THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 162
PARTIES
Walery Szepiet
(Represented by Richard Grogan & Associates)
v
WM Tallon & Sons
(Represented by Sherry Solicitors)
Date of issue: 1 September 2010 File reference: EE/2008/307
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 77 - race- employment status - conditions of employment - hypothetical comparator - prima facie case - discriminatory dismissal - burden of proof.
1. DISPUTE
This dispute involves a claim by Mr. Walery Szepiet who is a Polish national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent from 2 April 2007 until 10 December 2007. He further states that during his period of employment, he was treated less favourably as regards his conditions of employment and was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Polish nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 15 May, 2008. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 24 May, 2010 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 13 July, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Polish national, states that he commenced employment with the respondent on 2 April 2007. He states that his duties involved driving a fork lift truck, picking fruit and cleaning the store. He asserts that he had to make a complaint to management about being paid the national minimum wage before the respondent implemented it. He submitted that this is the reason the respondent took the decision to dismiss him. He states that he did not receive a written contract of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He submits that following the Decision of this Tribunal in 58 Complainants v Good Concrete there is an obligation on the employer to provide employees with a contract of employment in a language which they understand.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or documentation in a language which he could understand. He further states that he received no health and safety training at all during his employment. He asserts that he was working with very strong chemicals and did not have the appropriate mask and gear required. He also asserts that he received no documentation regarding the grievance and disciplinary procedures. It is submitted on his behalf that the respondent's action constitute less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Good Concrete in this regard.
3.3 The complainant states that at no stage during his employment was he advised that there was a deterioration in his work. He states that he presented for work on a Monday morning and noticed that his clock card was gone. He was subsequently called into a meeting with his manager. He asserts that his manager said to him 'I don't know what's happened to you, you seem to be working very slow'. The complainant states that his manager then stated that the complainant was telling other Polish workers to work slower. The complainant asserts that he was told by the manager that if he admitted that he had told the other Polish workers to slow down that he would be given a further chance to stay. The complainant states that he refused to comply with the manager's request and the manager told him he had no alternative but to dismiss him. The legal representative for the complainant submitted that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in the circumstances. It is further submitted that the respondent would not have treated a hypothetical Irish employee in the same manner and consequently, the alleged treatment of the complainant constitutes discrimination of him on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was interviewed for the position of picker and commenced employment on 2 April, 2007. His duties involved selecting items of produce from the warehouse and packing them on to pallets for dispatch to customers of the respondent. The respondent's business is providing fresh, usually prepared, vegetables to the restaurant and catering trade. The produce is perishable and timely delivery is essential to the operation to ensure that restaurant and catering services can be met. The respondent states that it is essential that orders are picked and delivered within a twenty four hour turnaround period and consequently, it is essential that employees pick rates are achieved within this twenty four hour period. The respondent has three hundred and fifty orders to fulfil in any given twenty four hour period and the company is run on shifts.
4.2 The respondent states that the complainant was provided with a contract of his terms and conditions of employment which was signed by the complainant. The respondent submitted a signed copy to the Tribunal. The respondent further states that a detailed 'one on one' induction and training procedure was provided to him by his manager. The respondent further asserts that other employees with linguistic skills were called upon to assist in providing translation to any staff member requiring assistance. The respondent maintains that the complainant was a very efficient employee when he commenced employment but his productivity had dramatically decreased to the point where he was now working more slowly than other less experienced staff members. The respondent states that the complainant had been picking circa 40 orders in the first 2/3 months but this number decreased to about 20 orders thereafter. The respondent also asserts that the complainant appeared to be trying to slow down other staff by encouraging colleagues to do the same. The respondent states that the complainant's immediate supervisor requested the complainant to attend his office in late October 2007 and spoke to him about his reduced work output. The supervisor also brought this matter to the attention of the complainant's manager. The respondent further states that the manager, having received a report from the complainant's supervisor regarding his deterioration in work output, decided to supervise the shift personally and did so over a two week period in November, 2007. The respondent asserts that the manager observed that the complainant was considerably under performing compared to other employees including employees who joined the company after him.
4.3 The respondent states that at the end of the two week supervision period in late November 2007, the manager requested the complainant to meet with him to discuss the issue. The respondent asserts that the manager explained to the complainant his findings on his performance and requested an explanation. The respondent states that the complainant then stated his agreement that he was slowing down but offered no explanation. The respondent further states that when it was put to him, he acknowledged that he had been encouraging other staff members to slow down their rate of work as well. The respondent took the view that the complainant's intention was to slow down productivity on the line so as to pressurise management to increase pay rates. The respondent states that given the complainant's deliberate under performance and efforts to encourage colleagues to slow productivity on the line that a decision was taken by management to dismiss him. The respondent states that had an Irish employee acted in the same manner as the complainant, the outcome would also have led to dismissal. The respondent has submitted details of all staff members employed by the company in 2007 together with a breakdown on nationality and they confirm that at that time, 80 % of their workforce comprised non-Irish nationals. The respondent seeks to rely on the Decision of Equality Officer in the case of Darius Gorys v Egor Kurakin Transport Ltd. in support of their case.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 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) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Polish.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him, his case cannot succeed.
5.4 The first issue raised by the complainant relates to the respondent's alleged failure to furnish the complainant with a written contract of employment. In the first instance, it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal.
5.5 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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."
In the instant case, in relation to the provision of a written contract of employment, the complainant was unable to show a difference in treatment between him and any other employee on this matter. I note that the complainant did receive a copy of his terms and conditions of employment and this document was signed by him. In view of the evidence given by the respondent in relation to the complainant's ability to complete the job application form and the 'one to one' induction training provided by the respondent, I am of the view that the complainant did understand his terms and conditions of employment. In the instant case, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide him with a written contract of employment or other documentation could be inferred.
5.6 In relation to the complainant's concern regarding working with strong chemicals and not wearing the appropriate mask required; the respondent disputes this assertion and submits that all work areas are subject to health and safety checks and meet the general standard relating to health and safety requirements. In Melbury Developments v Arturs Valpetters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. Section 6 of the Acts provides that discrimination can also arise in circumstances where one person would be treated less favourably than another person on one of the grounds - the concept of a hypothetical or notional comparator. In Toker Developments v Edgars Grods the Labour Court confirmed it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.".
In the circumstances, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the alleged failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand and he cannot therefore succeed with this element of his complaint.
5.7 The complainant stated on the day of the hearing that his duties involved driving a fork lift truck, picking of fruit and cleaning the store. He maintains that the reason his level of productivity as a picker was lower than other employees (the respondent has submitted documentation outlining the supervisor's concerns regarding the reduced work output of the complainant) was due to the fact that he carried out a substantial amount of time driving the fork lift truck as well as undertaking picker duties. The respondent strongly disputes this information and states that the complainant at no time had duties of driving the forklift truck. The respondent also submitted documentation regarding the complainant's work area and information regarding his colleagues duties. The complainant agreed his colleagues worked as pickers but maintained that his duties also included driving the fork lift truck. Both parties are in dispute on this issue, however I am of the view that the complainant was interviewed and employed in the position of picker and although he may of his own volition have taken on duties of driving the fork lift truck, his core duties were that of a picker.
5.8 The respondent agreed that the complainant raised concerns with management in June/July 2007 regarding his rate of pay and felt he should be getting a higher rate. The respondent acknowledges that they were late in implementing the increase in the national minimum wage as management were on vacation at the time but the matter was drawn to management's attention by payroll staff and was implemented thereafter. The respondent states that all employees on that scale were affected in the same way and this included both Irish and non-Irish employees. It is not a concern of this Tribunal to ascertain whether or not the provisions of the Health and Safety legislation, Minimum Wages Act or Terms and Conditions of Employment Act have been implemented. The concern of this Tribunal is whether or not any breach has been applied in a discriminatory manner. The complainant has not adduced evidence in this regard.
5.9 The respondent has submitted a written document dated 25 October, 2007 in relation to a meeting held by the various supervisors in the operations department. It includes comments by the complainant's immediate supervisor raising concerns regarding the negative influence the complainant was having on the other staff members and that his productivity had greatly deteriorated. It also highlighted that the complainant was 'slowing things down'. I accept the evidence given by the respondent that the manager changed his shifts to personally supervise the complainant over a two week period. The respondent states that at the end of the two week supervision period in late November 2007, he was of the view that there was a deliberate attempt to slow down productivity on the line. The respondent states that the manager called the complainant into a meeting to discuss the matter and the complainant agreed that he was slowing down but offered no explanation. The complainant refutes this assertion. Whilst the content of the meeting relating to the dismissal and what was said at that meeting was disputed by both sides on the day of the hearing; taking the totality of the evidence into consideration, I find the respondent's evidence more compelling. I am of the view that the complainant was dismissed as a result of the manager's analysis of the work output over the two week period and the previous report by the complainant's immediate supervisor regarding the decrease in the level of productivity and the concern raised relating to the complainant encouraging other staff members to slow productivity on the line.
5.10 I have carefully examined the evidence presented by the complainant in the instant case and although the complainant has argued that fair procedures were not complied with in relation to his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in relation to his dismissal. The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal, the complainant needs to prove that it was influenced by his race. I am not satisfied that he has adduced evidence to support his assertion that his nationality was a factor which influenced the respondent's behaviour. The legal representative for the complainant submitted that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in the circumstances. I have carefully considered the arguments advanced by the complainant's solicitor on this matter and I am not satisfied that they provide the evidential basis to enable me conclude that an Irish employee would have been treated more favourably in the circumstances. In light of my comments in this and the preceding paragraphs, I find that the complainant has failed to establish facts from which it could be inferred that a hypothetical Irish employee would have been treated differently than him in the circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant has failed to establish a prima facie case of (i) discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in respect of (i) his conditions of employment and (ii) that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts and his entire complaint must therefore fail.
_____________________
Valerie Murtagh
Equality Officer
1 September, 2010