THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 257
PARTIES
Mr Igor Bunyakevych
(represented by Richard Grogan & Associates)
and
Smart Scaffolding Ltd
(represented by John Curran, BL
instructed by Burke Hunt & Co., solicitors)
File Reference: EE/2007/197/218
Date of Issue: 22nd December 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Section 8(6)(c), Dismissal - Section 8(1)(b), conditions of employment - health and safety statement - procedures leading to dismissal - onus on respondent to ensure complainant aware - probation - indirect discrimination
1. Dispute
1.1. This case concerns a complaint by Mr. Igor Bunyakevych that he was discriminated against by Smart Scaffolding Ltd on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to (i) conditions of employment and (ii) dismissal contrary to sections 8(1)(b) and 8(6)(c) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 23rd April, 2007, alleging that the respondent had discriminated against him on the ground of race.
2.2 On the 22nd July, 2009, in accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on Tuesday, 5th October, 2010.
3. Summary of the Complainant's case
3.1. The complainant is a Ukrainian national who submitted that he was employed by the respondent for six months from September 2006 to February 2007. He submitted that he was discriminated against by the respondent in relation to his dismissal and in relation to the failure of the respondent to provide him with a health and safety statement in a language likely to be understood by him, or any health and safety statement at all. When asked what his native language was the complainant said he spoke both Russian and Ukrainian.
Dismissal
3.2. The complainant submitted that he was dismissed and that no reason was given for the dismissal. He stated that he believed he was dismissed because he requested a rise in salary and payment for overtime worked from Mr A, the Director of the respondent firm. He denied that he had not worked any overtime, although accepted that this was the first time he had raised the issue with the respondent, even though he alleged he had been working overtime for five months previously. He said that Mr A was angry and upset and acted aggressively when he made this request. He said that Mr A told him "there is no more money for you, you only get €9 per hour". He said that this conversation took place at the end of January/beginning of February 2007 and that Mr A told him one or two weeks later that he had no more work for him.
3.3. The complainant denied the respondent's submission in relation to the issues concerning his performance. He agreed that scaffolding was a dangerous job and that you cannot afford to make mistakes in it but denied that he had made any mistakes. He said he worked every day and there were never any issues raised with his performance by Mr A or anyone else and that he did not receive any warnings, verbal or otherwise. He said his only conversations with Mr A were while he was travelling and then it was only general conversation, and even that was limited due to his poor level of English. He denied that Mr A told him that he should look for a job elsewhere due to his poor work performance.
3.4. The complainant also submitted that no procedures were applied to him in relation to the dismissal. Rather, he just did not get any more calls in relation to work with the respondent. He said that the manner of his dismissal would not have been applied to Irish persons in the same circumstances. He said that he was not on probation, but that, in any event, a named Irish comparator, Mr B, was given plenty of verbal and written warnings. He said that if there was an issue in relation to his performance, he was unaware of it.
3.5. The complainant also said that even if he accepted that he was underperforming that dismissal was disproportionate. Furthermore, and applying the ethos of the decision of the Labour Court in the case of Campbell Catering -v- Rasaq , he said that an employer is required to take special measures when disciplinary issues arise where non-Irish nationals are concerned. He added that not enough measures were put in place to ensure he was aware of the opportunities given to him to challenge his dismissal.
Health and Safety statement
3.6. The complainant stated that there was a health and safety statement in existence but it was never brought to his attention and was never given to him. He submitted that, as a foreign national not conversant in Irish Health and Safety Law, there is an obligation on the part of the respondent to provide him with a Health and Safety statement in a language likely to be understood by him and the failure to do so amounts to discrimination. In that respect, he cited the decision of this Tribunal in the case of 58 Named Complainants -v- Goode Concrete . In that respect, he submitted that a notional Irish comparator would have received such a statement.
3.7. The complainant stated that this was indirect discrimination as it was a provision that put him at a particular disadvantage and was not objectively justified. He stated that providing an English language document to a multi-national workforce puts non-English speaking workers at a disadvantage. He said that he did not read English. He stated that he did not receive a contract of employment either, although, at the hearing, he withdrew his allegation that this was also discrimination. He denied ever seeing any of these documents in a language other than English and denied that any of them were translated for him.
3.8. The complainant made a number of other allegations in his submission which were withdrawn at the hearing.
4. Summary of the Respondent's case
4.1. The respondent submitted that the complainant is a Ukrainian citizen. It submitted that he was employed by it on 17th October 2006 for approximately three and a half months.
4.2. The respondent submitted that it is a small family firm which is a scaffolding company. It said that it had a mixed workforce including Latvians, South Africans, Lithuanians and English but it had now only one employee. Mr A said he had met the complainant when he gave him a lift one day. He said the complainant told him he was looking for employment but that his English was very poor. He said he gave him his number and the complainant kept ringing him so he eventually gave him the chance to work with his company.
4.3. Mr A said he hired the complainant as a General Labourer and explained the duties in the yard or on-site and described those duties to him. Ms C, wife of Mr. A, described this role as being to carry various materials and sort different parts of a scaffold. She said he was hired for a probationary period in the first instance. She added that the respondent had to be very strict in relation to health and safety given the nature of the job, which was inherently dangerous given it worked with scaffolding up to 100 feet off the ground.
Dismissal
4.4. The respondent submitted that the complainant was dismissed because he proved to be unsatisfactory in his position. It submitted that, on several occasions, he dropped scaffolding boards and poles on site and endangered the safety of his co-workers. It submitted that he was forgetful and appeared nervous and ill at ease. It submitted that his co-workers complained about him. Mr A said he brought the complainant up on these dangerous work practices several times and told him he was not capable of doing the duties he had to do. He said that he made several attempts to explain this to the complainant and eventually told him that it would be best for him if he found other employment.
4.5. Mr A confirmed that the conversation about pay had taken place. He said there was a discussion regarding overtime, but that the complainant had not been entitled to the payment he sought. He said that everyone was entitled to ask for more money and denied that the complainant was dismissed because of this conversation. He added that he had a good working relationship with the complainant who had brought presents back to him when he went home to Ukraine. The respondent stated that the fact that the allegation being made in this respect had not been made prior to the hearing of the matter defeated credibility.
4.6. The respondent denied that the complainant was dismissed without any or proper procedures. It stated that it did have grievance and disciplinary procedures consisting of written and verbal warnings, and these were included in the contract of employment. Mr A stated categorically that he did give the complainant verbal warnings, but did not give him any written warnings. He did not accept that the complainant did not understand those warnings. He said that he explained them in very simple terms, and said that the complainant never once said that he did not understand the warnings. The respondent added that the complainant did not complain of unfavourable or discriminatory treatment when he was being dismissed.
4.7. The respondent also submitted that the complainant was subject to a six-month probationary clause and it had invoked its right to operate this clause by giving notice to the complainant. It submitted that the complainant did receive fair procedures pertaining to an employee in a probationary period. It submitted that he was warned as to his performance, his performance was assessed and he was given guidance, and an honest effort was made to determine whether he was up to the required standard. It submitted that this was its duty in relation to the complainant as a probationary employee and it fulfilled that duty.
4.8. The respondent said that the only other person the company had a difficulty with was Mr B (who was Irish). It said that he would claim to be on-site but he wasn't and he received various warnings, but in the end they had to let him go. It said that Mr B was given both verbal and written warnings. In response to a question from the complainant as to why he did not sit him down with an interpreter and explain the situation before he was dismissed, it reiterated that the complainant was on six months probation and was aware of this whereas Mr B was permanent by the time he was let go. It also questioned why the complainant did not ask if he did not understand the procedure when it was explained to him.
4.9. The respondent stated that the complainant did not have to rely on a notional comparator, and could easily have had an actual comparator. In that context, it considered that he should not be allowed to rely on a notional comparator. With regard to the complainant's submission concerning the decision in Campbell Catering, it submitted that the complainant was not subjected to any disciplinary process for misconduct but rather his performance standard and suitability was deemed inadequate in a period of probation.
4.10. In that context, the respondent submitted that in Hennessy -v- Board of Governors of St Gerards School , the High Court held that the obligations of an employer towards and employee on probation are significantly different and lesser than those owed towards a permanent employee. It submitted that this was confirmed in Coffey -v- Connolly . In that respect it submitted that a person's employment rights while on probation are diminished, rather than extinguished, and that diminished threshhold was met by the respondent in meeting the complainant and pointing out to him that there were issues in relation to his performance
Health and Safety Statement
4.11. The respondent denied that it failed to furnish the complainant with a health and safety statement. It submitted that this document, a copy of which was provided to the Tribunal, was given to the complainant upon his induction with the respondent company by Ms C. She said she gave it to him, along with his contract of employment, on the first Friday he worked for the respondent, when he came to her to collect his wages. She said that when he brought the contract of employment back to her two weeks later, he had not signed it as he said that he did not understand it. She said he did not bring the health and safety statement with him at that time and did not ask for it to be translated.
4.12. Ms C then described the efforts she made to have the contract translated for him, culminating in her having it translated by a Ms D, who was fluent in English and Russian and was a wife of an employee of the respondent. However, she said that the complainant said he could not understand this translation. She said that his employment was nearly up at that stage as there were so many problems with him so he was dismissed before she had an opportunity to make further efforts to translate the contract and/or health and safety statement.
4.13. In any event, the respondent submitted that the relevant health and safety legislation and equality legislation do not impose obligations on it to translate the terms and conditions contained in health and safety documentation into a range of foreign languages. It submitted that this would be an onerous and disproportionate burden to place on a small firm such as it. It stated that the contract of employment and health and safety statement are provided to all workers. It said that the complainant denied getting anything and yet the respondent had put forward three documents which it said the complainant received. The respondent said that the Acts require prima facie evidence that must be linked to a discriminatory ground. In this case, it said that there was no link except in a vague notional comparator sense and no evidence of inappropriate discriminatory behaviour.
4.14. The respondent stated that I should look at the case "in the round". In that context, it considered that I should also look at the evidence relating to the contract of employment, even though the claim on that basis had been withdrawn. It contended that I should also take into account the findings of the Labour Relations Commission in relation to the matters. In any event, it submitted that there is a pre-existing statutory mechanism which expressly provides for the enforcement of matters relating to the safety, health and welfare of employees. It submitted that the Authority (sic.) has no jurisdiction to make any adverse finding under the Safety Health and Welfare at Work Act, 2005.
Final Submissions
4.15. The respondent submitted that what the complainant alleges is unfair treatment, which it denied in any event. It submitted that the complainant must link this treatment with one of the nine protective grounds under the legislation for it to be discrimination. It submitted that no such link has been established and, accordingly, it submitted that the complainant has failed to prove his prima facie case of discrimination on the ground of race. The respondent also submitted that the complainant has failed to provide a named comparator as required by the legislation. It strongly rejects the complainant's submission that the Tribunal should look at a notional comparator rather than a comparator within the respondent's firm. It submitted that no reason has been put forward as to why the comparator should not be from within the respondent firm.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Ukrainian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of conditions of employment and/or dismissal. In reaching my decision I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.4. There are two matters for me to consider. Firstly, whether the respondent discriminated against the complainant in relation to his dismissal. Secondly, whether the respondent discriminated against the complainant in relation to a health and safety statement. I will deal with these issues in turn.
Dismissal
5.5. In relation to the dismissal, the dispute between the parties is not whether the complainant was dismissed, as this is agreed upon, rather whether the dismissal was discriminatory. I found the evidence of the respondent to be more compelling in this respect and I am satisfied that the complainant was dismissed because of poor work performance and that the dismissal was unrelated to any query he made in relation to pay.
5.6. However, the complainant also alleges that the procedure applied to him in this respect was discriminatory. He submits that he was unaware of any issues related to his performance. He denies that he was given any verbal warnings and submits that he was dismissed without notice or any procedures being applied to him. He also submits that Mr B did receive formal verbal warnings and a written warning before being dismissed and these procedures were not applied to him. The respondent submits that the same procedures that applied to Mr B did not have to be applied to the complainant as he was on probation. In that context, it submitted that the complainant did receive verbal warnings.
5.7. In Campbell Catering -v- Aderonke Rasaq the Labour Court stated that "it is settled law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations..... 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. "
5.8. While the complainant in Campbell Catering was dismissed for gross misconduct, and the complainant in the present case was dismissed due to performance issues, I see no reason why the principles outlined in Campbell Catering should not be applicable to the present case. Therefore, because discrimination can involve the application of the same rules to different situations, there was an onus on the respondent in the present case to ensure that the complainant was aware that the issues relating to his performance could lead to his dismissal, particularly in circumstances where the complainant's English was as poor as it was.
5.9. It is clear that the respondent spoke to the complainant on a number of occasions in relation to his performance. I am satisfied that the complainant understood enough from what was said to him to know that this was the case, at least in relation to the more serious matters such as dropping scaffolding poles, which any reasonable person using their common sense would know is a serious safety issue.
5.10. However, I am satisfied that the complainant did not fully understand that he was being issued with formal verbal warnings in the context of the respondent's disciplinary procedures; in particular he was not fully cognisant of the fact that he would be dismissed if he did not deal with the performance issues that were raised with him. I am satisfied that an Irish person in the same or similar circumstances, because they understood English, would have had a greater awareness of their predicament. In particular, they would have understood that they were being issued with verbal warnings and were facing dismissal if they did not deal with the performance issues at stake.
5.11. In all the circumstances of the present case, then, the respondent had an obligation to ensure that the complainant was aware of the seriousness of his situation. The respondent failed to make him so aware. In that respect, and in all the circumstances of the present case, it is not enough for the respondent to say the complainant never said he did not understand, particularly when it was clear that his English was very poor. Therefore, the complainant has established a prima facie case of dismissal in relation to the procedure that was applied to that dismissal.
5.12. The respondent sought to rebut the claim in relation to the dismissal on the basis that the complainant was on probation and that his dismissal was because of poor performance in that context. The complainant's contract of employment states: "your employment will be probationary for the first 6 months. If this agreement is terminated within the probationary period it shall be at the discretion of the Company and in this case 1 weeks notice will be given." There is nothing to say that probationary employees were subject to a different set of disciplinary procedures than the procedures in the complainant's contract of employment. These procedures state that "inadequate work performance can lead, following warnings, to dismissal" and that "in all dismissal cases (my emphasis), full investigation will be carried out, and you will have the right to put your case and be accompanied by another staff member or appropriate representative, and the right to appeal against a decision to a more senior management." These procedures were not followed in relation to the complainant.
5.13. Under its own procedures, and before it dismissed the complainant, the respondent could, and should, have had a formal meeting with the complainant, including an interpreter, and it should have made the gravity of his situation clear to him at that meeting. It had the resources to do so. In particular, I note that Ms D, a native Russian speaker who also spoke fluent English, was readily available to the respondent.
5.14. Furthermore, I note that Mr B was provided with written warnings as well as clear verbal warnings before being dismissed, whereas the complainant was not provided with a written warning, and the verbal warnings were not clearly communicated to him. The respondent submitted that the difference in treatment in this respect was because the complainant was on probation whereas Mr B had passed his probation, but the evidence does not support this contention. In any event, the respondent had an obligation to afford fair procedures to the complainant. It failed to do so. Therefore, the respondent has failed to rebut the prima facie case of discrimination.
5.15. Having said the above, I note the respondents evidence in relation to the reasons for the complainant's dismissal. I am satisfied that the respondent would have sought to dismiss any person, irrespective of nationality, in the same or similar circumstances. While I must take into account that the complainant would have been provided with an opportunity to deal with the performance issues raised if the procedure related to his dismissal had been properly applied, I am satisfied that the reasons for that dismissal were unrelated to his nationality. I would add that I think it unlikely that his performance could have improved to the drastic extent that would have been required for him to avoid dismissal in any event. In short, the respondent's error was not in seeking to dismiss the complainant, but in the procedure it applied to that dismissal.
Health and safety statement
5.16. The complainant submits that he was not provided with a health and safety statement by the respondent and was discriminated against on the ground of race in that respect. Even if I accept that he did receive such a statement, the complainant submits that the practice of the respondent to provide such statements in English was discriminatory because it was a practice that set foreign nationals at a particular disadvantage to native English speakers.
5.17. Section 22 (1) (a) of the Acts defines indirect discrimination as occurring "where an apparently neutral provision puts persons of a particular gender ... at a particular disadvantage in respect of any matter other than remuneration compared to other employees of their employer". Section 31 of the Acts, inter alia, extends this definition of indirect discrimination to the other eight grounds outlined in the Acts. The complainant submitted that, in this context, he was indirectly discriminated against by the respondent.
5.18. For the complainant to establish a prima facie case in that context, the Tribunal must, in the first instance, be satisfied that he was set at a particular disadvantage by the relevant provision or, as in this case, practice. I am satisfied that the complainant was provided with a health and safety statement in English. In such case, the complainant submits that the practice in question was that the health and safety statement was only available in English.
5.19. However, I consider that the practice to be considered is the policy of the respondent in relation to the provision of health and safety statements in general. From that perspective, it cannot be overlooked that the respondent made efforts to translate contracts of employment for the complainant, and I am satisfied that it did, despite the complainants unpersuasive attempts to convince me otherwise. It did so when the complainant indicated he did not understand this contract, and I note that he did not ask the respondent to translate the health and safety document for him as well. If he had done so, I am satisfied that the respondent would have made efforts to translate the document in question.
5.20. Furthermore, I am not satisfied that the complainant suffered any particular disadvantage from the failure to provide the health and safety statement in a language he understood. I am satisfied that the respondent explained the complainant's duties to him. If he did not understand all of what was said to him in that regard, I am satisfied that he understood enough to have been in a position to address the issues in relation to his performance which were behind his dismissal.
5.21. As already stated, the breach of the Acts was the procedure that was applied to the dismissal rather than the dismissal itself so these performance issues were not the cause of the less favourable treatment. There is no evidence that he suffered in any other way from the fact that he did not understand the health and safety document that was provided to him. Therefore, I do not believe that he was set at a particular disadvantage in relation to the failure to provide him with a health and safety document in a language likely to be understood by him.
Final Comments
5.22. While there was a breach of the Acts in relation to the procedure applied to the dismissal, I note that the employer went out of its way to facilitate the complainant in getting a job in the first instance, and in its efforts to translate the relevant documents for him. Furthermore, I have no doubt of its bona fides with respect to the dismissal itself and, as a small employer with limited resources, its procedures are relatively robust.
5.23. Unfortunately, the respondent failed to have faith in its own procedures. It also failed to ensure it communicated the gravity of the complainant's situation to him, an error that could and should be easily rectified by amending its procedures to ensure that it makes reasonable efforts to ensure that a non-English speaker who is faced with the prospect of dismissal is made fully aware of this prospect. It is suggested that the amendment could be that at the meeting referred to in its procedures where dismissal is being considered, a suitable interpreter would be provided. Though I have the power to make an order in this regard, I trust that an employer who otherwise appears responsible and diligent will implement such an amendment at the earliest possible opportunity.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of him in relation to conditions of employment contrary to Section 8(1)(b) of the Acts;
6.3. I find that the complainant has established a prima facie case of discrimination of him by the respondent in relation to his dismissal, contrary to Section 8(6)(c) of the Acts, and the respondent has failed to rebut the prima facie case established;
6.4. I order the respondent to pay to the complainant, the sum of €1,500 in respect of the discrimination. This award is not in the nature of pay and is, therefore, not subject to tax.
_____________
Gary O'Doherty
Equality Officer
22nd December, 2010