1991
- Wolf Gang Lang -&-Georg Schunemann Gmbh - Judgement of the European Court of Justice 8th February 2001. Case C-350-99
2.11 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that it is a small company and it employs workers of various nationalities. The respondent also submitted that the complainant and another worker were suspended on full pay on 5 November 2007 while an investigation took place into allegations of bullying and harassment. The investigation concluded and following a disciplinary hearing, the complainant was dismissed for gross misconduct on 24 November 2007.
3.2 The respondent submitted that the complainant, along with all other employees, was provided with a contract of employment and copies of information regarding Sick Pay and Pensions, Disciplinary Procedure, Grievance Procedure, and the Anti-harassment/Anti-Bullying policies in or around the end of March 2007.
3.3 The respondent submitted that the complainant received necessary documentation regarding health & safety, was inducted into the company and had an up-to-date Safe Pass. In addition, the respondent submitted that the complainant was provided with training as necessary and worked the same hours as all other employees.
3.4 The respondent submitted that following an incident on site, the complainant admitted to the respondent that he had created a sign as a joke. Once the existence of the sign came to light, an attempt was made to destroy it. This incident resulted in the bullying and harassment procedure being invoked.
3.5 The respondent submitted that the complainant was treated in exactly the same manner as all other employees, both Irish and foreign. The respondent submitted that a number of issues were raised with the Rights Commissioner's service of the Labour Relations Commission and it fails to understand why these issues have been raised again before this Tribunal
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected Mr Teivans to discriminatory treatment and discriminatory dismissal on grounds of race, in terms of Section 6 and 14A of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 At the start of the hearing the complainant's representative clarified that the discriminatory treatment referred to in the claim was limited to the conditions of employment as it relates to documentation.
4.4 The complainant maintained that he did not receive employment documentation provided by the respondent to all employees. In response, the respondent provided copies of a receipt for the documentation relating to the contract of employment, Sick Pay and Pensions, Disciplinary Procedure, Grievance Procedure, and the Anti-harassment/Anti-Bullying policies signed by the complainant. When the Tribunal pointed out to the complainant that the signature on the receipt was identical to the signature provided by the complainant at the start of the hearing, the complainant conceded that "maybe" it was his signature. The respondent further outlined the procedure under which the documentation was presented to its employees. As a result of taking on a Human Resources person, each employee was provided with the documentation, albeit, only in English. All staff were informed that they could have a week to look over the documentation and if satisfied with it, were to sign it and return it to the respondent. In addition, the respondent informed staff of the names of colleagues who had a good level of English, Russian and Latvian, to whom they could direct any queries in the intervening period. They received some small queries in response to this process. This evidence was not contested in any way by the complainant.
4.5 As regards the incident which led to the investigations by the respondent, the complainant initially refused to give detail as to what the incident was, and, after a considerable amount of questioning and the Equality Officer pointing out the consequences of not co-operating with the investigation, then stated that a cross had been sprayed on a sign and that he knew who made the sign but it wasn't him. I clarified with the complainant and the interpreter present that the complainant was referring to a cross. I clarified with the interpreter that swastika was an entirely different word and that no error in translation had been made. The complainant then said that when Mr X, one of the respondent's directors came on site to investigate the matter, he had a good laugh about it as well. The complainant then stated that he was informed by Mr X to make his way to the Head Office and upon reaching there was "interrogated for four hours". He stated that he was given an representative who didn't interpret everything he wanted to say. The complainant stated that he was removed from work for about two-and-a-half weeks and that Mr Y, another director of the respondent company, replaced Mr X asking a number of question and after a while he was fired. He stated that he received a letter after about three weeks. The complainant stated that he could name the perpetrators of the incident, but that he wouldn't do so as there was a culture of 'don't tell' in his homeland.
4.6 Mr X gave evidence as to the incidents that led to the investigation and to the complainant's termination from employment. The respondent was approached by Mr Z, an employee of Jewish Slovak origin, to say that he had "had it" and was leaving. He referred to a swastika and slogans daubed on some 8x4 sheeting on the building site. Mr X then visited the site to see for himself and to make some enquiries from the workers on site. When he arrived, the sign was in one piece but by the time he returned with a camera, it had been ripped up into about eight pieces and the pieces hidden around the site. Mr X then interviewed all the workers on site and the complainant admitted to him that he made the sign, but said that it was only a joke.
4.7 As a result of that admission, the complainant was asked to attend at the respondent's offices that afternoon. When the meeting began, the complainant was provided with a colleague to act as translator, if necessary. A further meeting took place that week. At both meetings notes were kept and a copy of them was given to the complainant. The complainant refused to sign the notes but all others present did sign. These notes were available to the Tribunal.
4.8 In total, the respondents had two meetings of an investigatory nature with the complainant and another two with the other worker, Mr Z. The allegations put forward by Mr Z were put to the complainant and he was enabled to respond. Interpreters were provided to both the complainant and to Mr Z as part of the investigative process. At the second meeting, the complainant was informed that the respondent would like to have the matter concluded in a short time frame. Once the investigation was completed, the complainant was informed that the bullying and harassment claim against him was upheld and that there would be a disciplinary meeting the following day. Once again an interpreter was provided for this meeting. A different director took over the disciplinary hearing and, considered that, due to both verbal and physical elements present in the bullying and harassment, the matter was grave enough to warrant summary dismissal.
4.9 The complainant was informed of decision of the disciplinary hearing and of his right to appeal the finding, he did not avail of the appeal mechanism.
4.10 I have been presented with two conflicting accounts of the disciplinary process. On one hand, the complainant came across as being selective with the truth, evasive in his answers, and generally uncooperative with the Tribunal. In addition, the complainant appeared to have a greater command of English than indicated to the Tribunal in that he responded to a number of questions before they were translated for him. The respondent, on the other hand, came across as broadly credible, providing written, oral and photographic testimony to support its case. Therefore, I am persuaded by the respondent's version of events.
4.11 Within the respondent's version of events, there were a number of shortcomings identified in bullying and harassment investigation and the disciplinary policy and process, such as the use of informal interpretation and the shortened timeframes involved. The respondent conceded that there were shortcomings but that the process used would have been invoked and adopted in a similar manner for any employee, regardless of nationality. I am satisfied that the complainant did not establish any facts from which it may be inferred that those shortcomings were linked with the complainants nationality. Accordingly, I do not consider that the complainant has established a prima facie case of discrimination. The complainant's complaint therefore fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
15 December 2010