THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010- 262
Adekunle Sodiq and Robert Stasik
(represented by Peter Leonard B.L. instructed by Grogan and Associates Solicitors)
versus
Securazone Manhour Ltd.
(in liquidation - represented by Olive Kealy, DHKN Corporate Finance)
File reference: EE/2007/129, EE/2007/123 and EE/2009/701
Date of issue: 23 December 2010
Keywords: Employment Equality Acts, Race, Conditions of employment, Victimisation, Discriminatory dismissal.
Dispute
1.1. The case concerns a claim by Mr Adekunle Sodiq, a Nigerian National, and Mr Robert Stasik a Polish National against Securazone Manhour Ltd. They claim that they were discriminated against regarding conditions of employment and that both were discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. Mr Sodiq also claims he was victimised within the meaning of the Acts.
1.2. Through their legal representative, the complainants referred complaint under the Acts to the Director of the Equality Tribunal on 20th March 2007 and 21st September 2009. On 9th and 10th November 2010, in accordance with his powers under Section 75 of the Acts, the Director delegated the cases to me, Orlaith Mannion, 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 these dates, my investigation commenced. A Hearing was held on 10th November 2010 as required by Section 79(1) of the Acts.
Summary of the complainants case
2.1 Both complainants were employed as security guards. Their usual duty was for guarding building sites at night. They state that they got less preferential treatment than Irish workers did. Unlike their Irish counterparts, they submit they were sent to sites further away from where they lived than their Irish counterparts and only occasionally did they receive any contribution from their employer for travelling expenses. Both complainants maintain that the Irish were given facilities like heated huts, microwaves and toilet amenities but they were not. In direct evidence, Mr Stasik said that on one site in Ashbourne he had to spend nightshifts in his car as there were no other facilities. In the legal submissions for both complainants, reference was made to neither of them receiving contracts in English.
2.3 Mr Stasik submits that he was dismissed shortly after asking his employer to fill out a social welfare form to allow him to claim Jobseekers Benefit for the three days he was not working.
2.4 Mr Sodiq submits that he was dismissed on trumped up disciplinary issues. He received a final written warning because he supposedly fell asleep on the job. Mr Sodiq denies he did this and further submits that Irish employees have fallen asleep occasionally as the shifts are long and boring. A few months later he submits he was then told to 'turn a blind eye' while machinery was taken from a building site he was supervising. He maintains that the real reason that he was dismissed was because he was Nigerian.
2.5 Mr Sodiq also submits that he was victimised when he applied for a job with an other security company and he did not get the position because of a bad reference from the respondent.
2.4 Cases cited were Khumalo v Cleary and Doyle, Campbell Catering Ltd and Aderonke Rasaq, Zhang v Towner Trading, Golovan v Porturlin Shellfish Ltd
Summary of the respondent's case
3.1 Before Securazone Manhour Ltd. went into liquidation, a written submission was received by the Tribunal in relation to Mr Sodiq. The company submitted that the employ people of many nationalities and that they do not discriminate based on nationality. They concede that all relevant documentation regarding his employment was in English but submit that English is one of the official languages of Nigeria. His English is fluent. Securazone Manpower Ltd. submitted documentary evidence of his final written warning and then his dismissal following a separate disciplinary incident.
3.2 No responding submission was submitted regarding Mr Stasik.
Conclusions of the Equality Officer
Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issues for me to decide are:
(i) Were the complainants discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
(ii) Did the respondent discriminatorily dismiss the complainants on the ground of race contrary to Section 8(6)(c) of the Acts?
(iii) Was Mr Sodiq victimised within the meaning of Section 74 (2) 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 Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to 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. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Conditions of employment
4.3 Regarding conditions of employment, Section 8(6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time, transfers, layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.
4.4 On the issue of their conditions of employment, I found the evidence of both complainants to be credible and cogent. Both were able to give specific examples of the sites where they were required to work and where their Irish counterparts (even those with less experience) were stationed. I am satisfied that both complainants were given the hardship postings with inadequate facilities In direct evidence the liquidator correctly pointed out that she was not familiar with the day-to-day workings of the respondent during the complainants' employment. The complainant's representative withdrew the submission that Mr Sodiq's terms and conditions of employment were not in a language easily understood by him as his English was clearly fluent. He explained that it was an unfortunate clerical error. Therefore, they have established a prima facie case of discriminatory conditions of employment which the respondent has failed to rebut.
Discriminatory dismissal
4.8 While Mr Stasik may have been entitled to claim Jobseekers Benefit for the days he was not working, I am not satisfied that an Irish person who sought approval from his employer, who was not compliant with Revenue and Social Welfare codes, to do so would not be dismissed. Therefore, he has not adduced sufficient evidence that he was dismissed on the ground of race.
4.9 I cannot accept Mr Sodiq's dismissal was discriminatory. Documentary evidence was submitted on behalf of the respondent showing his final written warning for falling asleep while at work and his dismissal for allowing machinery to be stolen from a building site he was supposed to be looking after. Mr Sodiq's evidence was inconsistent on whether he actually fell asleep on the job or not. He has not established a prima facie case of discriminatory dismissal.
Victimisation
4.10 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.11 Therefore, victimisation as defined in the Employment Equality Acts is different to its colloquial meaning. It must be a reaction to one or more of the above actions. Written evidence was supplied by the security company with whom Mr Sodiq applied for a position subsequent to his employment with the respondent. His prospective employer asked for a reference from the respondent. They gave a factual reference stating for how long Mr Sodiq was employed by them and that he was dismissed for misconduct. No mention was made in the reference of his taking legal proceedings against the respondent. Therefore, I cannot accept this was victimisation within the meaning of the Acts.
Decision
I have concluded my investigation of the complaints of Aedicule Sodiq and Robert Stasik and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) The respondent discriminated against Adekunle Sodiq and Robert Stasik regarding their conditions of employment on the ground of race.
(ii) The respondent did not discriminatorily dismiss Adekunle Sodiq and Robert Stasik on the ground of race.
(iii) Adekunle Sodiq was not victimised within the meaning of the Acts.
. In accordance with Section 82 of the Act, I therefore order that the respondent pay Adekunle Sodiq and Robert Stasik €2,000 each in compensation for the distress caused by discriminatory conditions of employment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
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Orlaith Mannion
Equality Officer