THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 127
PARTIES
Ingita Taraseviciute
(Represented by Richard Grogan & Associates)
v
GMK Leisure Management Limited
(Represented by Kara Turner B.L., instructed by Denis McSweeney Solicitors)
Date of issue: 12 July 2010 File reference: EE/2008/067
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 77 - race- employment status - discriminatory treatment - discriminatory dismissal - burden of proof.
1. DISPUTE
This dispute involves a claim by Ms. Ingita Taraseviciute who is a Lithuanian national, that she was (i) discriminated against by the respondent in respect of her conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that she was employed by the respondent as a receptionist from May 2007 until January 2008. The complainant states that she took holidays on 17 December, 2007 following her last day at work which was 15 December. The complainant was due back to work on 28 December, 2007. The complainant travelled home to Lithuania for Christmas. She asserts that she was involved in an accident on 27 December when she was hit by a snowbike and was admitted to hospital with her injuries. She was hospitalised for a period of 2 weeks and was discharged on 7 January, 2008. She travelled back to Ireland on that night and arrived in Dublin on 8 January, 2008. She visited a doctor in Portlaoise for assessment and she received a certificate from the doctor. She then presented herself at the reception desk in the Heritage Hotel. The complainant asserts that the respondent contended that she did not return to work on time and she was dismissed.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 4 February, 2008. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 24 May, 2010 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 29 June, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant was employed by the respondent as a receptionist from May 2007 until January 2008. The complainant states that she finished in work on 15 December and her annual leave commenced on 17 December. The complainant was due back to work on 28 December. She travelled home to Lithuania for Christmas. She was subsequently involved in an accident on 27 December when she was hit by a snowbike and sustained injuries. She was hospitalised in Lithuania for a period of two weeks. She was discharged on 7 January and returned on a flight to Dublin on that night. She has submitted a certificate from the hospital in Lithuania regarding her injuries and her duration of stay in the hospital. She attended a doctor's surgery in Portlaoise on the morning of 8 January. She was examined by the doctor and received a certificate regarding her injuries stating that she would not be fit to return to work for another week. She then proceeded to present herself at work. The complainant asserts that the respondent contended that she did not return to work on time and was dismissed.
3.2 The complainant states that during her hospital stay, she made efforts to contact her employer by telephone however, she could not get through as she felt she must have used the wrong codes. She states that when she presented at the reception desk on 8 January, she was told to go to the human resource manager's office. She contends that the human resource manager advised her that because she did not come back to work on time, she was dismissed. The complainant states that she tried to show the HR manager the hospital and doctors certificates but the HR manager was not interested in examining them. The complainant states that the HR manager submitted that they were extremely busy during this time with Christmas and a number of wedding bookings following Christmas. The complainant states that the HR manager also advised her that she could have written a letter to the respondent outlining what had happened.
3.3 The complainant states that she did not receive a contract of employment and that she was dismissed without any proper procedures being applied. It is submitted on behalf of the complainant that the respondent's treatment of her constitutes discriminatory dismissal on grounds of race contrary to the Acts. The complainant in her submission seeks to rely on the Decision of this Tribunal in 58 Complainants v Good Concrete Ltd in this regard. The complainant also cites the Labour Court decision in Campbell Catering Ltd. v Aderonke Rasaq Determination EED048 in support of her case.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed by GMK Leisure Management trading as the Portlaoise Heritage Hotel as a junior receptionist from 8 May 2007 until 27 December 2007. The respondent states that the complainant went on holidays on 15 December 2007 and was due to return to work on 28 December but failed to attend on that date. The respondent submits that two of its representatives including the complainant's immediate manager made several telephone calls to the complainant's mobile telephone which went unanswered during the complainant's period of absence. Both the complainant's line manager and the human resource manager gave evidence to this effect on the day of the hearing. They contend that the complainant presented herself at the reception desk of the Heritage Hotel on 8 January 2008, having not contacted her employers at any time during her lengthy absence to offer an explanation for same. The respondent denies that a doctor's certificate or any other certificates regarding her illness were furnished to them at any stage. The respondent states that the complainant was furnished with a staff handbook (which the complainant stated she received at the commencement of her employment) and it clearly outlines the steps to be followed in relation to the sick leave procedures and the complainant's right to raise any concerns under the code of practice and grievance and disciplinary procedures.
4.2 The respondent also submitted that the complainant was out for a period of 4 days previously and followed the sick leave procedures as outlined in the handbook and was aware of the procedures to be followed. The respondent also contends that two Irish persons male and female who worked in the bar area did not turn up for work on 31 December 2007 and offered no explanation for their absence. These persons were contacted by the bar manager 2/3 days later and were advised that they were being dismissed as a result of their non-attendance for work and no explanation for same. The human resource manager gave evidence in this regard on the day of the hearing.
4.3 The respondent states that the complainant had requested to take annual leave later in December and arrive back in January but her line manager could not facilitate this due to the number of weddings booked in after Christmas and the difficulty in sourcing another receptionist at this time. Therefore, she was given annual leave from 17 - 27 December, 2007. The respondent further submits that the complainant was aware that she was still in her probationary period at this time and that it was completely unacceptable for her not to have contacted them during her lengthy absence from work. They also maintain that the complainant could have written a letter to them outlining what had happened. The respondent submits that it was very difficult for them to get cover for the days the complainant was absent. The respondent states that the complainant was a very good worker and well regarded in the employment. The respondent denies that any discrimination took place and submit that the complainant was dismissed in line with their disciplinary policy and procedures due to her lengthy absence from work without any explanation. The respondent seeks to rely on the Decisions of the Labour Court relating to Melbury Developments v Arturs Valpetters EDA0917 and Toker Developments Ltd. v Edgars Grods EDA105.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards her conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 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) 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 she is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of her, her case cannot succeed.
5.4 The first issue raised by the complainant relates to the respondent's alleged failure to furnish the complainant with a written contract of employment. In the first instance, it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal.
5.5 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
In the instant case, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide her with a written contract of employment. In particular, she was unable to show a difference in treatment between her and any other employee on this matter, the Labour Court found this a prerequisite in the case of Businkas v Eupat EDA103. I note that the complainant did receive a copy of her terms and conditions of employment and this document was signed and understood by her and she also received a copy of the employer's Staff handbook which included details on sick leave and disciplinary procedures and appeal mechanisms.
5.6 In relation to the complainant's dismissal, although I note that the complainant had a certificate from a hospital in Lithuania outlining her injuries and that she was hospitalised for two weeks, I do not accept that she could not have made contact during that time by telephone or in written format. The complainant had a good level of English and she attended college at the Dublin Institute of Technology every Tuesday undertaking a Hospitality Management course. I note that the complainant was on probation in her employment until February 2008. I accept the evidence of the respondent in relation to their sick leave procedures and the fact that the complainant had complied with these procedures some months previously. I also note that two other Irish employees, a female and male employee who worked in the bar area who did not present for work on 31 December and provided no explanation for same were dismissed some days later. Having evaluated the totality of the evidence, I accept the information given by the human resource manager that, in line with their policy and procedures, employees absent from work for a period of time without explanation were subject to the company's disciplinary procedure.
5.7 I have carefully examined the evidence presented by the complainant in the instant case and although the complainant has argued that fair procedures were not complied with in relation to her dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of her race in relation to her dismissal. The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal, the complainant needs to prove that it was influenced by her race. I am not satisfied that she has adduced evidence to support her assertion that her nationality was a factor which influenced the respondent's behaviour. The complainant's legal representative argued that it was unfair to the complainant for the respondent to use the two bar staff as comparators as their situation was different. Further to the Labour Court decision in Businkas v Eupat Ltd., it is not sufficient to ignore actual comparators and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent. In relation to the dismissal, while the circumstances of the complainant may not be identical to that of the two bar staff, I do not accept the proposition that an Irish employee who was absent for almost 2 weeks without explanation, for whatever reasons, would have been treated differently in the circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant has failed to establish a prima facie case of (i) discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in respect of her conditions of employment and (ii) that she was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts and her entire complaint must therefore fail.
_____________________
Valerie Murtagh
Equality Officer
12 July, 2010