THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-137
PARTIES
Kaspars Hibsmanis
(represented by Richard Grogan
& Associates, Solicitors)
and
BMJ Supermarkets Limited
(represented by Mr. Michael McNamee B.L.
on the instructions of DAS Group)
File References: EE/2007/305
Date of Issue: 19th July, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - harassment - discriminatory dismissal - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Mr. Kaspars Hibsmanis, who is a Latvian national, that he was discriminated against by BMJ Supermarkets Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, training, harassment and discriminatory dismissal.
2. Background
2.1 Mr. Kaspars Hibsmanis referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 18th June, 2007. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 21st July, 2009 to me, Enda Murphy, 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. This is the date I commenced my investigation. A written submission was received from the complainant on 14th August, 2008 and from the respondent on 25th August, 2008. As required by section 79(1) of the Acts and as part of my investigation, I scheduled a hearing of this complaint for 16th December, 2009; however, this hearing was adjourned at the request of the respondent. The hearing of this complainant took place on 24th February, 2010 and 8th July, 2010.
3. Summary of the Complainants' cases
3.1 The complainant, Mr. Kaspars Hibsmanis, who is a Latvian national, was employed by the respondent as a general sales assistant from 2nd January, 2007 until 31st March, 2007. The complainant stated that he received no written contract or terms of employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant stated that he remembers signing some documentation upon the commencement of his employment but he claims that he did not receive a copy of this documentation. The complainant submitted that following the Decision of this Tribunal in 58 Complainants -v- Goode Concrete there is an obligation on an employer to provide employees with a written contract of employment in a language which they understand.
3.2 The complainant claims that he was dismissed from his employment whilst on holidays. He stated that he returned to work from holidays on 31st March, 2010 and went to check the roster but discovered that his name was not on it. The complainant stated that he approached the Store Manager, Mr. A, to seek an explanation but was informed that there was no further work for him. The complainant stated that when he sought a letter explaining why he had been "fired" he was told that he had not been fired but rather that there was no work for him at that juncture. The complainant claims that he was told by the respondent that it had a new job for him working as a painter or decorator. The complainant stated that he agreed to take this other job, out of necessity, but he claims that he did not subsequently hear from the respondent after his dismissal.
3.3 The complainant submitted that he does not have an actual comparator as he is not aware of how anyone else in the respondent's employment was dismissed. He relied upon a notional Irish comparator and submitted that the respondent treated him discriminatorily in failing to apply proper procedures whatsoever in relation to his dismissal. The complainant submitted that the respondent would not treat a notional Irish comparator in such a way, without giving reasons, applying procedures or providing an explanation in relation to the employee's dismissal.
3.4 The complainant also claims that he felt harassed on nearly a daily basis by both the sister and mother of the respondent's Managing Director, Mr. B. The complainant stated that these two individuals spoke to him differently than they did to the Irish workers who were employed by the respondent. The complainant submitted that this treatment constitutes harassment on the grounds of his nationality contrary to the Employment Equality Acts.
3.5 The complainants also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondent operates a convenience store and newsagents and it has been in business for over thirty seven years. The respondent stated that it employed seventy five members of staff in March, 2007 which comprised of thirty five non-Irish nationals from countries including Poland, Latvia, Lithuania, Slovakia, Brazil and Spain. The respondent stated that the complainant was employed as a general sales assistant from 2nd January, 2007 until 31st March, 2007. The respondent stated that it provides all of its employees with written contracts of employment upon the commencement of their employment.
4.2 The respondent stated that the complainant was provided with a written contract of employment setting out the terms and conditions of his employment which he signed on 10th January, 2007. The respondent accepts that this contract was drafted in the English language, however it stated that the complainant neither requested nor required this document to be translated into his native language as he claimed to be proficient in the English language when he presented for the job interview. The respondent stated that it is necessary for the workers that it employs as general sales assistants to have a reasonable standard of English given the requirement in the retail sector within which it operates to interact with customers. The respondent stated that the Store Manager, Mr. A, explained each section of the contract of employment in detail to the complainant on this date and that the complainant confirmed he fully understood all of the terms before signing the document. The respondent stated that the complainant's girlfriend, who was also given a contract of employment on this date, was present at this meeting and it was agreed that she would explain any of the terms that he did not understand (as she had a better level of English than the complainant).
4.3 The respondent stated that there were ongoing difficulties with the complainant's performance during the course of his employment, such as repeated lateness for work, poor attitude, failure to carry out his duties properly and difficulties in taking instructions from his supervisors. The respondent stated that members of its management team were required to speak to the complainant on several occasions regarding these issues in an effort to try and address the difficulties that arose; however, despite these efforts the complainant's performance did not improve and the difficulties continued throughout his period of employment. The respondent stated that the complainant was rostered to work the 2 pm - 10 pm shift on 22nd March, 2007, however, shortly after commencing his shift he sought permission from his supervisor to go home to spend time with his girlfriend because it was her birthday. The respondent stated that the complainant repeated this request on several occasions during his shift with the result that the Managing Director, Mr. B, who was also on duty at that time, agreed to let him go home early. Mr. B stated that if he had refused the complainant's request he probably would have gone home anyway as he had also done on a previous occasion.
4.4 Mr. B stated that he had a conversation with the complainant on this occasion in which he suggested to the complainant that he may not be suited to working in a retail store in light of the ongoing difficulties that had arisen with his performance. Mr. B stated that he asked the complainant to consider whether he wished to continue working for the respondent while he was away on his holidays which were due to commence. Mr. A stated that he also advised the complainant on this occasion that the respondent would also have to seriously consider his position within the company and given the difficulties that had arisen it may be necessary to terminate his period of probation (which was not due to expire until 1st July, 2007). Mr. B stated that he advised the complainant to contact him upon his return from holidays for a further discussion in relation to this matter.
4.5 The respondent stated that it was decided by the management team at a meeting on 28th March, 2007 that the complainant's period of probation would be terminated. This decision was taken in light of the difficulties that had arisen in relation to his performance and on the basis that it was felt he was not suited to working in a customer service environment. Mr. B stated that he had a meeting with the complainant when he returned from holidays on 31st March, 2007 and that he informed him that his period of probation was being terminated with immediate effect. Mr. B stated that he explained to the complainant the reasons why his employment was being terminated and he also informed the complainant that he would try to help him find alternative employment with another local firm in the construction trade who were looking for labourers. The respondent submitted that the complainant's employment was terminated purely on the basis of his poor performance and his lack of suitability to the retail trade and it denied that it was in any way related to his nationality.
4.6 The respondent also denied that the complainant was subjected to harassment on a daily basis by either the sister or mother of the Managing Director, Mr. B. The respondent stated that the complainant was treated in the same manner as all of its other employees, including those of Irish origin. The respondent stated that the complainant never made a complaint of harassment to any member of the management team (which included non-Irish nationals) during the course of his employment despite the existence of an anti-bullying/harassment policy in the workplace.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality 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. If he 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 Employment Equality Acts, 1998 to 2008 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 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaint in relation to training. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against, discriminatorily dismissed and harassed the complainant on the ground of his race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Conditions of Employment
5.4 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide him a written contract of employment in a language he could understand which he contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. In the present case, the issue of whether or not the complainant actually received a written contract of employment was very much in dispute between the parties. The complainant claims that he did not receive a written contract (either in English or his native language) whereas the respondent claims that the complainant was, in fact, issued with a written contract of employment on 10th January, 2007.
5.5 In considering this issue, I note that the respondent submitted in evidence a copy of the written contract of employment which it claims was given to the complainant on this date. The respondent also submitted a copy of a typed note that was drafted by the Store Manager, Mr. A, on this date which contains a record of the complainant's induction meeting during the course of which it is claimed that he signed this contract. I have also taken note of a decision from a Rights Commissioner under the Terms of Employment (Information) Act, 1994 which supports the respondent's contention that it did, in fact, provide the complainant with a written contract of employment. Having regard to the evidence adduced, I have found the respondent's evidence to be more credible in relation to this issue and I am satisfied, on balance, that the complainant was issued with a contract of employment by the respondent on 10th January, 2007.
5.6 The complainant has submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes it's employees with contracts of employment it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment/health and safety statement in English and not in a language which they can understand.
5.7 In the present case, the respondent accepted that the contract which was issued to the complainant was drafted in the English language. However, the respondent stated that the complainant had indicated at his interview for this job that he was proficient in the English language and it therefore submitted that he could fully understand the contact which it issued to him. Having regard to the evidence adduced, I accept the respondent's evidence that the terms of this contract were explained in detail to the complainant and also that he confirmed to the respondent that he fully understood the terms of the contract prior to signing the document. I have also noted the respondent's evidence that the complainant's girlfriend (who was proficient in the English language) was present at the meeting when he signed the contract and that she agreed to translate any of the wording which he could not understand into his native language. In the circumstances, I find that the measures taken by the respondent to ensure that the complainant fully understood the contract of employment which it provided to him were reasonable in the circumstances of this case. Accordingly, I find that the complainant has failed to establish that he was treated less favourably than another person would have been, in similar circumstances, on the grounds of his race in relation to this aspect of his conditions of employment.
Discriminatory Dismissal
5.8 The next element of the complainant's claim concerns the allegations that he was subjected to a discriminatory dismissal by the respondent on the grounds of his race. The complainant claims that he was dismissed whilst on holidays in March, 2007 and he submitted that the respondent would not have treated a notional Irish comparator in such a way, without giving reasons, applying proper procedures or providing an explanation in relation to the employee's dismissal. The complainant's representative submitted that this Tribunal should consider the circumstances surrounding his dismissal in the instant case based on how a hypothetical Irish employee would have been treated by the respondent in the circumstances.
5.9 In considering this issue, I note that section 6 of the Acts provides that discrimination can arise in circumstances where one person would be treated less favourably than another person on one of the grounds - i.e. the concept of a hypothetical or notional comparator. In the case of Toker Developments v Edgars Grods the Labour Court confirmed "it is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. No such evidence was adduced and it would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.". In the instant case, I note that the respondent employed both Irish and non-Irish nationals to carry out the same work as the complainant. I am not satisfied that the complainant has adduced any evidence to suggest that a hypothetical Irish comparator would have been treated more favourably than he was in terms of the manner in which his dismissal was effected. I am therefore satisfied that it is not appropriate for the complainant to seek to rely upon a hypothetical Irish comparator in the circumstances of the present case.
5.10 Having regard to the evidence adduced, I have found the respondent's evidence to be more credible regarding the circumstances surrounding the complainant's dismissal and I accept the respondent's evidence that he was informed on 31st March, 2007 that his period of probation was being terminated because of the performance related issues that had arisen during the course of his employment. I accept the respondent's evidence that there had been a number of difficulties in terms of the complainant's performance during the course of his employment and that it was necessary for the respondent to reprimand him on a number of occasions in order to address these issues. I also accept the respondent's evidence that it was as a result of these performance related issues that the decision was taken to terminate his period of probation. Having regard to the foregoing, I am satisfied that the complainant has not adduced any evidence to substantiate his claim that his dismissal was in any way attributable to his nationality.
5.11 The complainant has also argued that the respondent treated him in a discriminatory manner by failing to apply any proper procedures in relation to his dismissal. However, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of race in relation to dismissal. This Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal; the complainant needs to prove that it was connected to his race. The Labour Court has recently stated in the case of Mulleadys Ltd -v- Aidotas Gedrimas that "the complainant has presented no evidence of racial discrimination to the Court. The Court is not satisfied that others of a different nationality to the complainant were/would be treated any differently. The Court has dealt with many cases where employers are accused of dismissing employees without recourse to appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside of Ireland".
5.12 As I have already stated, I am satisfied that the complainant has not adduced any evidence to suggest that the respondent would have treated other workers of a different nationality (including those of Irish origin) more favourably in terms of the manner in which his dismissal was effected. I am satisfied that his employment was terminated purely on the basis of the performance related issues that had arisen and that this dismissal was in no way attributable to his nationality. In the circumstances, I find therefore that the complainant has failed to establish facts from which it could be inferred that that the termination of his employment was influenced in any way by his nationality. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this aspect of his complaint.
Harassment
5.13 The complainant also claims that he was subjected to harassment by the respondent on the grounds of race contrary to section 14A of the Acts. He claims that he felt harassed on nearly a daily basis by both the sister and mother of the respondent's Managing Director, Mr. B. The complainant stated that these two individuals spoke to him differently than they did to the Irish workers who were employed by the respondent. The respondent denied the allegations of harassment and it submitted that the complainant was treated very well by both of these persons during the course of his employment. The respondent adduced evidence that these two people had brought the complainant and his girlfriend to their own home and offered them food and accommodation when a property they were renting was burgled and that the same two people also organized discounted rent for the complainant on a property he had rented in the locality.
5.14 In considering this issue, I note that the respondent had an anti- bullying/harassment policy in place in the workplace and I accept the respondent's evidence that the existence of this policy was brought to the attention of the complainant during the course of his employment. I note that the complainant did not make any complaint about this alleged harassment during his period of employment despite the fact that there were a number of non-Irish nationals in management positions within the store to whom any such complaint of harassment could have been made. Having regard to the evidence adduced, I have found the respondent's evidence in relation to this issue to be more credible and I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was subjected to harassment within the meaning of the Acts by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment on the grounds of his race.
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, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment and contrary to section 8(1) of the Acts;
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts;
(ii) the respondent did not subject the complainant to harassment contrary to section 14A of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
19th July, 2010