THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2011 - 232
PARTIES
Mr Bernard Lewandowski
(represented by TRIANA)
and
Office and Industrial Cleaners
(represented by IBEC)
File Reference: EE/2008/603
Date of Issue: 9th December, 2011
Headnotes: Employment Equality Acts, section 6, 8 - Section 6(2)(h), race ground - Section 8(6)(c), conditions of employment - working hours - treatment by supervisor
1. Dispute
1.1. This case concerns a complaint by Mr Bernard Lewandowski (hereinafter referred to as "the complainant") that he was discriminated against by Office and Industrial Cleaners Ltd. (hereinafter referred to as "the respondent") on the ground of race, contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to conditions of employment, contrary to Section 8(1)(b) of the Acts.
1.2. The complainant also made a claim with respect to his dismissal by the respondent. However, as the Rights Commissioners had already made a recommendation in that respect, and in accordance with Section 101(4) of the Acts, the Tribunal has no jurisdiction to consider this matter and this was indicated to the complainant at the first hearing of the complaint.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 12th September, 2008, alleging that the respondent had discriminated against him on the ground of race.
2.2 Written submissions were received from both parties. On 26th April, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Hearings of the complaint were held on 27th June, 2011 and 23rd September, 2011. Further information was sought from the parties and final correspondence in this respect was received on 19th October, 2011.
3. Summary of the Complainant's case
3.1. The complainant stated that he was a Polish national who worked for the respondent from July 2006 until August 2008 as a cleaner/window cleaner. He gave an account of a number of "situations" where he submitted that a certain supervisor, Ms A, who was Lithuanian, would "blackmail" and "humiliate" employees. He also described her treatment of him. He submitted that he was treated in this way by her because he was Polish.
3.2. The complainant described his communication with Ms A and the respondent in general about this treatment. He stated that this communication was carried out mainly through another Polish colleague, Mr B, as the complainant did not speak English. In that respect, in May 2008, a letter had been sent to the respondent by a number of workers, including the complainant and Mr B, in which they outlined their grievances. Mr B, who was present at the hearing, also gave an account of his communication with the respondent in this respect, in particular with Ms C, the respondent's Managing Director. He stated that no action was taken against Ms A in response to their complaint.
3.3. The complainant also submitted that Lithuanian workers were given more hours of work than he was. He named some of these individuals but could not name others. He denied that the Lithuanians who were provided with more hours than him were all drivers. He stated they were all employed after Ms A became a supervisor and were given these hours despite starting their employment after him (and, therefore, being in the respondent's employment for less time). He stated that he was working significant hours until the complaint was made against Ms A. He denied either being asked to and/or refusing work in another department. He also stated that he did not have a driving licence but said he was never given any information that there was a vacant position as a driver/cleaner.
3.4. The complainant stated that he understood that there was a general reduction in hours due to the economic downturn and had been warned in advance that this would be the case. However, he said that he observed that new Lithuanian workers were constantly being accepted while workers who were already there had their hours reduced. He stated that there were days when he was working between May and August 2008 but that it was only because the respondent could not afford to exclude him from those days when there was a large demand for work.
3.5. Mr B also gave evidence in this respect, including that he had worked as a driver and a supervisor but, from June 2008, no longer carried out those roles. He also stated that, from June to August 2008, there were times when he did not receive any hours and he got "less and less work". Mr D, who also appeared as a witness for the complainant, stated, inter alia, that he worked from June to August 2008 though in some weeks in that period there were days when he did not work. Mr D stated that he was a general cleaner.
3.6. Mr E, a witness for the complainant who was also Polish, stated that he was a driver and general cleaner. He stated that employees that were employed after Ms A became a supervisor were Lithuanian except that there was one Latvian who was employed at this time. He could not recall all of their names, and reiterated the names of the persons already identified by the complainant. Mr E said that he was working all the time at this point and had good hours, usually a full 39 hour week. He stated that he did work alone in that context and would speak with a foreman with the "little bit" of English that he had. Mr E also said that he was told by another supervisor that Ms C had given her an order not to give hours to the complainant in a particular week.
3.7. In short, the complainant submitted his hours were reduced following his complaint against Ms A and that they were reduced while new workers, who were Lithuanian, were given more hours than him. He submitted that he could not remember the exact names of the parties concerned because the events in question had taken place some time previously. He also submitted that requests for information made by Ms C were not in compliance with the respondent's grievance procedures. In this respect, he also stated that the grievance procedure was not followed in general with respect to this complaint, nor was he informed of that procedure before June 2008.
4. Summary of the Respondent's case
4.1. Ms C, who was present at the hearing, recalled that she had one conversation with Mr B about Ms A and gave an account of that conversation (an account which conflicted with that of Mr B). She denied that she ever told anyone not to give hours to the complainant. She outlined the circumstances surrounding the hiring of the named Lithuanian drivers. With reference to the letter of May 2008, she stated that she wrote to each of the individuals concerned, including the complainant and Mr B, seeking further information, but received no response and so did not take the matter any further. In that respect, she denied that the complainant and/or Mr B requested a hearing in accordance with the respondent's grievance procedures.
4.2. The respondent stated that the individuals named by the complainant as having more hours than him had extra skills in that they were drivers. It outlined how, when the downturn arrived, it was more efficient to use driver/cleaners, particularly as the sites to which they were sent required only one worker. In addition, and for that reason, it stated that the workers concerned also needed to be able to communicate with the on-site foremen in English and this was part of the reason why the complainant was not given the hours in question. It added that there were Polish workers who were drivers and who received similar hours. It provided documentary evidence to the Tribunal to support its position in this respect.
4.3. The respondent also stated that the complainant received significant hours in any event. It described how and why the hours in the division in which the complainant worked were reduced due to the economic downturn. It added that there were two females who joined the company in July 2008 but who received very few hours and said that they probably left because they received very little work. It also stated that the complainant was offered work in a different division but declined this work.
4.4. The respondent submitted that the drivers in question were not valid comparators for the reasons already outlined. In any event, it submitted that, while it acknowledged his hours were reduced, the complainant still received significant hours. It submitted that the complainant had failed to establish a prima facie case of discrimination in that context.
5. Conclusions of the Equality Officer
5.1. Section 85A of the 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/her. If he/she 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. Therefore, in deciding on this complaint, I must first consider whether the complainant has established the existence of a prima facie case. 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 Acts 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..." Section 6(2)(h) 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.."
5.3. The issue for me to decide in this case, then, is whether the complainant was subjected to less favourable treatment in comparison to another person on the ground of race, on the basis of his nationality (i.e. because he is Polish) with respect to his conditions of employment in the context that (a) he was allegedly provided with less working hours in comparison with certain other employees on the race ground and/or (b) he was allegedly treated less favourably by Ms A in general on the ground of race and/or (c) he was allegedly treated less favourably by the respondent on the ground of race with respect to the grievance procedures that were followed by it in dealing with his complaint against Ms A. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Working Hours
5.4. With respect to the issue of working hours, the essential point of the respondent's submission is that the reason why the persons named by the complainant were provided with more hours than him was because they were drivers. In contrast, the complainant submits that there were Lithuanians who were provided with more hours than him but who were not drivers.
5.5. I note that the workers whose names the complainant could not recall were those who he claimed were not drivers but who obtained more working hours than him. While he states that he could not remember these names as it was a considerable time ago, I note that he was able to remember the names of all the Lithuanians who were drivers. I also note that the documentary evidence available to the Tribunal in this respect supports the respondent's position. In particular, there is nothing in that documentary evidence to suggest that any worker who was not a driver received significantly more hours than the complainant. Furthermore, the witness, Mr E, who was Polish, was a driver who did not have his hours reduced. Finally, I find the evidence of the respondent in general to be more credible in this respect and I am not satisfied that Ms C told anyone to reduce the complainant's hours because he was Polish.
5.6. In short, I accept the respondent's submission that only drivers were provided with significantly more working hours than the complainant. In that context, it is clear that the reason why the complainant's hours were reduced when certain other workers hours were not was unrelated to the complainant's nationality. In all the circumstances of the present complaint, then, I find that the complainant has failed to establish a prima facie case with respect to this aspect of his claim.
Alleged treatment by Ms A
5.7. I now turn to the complainant's claim that he was discriminated against by Ms A because he was Polish. Having considered all the evidence presented by both parties with respect to that claim, both oral and written, I am not satisfied that any of that evidence is of sufficient significance to raise a presumption that the complainant was treated less favourably on the grounds of his nationality (i.e. that he was treated less favourably by Ms A because he was Polish). He has therefore failed to establish a prima facie case in that respect.
Grievance Procedures
5.8. Even if I were to accept that the respondent's grievance procedures were not properly followed with respect to the complainant's complaint to the respondent about Ms A, there is no evidence to suggest that the complainant's nationality was in any way related to that failure. Furthermore, I am satisfied that the complainant was aware of the procedures in question before he made the complaint. In that context, I do not need to consider the matter any further as he has failed to establish a prima facie case of discrimination in that respect.
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:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to s.8(1)(b) of the Acts
6.3. Consequently, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
9th December, 2011