THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-235
PARTIES
Augis Bitinas
(represented by Richard Grogan
& Associates, Solicitors)
and
Uniqrete Limited
(represented by Tom O'Grady Solicitors)
File References: EE/2008/029
Date of Issue: 25th November, 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. Augis Bitinas, who is a Lithuanian national, that he was discriminated against by Uniqrete 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. Augis Bitinas referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 17th December, 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 11th May, 2010 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 3rd October, 2008 and from the respondent on 19th November, 2008. As required by section 79(1) of the Acts and as part of my investigation, I scheduled a hearing of this complaint for 10th November, 2010. An independent interpreter, provided by the Tribunal, was in attendance.
3. Summary of the Complainant's case
3.1 The complainant, Mr. Augis Bitinas, who is a Lithuanian national, was employed by the respondent as a general operative from 18th September, 2007 until 26th October, 2007. The complainant was employed to work on a site in Dublin and he got a lift to his workplace each morning with a number of other workers who were also employed by the respondent. The complainant stated that he was unable to attend for work on Wednesday, 24th October, 2007 because he was suffering from a stiff neck. He claims that he contacted one of the other workers (who also spoke Russian), with whom he travelled to the site, at 5 a.m. to inform him that he would be unable to travel to work that morning. The complainant claims that he also attempted to contact Mr. A, Managing Director of the respondent, by telephone on numerous occasions both that morning and over the next few days to explain that he had been unable to attend work because of sickness. The complainant stated that he was unable to contact Mr. A and that his telephone calls were not answered on each occasion that he attempted to call.
3.2 The complainant stated that he was sick for only two days (i.e. 24th and 25th October) and that he was ready to return to work on the third day; however, he was unable to make arrangements for anyone to pick him up at the normal collection point in order to bring him to the site in Dublin. The complainant stated that he also contacted one of the other workers employed by the respondent to try and arrange a lift to work following his two day sick absence but was informed that he should contact Mr. A directly. The complainant stated that he went to Mr. A's home town on the following Monday morning and approached him in order to enquire if his job was still there for him. The complainant claims that Mr. A told him to "f... off" and when he requested payment of his last weeks wages he was also told to "f... off" .
3.3 The complainant denies the respondent's contention that he was guilty of gross misconduct as a result of the alleged failure to contact it on the first day of his sick absence. The complainant submitted that the idea an individual would be dismissed for gross misconduct on the basis that he had failed to report an absence due to illness without being afforded the opportunity of a disciplinary hearing was not acceptable behaviour on the part of the respondent. The complainant submitted that he was dismissed without being afforded access to any proper grievance or disciplinary procedures and it was contended that he was subjected to this treatment by the respondent on the grounds of his nationality.
3.4 The complainant 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 company was established in 2002 and it is engaged in the manufacture and installation of polished concrete furniture and components. The respondent stated that it employed approx. 16/17 workers in October, 2007, the majority of whom were non-Irish nationals from countries including Poland, Latvia, Lithuania and Romania. The respondent stated that the complainant was employed as a general operative from 18th September, 2007 until 26th October, 2007. The respondent stated that the complainant worked on a site in Dublin during his period of employment and he was provided with a lift to work each morning by the Foreman, Mr. B. The respondent stated that the Managing Director, Mr. A received a telephone call from Mr. B, at approx. 6:30 a.m. on 24th October, 2007 to confirm that the complainant had failed to appear at the normal collection point. The respondent stated that Mr. A made numerous attempts (approx. 6/7) that day to contact the complainant on his mobile phone but these calls were not answered.
4.2 The respondent stated that it did not receive any contact from the complainant over the next three working days (Wednesday to Friday). The respondent stated that Mr. A was collecting another worker the following Monday morning when the complainant approached the vehicle that he was driving. The respondent stated that Mr. A informed the complainant that he had not received any communication from him regarding his absence from work the previous week and explained that it had been necessary to re-deploy another member of staff to carry out his job. The respondent stated that he informed the complainant that he was dismissed because he had failed to comply with the company's procedures for the reporting of sick absences. The respondent emphatically denies that the complainant was told to "f... off" by Mr. A on this occasion.
4.3 The respondent submitted that it was clearly stated in the written contract which it provided to the complainant that an employee is obliged to contact either the foreman or the office on the first day of sick leave. The respondent stated that the complainant was guilty of gross misconduct in that he had breached the company's stated rules in relation to the requirement to notify it of his sick absence on the first day of his absence. The respondent stated that the complainant's absence from work caused considerable disruption as he was the only worker on that particular site who had been trained to operate a specific type of machine. The respondent stated that it was necessary to re-deploy another member of its workforce to this site as a result of the complainant's absence. The respondent denies that the complainant was dismissed because of his nationality and it submitted that the same sanction would have been applied to any of its workers, regardless of nationality, in similar circumstances.
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 complaints in relation to training, conditions of employment and harassment. Accordingly, the issue for decision in this case is whether or not the respondent discriminatorily dismissed 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.
5.4 In the present case, the actual issue of dismissal is not in dispute between the parties and it was agreed that the complainant was dismissed from his employment as a result of his absence from work due to a period of sick leave. However, the actual circumstances surrounding this period of sick leave and whether or not the complainant was in breach of the respondent's sick leave policy are very much in dispute between the parties. The complainant, on the one hand, claims that he was unable to attend work on the 24th/25th October, 2007 because he was suffering from a stiff neck. He claims that he made several attempts to contact the respondent by telephone both on the 24th October, 2007 and over the course of the next few days in order to inform the respondent of his absence but that he was unable to make contact. The respondent, on the other hand, claims that the complainant was dismissed for gross misconduct because he failed to comply with the company's procedures for the reporting of sick absences. The respondent claims that the complainant was absent from work from 24th to 26th October, 2007 (3 working days) and that it did not receive any contact from him to explain his absence during this period of time. The respondent further claims that this unauthorised absence by the complainant caused considerable disruption as it became necessary to re-deploy another member of its workforce from a different site to cover the complainant's absence.
5.5 In considering which version of events I find more credible, I note that the complainant stated that he had contacted another member of the respondent's workforce, Mr. C (who also spoke Russian) on the first morning of his absence to say that he would be unable to attend for work that morning. However, the complainant's evidence in relation to this issue was in conflict with the evidence given by Mr. C at the oral hearing, who stated that he did not recall receiving any telephone call from the complainant on that morning. I have also taken into consideration the evidence of Mr. A, Managing Director, who stated that he did not receive any contact from the complainant during the three working days to explain his absence and that he had attempted to contact the complainant on numerous occasions during this period to try and ascertain the reason for his absence. I have found both Mr. A and Mr. C to be credible witnesses and I am satisfied that their evidence represents a more accurate and compelling account of events. In the circumstances, I am satisfied that the complainant failed to notify the respondent of his sick absence during the period of the three working days from 24th to 26th October, 2007 and that this failure was clearly in breach of the respondent's policy in relation to sick absences. I also accept the respondent's evidence that it had sent a copy of its sick absence policy to the complainant following the commencement of his employment. I am therefore satisfied that the complainant was fully aware of the requirement to notify the respondent of any sick absences and that failure to do so amounted to a breach of the company rules.
5.6 It was accepted by both parties that there was a meeting between the complainant and the respondent's Managing Director, Mr. A, on Monday, 29th October, 2007 and that the complainant was informed of his dismissal during the course of this meeting. The complainant claims that Mr. A told him to "f... off" on two occasions during the course of this meeting whereas Mr. A emphatically denied that he had used any derogatory language towards the complainant on this occasion. I note the evidence of Mr. D (former employee of the respondent), who stated that he was also present during the course of this meeting and that he did not witness Mr. A using any derogatory or foul language towards the complainant. In the circumstances, I have found the evidence of Mr. A and Mr. D to be more credible in relation to this issue. I am satisfied that the complainant was dismissed from his employment for disciplinary reasons i.e. because he had failed to comply with the respondent's policy in relation to sick absences. Having regard to the foregoing, I find that the complainant has not adduced any evidence to suggest that his dismissal was in any way connected or attributable to his nationality.
5.7 The complainant has argued that the respondent treated him in a discriminatory manner by failing to apply any proper procedures in relation to his dismissal and he claims that a notional Irish worker would not have been dismissed in such circumstances. I accept that the respondent may not have adhered to proper procedures in terms of the manner in which the complainant's dismissal was effected. 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".
5.8 As I have already stated, I am satisfied that the complainant's employment was terminated for disciplinary reasons i.e. on the basis of his failure to comply with its policy in relation to sick absences. Having regard to the totality of the evidence adduced, I am not satisfied that the complainant has adduced any evidence to support his assertion that his nationality was a factor which influenced the respondent's decision to dismiss him from his employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to discriminatory dismissal contrary to the Employment Equality Acts.
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)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
25th November, 2010