THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 092
PARTIES
Mr Martins Blumbergs
(represented by Richard Grogan & Associates)
and
Dublin Meath Growers Society Ltd
(represented by Matheson Ormsby Prentice, solicitors)
File Reference: EE/2007/534
Date of Issue: 10th May, 2011
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Section 6(2)(h), race ground - Section 8(i)(a), conditions of employment - Section 8(1)(c), training - Section 8(6)(c), Dismissal - Working hours - circumstances in which notional comparator will be considered - Harassment - claim without merit
1. Dispute
1.1. This case concerns a complaint by Mr. Martins Blumbergs (hereinafter referred to as "the complainant") that he was discriminated against by Dublin Meath Growers Society Ltd. ("the respondent") on the ground of race contrary to section 6(2)(h) of the Employment Equality Acts ("the Acts") in relation to conditions of employment, training and dismissal contrary to sections 8(1)(b), 8(1)(c) and 8(6)(c) of the Acts and that he was harassed by the respondent contrary to Section 14A of the Acts.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 21st September, 2007 alleging that the respondent had discriminated against him on the ground of race.
2.2 On the 19th May, 2010, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, 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. Written submissions were received from both parties. A hearing of the complaint was held on Thursday, 3rd February, 2011, (An earlier hearing had been scheduled but had been adjourned at the request of the complainant in light of the exceptional circumstances outlined in that adjournment request).
3. Summary of the Complainant's case
3.1. The complainant is a Latvian national who submitted that he was employed by the respondent from 1st March, 2007 to 23rd May, 2007 as a packer.
3.2. The complainant submitted that he was required to work excessive hours and he was never advised of his rights as regards working hours and breaks. He stated that he was required to start work at 8 a.m. and was not allowed to leave until whatever tasks he had been assigned on any particular day were finished, which usually meant leaving at 6 p.m. or 7 p.m. He said he never asked to be let leave early. He submitted that he only got to leave early three or four times and this was because his work was done by then and everyone left at this time. The complainant stated that all workers, most of whom were non-Irish nationals, were treated the same in that respect, except for two Irish workers who he could not name but whose tasks he described and who, he said, were able to go home at 4 p.m. as and when they wished.
3.3. The complainant stated that, not only had he established a nexus between the treatment and the race ground as evidenced by the two Irish workers who were allowed to leave early, he had also done so with respect to a notional comparator in that a notional Irish comparator would not have been required to work such hours.
3.4. The complainant also submitted that he was dismissed without any procedures. He stated that he was sick one day and stayed at home. He said that when his friend, Mr A, who he shared accommodation with at the time, came home that evening he said that he had been told by the respondent to inform the complainant that he was not to return to work. The complainant could not say who had told Mr A this. He said he had no further contact with the respondent, or any supervisor with it, after this.
3.5. The complainant said he was not contacted at any stage by the respondent with respect to this dismissal. He submitted that the respondent was under an obligation to inform him of the relevant disciplinary procedures, particularly as most Irish workers would know of their right to be informed of these, and that these procedures should have been followed in relation to him. He submitted that they were not as there was no hearing: he was simply fired and a friend was asked to communicate this to him. He said that he could not understand why the respondent did not attempt to contact him to find out why he was sick, although he agreed he had not contacted the respondent on the day in question to inform it that he was sick.
3.6. With respect to the respondent's submission in relation to the findings of the Rights Commissioners (RC) (see par. 4.7 below), the complainant stated that these findings were "neither here nor there" with respect to the case before the Tribunal.
3.7. The complainant had indicated in his complaint form that he was proceeding with a case in relation to training, but did not elaborate upon this point in his submission. However, he said at the hearing that nobody received any training, but that the Tribunal should nonetheless consider what the situation would be with regard to a notional Irish comparator, who would have been provided with training. He also stated that he was given instruction as to how to do the tasks assigned to him.
3.8. The complainant had indicated in his complaint form that he was proceeding with a case in relation to harassment but did not elaborate upon this point in its submission. He said at the hearing that he was harassed in the context of his general conditions of employment. He added that he did not understand any of the English words that define harassment as provided in the Acts.
3.9. The complainant submitted that the respondent never responded to his notice of particulars and that the Tribunal should take this into account with respect to its decision in this case.
3.10. In short, and as outlined above, the complainant submitted that he was discriminated against by the respondent on the race ground (with respect to his nationality).
3.11. The complainant made a number of other submissions in relation to conditions of employment, but these were withdrawn at the hearing
4. Summary of the Respondent's case
4.1. The respondent submitted that the complainant was employed by it as a Packhouse Operative from 1st March, 2007 until, on 26th May, 2007, he left his position without giving any notice of resignation to the respondent.
4.2. The respondent stated that it had a range of nationalities working for it at the time in question, most of whom were not Irish. It said that its only Irish workers were three supervisors and one or two full-time and one part-time general operative.
4.3. Mr. B, who gave evidence on behalf of the respondent, denied the complainants allegations with respect to working hours and denied that Irish workers were treated differently in that respect. He outlined the operation of the factory, agreeing that employees were required to work until that day's orders were completed. However, he said that sometimes the orders would be completed earlier so people went home earlier: the length of the working day depended on the size of the relevant order being worked on on any particular day. In any event, he said that this requirement for flexibility was explained to employees when they were hired.
4.4. Mr B said that certain workers would leave at 5 p.m. on a given day where they had obtained permission from their Supervisor in advance. He said that, in those circumstances, people would be moved from another section to fill in. However, he said that it was not practical that Irish people would walk off every day at 5 p.m. as the relevant line could not then be finished. He said that the Irish Supervisors left early (at 3 p.m.) but also came in early to prepare the day's orders. Mr B said that only Irish supervisors left early and a Latvian and a Ukrainian supervisor would stay late to supervise staff. However, he said the latter Supervisors did not start early and it was not "a hard and fast rule" in that if one of the other Supervisors wanted to leave early, they would request to swap with an Irish supervisor.
4.5. In short, the respondent stated that the "Dickensian" conditions described by the complainant did not exist but, in any event, there was a lack of a causal connection between the race ground and his complaint with respect to working hours.
4.6. The respondent disputed the complainant's evidence in relation to the dismissal stating that the complainant was not dismissed but left of his own volition. It submitted that his claim that he was dismissed "without any procedures" is without foundation. Mr B said that he understood that the complainant had resigned and made the respondent aware he was not returning. He said that he understood this from a named Supervisor but he was not able to say from whom she had obtained that information. He added that if the complainant had been sick as he stated, then procedures would have been followed to deal with that (i.e. they would have rung him and found out why he had not been in).
4.7. In relation to the dismissal, the respondent stated that, in coming to my decision in the matter, I should also consider that the Rights Commissioners had found that the complainant had left of his own volition, and it provided submissions in relation to the outcome at the Rights Commissioner hearing to that effect. While accepting that the Rights Commissioners findings were not binding, it stated that they should be persuasive, and outlined the reasons why the Tribunal should be persuaded by that decision. Finally, with respect to the dismissal, the respondent said that its grievance and disciplinary procedures were explained to the complainant at his induction.
4.8. The respondent said that the complainant was provided with training in the sense that he was given instruction as to how to perform his tasks, and that no-one else received any other training.
4.9. With respect to harassment, the respondent stated that it was not an appropriate complaint in that respect as the complainant was attempting "to fit a square peg into a round hole". It stated that the conduct alleged by the complainant was discrimination and not harassment and if his complaint of harassment was allowed, then there would be a double claim in every case whereby a claim for discrimination would also include a claim for harassment and the legislature did not intend this to be the case.
4.10. In short, the respondent submitted that there was no evidence that the complainant had been treated less favourably than a comparator of a different racial origin is, was or would be treated in similar circumstances, either in relation to any of the matters raised.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. In the first instance, it requires the complainant to establish facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that 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. Therefore, in deciding on this complaint, 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 Acts 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 ground of race as being "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Latvian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts and Section 14A in terms of conditions of employment and/or dismissal and/or training and/or harassment. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Working Hours
5.4. The respondent is clear in its submission that workers in general were asked to work until the work for the day was complete, whether that meant finishing early or late. It was also clear in submitting that anyone who wished to leave at 5 p.m. on any given day was facilitated in doing so. On the other hand, I found the complainant's evidence with respect to the two Irish persons he alleged were always allowed to leave early to be unconvincing. In that context, I find the evidence of the respondent to be more credible and that the same regime with respect to working hours, whether it was reasonable or not, was applied to all its workers, irrespective of nationality. Therefore, the complainant has failed to establish a prima facie case of discrimination in that respect.
Dismissal
5.5. The complainant states that he was sick one day so did not go into work but did not tell the respondent that he was out sick, yet it is clear that he expected that there would be no problem with this behaviour. The complainant does not appear to know who had told his friend that he was dismissed yet he states that did not make any attempt to contact the respondent to find out whether the friend had understood correctly, in the first instance, or at least to seek an explanation as to why he had been dismissed. I find, in all the circumstances of the present case, that this evidence is simply not credible. While the respondent's evidence in this respect was not entirely clear or convincing either, I am satisfied that the complainant left of his own volition. Therefore, there is no dismissal for the Tribunal to consider. In that case, the question of whether procedures were followed in that respect does not arise either.
Training
5.6. In the case of Arturas Businkas v Eupat Ltd (In Liquidation) the Labour Court indicated that it would not hesitate to use hypothetical comparators where it is found that existing comparators, for one reason or another, are not suitable. However, it went on to state that no reason was adduced as to why the existing comparators in that case were not suitable and, in that context, it stated that "it is not sufficient..to ignore actual comparators and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent". The complainant has already stated that there were two Irish workers who worked alongside him at the respondent's premises, and it is clear that these people did a similar job to him. Therefore, I see no reason to consider a notional comparator in this case.
5.7. The complainant himself stated that nobody received any training other than training in how to carry out their tasks. In those circumstances, his submission that he was treated less favourably than an Irish comparator with respect to training falls flat on its face. His submission that I should draw inferences from the respondent's failure to provide documentation in response to its notice of particulars equally does not stand up to scrutiny as I cannot see how could there be documentation in relation to training when no such training took place.
Harassment
5.8. There is no evidential basis for the complainant's claim of harassment and it is wholly without merit. He attempted to get over this hurdle by claiming that he did not understand the meaning of the English words that described harassment. However, I am satisfied that this was not the case, particularly in the context that he was represented. In any event, the complainant's submission with respect to harassment is not credible in circumstances where an outline of the alleged harassment endured was not included in his initial submission.
Final Comments
5.9. As there are no other matters for me to consider, it is clear that the complainant has failed to establish a prima facie case that he was discriminated against by the respondent on the ground of race.
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:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to s.8(1)(b) of the Acts
6.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of training contrary to s.8(1)(c) of the Acts
6.4. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of dismissal contrary to s.8(6)(c) of the Acts
6.5. I find that the complainant has failed to establish a prima facie case that he was harassed on the race ground pursuant to section 6(2)(h) of the Acts and contrary to s.14A of the Acts
6.6. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
10th May 2011