THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-086
PARTIES
Larisa Plonkina
(Represented by Richard Grogan & Associates, Solicitors)
and
GVS Ltd t/a Groomes
File Reference: EE/2007/467
Date of Issue: 02/06/2010
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8- conditions and discriminatory dismissal, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1) and 6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8. She also alleged that her dismissal was discriminatory. A complaint of harassment was withdrawn at the commencement of the hearing
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 3rd September 2007 alleging that the respondent discriminated against her contrary to the Acts. In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 28th August, 2009 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 15th September 2008 and from the respondent on the 30th October 2008 . As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 9th March, 2010.
3. Summary of the Complainant's Case
3.1 The complainant is a Latvian national and was employed by the respondent on the 5th February 2007 and her employment terminated on the 21st July 2007. The complainant's main duties were packing vegetables. She said that all the employees doing this work were foreign nationals while there were a number of Irish employees in management and working in the office. She is complaining about the fact that when she commenced employment she was given a contract of employment and a health and safety/training instructions in English. She said that at a meeting with management that the contract of employment was explained to her and that there was an interpreter present to explain anything she did not understand. She said that while her English was bad at the time there was nothing in the contract that she did not understand. All the training and documentation she received in health and safety was in English the respondent made no effort to provide her with these documents in her native Russian. She agreed that no other employee got documentation other than in the English language.
3.2 In or around May 2007 she was informed that her employment was being terminated. She was very unhappy because she did not know the reason her employment was finishing. She asked for a meeting with the Managing Director Mr. Noel Groome. At that meeting Mr. Groome informed her that the company did not need all they staff they had and this was the reason she was being let go. Mr. Groome also informed her that a vacancy had now arisen in another area and she would be kept on for a period of time. She transferred to a different area but her employment was terminated after about 2 months later. She was told at that time that the company had no requirement for the number of staff they had. The complainant claims that she was discriminatorily dismissed by the respondent on the race ground.
3.3 The complainant's legal representative referred me to a number of cases in support of her 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 Human Resource Manager of the respondent company said that the company was involved in food preparation and packing for the food market. About 55% of their employees are non Irish. They have employees mainly from Latvia, Lithuania, Poland, Romania and Bulgaria. All contracts and health and safety documentation are issued in English but the company has a number of employees who speak English and a number of other languages and they provide a translation service for non-nationals. The Production Manager said that she issued the employment contract in English to the complainant at a meeting attended by the complainant and a supervisor who also acts as a translator and who speaks English, Russian and Latvian. She said that the complainant has a good standard of English herself and was able to read the contract. The translator assisted as required. She made it clear to all staff including the complainant that the supervisor was available for translation. The complainant took away the contract to read it and was requested on a number of occasions to sign it and return to the company. The company then decided to update the contracts for all staff and when the new contracts issued each employee including the complainant were called to a meeting with the Production Manager together with the translator to go through the new contract. The complainant took the contract away and returned it later and it was signed. The Production Manager said that she was satisfied that the complainant understood the contract because her level of English was good. The Translator said that she is a supervisor in the company and she speaks English, Latvian and Russian. She said that she was present at the meetings with the complainant and from her experience she found that the complainant's English was very good and she understood English very well. She was of the opinion that the complainant did not need the services of a translator.
4.2 The Production Manager said that she also called the complainant to a meeting together with the translator to explain the health and safety statement to her. They went through the statement with her and she was happy the complainant understood it and she signed it. She said that training in health and safety is ongoing and a translator for the different languages was present at all the training sessions. The complainant attended these sessions.
4.3 In May 2007 the Production Manager said that she called all staff to a meeting to inform them that the sales figures were down and that some staff would have to be let go. Staff would be selected on the last in first out basis. It was intended that 3 people would be let go including the complainant. There was a Russian translator present at the meeting. Following the meeting the complainant sought a meeting with the Managing Director Mr. Noel Groome which was granted. Prior to the meeting another member of staff resigned. It was decided to retain the complainant and put her into this position. The Production Manager said that she attended the meeting the complainant had with Mr. Groome. The meeting was conducted in English and the complainant had no problem understanding it and had declined the services of a translator. In July 2007 sales were down again and it was decided to let more staff go including the complainant.
4.4 Mr. Groome confirmed that the sales during the 2007 season were poor because of the bad weather and it was necessary to reduce staff numbers. They had a total of 70 employees in 2007 and that number has now been reduced to 48. He said that the complainant was a good worker and the only reason she was selected for redundancy was due to the fact that she was one of the last employees taken on. He denies that the complainant was discriminated against either in relation to her conditions of employment or dismissal.
5. Conclusions of the Equality Officer
5.1 At the outset of the hearing of the complaints, the complainant's representative withdrew the complaint relating to harassment. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards her conditions of employment, training and discriminatory dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainants do not discharge the initial probative burden required of them their cases cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Firstly, I will consider the issues that have been raised by the complainant in relation to her conditions of employment/training which she contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. She submits that the respondent's failure to provide her with a written contract of employment and a health and safety statement/training in a language which she could understand was discriminatory treatment on the race ground.
5.3 In considering these issues, I note from the evidence that there were workers of various nationalities employed by the respondent at that time, including those of Latvian, Polish and Lithuanian origin. There were also Irish employees. I also note that it was accepted by the complainant that translation assistance was provided to her by a supervisor who spoke Russian, the complainant's first language and that she understood the contract of employment provided to her. It was submitted on the complainants behalf that all documents including health and safety and contract documents should have been provided to her in her own language. Likewise it was submitted that an Irish employee would have been aware of his/her rights under both employment and health and safety legislation and would have no difficulty in understanding instructions particularly in relation to health and safety. He further submitted that foreign nationals whose first language is not English are put in a vulnerable position by not having documents translated into their first language. If there was an incident in the work place concerning health and safety employees should be able to understand the procedures and for this reason they should be translated into their first language. It was therefore submitted that the Tribunal should infer that the complainant has been subjected to less favourable treatment on the race ground and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. I was referred to the case of 58 Complainants -v- Goode Concrete (DEC-E2008-020) and asked to apply the reasoning in that case.
5.4 I note from the respondent's evidence that he employs people of 5 different nationalities and all contracts of employment and health and safety was provided to its employees in English and that a translation service was provided by a supervisor who spoke the relevant language. In this case the complainant had access to the translation services of a supervisor who spoke a number of languages including English and Russian which is the complainant's first language. Likewise I note from the evidence that the complainant had no difficulty with the English language and did not require a translator when she had a meeting with Mr. Groome. Furthermore there was evidence from the respondent witnesses that the complainant had a very good standard of English and on one occasion was able to correct the translator. I note that in the Goode Concrete referred to above that the complainants in that case were not provided with any translation service and the Equality Officer found discrimination in circumstances "where there was no evidence that these terms and conditions of employment were explained to each of them by a person speaking a language they understood.." The case herein can be differentiated from this reasoning in that the complainant had a translation service available to her and the documentation was explained to her in her first language which is Russian. I am satisfied from the evidence that the complainants level of English was sufficient to understand the documentation and training provided to her.
5.5 Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that she was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances, in relation to the aforementioned aspects of the conditions of employment and training. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this part of her complaint.
5.6 The next part of the complainant's claim concerns the allegations that she was subjected to a discriminatory dismissal by the respondent on the grounds of her race. The complainants stated in evidence that she was dismissed by the respondent without any proper reason and because she did not speak English she did not understand the reasons for her dismissal. She accepts she was given notice and a reference. She was unable to say if there were any other employees dismissed at the same time or if any employees who joined the company after her were kept on. The respondent submitted that the complainant was dismissed along with other employees because of a downturn in business and they needed to reduce the number of employees. The number of employees have been reduced from about 70 in 2007 to 48 at present.
5.7 I am not satisfied that the complainant has adduced any evidence to substantiate her claim that she was selected for dismissal because of her nationality. In order to raise an inference of discrimination on the grounds of nationality, the complainants must produce some evidence of less favourable treatment and this treatment must be linked to her nationality. I find that the complainant has not produced such evidence. The evidence supports the respondents contention that the dismissal was due to a downturn in business and the complainant was selected on the basis that she was one of the last employees recruited. I find no connection between the complainant's nationality and her selection for dismissal. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of her race.
Decision
6.1 Having investigated the above complaints, 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 sections 6(1) and 6(2)(h) of the Acts in terms of her conditions of employment and training contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
________________________________
Marian Duffy
Equality Officer
2nd June 2010