The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-221
Mockuvieve
(Represented by Grogan and Associates Solicitors)
v
Sentry Consulting t/a Datascan
(Represented by Management Support Services (Ireland) Ltd.
File references: EE/2008/068 and 663
Date of issue: November 9 2010
EE/2008/068 and 663 - DEC-E2010-221
Keywords
Employment Equality Acts 1998 to 2008 - Discriminatory Treatment - Gender - Race -Marital Status - Conditions of employment - Harassment - Victimisation - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Ms Egidija Mockuviene (hereafter "the complainant") that she was subjected to discriminatory treatment and harassment contrary to the Employment Equality Acts by Sentry Consulting Ltd t/a Datascan (hereafter "the respondent") on the grounds of her gender, marital status and race. The complainant maintains that the respondent discriminated against her in relation to her conditions of employment. A further claim concerning victimisation and victimisatory dismissal was also made.
1.2. The complainant referred her first claim of discrimination to the Director of the Equality Tribunal on 4 February 2008. This claim was made on the gender, marital status and race grounds. A second claim concerning victimisation and victimisatory dismissal on the race ground was made on 7 October 2008. On 27 May 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 4 October 2010. An independent interpreter, provided by the Tribunal, was in attendance.
2. Case for the complainant
2.1. The complainant, a Lithuanian national, submitted that she worked with the respondent as a bar code operator from 21 March 2007 to 4 July 2008. This work consisted of scanning media returns. She submitted that she was provided with a temporary contract of employment for six months. The contract was in English, a language that she could not understand. It was submitted that after this date she was not provided with any documentation.
2.2 It was submitted that the complainant was contracted to work for 39 hours per week. It was submitted that after an initial period of working full hours, she was sent home at times when she had worked less than 39 hours but that Irish workers doing the same role were not similarly affected with the change of working hours.
2.3. The complainant submitted that after her solicitor contacted her employer about her contract in February 2008, she was called to a meeting on 27 February and received a letter on 28 February accusing her of circumventing all the respondent's internal grievance procedures.
2.4. The complainant submitted that she was unable to read the documents presented to her at said meeting as they were in English and informed her employers that she would have to talk to her solicitor first. She submitted that she attended her solicitor's office and was instructed not to sign anything. Therefore, she did not sign the documents.
2.4. The complainant submitted that she was called to a meeting and dismissed in May 2008. The complainant had been asked whether she had another job and she had told the respondent that she did not. The complainant was confronted about the fact that the respondent believed that she did indeed work on occasion elsewhere and that she had a contractual obligation to report any such alternative employment to the respondent. The complainant denied any such work.
3. Case for the respondent
3.1. The respondent has been providing data capture services, among other services, since 1993. Working with the main Irish print media, the respondent processes magazine and newspaper returns for nearly every Irish newsagent. The respondent employs 50 staff, mainly on the general operative grade, on both full and part-time basis. It was submitted that the print media returns are transported from all over the country and the logistics are therefore subject to variations in weather conditions, traffic, etc.
3.2. It was submitted that the respondent has established its terms and conditions of employment for the operative grades with SIPTU, who also holds the rights to representation on behalf of the respondent's employees. It was submitted that the complainant was informed of this at the beginning of her employment and that she was a member of an union. It was submitted that the union was contacted as soon as the respondent became aware of the complainant's concerns. The complainant rejected this union representation in favour of her legal representative.
3.3. It was submitted that the complainant was initially employed on a temporary basis on 1 May 2007. She was issued with terms and conditions of employment (in English) that indicated that it was for a fixed term of three months. The terms set out in this contract referred to working hours clearly stating that these are subject to the level of work available. A subsequent permanent contract (in English), with slightly different terms than those in the first contract, was signed by the complainant on 27 August 2007.
3.4. It was submitted that the respondent employs 10 different nationalities including, inter alia, Polish, Irish, Nigerian and Slovenian. As a result, the respondent employed, and continues to employ, a number of supervisory staff who are bilingual or multilingual and who assist staff with communication through common languages such as Russian. The complainant was always accompanied by a named member of staff who assisted the complainant with translation issues at meetings were necessary. The respondent's experience the complainant had no difficulties with communicating with the respondent in English.
3.5. The respondent submitted that the complainant was initially employed on a temporary contract to work in accordance with a schedule that was devised in accordance with the then workload. Due to changes in 'polluter pays' policy, the company's work practices were altered accordingly to meet the needs of its clients that had changed as a result of public policy. This meant that the working hours that were previously practicable for the respondent staff were no longer so. Also, it meant that instead of scanning newspaper clippings, majority of the respondent's client were now returning the entire newspapers for returns. As a result, the work practices changed in that staff had to deal with heavier loads as clients were now returning the entire newspapers instead of mere clippings.
3.6. In November 2007, the respondent held a meeting with the complainant who had complained that she was being discriminated against because she had been asked to move jobs and she was not getting her regular 39 hours a week. The complainant claimed that the same was not applicable to Irish workers. It was submitted that the respondent explained to the complainant, who was accompanied by the named staff member, that 15 operators were employed on different terms and conditions as the complainant. These operators, who have been with the respondent for a longer period and had agreed to move to the respondent's new premises, benefitted from a local agreement that guaranteed that their working conditions would not change.
3.7. It was submitted that as the work flow changed, it became necessary to process returns on shifts that varied from the initial 3 day 12 hour shifts. The complainant declined to work the additional hours. The respondent submitted that a meeting with all staff was held to explain the situation.
3.8. It was submitted that the respondent was surprised to receive correspondence from the complainant's representative on 1 February 2008. The complainant accused the respondent of failing to provide her with contracts, health and safety documentation and to honour her hours as set out in her contract and accused the respondent of breaching the Employment Equality Acts. A meeting was arranged on 27 February 2008 with the complainant to discuss these issues. The complainant was accompanied by the named coworker. The respondent outlined the company's internal grievance procedures that were documented in her signed contract of employment and noted that the complainant had circumvented all these by not bringing her concerns to the attention of the respondent directly. The respondent submitted that at this meeting the complainant indicated to the respondent that she understood the procedures as outlined.
3.9. After this meeting, the respondent forwarded copies of the two contracts of employment to the complainant. These had been signed by the complainant in May and August 2007. The respondent indicated that it had concerns that the complainant was making claims that she was not aware of the respondent's health and safety regulations. These had been included in the above contracts and were also prominently displayed in the workplace. The respondent was concerned that the complainant now claimed ignorance of same and had genuine concerns about the implications this may have on the complainant. As a result, the respondent asked the complainant, who had declined the opportunity to meet with her union representative, to bring the contracts to persons acting on her behalf and to revert to the respondent with a signed note confirming that she had received the copies of her employment contracts and that she understood the contents. The complainant failed to do this.
3.10. The respondent submitted that the disciplinary process concerning the complainant on 1 May 2008 came about because she had been complaining about being tired to her coworkers. She had told them that this was because she had another job and had been working late the previous night. The respondent called the complainant to a meeting, accompanied by the named coworker, to discuss the matter. The respondent explained the concerns it had in relation to this matter and referred to the complainant's contract that had an express term concerning restrictions on outside employment activity. It was explained to the complainant that any such matter would be viewed as gross breach of trust and suspended the complainant on full pay pending an enquiry into the matter. The complainant denied working elsewhere and requested that the meeting be terminated so she could consult with her solicitor. It was submitted that the meeting was then suspended. A letter outlining the company's position concerning above was sent to the complainant and her legal representation and a further meeting was proposed for 6 May 2008. This was postponed as the complainant had indicated that she had not had time to consult her solicitor. The respondent did not hear from the complainant after this until a subsequent claim concerning victimisation was referred by the Tribunal in October 2008.
3.11. The respondent vigorously denies that the complainant was treated any less favourably than any other employee of a different nationality would have been in similar circumstances.
4. Conclusion of the equality officer
4.1. 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 Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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 Goode Concrete v Oksana Shaskova EDA/0919 the Labour Court, in reliance of Mulcahy v Waterford Leadership Limited [2002] 13 ELR 12, accepted that the mere coincidence of the complainant's nationality and his/her alleged discriminatory treatment is not sufficient, on its own, to shift the probative burden from the complainant to the respondent.
4.2. The claim concerning harassment was withdrawn at the hearing. Also, all claims concerning gender and marital status were withdrawn. The complainant's case was thus on the race ground only.
4.3. Discrimination
4.3.1. The complainant submitted that her hours were reduced while the hours of Irish workers were not. This has been rebutted by the respondent who has been able to show compelling evidence that explained why staff who had been working with them for a longer period than the complainant did not have their hours reduced in a similar manner. I am is satisfied that the issue is an industrial relations matter and has nothing to do with employee's nationality. Furthermore, the respondent has shown compelling evidence that a number of nationalities, including persons of the complainant's own nationality, had similarly benefitted from such contracts. From the foregoing, it is clear that the more established employees benefitted from the more favourable terms in their contracts due to the length of service with the respondent. I am also satisfied that the complainant, along with other employees, was informed of the reasons for the drop in the amount of work available for the established work patterns at a meting on 14 December 2007. Employees were provided with the opportunity to secure their full contractual hours by working different patterns that matched the flow of returns. The complainant had chosen not to avail of this opportunity. I have been presented with no evidence to support an argument that the complainant's nationality was in any way material to the above matter.
4.3.2. No evidence of less favourable treatment was established. It is clear that the complainant was treated in the same manner as other employees, regardless of their nationality, were treated in similar circumstances. The argument that the employer did not take reasonable steps to ensure that the complainant understood her contracts, etc is not compelling in the circumstances of this case. I am satisfied, mostly on the complainant's own direct evidence, that she was provided with ample opportunity to have the contracts and policies explained to her. She was offered the opportunity to avail of the assistance of multilingual staff and union representation (which she declined). I am also satisfied that the respondent ensured that the above information was brought to the attention of the complainant's solicitor.
4.4. Victimisation and victimisatory dismissal.
4.4.1. The complainant submitted that on 4 July 2008 she was dismissed by the respondent. It was submitted that was because she had complained about her contract and the hours. I accept that the complainant was dismissed on 4 July 2008, two months after she had been suspended on full pay pending an inquiry into the allegation that she worked elsewhere. Prior to this dismissal, based on the direct evidence of the respondent that was supported by documentary evidence, at least a few attempts had been made to meet with the complainant and her legal representative. I had sight of a letter written by the complainant's representative cancelling a meeting due to the fact that the complainant was outside the jurisdiction. A letter dated 7 July 2008 was sent by the respondent to the complainant whereby the respondent cited the complainant's failure to revert to the respondent after her suspension on 1 May 2008 and explained that it viewed this as a total disregard for compliance with the agreed communication procedures set out in the complainant's contract of employment. Furthermore, the respondent regarded the complainant's unexplained and unauthorised absence as an indication that her continued employment was no longer sustainable.
4.4.2. I have examined the grievance procedure set out in the complainant's contract of employment. No evidence has been provided to support an argument that the respondent in any meaningful way deviated from these. The respondent had clearly provided the complainant with an opportunity to consult with her solicitor before any disciplinary proceedings were to be determined. The respondent had also continued to pay the complainant. I am also satisfied that the respondent had made efforts to arrange a meeting with the complainant subsequent to her suspension. These efforts were thwarted by the fact that the complainant was abroad.
4.4.3. Much of the complainant's evidence rested on her claim that she was not able to comprehend English and that her employer took no reasonable steps to explain matters to her. This claim was successfully refuted by the respondent who submitted that the complainant was accompanied by a co-worker who translated for the complainant any time she met with management. This fact was accepted by the complainant. She did however submit that the co-worker was not a great translator. It is also worth noting that the respondent's evidence at the hearing was supportive of their submission that the complainant's language abilities were not as restrictive as the complainant maintained at the hearing.
4.4.4. I am somewhat incredulous of the fact that much of this case rested on an argument that the complainant was discriminated against by her employers who allegedly failed to explain her rights to her. It is clear she received such information and that many efforts were made to ensure that she understood same. This argument was forwarded in circumstances where the complainant had engaged her own legal representation who, by the complainant's own evidence, had sight of all the documents forwarded to her. I note that in a reply letter the complainant's solicitor had undertaken to explain the documents to her. The complainant's own evidence at the hearing suggested that she was under the misapprehension that she had never received a permanent contract and that the second contract that she had signed was another fixed term one. This is despite the fact that she claimed that her husband, her coworker and her solicitor had had opportunity to look at her contracts and to explain them to her.
4.4.5. It is also clear that the permanent contract included a clause that resulted in the disciplinary process. The clause, which referred to Organisation of Working Time Act, stated: 'It is a condition of employment that you do not enter into any work arrangement other that provided for within this contract, which could result in contravention of working time legislation'. The complainant was asked if she was working elsewhere but is clear that the complainant lied to her employer repeatedly about this. To support the fact that the complainant indeed worked elsewhere, the respondent submitted direct evidence from an investigator who called over to the public house where the complainant worked. His evidence confirmed that on his first inspection of the said public house he found the complainant working there. His evidence to the Tribunal also indicated that the complainant, who maintained throughout the hearing that she spoke hardly any English at all, made comfortable small talk in English with the investigator. The complainant admitted at the hearing that she had denied working elsewhere but submitted that she regarded the matter as trivial as she only occasionally worked in the bar. The frequency of such work is not material to this investigation. The fact is that the complainant did breach a term of her contract and I have been provided with no evidence to support an argument that another employee of a different nationality would have been more favourably treated in similar circumstances. There is no evidence to suggest that the disciplinary process was initiated for any other reason than the actual breach of a contractual term.
4.4.6. I note that the respondent continued to pay the complainant until her contract was terminated on 4 July 2008. She made no contact with the respondent during this time. I also note that a disciplinary meeting between the parties had been arranged for 27 May 2008. This meeting was cancelled by the complainant's representative by letter dated 23 May 2007. While the respondent's contention that it made a number of efforts to contact the complainant subsequently was disputed by the complainant at the hearing, I note that the complainant had no evidence to support an argument that she made any efforts to engage with the respondent.
4.4.7. The complainant's second claim rests on the fact that she contends that she victimisatorily dismissed when she objected to the clause in her contract that stated that the respondent held the right to alter the working patters at any time subject to seven day notice in writing. No evidence was provided to support an argument that this clause was unique to the complainant's contract. The respondent was able to show a compelling business rationale for such a clause. The right of parties to enter, or not to enter, as the case may be, into a contract is not a matter for this Tribunal. From the foregoing, it is clear that such a clause was included in all contracts that were issued by the respondent at the material time and there is no evidence to link such action with victimisation within the meaning of the Acts. It is clear that the complainant's failure to engage in a legitimate disciplinary process with her employer and her rejection of the terms of the contract that was offered to her were the reasons for this dismissal, not the fact that she had complained under these Acts. I have found no evidence to support an argument that the complainant was denied fair procedures in a discriminatory manner in relation to the above case.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in
accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has been unable to establish a prima facie case of discrimination. Therefore, this claim fails.
5.3. I find that the complainant has been unable to establish a prima facie case of victimisation or victimisatory dismissal. Therefore, this claim fails.
________________
Tara Coogan
Equality Officer
9 November 2010