The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-198
PARTIES
Rasa Lazickaite
(Represented by Richard Grogan & Associates)
- V -
The Shoe Studio Ireland Ltd.
(Represented by NorthgateArinso Employer Services )
File reference: EE/2008/306
Date of issue: 14 October 2010
Keywords - Employment Equality Acts - Discriminatory Dismissal - Gender - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Rasa Lazickaite that she was subjected to discriminatory dismissal by The Shoe Studio Ireland Limited on the grounds of her gender and race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 15 May 2008 under the Employment Equality Acts. On 14 September 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 17 September 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was employed by the respondent from 3 September 2007 until she was dismissed on 12 March 2008. The complainant is a Lithuanian National and it is on this basis and on her gender that this complaint is being taken. The complainant submitted that she did not receive a proper contract, or a contract at all, nor Health & Safety documentation and/or training. The complainant submitted that she was dismissed without any procedures and that no reason for the dismissal was ever furnished.
2.2 The complainant submitted that she was called into the office with her manager, Ms A, two weeks before she was let go because of a conflict with a co-worker, Ms B. It appears that Ms B stated that the complainant was not listening to her, and that Ms A advised her of this. The complainant stated that she was listening to Ms B but sometimes she might ignore her because Ms B would never say 'please' or 'thank you'. The complainant submitted that Ms A informed her that she didn't care and that she was advised that if she didn't listen to Ms B, she could start to look for a new job. The complainant also submitted that two weeks before that, Ms A has called her into her office and enquired as to whether the complainant enjoyed her job, because Ms A didn't believe that she enjoyed it.
2.3 The complainant submitted that on the day she was fired, she was working until noon. Then Ms A called her into her office and told her that there were three reasons for her being fired and some law was referred to. The complainant indicated that she can't remember what this law was. The complainant further submitted that she requested a reference, that no P45 was given to her on the day and that she was told that she would receive it after she was paid.
2.4 In addition, the complainant submitted that she was employed in a large department store and that a contract has been produced. She further submitted that the contract does not comply with Section 3 of the Terms of Employment Information Act. No procedures as regards dismissal or grievances were put in place.
2.5 The complainant submitted that the respondents have produced documentation relating to Health and Safety at work and the department store 'Dignity at Work' policy & procedures. The complainant also submitted that no disciplinary procedures documentation has ever been produced nor were any disciplinary procedures applied to the dismissal.
2.6 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.7 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety.
2.8 The complainant submitted a list of authorities citing 6 cases and a European Council directive as follows:
- Khumalo-v-Cleary & Doyle Limited DEC-E2008-003
- Campbell Catering Limited -&-Aderonke Rasaq ED/02/52
- Ning Ning Zhang -&-Towner Trading DEC-E2008-001
- 58 Named complainants -v- Goode Concrete Limited DEC-E2008-020
- Golovan -v- Porturlin Shell Fish Limited DEC-E2008-32
- Council Directive 91-533-EEC of 14 October 1991
- Wolf Gang Lang -&-Georg Schunemann Gmbh - Judgement of the European Court of Justice 8th February 2001. Case C-350-99
2.9 The complainant submitted that she is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that the complainant did not receive a contract of employment in accordance with section 3 of the Terms of Employment Information Act, stating that she received the information on the commencement of her employment in common with all of the respondents employees, regardless of gender or ethnic origin.
3.2 The respondent denied that the complainant received no documentation of training in relation to Health & Safety. The respondent submitted that it has a clear health and safety policy and that there is a large health and safety notice board at the department store staff entrance. The respondent also submitted that it carries out staff training every Tuesday morning between 9.00 am and 9.30 am and that this includes health and safety. This training is common to all, regardless of gender or ethnic origin.
3.3 The respondent submitted that the complainant's employment was terminated on 10 March 2008 by her manager, Ms A as she had not successfully completed her probation period. The respondent submitted that Ms A had clearly explained the reason for the termination indicating that poor timekeeping, use of bad language in front of customers and complaints from her supervisors were the reasons. Ms B was one of the complainants supervisors.
3.4 The respondent submitted that in terminating the complainant's probationary employment for the reasons given to the complainant, the respondent had treated the complainant in exactly the same way as it would have treated any employee regardless of gender or ethnic origin and further that the reasons for dismissal were not connected for any reason with her gender or ethnic origin
3.5 The respondent submitted that the complainant had a more than adequate command of the English language and if she had not been able to demonstrate such a command, she would not have been offered the role of selling shoes to a customer base that is overwhelmingly English speaking.
3.6 The respondent strenuously denies discriminating against the complainant on the grounds of her gender or ethnic origin.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminatorily dismissed Ms Rasa Lazickaite on grounds of gender and race, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The respondent made written submissions in advance of the hearing but did not attend the hearing itself. The Tribunal sent notification of the hearing to the listed address. This notification was sent by registered post and was signed for. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent. Notwithstanding the foregoing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 At the outset of the hearing, the aspect of the complaint in relation to gender was withdrawn. In addition, the complainant confirmed that she was in receipt of a contract and an employees handbook.
4.5 The complainant gave evidence that on her final day, while she was working on the shop-floor, her manager, Ms A, came over to her and told her that she was fired. Ms A then requested that the complainant accompany her into her office. Another employee was present to take notes and Ms A informed the complainant that she was being let go for three reasons: poor time keeping, use of bad language, and on foot of complaints from her supervisor. Thereafter she was required to hand in her staff card and accompanied to the exit of the building.
4.6 The complainant also gave evidence as to how the respondent treated two other non-Irish employees. She said that a French person was treated badly but was retained in employment and that a Lithuanian supervisor, who remained employed by the respondent, was getting on well but was surprised to hear how the complainant was treated. The complainant stated that she had been treated well until she had a disagreement with her colleague Ms B. The complainant accepted that Ms B might have been in a supervisory role.
4.7 The complainant stated that the manager and supervisor were operating as a team and that the manner in which she was dismissed showed a lack of respect. The complainant further stated that her dismissal was not conducted in accordance with the procedures laid down in the employees handbook. The Tribunal was invited to infer that this dismissal was undertaken in a discriminatory manner or that there were discriminatory motives behind the dismissal.
4.8 I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
Section 85A of the Act provides 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. What those facts are will vary from case to case 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 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 this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
4.9 In all the circumstances, including where a colleague of the same nationality as the complainant, was working as a supervisor and, in the words of the complainant, was "getting on well', it is difficult to link the complainants dismissal to her nationality. Having considered the complainants evidence, I am not satisfied that she has shown evidence that would support her contention that she was dismissed on the basis of her nationality. On the basis of the foregoing I find that the complainant has not established facts from which discriminatory treatment may be inferred. As no prima facie case has been established, this element of the complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
14 October 2010