Equality Officer's Decision
DEC-E2010-230
Olaleke Ibidunni (deceased)
(represented by his widow Joan Lally)
versus
Boston Scientific (Ireland) Ltd.
(represented by Gillian O'Callaghan, IBEC)
File reference: EE/2006/146
Date of issue: 17th November 2010
Keywords: Employment Equality Acts, Race, Family Status, Jurisdiction, Time Limits, Complainant Deceased, Conditions of Employment, Access to Promotion, Victimisation
1. Dispute
1.1 This disputes concerns a complaint by Mr. Olaleke Ibidunni, a Nigerian national and father of a young child against Boston Scientific (Ireland) Ltd of discriminatory treatment regarding promotion and conditions of employment on the grounds of race and family status as well as victimisation contrary to the Employment Equality Acts 1998 to 2008 [hereinafter called 'the Acts'].
1.2 Through his representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 10th May 2006. In accordance with her powers under Section 75 of the Acts, the Director delegated the case on 29th August 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was scheduled on 21st November 2008. This hearing was adjourned due to the complainant's ill health and regrettably the complainant died shortly afterwards. Mr Ibidunni's legal representative came off record and his widow wished to pursue the case on behalf of her husband's estate. Both sides requested adjournments and the hearing eventually took place on 24th June 2010. I requested information from the respondent and the correspondence on this concluded on 5th July.
2. Summary of the complainant's written submission
2.1 The complainant commenced employment with Boston Scientific on 21st October 2002. Mr Ibidunni was employed as a Product Builder and his role was involved in the assembly of medical devices. He was made permanent on 21st July 2003. Five people started on the same day and in the same team as the complainant. He submits that four of these were subsequently promoted and one person left. Mr Ibidunni was not been promoted. He contended that he was a good worker and sought to improve his career prospects by undertaking training. He maintained that two of his colleagues that undertook this course have since been promoted.
2.2 In February 2004, the complainant applied for a position as a Process Technician which was advertised internally by the Engineering Department. Mr Ibidunni maintained that he handed his completed application form to the correct person but the application form was lost. He raised this issue with the Human Resources section. The complainant submitted that the respondent should have granted him an interview when they lost his application form.
2.3 The complainant submitted that on another occasion he could not see a computer screen and was frustrated by this. A supervisor, Mr A was called and according to the complainant was abusive to him. Mr Ibidunni maintained that Mr A reported this incident to Mr Ibidunni's direct supervisor, Ms B and a disciplinary hearing was called against the complainant. According to Mr Ibidunni, he said he felt that 'me the Plaintiff automatically became the Accused and I found myself in the Dock'. Mr Ibidunni was exonerated at the disciplinary meeting but he submitted that Ms B was very aggressive to him at the meeting.
2.4 On 22nd November 2004, the complainant was requested to undertake 'counselling' regarding absenteeism and lateness. This is the respondent's first step on the disciplinary ladder in relation to time and attendance. Mr Ibidunni maintained that at that time another colleague who was Irish was late 33 times and did not get the same treatment. The complainant contended that he was late six or seven times and only by a few minutes.
2.5 In January 2005, the complainant requested 2 days force majeure leave as his daughter was too ill to attend crèche. Mr Ibidunni submitted that Ms B suggested that somebody else should look after his child while she was sick. The complainant submitted that this shows the respondent had a dismissive attitude towards his rights as a parent. The complainant was given one day force majeure leave and had to take one day from his annual leave. He submitted that this is discriminatory on the grounds of family status.
2.6 After 3 months of this 'counselling period', the complainant was given a verbal warning. Mr Ibidunni maintained that he was not late during that period although he did take certified sick leave. He appealed this verbal warning but received no written response until over two months later.
2.7 The complainant requested a move to another team and area. Various managers suggested to the complainant that he could not be moved as he had received a verbal warning. However, the complainant was moved within his section but to a different supervisor. He maintained the duties he was given were inferior to the duties he previously had. He submitted that he felt like a trapped person and that this was victimisation.
2.8 He submitted that it was discriminatory on the ground of race that he got a final written warning for leaving the plant to buy sandwiches for his lunch break and subsequently falling asleep in his car on 31st of August 2005. He appealed the final written warning. It was reduced to a written warning on 25th October on condition that the complainant put behind him the application form being lost and not being called for interview, the incident with Mr A and the delay in receiving confirmation of a verbal warning.
2.9 On 8th November 2005, he was suffering chest pains and attended the Occupational Health Nurse employed by Boston Scientific (Ireland) Ltd. She referred him to his GP. The complainant submitted that these pains were because of work-related stress.
2.10 On 21st November 2005, the complainant attempted to resign from his employment. The Director of Human Resources did not wish to accept his resignation until an investigation of Mr Ibidunni's complaints was conducted. However, the complainant resigned on 19th December 2005.
3. Summary of the respondent's submission
3.1 As a preliminary issue, prior to the rescheduled hearing the respondent submitted it was unfair for the Tribunal to continue to investigate the complaint. They point out that the complainant must establish a prima facie case of discrimination and only when this case has been established can the onus shift to the respondent to rebut the inference of discrimination raised. The respondent is also denied the opportunity to cross-examine the complainant and, therefore, the opportunity to explore the credibility of his claim. They also point out that this case has incurred costs in both time and money for the respondent.
3.2 As a further preliminary issue, the respondent submits that the complaint is out of time. The respondent submits that as the complaint was received in the Tribunal on 10th May 2006, any incident preceding the 10th November 2005 is outside the terms of the investigation.
3.3 The respondent denies all allegations. It submits that it employs a diverse workforce - 3,120 people of varying nationalities are employed at its plant in Ballybrit, Galway.
3.4 Regarding access to promotion, bar the position the complainant said he applied for but the application form was allegedly lost, the complainant did not apply for any promotions. The respondent submits that, except for his timekeeping and an incident where he left the site without permission, he was regarded as a good worker.
3.5 Regarding the incident where the complainant accused Mr A of being aggressive, the respondent submits that Mr A heard the complainant shouting at a Trainer. Mr A intervened to ask Mr Ibidunni why he was shouting. According to Mr A, the complainant said it was because he was too busy to receive training. Mr A reported the incident to Mr Ibidunni's direct supervisor for investigation. The complainant submitted this was 'a most cruel thing'. Boston Scientific (Ireland) Ltd submits it is normal practice within their company to investigate such situations.
3.6 The complainant was granted force majeure leave on 11/02/2004, 26/04/2004, 24/06/2004, 10/01/2005 and 02/11/2005. In the complainant's case, he received a total of 5 days force majeure leave within a 3-year period which is the maximum entitlement provided for under the Parental Leave Acts.
3.7 Regarding his attendance record, the respondent submits that no action was taken until the complainant had been late on 13 occasions and absent 10 days. In relation to his transfer, the respondent readily admits that because of his time and attendance record, this task proved difficult which is why he was transferred to a different supervisor within the same cleanroom. The respondent denies that he was given a lesser job.
3.8 Regarding the incident that lead up to the written warning, the respondent points out that Mr Ibidunni left the premises without seeking permission from his supervisor. Because the respondent makes medical devices, hygiene is regarded as crucially important. Therefore, Boston Scientific (Ireland) Ltd does not want employees leaving the premises during shifts. He was absent for 1 hour 20 minutes despite the fact that his lunch break is 30 minutes. He did not clock out. A final written warning was issued to the complainant. He subsequently appealed the warning and it was reduced to a written warning as a goodwill gesture.
4. Conclusions of the Equality Officer
Jurisdictional issue following the death of the complainant
4.1 I will first consider the jurisdictional issues raised by the respondent because, if I find in favour of the respondent on these issues, I am therefore precluded from considering the substantive complaint. The respondent has submitted that the present complaint has not survived the death of the complainant, and therefore, the Tribunal does not have jurisdiction to investigate and hear the complaint. In considering this issue, I have taken cognisance of a recently published decision of this Tribunal Hegarty (deceased) -v- Area Development Management Ltd where the Equality Officer had to decide whether a complaint brought under the Equal Status Acts 2000 - 2008 is governed by the provisions of the Civil Liability Act 1961, in circumstances where the complainant has died before the investigation has been completed.
4.2 In considering this issue, the Equality Officer considered a UK decision, Harris -v- Lewisham & Guy's Mental Hospital Health , in which the Court of Appeal in England overturned the Employment Appeal Tribunal's ruling that a race discrimination claim taken under the Race Relations Act 1976 does not survive the death of the Applicant. In this judgment, the Court of Appeal had occasion to refer to the English equivalent of section 7 of the Civil Liability Act 1961, namely section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. The Equality Officer, having considered the case, was satisfied that an action or complaint of discrimination brought under the provisions of the Equal Status Acts constitutes a 'cause of action' on behalf of the complainant within the meaning of section 7 of the Civil Liability Act 1961. The Equality Officer noted the comments of Mummery LJ. in the Harris case where it was held that
There is no provision in the 1976 Act precluding a complaint of the kind made by Mrs. Andrews from being a cause of action or from devolving on her estate. The NHS Trust relied on section 53(1) which restricts proceedings for breach of the 1976 Act to those provided by the Act. That subsection does not exclude or disapply the provisions of the 1934 Act [...] The death of Mrs. Andrews does not mean that there have ceased to be proceedings under the 1976 Act. Mrs. Harris, as personal representative, is entitled to continue the subsisting proceedings under that Act as a result of the vesting in the estate of the cause of action under that Act.
4.3 The Equality Officer concluded that
Having regard to the foregoing, I am satisfied that there is no provision in the Equal Status Acts that precludes a complaint of the kind made by [the complainant] from being a cause of action or from devolving on his estate. Furthermore, I am satisfied that the death of [the complainant] does not mean that his complaint of unlawful discrimination ceased to be proceedings under the Equal Status Acts. In the circumstances, I find that the present complaint under the Equal Status Acts has survived the death of the complainant, [...] and I am satisfied that Mrs. Hegarty is entitled to continue to pursue the complaint in her capacity as the Executrix of his Estate. Accordingly, I find that the Tribunal does have jurisdiction to investigate and hear the present complaint.
I have considered the abovementioned decision and I note that the issues raised are similar to those that are presented before me for consideration. Although that was a decision made under the Equal Status Acts and this instant case falls under the Employment Equality Acts, it remains relevant. Accordingly, I find that the complaint survives the death of the complainant, Mr Ibidunni, for that of his estate and that the Tribunal does have jurisdiction to proceed with the investigation and hearing.
4.4 I will now deal the respondent's claim that the death of the complainant has presented a difficulty for the respondent receiving a fair hearing, as the complainant is not present to provide direct evidence to the Tribunal. I am satisfied that it has long been established that a Tribunal may deviate from the rules of evidence applicable to that of a court of law as part of its investigation. I refer to Kiely v The Minister for Social Welfare where Henchy J. stated that 'Tribunals exercising quasi-judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like - but they may not act in such a way as to imperil a fair hearing or a fair result,' and also in Goodman v Hamilton Costello J. stated: 'There is no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable to a court of law. The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures ............' Although I agree that the absence of the complainant to provide direct evidence added to the difficulty investigating this case, I am satisfied that it did not place the respondent's case in any particular disadvantage as compared to the complainant's case. Accordingly, I am satisfied that the process was not compromised to the effect that the absence of the complainant resulted in an unbalanced and unfair hearing.
4.5 I will now consider the jurisdictional issues raised by the respondent in relation to the nature of any redress that the Tribunal can make in the circumstance of finding in favour of the complainant. I note that Section 7(2) states that:
Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness. (emphasis added)
As I am not finding in favour of the complainant, I will refrain from comment on whether Section 82 (1)(c) of the Employment Equality Acts, i.e. an order for compensation for the effects of acts of discrimination, falls under the damages that are not recoverable for the benefit of the estate of the complainant. However, Section 82 (1) (e) of the Employment Equality Acts provides for an order that a person or persons specified in the order take a course of action which is so specified e.g. a respondent may be ordered to retain interview notes or bring in a policy and/or training to prevent harassment on any or all of the nine discriminatory grounds in the workplace. This form of redress is clearly not excluded in the Civil Liability Act 1961. For that reason, I find that the Tribunal does have jurisdiction to proceed with the investigation and hearing in the present case as there are options to order different types of redress, if I had found in favour of the complainant.
Time Limits
4.6 On the second preliminary issue, the Tribunal has relied on the Department of Health and Children v Gillen Decision for many years:
Two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Acts, which both parties concede it was, the Court may take into consideration previous occasions in which the complaint was on the same ground.
4.7 The complainant resigned on 19th December 2005. This is clearly within the statutory time limits as the Tribunal received the complaint form on 10th May 2006. He submitted that he resigned because of work-related stress due to racial discrimination. Evidently, this establishes a chain of events between the allegations in his submission and his resignation. Therefore, I do have jurisdiction to examine these issues.
4.8 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory grounds in this case are race and family status. Therefore, the issues for me to decide are:
(i) whether Mr Ibidunni was discriminated against in relation to his conditions of employment by the respondent on the ground of race and family status
(ii) whether he was discriminated against by the respondent regarding promotion on the ground of race and family status
(iii) whether he was victimised within the meaning of Section 74 (2) of the Acts
4.9 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Access to promotion
4.10 In relation to not being promoted on the grounds of race and family status, the evidence it is uncontested that the complainant did not apply for any promotional opportunities bar the one where his application form seems to have been lost. The respondent provided evidence that there were numerous opportunities that he could have applied for but did not. Boston Scientific (Ireland) Ltd. also provided evidence that the people the complainant named in his submission as having been promoted ahead of him actually obtained the promotions only after formally applying for them. Therefore, I have no jurisdiction to examine access to promotion on the grounds of race and family status in relation to vacancies for he did not apply. Regarding the process technician vacancy, I accept the complainant's contention that he applied for this position and his application was mislaid. While this was unfortunate for the complainant and it was remiss of the line manager involved, there is insufficient evidence to accept that this administrative error was discriminatory on the ground of race or family status. Therefore, this strand of his case fails.
Conditions of Employment
4.11 Regarding conditions of employment, Section 8(6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time, transfers, layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.
4.12 Regarding the incident (2.5 and 3.5) that led to a disciplinary hearing, from both submissions it is clear that Mr Ibidunni did raise his voice. Although the evidence from both sides differs as to the reasons why he was shouting, the respondent was entitled to investigate the matter. Following Boston Scientific (Ireland) Ltd's enquiry, the matter was not though serious enough to discipline the complainant. In relation to this incident, no evidence was adduced to me as to how Mr Ibidunni was treated less favourably than an Irish person or somebody with a different family status.
4.13 Regarding Mr Ibidunni's request for force majeure leave, he was allowed take the maximum allowed under the Parental Leave Acts. Regarding timekeeping and attendance, an employer is entitled to expect an employee to turn up for work on time and may raise these issues with an employee. It is clear from Mr Ibidunni's submission and his wife's evidence that the formalistic way these issues were handled distressed him. However, no evidence has been adduced to me that he was treated less favourably on the ground of race or family status than any other employee of Boston Scientific (Ireland) Ltd would have been in similar circumstances. In this regard, the respondent presented evidence at the hearing to show that the Irish woman he named as being late on more occasions than him without being disciplined, did actually receive a warning.
4.14 Consequently, the complainant has failed to establish a prima facie case of discrimination on the grounds of family status or race in relation to his conditions of employment.
Victimisation
4.15 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
In his written submission, Mr Ibidunni contended that he was victimised when he requested a transfer by being given work of lesser value as well as the failure to be moved to a completely different area. Insufficient evidence has been adduced to me to state whether this constitutes victimisation within the meaning of the Acts. Therefore, the complainant has failed to establish a prima facie case of victimisation.
Decision
4.16 I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) the complainant was not discriminated on the ground of race and family status regarding conditions of employment contrary to 8 (1)(b) of the Acts
(ii) the complainant was not discriminated on the ground of race and family status regarding access to promotion contrary to 8 (1)(d) of the Acts
(iii) the complainant was not victimised within the meaning of 74(2) of the Act
Therefore, I find against the complainant.
________________
Orlaith Mannion
Equality Officer