The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-140
Petrakova
(Represented by Richard Grogan and Associates)
V
Lexor Entertainment Limited
(Represented by Gandon Law Firm)
File No. EE/2009/333
Date of Issue: 18 July 2011
File reference: EE/2009/333 - DEC-E2011-140
Keywords:
Employment Equality Acts -Discriminatory treatment - Conditions of employment - Training - Harassment - Sexual Harassment - Discriminatory Dismissal - Gender - Race - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Jevgenija Petrakova (hereafter "the complainant") that she was subjected to discriminatory treatment, harassment, sexual harassment and discriminatory dismissal by Lexor Entertainment Limited (hereafter "the respondent") on the grounds of her gender and race. The complainant submitted that the first date of discriminatory act was on 16 February 2009 and that she was discriminatorily dismissed on 30 March 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 19 May 2009 under the Employment Equality Acts. On 9 June 2011, 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 29 June 2011. Documents requested at the hearing were received by the Tribunal on 04 July 2011.
2. Case for the complainant
2.1. Discriminatory treatment
2.1.1. The complainant, an ethnic Russian with Latvian nationality, worked as a waiter in the respondent restaurant between 16 February 2009 and 30 March 2009. The complaint concerning her contract of employment was withdrawn at the hearing.
2.1.2. The complainant submitted that she did not receive statutory training. She did accept that she received training in relation to kitchen hygiene. No further facts in relation to this matter were offered to the investigation.
2.2. Harassment/ Sexual Harassment
2.2.1. The complainant submitted that the treatment she received constituted harassment on the race ground. No direct evidence of specific incidents was provided. It was submitted that the overall treatment of the complainant, as a foreign national working for a company that only employed foreign nationals, constituted harassment on the race ground.
2.2.2. The complainant submitted that when she returned from her sick leave, she was called into the respondent restaurant to discuss her hours with a named supervisor. She submitted that during this conversation the supervisor said to the complainant that she ought to come home to rest and that "everyone in the restaurant business has miscarriages". The complainant did not report this conversation to anyone and it was submitted that in the circumstances of this case it is understandable that she did not.
2.3. Discriminatory dismissal
2.3.1. The complainant stated that approximately two weeks after she started working with the respondent she attended her doctor and discovered she was pregnant. She notified her employers in writing (submitting her doctor's letter) immediately. She was out on sick leave for a period of 2 weeks. On her return from sick leave the complainant enquired about her hours and was told that all staff would be called to meeting. At this meeting the complainant was told that the restaurant would be closing for the month of April and that only some of the employees would be called back. The complainant submitted that she was hardly given any hours on her return from sick leave and that she spoke with a number of people in order to get herself reinstated. She submitted that she had even undertaken to carry out other duties in the respondent restaurant just to secure some work. The complainant's name was not called out when the respondent stated the names of those returning. Her submission is that the reason why she was not asked to return was because she was pregnant. The complainant submitted that the respondent had recruited new employees after the respondent restaurant had reopened.
3. Case for the respondent
3.1. The respondent operates a restaurant called "Admiral". Neither the respondent nor its representative attended the hearing.
3.2. Discriminatory treatment
3.2. I note that the respondent denied any discriminatory treatment of the complainant or any other employee. A copy of the complainant's signed contract of employment and copy of a kitchen hygiene certificate of a completed training day had been submitted. The respondent submitted that the complainant has not in her submission established any facts concerning health and safety documentation from which it could be gleaned that other members of staff regardless of gender and/or nationality were treated any differently from the complainant.
3.3. Harassment/sexual harassment
3.3.1. The respondent submitted that all staff working in the restaurant are, and were at the material time, ethnic Russians of Latvian or Lithuanian nationality. It firmly denied any harassment and/or sexual harassment. The respondent submitted that the principle set out in McGrath v Trintech [2005] 4 I.R. applies. This principle enunciated that for an employer to be held to be responsible for workplace induced stress, it must be shown that the employer was aware of the stress. It was submitted that this approach applies to situations of harassment. Therefore, it was submitted that the respondent could not have been aware of any inappropriate comments made to the complainant as no complaint was made to the respondent in this regard. It was submitted that the respondent has a grievance procedure in place that was set out in the complainant's contract of employment and that the complainant did not avail of it.
3.4. The respondent submitted in its legal submission that the complainant was, along with all general staff, dismissed by reason of redundancy. It was submitted that all general staff were informed of the reason of the closure of the restaurant and that all ten staff members (of Latvian and Lithuanian nationality) were made redundant during their three month probation period as provided by their contracts of employment. It was submitted that as all general staff (male and female) where made redundant, the complainant is not in position to adduce any evidence that a comparator would have been treated differently in the circumstances.
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. I have taken cognisance of a legal submission and any relevant correspondence submitted by the respondent to the investigation. They have been given the evidential value that such written submissions have without any corroborative evidence. I am satisfied that the respondent was properly notified of the hearing on 23 March 2011.
4.3. I am not satisfied that the facts presented by the complainant give rise to an argument of less favourable treatment and/or harassment on the race ground. No facts supporting such an inference were available. While I note that the complainant submitted that the employer treated all staff badly and did so because the staff were non-Irish I am not satisfied that the facts and evidence provided support such an argument. Such submissions are mere assertions and it would be incorrect in law to elevate such statements to facts from which an inference of discrimination can be drawn.
4.4. In relation to the claim of sexual harassment. I note that the complainant's contract of employment does contain a section on harassment and that this section is accompanied by a clear procedure. The complainant submitted that while discussing her return to work after her sick-leave, a named worker replied that she should go home to rest and that "everyone in the restaurant business has miscarriages". While I note that such a comment is entirely insensitive and inappropriate, I understand from the facts submitted by the complainant that the comments were made to her while she was querying about her hours after her sick leave was completed. I ought to be noted that the complainant had returned from sick-leave that was linked to a risk pregnancy. While I am satisfied that such comments could constitute gender harassment in certain circumstances, I do not accept that the complainant could not have reported the comments to a manager. The complainant submitted that she did speak to the respondent's named director about her lack of hours subsequently to having been subjected to these comments but admitted that she did not raise the comments with him. This failure to report the alleged comments means, in the circumstances of this case, that the respondent cannot be held liable for the alleged comments made by an employee.
4.5. In relation to the claim of discriminatory dismissal. The complainant submitted a payslip from a period after her return from sick leave that indicated that she worked for 5.5 hours that week. This is despite the fact that her contract of employment provided for 39 hours per week. I am satisfied - having requested and received medical reports to that effect from the complainant - that the complainant was pregnant at the material time. I also accept the complainant's submission that she informed the respondent of her pregnancy on or about 3 March 2009. I am satisfied that the early disclosure was due to the fact that the complainant was out on pregnancy related sick-leave.
4.6. I note that the respondent's legal submission referred to a redundancy situation with the respondent and it was submitted that the complainant was dismissed for a genuine redundancy. The submission does not refer to a temporary closure that the complainant submitted took place in April. I am somewhat sceptical as to why the respondent would recruit and provide an employee with a full term contract when it must have been aware some 6 weeks previously that the restaurant was to close temporarily in April? The complainant gave compelling evidence to support an argument that new employees were recruited after the restaurant reopened.
4.7. I am also in possession of a letter written by the respondent's manager dated 25 Match 2011 where the manager stated that the complainant, along with all other staff on probation, were dismissed due to lack of performance. As the respondent was not in attendance at the hearing I am not clear as to whether this reference referred to employee's conduct or the general performance of the respondent's restaurant? In any case, I am not satisfied from the facts provided that the complainant's dismissal was linked with a genuine redundancy situation.
4.7. I find that pregnancy is a particularly protected period of employment. The Labour Court has found in its determination EED0213 that 'no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing'. I am satisfied that the complainant was pregnant at the material time and that the respondent was aware of this. It is clear that the respondent has not been able to establish exceptional circumstances to justify the dismissal of the complainant in this case and that the complainant was given nothing pertaining to a redundancy or her conduct in the workplace in writing.
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 treatment, harassment/sexual harassment on the gender or the race ground.
5.3. I find that the complainant has established a prima facie case of discriminatory dismissal on the gender ground. This inference has not been rebutted by the respondent. I find that the complainant was discriminatorily dismissed on the grounds of gender contrary to 8 (6)(c) of the Acts. In calculating the redress, I have taken into account all of the circumstances of the case and order the respondent to pay the complainant €14167,92 that being nine months salary in compensation for the effects of the unlawful conduct. This award is in compensation for the infringement of Ms. Petrakova's statutory rights and, therefore, not subject to income tax as per Section 7 of the Finance Act 2004.
5.4. Furthermore, pursuant to S. 82(5)(b) of the Acts, I order the respondent to pay the complainant interest at the Courts Act rate in respect of the amount above in respect of the period beginning on 19 May 2009 (being the date of the reference of the claim) and ending on the date of payment.
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Tara Coogan
Equality Officer
18 July 2011