THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2011 - 261
PARTIES
Toms Bermaks
(represented by Richard Grogan and Associates, Solicitors)
and
Anthony Donnelly & Son Fruit Ltd
(represented by Gareth Kyne, Management Support Services (Irl) Ltd
File References: EE/2009/819
Date of Issue: 23rd December 2011
Keywords
Employment Equality Acts 1998 to 2011- Sections 6 and 8 - discriminatory dismissal - warehouse Storeman - gross misconduct.
1. Dispute
1.1 This case concerns a complaint by Mr. Toms Bermaks, a Latvian national, who claim that he was discriminated by Anthony Donnelly & Son Fruit Ltd on the grounds of race contrary to Section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory dismissal.
2. Delegation of the complaint
2.1 The complainant referred this complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 10th November 2009. In accordance with his powers under Section 75 of the Acts, the Director then delegated the case to me, James Kelly, an Equality Officer on the 8th November 2011, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from both the complainant and from the respondent. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing of the case on the 30th November 2011.
3. Summary of the Complainants' case
3.1 The complainant has been in Ireland since July 2005 and was employed by the respondent as a store man in the respondent's warehouse between 25th May 2009 and 19th October 2009. He claims that he has read and fully understood the respondent's company hand book, which includes, among other things, information in relation to the disciplinary policy and procedures. The complainant said there were people from many different countries employed at the respondent including from Lithuania, Estonia, Poland and Ireland.
3.2 The complainant claims that on the 17th October 2009 one of his colleagues opened a pallet containing chocolate in the warehouse and then removed some chocolate from the pallet and passed it to him and another colleague. He does not deny that they ate the chocolate and then continued with their duties. He claims that he did not open the pallet or help his colleagues to re-pack the pallet to conceal the theft.
3.3 He claims that on the 19th October 2009 he and another colleague were called to the meeting room with the General Manager and Mr. A from the company. He claims that they were shown CCTV pictures and allegations that they had stolen from the company were put to them. He claims they were told to leave afterwards.
3.4 The complainant said he felt he did not do anything wrong, he had eaten the chocolate handed to him from a fellow employee who had worked there a lot longer than he had and who he deemed to be a supervisor. He felt that since he did not actually take anything from the premises he felt he did not steal. He claims that the respondent did not go through its own disciplinary procedure in conjunction with its own guidelines. He said there were no documents given to him prior to or at the disciplinary meeting. He said there was no suspension until the matter was fully investigated. He also said there was no option to bring a representative to the meeting and no opportunity to appeal against the claim of gross misconduct. He was just told to go.
3.5 The complainant's legal representative claims that Mr. Bermaks was relying on the decision of the Labour Court in Campbell Catering Limited -v- Aderonke Rasaq , where he claims that the Court held that there is an onus on the respondent to provide for some special procedures in the case of non-Irish nationals. He claims that the respondent did not even follow its own disciplinary procedures not to mind provide special procedures for the complainant, a foreign national.
4. Summary of the Respondent's case
4.1 The respondent claims that it provides fresh Fruit and Vegetables to the retail industry and employs over 280 people. It claims that Mr. Bermaks was employed with it as a Storeman from the 25th May 2009 until his contract was terminated following an act of gross misconduct on the 19th October 2009. However, it totally disputes that it discriminated against the complainant on the race ground.
4.2 The respondent claims that a sealed pallet received at its warehouse for distribution to one of its largest customers was tampered with and that this was reported by the respondent's customer. The respondent consulted its CCTV and found that three of its workers had opened the pallet, removed some of its contents, ate those contents and then re-packaged the pallet to conceal the theft. Mr. Bermaks was one of those implicated by the CCTV evidence. The incident was hugely embarrassing for the respondent and its reputation. The respondent highlighted the importance of the principle of trust in its business. It claims that the theft by its employees of its client's goods could have had devastating consequences for the respondent's good name and their future working relationship and it could not be tolerated.
4.3 The respondent claims that it invited Mr. Bermaks and one of the other employees involved into a meeting with it the following Monday after the theft was brought to its attention. The third employee involved was not in work on that Monday. It claims that because of Mr. Bermaks linguistic skills it asked him to assist with the translations for his colleague, which he did. It claims that it offered them the opportunity to be accompanied at the meeting but they did not take up that offer. It claims that it set out the allegations and both employees immediately admitted to taking the chocolate and they agreed that they did not have permission to do so. It claims that all three had their contracts terminated because of this incident.
4.4 The respondent adduced evidence from Mr. Bermaks to highlight that he had received, read and understood the company's hand book and in particular the sections in relation to probation and in relation to disciplinary procedures. It highlighted that the complainant was still on a 6 month probationary period at the time of the incident.
4.5 In response to the complainant's reference to the special procedures for non-national outlined in the Campbell Catering decision, (see paragraph 3.5 above), the respondent claims that the Labour Court decision relates to situations where "it may be appropriate for the respondent to go the extra mile in certain circumstances, such as where there are language difficulties". However, it claims that this was not the case here. There were no such difficulties in this case.
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/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. 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".
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 The complainant claims that he was discriminatorily dismissed because of his race and that there was an onus on the respondent to assist him, a foreign national. Mr. Bermaks also claims that the respondent did not follow the correct procedures in his dismissal.
5.4 In considering this issue, I have also taken cognisance of the recent determination of the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"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."
5.5 It was submitted that the Tribunal should infer that the complainant had been subjected to less favourable treatment on the grounds of his race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.6 Having studied the evidence and in consideration of the Labour Court decision in Melbury I am satisfied that I have not been presented with any evidence to support that the complainant was treated any differently not to mind less favourably than any of his fellow workers that were or would be found in the same compromised position as the complainant found himself. I note that all three employees involved in the theft were dismissed. I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that he was treated less favourably than his fellow workers in this case. It is clear that the complainant had excellent English and clearly understood the rules of the company. It is clear from the complainant's direct evidence that he read and understood the company's hand book in particular in relation to gross misconduct, (which refers to inter alia to "theft" as an example of gross misconduct,) and the probationary period, which clearly states that "During the Probationary Period the company's disciplinary procedure is not applied and employment can be terminated if, in the opinion of the Organisation, you are not suitable." I am satisfied with the respondent's evidence that it decided that Mr. Bermaks' action amounted to theft and as he was still on probation it decided to terminate his contract with immediate effect. I am satisfied that this decision was in no way influenced by his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race contrary to the Employment Equality Acts in terms of the manner in which his employment with the respondent was terminated.
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:
- the respondent did not discriminate against the complainant on the race ground pursuant to Section 6(2) of the Acts in terms of his dismissal contrary to Section 8(1) of the Acts.
6.2 Accordingly, I find in favour of the respondent in this matter.
______________
James Kelly
Equality Officer
23rd December 2011