Equality Officer's Decision No: DEC-E/2011/125
Parties
Ugwunnayan
And
EME Ltd. t/a Spar Clarehall
(Represented by Eamonn Farrelly BL Instructed by DAS Group)
File No: EE/2008/686
Date of issue: 27 June, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6,8, 14A and 74 -race- dismissal - harassment - victimisation - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Dickson Ugwunnayan, who is a Nigerian national, that he was (i) harassed by EME Ltd. t/a Spar Clarehall, ("the respondent") on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts and (iii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant's allegations in their entirety.
2. BACKGROUND
2.1 The complainant, who is a Nigerian national states that he was employed by the respondent as a Duty Manager in its shop at Clarehall, Dublin between April, 2008 and September, 2008, when he contends he was dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts. He further states that he was subjected to racial harassment during his period of employment and that he was victimised by the respondent contrary to the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2008 to the Equality Tribunal on 14 October, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, 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 12 January, 2011- the date the complaint was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 22 March, 2011. A small number of points arose which required further clarification and this gave rise to correspondence between the parties and the Equality Officer until early April, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a black Nigerian national. He states that he commenced employment with the respondent on 7 April, 2008 and was employed as a Duty Manager. He rejects the respondent's assertion that he received a Contract of Employment and copies of the respondent's Disciplinary Policy, Bullying Policy and Sexual Harassment Policy at the beginning of his employment. The complainant adds that shortly after he commenced employment with the respondent he had a slight altercation with Ms. X - a junior staff member employed as a Shop Assistant. The complainant states that he reported the incident to Mr. D, the Store Manager, but the matter was never formally pursued by him with Ms. X. The complainant adds that on 13 September, 2008 he was the Duty Manager in charge and was told by Ms. X that there was a problem with the tills. He states that when he went to fix the tills he asked Ms. X what had happened. He adds that she replied using foul and abusive language to him and she then left the shop. He states that a short time later she returned to the shop with her boyfriend and a number of young men were loitering outside of the shop door. The complainant states that he contacted Mr. D by telephone - he was not on duty that day - who told him he would deal with the matter later as he was out. The complainant rejects Ms. X's assertion that he struck her at any time during the altercation. He submits that the above alleged incidents constitute harassment of him contrary to the Acts.
3.2 The complainant states that Mr. D contacted him the following morning and told him he was suspended pending a police investigation of an alleged assault of Ms. X by him. He argues that this suspension constitutes victimisation of him contrary to the Acts. The complainant adds that he was suspended without pay for three days and reported to the Office in the shop on 18 September, 2008 at Mr. D's request. He states that in the course of this meeting Mr. D informed him (the complainant) he was being dismissed, stating that he was on probation and could be let go. The complainant states that Ms. X was not disciplined for her role in the incident and he was dismissed. He submits that this sanction was excessive and was motivated by the fact that he was a black man. He adds that he knows of no other employee who was dismissed by the respondent during his period of employment with it. He argues that a white person would not have been treated in the same way in the circumstances and submits that this amounts to discriminatory dismissal on grounds of race contrary to the Acts.
3.3 The complainant states that he spoke with the respondent's Managing Director (Mr. G) a few days later during which Mr. G informed him that he would look into the matter and that there may be a possibility of a position in another store, though not necessarily as a Duty Manager. The complainant states that he made no comment on this suggestion and the next he heard from the respondent was when he received his P45 on 8 October, 2008. He states that he had no further contact with the respondent after that date. He rejects the respondent's assertion that he was subject to a three month review by Mr. K - the Area Manager.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It accepts that there was an altercation between the complainant and Ms. X on the day in question. It submits however, that the complainant was a Manager and it would have expected him to have handled the matter in a better fashion and not argue with Ms. X on the shop floor in front of customers. It states that Mr. D made the decision to dismiss the complainant as he (Mr. D) was of the view that the complainant was not suitable for the position. It adds that a similar view was subsequently reached by Mr. G (the respondent's Managing Director) following investigation. The respondent submits therefore that the complainant was not capable of performing the functions attached to the post and consequently it was not required to retain him in employment. The respondent seeks to rely on section 16(1) of the Acts in this regard.
4.2 The respondent accepts that there was an altercation between the complainant and Ms. X on 13 September, 2008 in the course of which Ms. X used foul and abusive language at him. Ms. X agrees that there was a problem with the tills that day. She adds that when the complainant came to the area she offered an opinion as to how the problem might be rectified and he spoke to her in a dismissive manner. She states that she felt belittled as the altercation took place in front of customers and that she became angry and used foul language at him. Ms. X adds that she ran from the shop floor into a storage area but the complainant followed her. She states that when she tried to pass him to get out of the area the complainant struck her on the upper body. She adds that she went back to the shop floor and went home a few minutes later. She adds that she reported the matter to the Gardaí and later that evening she informed Mr. D that she had done so. In the course of the Hearing Ms. X confirmed that she received a verbal warning from Mr. D for her involvement in the altercation. She adds that Mr. D informed her that the complainant would not be working for the next week. The respondent (Mr. D) states that he has no recollection of the complainant bringing any other incident involving Ms. X to his attention. It is submitted on behalf of the respondent that this alleged incident and the incident of 13 September, 2008 do not constitute harassment of the complainant contrary to the Acts.
4.3 The respondent (Mr. D) states that he made the decisions to (i) suspend the complainant and (ii) subsequently dismiss him. He adds he decided to suspend the complainant because Ms. X advised him that she had reported an alleged assault of her by him (the complainant) to the Gardaí and he (Mr. D) considered this to be very serious. In the course of the Hearing Mr. D stated that he viewed CCTV footage of the altercation on the shop floor between the complainant and Ms. X and it appeared to him that the complainant was more to blame for the incident as he was the Duty Manager and should have acted in a more professional manner. He added that he decided not to suspend Ms. X because he considered her to be the victim in the situation, although she received a verbal warning for her role in the incident. He also confirmed that the area where the alleged assault occurred was not covered by CCTV. The respondent (Mr. D) states that he considered the matter further over the next couple of days and decided that the complainant was not suitable for the position and dismissed him. In the course of the Hearing Mr. D stated that (i) he was not aware of any disciplinary issues concerning the complainant adding that he considered the sanction of dismissal to be appropriate and accordance with the respondent's Disciplinary Procedure and (ii) he could not say whether or not the complainant had received any staff management training.
4.4 The respondent Managing Director (Mr. G) states that he spoke with the complainant a few days later and suggested that there may be a vacancy at another shop, although not at Duty Manager level. He adds that he reviewed the information furnished to him by Mr. D and concurred with his decision to dismiss the complainant. In the course of the Hearing Mr. G stated that the complainant was particularly lacking in interpersonal skills and this had been mentioned to the complainant as part of his three month review with Mr. K and resulted in his probation being extended for an additional three months. He adds that having regard to the both of the aforementioned matter he formed the opinion that the complaint was not suitable for the position. It is submitted on behalf of the respondent that the complainant was not treated any differently than any other employee, including an Irish employee, would have been treated in similar circumstances and therefore his dismissal does not constitute discrimination of him contrary to the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) harassed the complainant on grounds of on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts and (iii) victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008.. 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 85A of the Employment Equality Acts 1998- 2008 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, on balance of probabilities, 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 his case cannot succeed.
5.3 The complainant asserts that the two altercations between him and Ms. X constitute harassment of him contrary to the Acts. Section 14A of the Acts defines harassment as unwanted conduct on, inter alia, the ground of race which "has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person....". Notwithstanding the respondent's comments on the first alleged altercation, on the complainant's own evidence the comments comprised foul and abusive language but did not contain any reference to his nationality or skin colour. Whilst this type of behaviour is not to be condoned I cannot find that it constitutes harassment of the complainant contrary to the Employment Equality Acts, 1998-2008 and this element of his complaint fails.
5.4 It is common case that the complainant was suspended from work for three days following the altercation between him and Ms. X on 13 September, 2008. The complainant contends that this treatment constitutes victimisation of him in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The respondent states that Mr. D, the Store Manager, decided to suspend the complainant pending investigation of an alleged assault of Ms. X by the complainant during the altercation as the matter was the subject of a Garda investigation. In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. The complainant has adduced no evidence that the reaction of the respondent was as a reaction to him having taken action of a type referred to at paragraphs (a)-(g) of section 74(2) and I find therefore that he has failed to establish a prima facie case of victimisation contrary to the Acts.
5.5 It is also common case that the complainant was dismissed by the respondent on 18 September, 2008. The respondent submits that it terminated the complainant's employment because it considered him not capable to perform the duties associated with the position. It further submits that the complainant's dismissal was not connected with his nationality or skin colour and that the termination of his employment was lawful. It seeks to rely on section 16 of the Employment Equality Acts, 1998-2008 in this regard. The initial decision to dismiss the complainant was taken by Mr. D. Having evaluated the evidence adduced by the parties on this matter in the course of my investigation, I am satisfied that at the time he made this decision Mr. D had viewed the CCTV footage and knew that it did not show the complainant striking Ms. X. He was also aware (on his own admission) that the matter was no longer the subject of a Garda investigation. Indeed Mr. D confirmed that the question of whether or not the complainant had struck Ms. X as alleged had no bearing on his decision to terminate the complainant's employment. In addition, he was not aware of any disciplinary or other performance related issues concerning the complainant and knew that the complainant had not received any staff management training during his employment with the respondent. On Mr. D's own evidence this was the first occasion he was aware of which involved an argument between the complainant and Ms. X, or any other employee. Mr. D's decision to dismiss the complainant was subsequently endorsed by Mr. G - the Managing Director. Having carefully considered Mr. G's evidence on his role in the process I am satisfied that he made no tangible and independent assessment of the issue and merely "rubber stamped" the original decision. Finally, I note that dismissal in the fourth and final stage of the respondent's Disciplinary Procedure and is deemed the appropriate sanction where the problem persists, although I further note that the document provides for summary dismissal and gives some examples of the serious offences which carry such a sanction.
5.6 Section 6(1) of the Employment Equality Acts, 1998-2008 provides that discrimination shall be taken to occur where " a person is treated less favourably than another person is, has or would be treated in a comparable situation" on any of the discriminatory grounds. The language of this provision clearly permits the use of a hypothetical comparator, an approach acknowledged by the Labour Court in Zilys and Volkovas v Barnmac Contracting Ltd. The Court added however, that there has to be some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances. The complainant is unable to point to an actual comparator for the purposes of his complaint but submits that an Irish employee would not be treated in the same manner. Therefore I must examine the matter in the context a hypothetical Irish comparator. In light of my comments in the preceding paragraph I am satisfied that the respondent acted with undue haste in dismissing the complainant and its decision to do so was based on subjective opinion on the part of both Mr. D and Mr. G. In addition, I am of the view that the sanction it imposed was excessive for the behaviour involved and was not consistent with its Disciplinary Policy, particularly in circumstances where the complainant received no training in managing staff conflict. I am mindful of the comments of the Labour Court in A Technology Company v A Worker when it stated that "the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.". Having considered the matter carefully I find, on balance, that an Irish employee, in similar circumstances, would not have been treated in the same way by the respondent and it follows that the complainant has established a prima facie case of discrimination which the respondent must rebut.
5.7 The thrust of the respondent's arguments is that it dismissed the complainant because he was neither competent nor capable to perform the duties attached to the post. It seeks to rely on section 16(1) of the Employment Equality Acts, 1998-2008 in this regard. In the course of the Hearing Mr. D, who had been the complainant's immediate Line Manager for the full period of the former's employment, stated that he was not aware of any disciplinary or performance issues with the complainant at the relevant time. It is clear therefore that he based his opinion on CCTV footage (with no sound) which showed an altercation between the complainant and Ms. X. In the course of the Hearing Mr. D also stated that he considered Ms. X to be "a victim" in the situation. In my view this comment demonstrates a predisposition on his part to find the complainant culpable without proper investigation of the matter, which I am satisfied is what happened. In the circumstances I cannot accept that the actions of Mr. D are sufficient to enable him reach the conclusion that the complainant was neither competent nor capable to perform the duties of Duty Manager. The respondent further states that Mr. G subsequently investigated the matter and concurred with Mr. D's decision. As I stated at paragraph 5.5 above I am of the view that Mr. G merely "rubber stamped" the original decision. In the course of the Hearing he stated that the complainant had been advised by Mr. K that his interpersonal skills were lacking and as a result his probation was extended by three months. The complainant denied this happened. I note from the complainant's contract of employment that the probationary period is six months. I further note that at the time of his dismissal the complainant had only been employed by the respondent for five months. The respondent was given the opportunity to provide documentary evidence of the alleged review meeting between the complainant and Mr. K after the Hearing but subsequently confirmed that it was unable to locate any such documentation. In addition, Mr. K did not attend the Hearing to give evidence on the matter. In light the foregoing I find that the respondent has failed to discharge the probative burden required of it and the complainant is entitled to succeed with this aspect of his complaint.
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 -
(i) the complainant has failed to establish a prima facie case of harassment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 14A of those Acts.
(ii) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts, 1998 -2008.
(iii) the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts.
6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2008 that the respondent pay to the complainant the sum of €10,000 by way of compensation for the distress suffered and the effects of the discrimination on him. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
_______________________________________
Vivian Jackson
Equality Officer
27 June, 2011