The Equality Tribunal
Employment Equality Acts 1998 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-264
Parties
Aine Juciene
(Represented by Grogan and Associates Solicitors)
V
MLK Restaurants Limited t/a McDonald's
(Represented IBEC)
File No. EE/2010/015
Date of Issue: 23 December 2011
File reference: EE/2010/015 - DEC-E2011-264
Employment Equality Acts -Discriminatory dismissal - Training - Gender - Race- Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Aina Juciene (hereafter "the complainant") that she was discriminatorily dismissed by MLK Restaurants Limited T/A McDonald's (hereafter "the respondent") on the grounds of her gender and race. The complainant submitted that the dismissal occurred on 20 September 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 13 January 2010 under the Employment Equality Acts. On 6 December 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 December 2011. An interpreter provided by the Tribunal was present.
2. Case for the complainant
2.1. The complainant is a Lithuanian national. She worked as a floor manager with the respondent. She commenced her employment as a member of crew in 2005 and was promoted to floor manager.
2.2. The complainant submitted that she was dismissed on 20 September 2009. She claims that she was told that her sick certificate would not be accepted unless she agreed to a demotion. She refused to be demoted and claims that she was then fired.
2.3. The complainant had been legitimately absent on sick leave on 19 September 2009. She submitted that she contacted a named person in the restaurant to inform her that she would not be in. She contacted the store again on Sunday and was told that the store manager would be in on Monday. The complainant came in on Monday to hand in her certificate and was surprised when the manager questioned the authenticity of the certificate. She stated that she had simply gone to the restaurant to ask her manager about the roster. She stated that she was abruptly told that she would have to take a demotion in relation her responsibilities. If she would not be amenable to this she would be fired. The complainant submitted that she was not willing to take a demotion and that she considered herself to be fired. She collected her P45 a week or so later.
2.4. The complainant maintained that because of her poor command of English she had no understanding of the processes concerning disciplinary matters. While she submitted that the owner of the store was a fair and decent man, she did not think she could approach him. This is because the respondent had not taken any steps to ensure she understood her rights.
3.3. Case for the respondent
3.1. The respondent operates two McDonald's franchises. The complainant was initially employed in 2005 and for the second time in 2008 after she and her friend had left the respondent company for a brief period to work elsewhere. The complainant was considered to be a good worker and the respondent expressed some surprise at her almost non-existing English at the hearing. It was submitted that her level of English had been good enough to train other staff into the job and that as part of her promotion to floor manager she would have completed a number external courses where a good command of English would have been required and all examinations would have been in English. The restaurant's working language is English.
3.2. The respondent refuted that the complainant was fired. It was submitted that she had resigned at her own volition sighting health problems and her desire to return to her native country. The respondent manager submitted that the complainant called in on Monday having failed to inform the restaurant about her absence on Friday. The complainant approached her and asked to speak with the manager privately. During this meeting the complainant explained her medical concerns to the respondent and indicated that she could not cope with the dual pressure of dealing with her health issues and the demands of the job. She indicated that she wanted to resign. Her manager replied that she could revert to crew for a period as this would relieve her from any management duties. She accepted that she had asked the complainant why the complainant had been to a doctor in a specified location but denied that she had accused the complainant of submitting a false certificate. The respondent witness stated that the complainant told her that she was resigning. The complainant then walked out passing other staff smiling and declaring that she had just resigned. The complainant collected her P45 when the manager was not in and therefore the respondent has no written record of her resignation. The manager also pointed out that the restaurant's human resource policies demand that meetings are attended by two managers.
3.3. The complainant had received a final warning for failing to adhere to the respondent's sick leave policy in March 2009. Regardless, the respondent submitted that it had no desire to fire the complainant. The complainant had begun to undertake additional training to facilitate her promotion to the next management level.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. This is a claim of discriminatory dismissal. The question that this Tribunal is asked to decide therefore is whether the complainant, who claims she was fired, was so treated solely or significantly because of her nationality. I note that the respondent denies that the complainant had been fired.
4.3. In order for me to have jurisdiction to investigate a discriminatory dismissal I need to be satisfied in the first instance that a dismissal has taken place. Having heard the full facts of this case, it is clear that the complainant is claiming facts akin to a constructive dismissal.
4.4. Overall, I did not find the complainant to be a credible witness. While she claimed that she always reported her absences in a timely manner to her employer, it is clear from her disciplinary record that she had not always done so. She denied any knowledge of any disciplinary steps yet had signed each warning. I note that the complainant had also signed each warning with 'I do not require a witness' but at the hearing she claimed that she had not understood what she had been asked to sign. Indeed, I find that the complainant's insistence that her English was so poor that she understood almost nothing to be far-fetched. It simply does not tally with her reported ability to participate in external training, provide a service to the local community and most importantly, with her alleged quick grasp of the two minute meeting she claimed she had with her manager. I also note that the complainant was afforded a clear appeals procedure in her contract of employment. When I queried why she had not sought to avail of it, after such a random demotion, the complainant maintained that she had not known that she could approach the owner. This is despite the fact that she described the owner as a fair and decent man whom she had met when she sought to return to the restaurant in 2008.
4.5 Furthermore, even if I were to afford the complainant's evidence the highest value possible, I could not find that the complainant's actions in the circumstances were reasonable. I am therefore satisfied that the complainant resigned at her own volition.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discriminatory dismissal on the race and/or gender ground. Therefore, the case fails.
_______________
Tara Coogan
Equality Officer
23 December 2011