THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 105
PARTIES
Ms Modesta Stirbyte
(represented by Ms Chloe McCarthy, B.L., instructed by Richard Grogan & Associates, Solicitors)
and
Degfag Ltd
File Reference: EE/2008/184
Date of Issue: 18th June 2010
Claim
1.1. The case concerns a claim by Ms Modesta Stirbyte that Degfag Ltd discriminated against her on the grounds of gender and race contrary to Section 6(2)(a) and (h) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 31 March 2008. A submission was received from the complainant on 22 September 2008. A submission was received from the respondent on 4 November 2008. On 13 November 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 16 June 2010, of which the representatives of both parties were notified by registered post on 9 November 2009. The respondent's solicitor withdrew from the case on the date of the hearing, on the basis that they had been unable to receive instructions from the respondent in the matter. The respondent did not attend the hearing.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she is Lithuanian and was employed by the respondent as a shop assistant from 1 December 2007 to 24 December 2007. She complains that she did not receive a contract of employment, payslips, or health and safety training. She complains that she was dismissed without reasons or procedures.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant. According to the respondent, the complainant was a casual employee, who did not work a full week's work in the three weeks of her employment. It contends that since this means the complainant cannot make a claim under the Terms of Employment (Information) Acts, which do not cover casual employees, that her complaint to this Tribunal is likewise misconceived in law. The respondent also states that the complainant was on probation at the material time.
3.2. The respondent further states that it employed a number of non-Irish nationals at the material time, including Russian, Latvian, and Lithuanian nationals. The respondent also notes that the complainant has not specified any complaint on the gender ground in her submission. The respondent submits that the complainant has not made a case of less favourable treatment on the grounds of either race or gender.
3.3. With regard to the complainant's claim of discriminatory dismissal, the respondent states that her employment was terminated because she was unsuitable for the role which she performed, and that she wanted to work only hours that suited herself. The respondent denies dismissing the complainant because of her gender or nationality.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and discriminatorily dismissed on the grounds of gender and race within the meaning 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 S. 85A of the Acts. 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.
4.3. During the hearing of the case, the complaint on the gender ground was withdrawn. The complaint on the race ground was maintained.
4.4. The complainant, in direct evidence, confirmed that all employees of the respondent's were female, and that all of them were of various Eastern European nationalities, viz. Latvian, Russian, Ukrainian, Polish and Lithuanian. The owner of the business was male and Irish. The complainant was employed part-time as a sales assistant. Her hours varied, from a minimum of 20 hours per week to 30 hours per week.
4.5. With regard to the provision of a contract of employment, the provision of payslips, or the provision of health and safety training, the complainant was not in a position to say whether the respondent's other employees had received same. Accordingly, I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to these matters.
4.6. Turning to the complainant's complaint of discriminatory dismissal, the complainant explained that she applied for the position by submitting her CV. Two days later, she received a phone call inviting her to the premises. She expected to be interviewed for the job, but instead was told she had been hired and was asked when she could start working. When she indicated that she could start immediately, she started her work right there and then. The complainant maintained that she was not told that her employment was in any way temporary. She started work on 1 December 2007.
4.7. On 23 December 2007, the complainant was told that her employment would be terminated the next day, and was advised to call to the respondent the following week to collect her papers and outstanding wages. The reason she was given was that the pre-Christmas selling season was over and that there would be less work to do. The complainant was the only worker who was let go.
4.8. From all of the complainant's evidence, I am satisfied that her employment ended because she was a seasonal worker, and that this was not connected to her nationality. Therefore, the complainant's case of discriminatory dismissal on the ground of race must fail. In terms of the reasons leading to the termination of the complainant's employment, I prefer the complainant's evidence in this regard to the respondent's submission, which sought to allege that the complainant's employment was terminated for disciplinary reasons. I also note that these allegations have not been in any way substantiated by the respondent. However, I also find it important to note that the respondent never sought to argue that the complainant was a seasonal employee.
4.9. I therefore find that an issue of potentially less favourable treatment arises with regard to the complainant's terms and conditions of employment, in that the complainant credibly asserted that she was never told her employment was seasonal when she started to work for the respondent. I am also satisfied, from the totality of the complainant's evidence, that she was the only worker taken on to smooth out the work load associated with the seasonal pre-Christmas sales work.
4.10. I therefore find that the complainant's existing co-workers, who were all longer-term employees of the respondent, are unsuitable as comparators pursuant to S. 6(1)(a) of the Acts. Since there was no other seasonal worker in the employment of the respondent during the time the complainant was employed there, I find that I am entitled to consider her case against a hypothetical comparator as per the findings of the Labour Court in Citibank v. Massinde Ntoko [EED045]. In that case, the complainant, Mr Ntoko, was an agency worker who had been dismissed in what the court went on to find was a discriminatory dismissal on the ground of his race. Mr Ntoko was an agency worker, but no other agency workers were employed at the respondent's at the material time to serve as his comparator. Under the circumstances, the court held it was appropriate to consider the treatment he received against that of a hypothetical agency worker of a different racial origin.
4.11. In following the Labour Court in the case on hand, I am satisfied that a hypothetical Irish seasonal employee would have been advised that his or her employment was temporary and would come to an end with the end of the pre-Christmas peak selling season.
4.12. I therefore find that the complainant has established a prima facie case of less favourable treatment on the ground of her nationality, regarding the manner in which she was not properly advised of a very basic aspect of the terms and conditions of her employment with respondent, and that the respondent would not have omitted this information with an Irish employee employed in the same role. This case has not been rebutted.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) Degfag Ltd discriminated against Ms Modesta Stirbyte on the ground of race, contrary to S. 8(1) of the Acts, in her terms and conditions of employment, by not advising her properly of the fact that she was a seasonal employee;
(ii) Degfag Ltd did not discriminatorily dismiss Ms Stirbyte on the ground of race, contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent pay the complainant €5000 in compensation for the discriminatory treatment. This award reflects the seriousness of not clarifying the prospective length of her employment to the complainant, which is a basic element of any contract of employment. The award is not in the nature of pay and not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
18 June 2010