The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-XXX
PARTIES
Marcin Flis
(Represented by Richard Grogan & Associates)
- V -
United Parcel Service of Ireland Ltd.
(Represented by IBEC)
File reference: EE/2009/045
Date of issue: 27 June 2011
Keywords - Employment Equality Acts - Harassment - Discriminatory Dismissal - Race - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Marcin Flis that he was subjected to harassment and discriminatory dismissal by the respondent on the grounds of race in terms of sections 6(2) and 14A of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 26 January 2009 under the Acts. On 2 June, 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 15 June 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he was employed by the respondent and is a Polish national and it is on this basis that this complaint is being taken.
2.2 The complainant submitted that he was dismissed without proper procedures or reason.
2.3 The complainant submitted that a named colleague made racist comments about him, saying that he was Romanian.
2.4 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.5 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to his dismissal.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent rejected the allegation of discriminatory dismissal and submitted the complainant was dismissed in accordance with a clear policy which indicated that where an employee is involved in three avoidable accidents in a 12 month period, they will be dismissed.
3.2 The respondent submitted that the complainant was not treated less favourably than any other employee, that it followed procedures laid down in the Employee handbook, and that the fact that the complainant was Polish was not a factor in his dismissal.
3.3 The respondent submitted that it has no record of any complaint/allegation of racist comments having been made to the company, and that if such a complaint had been made, it would have investigated the matter in accordance with its established bullying and harassment policy.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant was harassed or dismissed in a discriminatory fashion by the respondent on grounds of race, in terms of sections 6 and 14A of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 During the hearing of this matter, the Tribunal heard evidence from the complainant, from Mr A, the complainant's manager and from Mr B, the respondent's Human Resources Manager.
4.4 In relation to the discriminatory dismissal, the complaint stated that he "didn't think that (he) was dismissed for being Polish", and that he was "dismissed on the basis of the three crashes rule". The complainant also stated that he couldn't say if anybody else was treated in a more favourable manner, and that he had been aware of that rule from the very beginning of his employment. The complainant's legal representative also pointed out that to be fair to the respondent, the procedures as laid down in the handbook in relation to the dismissal were followed and that the complainant had the benefit of union representation throughout. Accordingly, I consider that the complainant has not established facts from which discrimination may be inferred in relation to this element of his complaint.
4.5 In relation to the alleged harassment, the complainant stated that Mr A, his manager, called him "a Romanian" and that this was insulting to him as "Romanians are mostly gypsies and beggars and they live on the streets". The complainant submitted a video taken with his mobile phone showing Mr A calling him "Romanian" in support of his contention. The video indicated that a certain level of office banter was the norm and supported the complainant's claim that Mr A referred to him as 'Romanian' on one occasion, although Mr A also corrected another colleague when they called him Romanian. The complainant's representative submitted that the very fact that the complainant recorded this interaction is not normal and should be taken as indicative of harassment.
The complainant stated that he was called a Romanian on a number of occasions but was unable to provide any detail whatsoever to support this contention. In this regard, the complainant was so vague in relation to any other alleged incidents that it is not possible to conclude that any other incident occurred during his employment.
4.6 I note that the complainant did not make any complaint to the respondent in relation to these allegations and only raised the matter with anybody some three months later following his dismissal for a breach of the 'three crashes rule'
4.7 Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.8 Having considered the evidence given by the complainant, I am satisfied that the complainant was on one occasion referred to as Romanian. However, I am not satisfied that this amounts to facts from which discrimination may be inferred or that it amounts to 'conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person'. In addition, the absence of any follow-up of this incident with the Human Resources manager (whom the complainant knew from the start of his employment), his union representative (whom the complainant was dealing with on a regular basis) or any other person within the work environment tends to undermine the complainant's contention that this was a matter of such seriousness as to constitute harassment under the Acts. Accordingly, in relation to this element of his complaint, I consider that the complainant has not established a prima facia case of harassment.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the basis of the race ground has not been established and this complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
27 June 2011