Equality Officer's Decision No: DEC-E/2011/216
Parties
Stralkowski
And
Primeline Logistics Ltd
(Represented by IBEC)
File No: EE/2009/022
Date of issue: 23 November, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 & 74 -race - discriminatory treatment -dismissal - victimisation - prima facie case
1. DISPUTE
This dispute involves a claim by Mr Thomas Stralkowski, who is a German national, that he was (i) discriminated against by Primeline Logistics Ltd. ("the respondent") 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 in respect of his conditions of employment, (ii) discriminated against by the respondent on grounds of membership of the Traveller community, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts in respect of his conditions of employment, (iii) dismissed by the respondent on grounds of race and/or membership of the Traveller community, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (iv) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (v) dismissed by the respondent in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant's allegations of discrimination and victimisation in their entirety and notwithstanding this argues that the complainant's claim of discrimination on membership of the Traveller community is misconceived as he is not a member of that community as it is defined at section 2 of the Acts.
2. BACKGROUND
2.1 The complainant states that he worked for the respondent as an agency worker from 2 October, 2007 until 14 March, 2008. He adds that he became a direct employee of the respondent on 18 March, 2008 and he was engaged as a General Operative. He contends that from March, 2008 the respondent treated him less favourably on grounds of race - his German nationality - and membership of the Traveller community in respect of his conditions of employment. He further contends that the respondent dismissed him on 13 June, 2008 in circumstances amounting to discrimination on the grounds cited and/or victimisation contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2008 to the Equality Tribunal on 11 December, 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 17 June, 2011 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 24 August, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he worked for the respondent as an agency worker from 2 October, 2007 until 14 March, 2008. He adds that he became a direct employee of the respondent on 18 March, 2008 and he was engaged as a General Operative. He contends that he was treated less favourably by the respondent on the grounds cited during his period of permanent employment as regards his conditions of employment. He further contends that he was (i) dismissed by the respondent in circumstances amounting to discrimination on the grounds cited and/or victimisation contrary to the Acts and (ii) victimised by the respondent when it failed to apply the terms of a Rights Commissioner Recommendation dated 8 May, 2009. The complainant states that at the outset of his employment (March, 2008) his tasks were split evenly between picking (filling orders) and cleaning the warehouse area. He asserts that some weeks after he started work he was instructed by his supervisor (Mr. M) that he was also responsible for cleaning the yard area and placing material in the skip and compactor (a machine which crushed/compacted plastic/cardboard). He states that there were three employees in his team - Mr. M (who was English), Mr. E who drove the forklift (who was Irish) and him. He adds that he was the only person who was required to perform these cleaning duties and asserts that they were not included in his contract of employment. He submits that this alleged treatment constitutes discrimination of him on grounds of race - his German nationality - and membership of the Traveller community contrary to the Acts. The complainant states that he is a political refugee from former East Germany and has a traveller history in that context and is thus entitled to maintain his complaint on membership of the Traveller community ground under the Acts.
3.2 The complainant states that on the morning of 28 May, 2008 he saw an Irish employee ("F") place organic waste in the compactor. He adds that the compactor was not the place for such waste and he confronted F demanding that he remove the waste and place it in the appropriate bin. The complainant states that F laughed at him adding that it was not his job and walked away. The complainant states that the warehouse area was staffed by employees from some of the respondent's customers, that he approached one of these employees - whom he believed to be a Supervisor - and reported F's behaviour to him and was told to "take care". The complainant states that when he returned to the compactor an hour later the organic waste was still there. He adds that he removed it and placed it on the floor beside the compactor so that he could perform his duties. He adds that shortly afterwards Mr. C - the respondent's Director of Operations - passed by and instructed him to pick the waste up and place it in the bin. The complainant states that he tried to explain what had happened to Mr. C but he (Mr. C) refused to listen and threatened him with dismissal if he (the complainant) did not follow his instruction. The complainant states that he was angry at this and instead of placing the waste in the bin as instructed he took it and put in on the floor of the area where F worked. He states that around 3.30 that afternoon he was approached by Mr. L, the respondent's Operation's Manager and was asked to explain why he had failed to put the waste in the bin and instead had placed it on the floor in another part of the warehouse. The complainant adds that Mr. L instructed him to clean the place up but he (the complainant) refused to do so stating that he was "not a cleaning lady for the other idiots in the company". He adds that Mr. L told him to go home immediately and he did so.
3.3 The complainant states that he was instructed to attend a meeting in the Office with Mr. L and the respondent's HR Manager on 29 May, 2008. He adds that in the course of this meeting Mr. L told him that his behaviour the previous day was unacceptable and that if there was a recurrence of this type of behaviour he would be dismissed as he was on probation. In the course of the Hearing the complainant accepted that he was not given any formal warning at this meeting and that he had signed the minutes of the meeting appended to the respondent's submission of his own volition. The complainant submits that the manner in which he was treated on both days constitutes less favourable treatment of him contrary to the Acts as an Irish employee would not have been treated the same in those circumstances.
3.4 The complainant states that in general, Irish employees were never required to perform cleaning duties and that these duties were assigned to non-Irish employees. He refers to one particular occasion when visitors from one of the respondent's customers attended the warehouse and in advance of this he and some Polish colleagues had to clean dust from shelving. He states that his colleague Mr. E was not required to perform these tasks adding that Mr. E was always a picker or forklift driver. In the course of the Hearing the complainant accepted that Mr. E had been employed by the respondent for a longer period that he was.
3.5 The complainant states (in his submission) that from the outset of his employment (March, 2008) he was instructed by both Mr. M and Mr. L to drive a forklift on a public road without insurance and that this occurred on a daily basis until his employment ceased in June, 2008. He adds that he did so because he was afraid he would lose his job, although he raised his concerns about the practice with Mr. M. In the course of the Hearing the complainant stated that he could not remember when he had been given this instruction for the first time but that it was before May, 2008. He added that he was instructed to drive the forklift about twice a week. He stated that after he had raised his concerns with Mr. M, he (Mr. M) reverted to him advising that Mr. L had instructed the complainant should cease driving due to the insurance issue, although the complainant was unable to say when this occurred. He added that following this he was not required to drive the forklift again. The complainant states that other employees, some of whom were Irish, drove forklifts but not on the public road and that this treatment of him amounts to discrimination on the grounds cited.
3.6 The complainant states that both Mr. M and Mr. L (on one occasion only) instructed him to stand into a skip in order to "press the air" out of the contents of the skip and crush it down. The complainant is unable to state when he first received this instruction although he adds that he was required to perform this task on a weekly basis. He adds that the skip was full of rats and he raised health and safety concerns with Mr. M, who just told him to be careful. The complainant states that he merely followed the instruction and never raised it formally with the respondent's Health and Safety Officer. The complainant states that he was the only employee required to stand in the skip and perform such tasks and submits that this constitutes less favourable treatment of him on the grounds cited.
3.7 The complainant states that on the afternoon of 13 June, 2008 he was approached by the Site Manager (Mr. Y) and was instructed by him to attend a meeting in the Office immediately. He adds that when he arrived Mr. Y was accompanied by Mr. X, the respondent's Transport Manager. The complainant states that Mr. Y accused him of stealing a box of wine and said that he (Mr. Y) had the events on CCTV. The complainant adds that he strenuously denied the allegations, advising that he would bring the respondent to court and Mr. Y refused to show him the CCTV footage. The complainant adds that Mr. Y then dismissed him, that Mr. X immediately escorted him from the building and that was the end of the matter. In the course of the Hearing the complainant confirmed that he had received a copy of the respondent's Disciplinary Policy and that he understood it. The complainant submits that the termination of his employment constitutes discrimination of him on the grounds cited. Notwithstanding this he contends that his dismissal amounts to victimisation of him contrary to the Acts.
3.8 The complainant states that he referred a complaint to the Rights Commissioner Service under the Industrial Relations Acts, 1969-1990 in respect of his dismissal. He adds that the Rights Commissioner found in his favour and recommended (in his Recommendation of 8 May, 2009) that the respondent pay him €8,000 by way of compensation. He states that the respondent failed to make good on the terms of this recommendation and submits that this failure amounts to victimisation of him contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. Notwithstanding this it argues that the complainant's claim of discrimination on the ground of membership of the Traveller community is misconceived as he is not a member of that community as it is defined at section 2 of the Acts. It states that the complainant was originally engaged on an agency basis but was engaged as a permanent employee on 18 March, 2008 as a General Operative. Its adds that as the title suggests General Operatives are expected to perform a wide range of manual tasks in and around the warehouse, including cleaning and in this context it accepts that some employees might perform duties of one particular nature over another. It states that at the relevant time it employed thirty employees as General Operatives of whom only six were Irish, all of whom had greater service than the complainant. It further states that staff were assigned duties each day in accordance with the operational needs of the company. It adds that within these duties ensuring that the yard area was clean and tidy was a high priority in order to make sure vehicles could enter and exit the warehouse with ease and thus minimise the possibility of delays. It states therefore that there was a dedicated yard cleaning function and this was assigned to the complainant. The respondent submits that this function falls clearly within the role of General Operative and does not therefore constitute discrimination of the complainant on the grounds cited contrary to the Acts. It adds that given the nature of the services it offers - the storage and distribution of products for its clients - it was subject to regular Quality Assurance Reviews/Audits by external inspectors and in that regard hygiene was of paramount importance and all employees, including Irish nationals, were expected to perform hygiene duties as necessary and indeed did so.
4.2 The respondent (Mr. C) states that on 28 May, 2008 he was walking through the area of the warehouse where the complainant worked when he noticed some waste on the floor. He adds that he is both the Operations Director and HR Director in the respondent and is therefore acutely aware of the need to maintain a high level of cleanliness in the area. He states that he instructed the complainant to dispose of the waste properly but rejects the assertion that he threatened the complainant in any way. He adds that once he spoke with the complainant he moved on, fully expecting that the complainant would follow his instruction. The respondent (Mr. L) states that later that afternoon he was informed by a supervisor in the area that the complainant had upturned the contents of a "wheelie bin" on the floor of the warehouse and was refusing to pick it up. Mr. L adds that he asked the complainant to pick up the waste and he refused to do so adding that he "not a cleaning lady for the other idiots in the company". Mr. L states that he suggested to the complainant he should take a break for a few minutes and when the complainant returned he refused to pick up the waste on two further occasions. Mr. L adds that he advised the complainant that he (Mr. L) believed his request was a reasonable one and that as the complainant was refusing to carry out a direct instruction he (Mr. L) had decided to send him home before the end of the shift and requested that the complainant should attend a Counselling Meeting the following morning.
4.3 The respondent (Mr. L) states that the following morning (29 May, 2008) the complainant met with him and the respondent HR Manager to discuss the events of the previous day. Mr. L adds that this meeting was a Counselling Meeting - which is the first (informal) stage of the respondent's Disciplinary Policy. He states that in the course of this meeting the complainant re-emphasised his view that he was not a "cleaning lady" but was advised by Mr. L that he was a General Operative, that such duties formed part of the tasks he was expected to perform in that role and that failure to do so could result in the Disciplinary Policy being applied. Mr. L rejects the assertion that he mentioned the complainant's probation. Mr. L adds that the complainant became quite irate and stated that he was being discriminated against, that he would sue the company and then attempted to leave the room. Mr. L further states that the complainant did not do so and sat back down and the discussion resumed. He adds that the complainant was advised that he should contact Management and HR if he had any future grievances with colleagues and was given a further copy of the respondent's Grievance Procedure. The respondent states that the complainant was not disciplined as a result of this incident because it was his "first offence" - although failure to carry out a reasonable instruction of Management was a serious matter. It rejects the assertion that the complainant was treated less favourably on the grounds cited in respect of this incident submitting that the contrary occurred and he was treated very favourably in the circumstances.
4.4 The respondent accepts that the complainant was instructed to drive a forklift in circumstances where he was not insured. In the course of the Hearing Mr. C stated that the respondent had an insurance policy which covered all forklift driving but was unaware that the cover was restricted to the confines of the unit where the complainant and other employees operated. He adds that the respondent had another unit in the same industrial estate and on occasion staff, including the complainant, were instructed to drive the forklift between the two locations. Mr. C states that when he became aware of the lacuna in the insurance cover he ordered that the practice cease immediately. The respondent submits that whilst the entire matter was regrettable the complainant was treated no differently than other employees in similar circumstances and was not therefore discriminated against.
4.5 The respondent states that it views its health and safety responsibility to its employees as a serious matter and denies the assertion that any employee was ever instructed to stand in a skip to flatten the contents of same. It states (Mr. L) that it was normal practice to flatten down any materials in a skip with the prongs of a forklift, if necessary. In the course of the Hearing Mr. L denied that he had ever instructed the complainant to stand in a skip. He further denied that either the complainant or Mr. M spoke with him about the presence of rats near the skip. He stated that the respondent operated a comprehensive pest/vermin control scheme and engaged the services of external pest control specialists to monitor and service the scheme. The respondent submitted copies of the pest control specialist's Service Reports for the period March-June, 2008 in support of its assertion. The respondent submits that the complainant has failed to establish any facts from which less favourable treatment could be inferred in respect of this aspect of his complaint.
4.6 The respondent's Site Manager (Mr. Y) states that on the morning of 13 June, 2008 the respondent's Transport Manager (Mr. X) approached him and informed him that the complainant had been captured on CCTV placing a box of Moet Champagne in a waste trolley, covering it with plastic and bringing the trolley to the compactor area. Mr. Y adds that he viewed the CCTV footage with Mr. X and it was clear to him (Mr. Y) that the complainant had placed the case of champagne in the waste trolley and concealed it. Mr. Y adds that he went to where the trolley was and found the case of champagne concealed with plastic. He adds that he asked the complainant to attend a meeting with him and Mr. X during which the issue was put to the complainant, but he was not shown the CCTV. Mr. Y states that in light of the evidence against the complainant he decided to terminate his employment with immediate effect. The respondent accepts that the process may not be procedurally ideal but submits that it would have treated any other employee in the same manner in similar circumstances. Moreover, it adds that an Irish employee (details supplied) was found guilty of theft six/eight weeks later and was also dismissed. It submits therefore that the termination of the complainant's employment does not amount to discrimination or victimisation contrary to the Acts.
4.7 The respondent submits that the recommendation issued by the Rights Commissioner in respect of the alleged dismissal of the complainant is not a matter which can be addressed by this Tribunal. It adds that the recommendation was issued under the Industrial Relations Acts 1969-1990 and is neither binding nor enforceable under that legislation. Consequently, it submits that any failure on its part to make good on the terms does not constitute victimisation of the complainant contrary to the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the complainant can maintain his complaint under the Acts based on the ground of membership of the Traveller community, (ii) if so, whether or not the respondent discriminated against the complainant on grounds of membership of the Traveller community, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts in respect of his conditions of employment, (iii) if so, whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of membership of the Traveller community, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts,
(iv) whether or not the respondent discriminated against the complainant 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 in respect of his conditions of employment, (v) whether or not 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 and (vi) whether or not the respondent 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 The first issue I must address is whether or not the complainant can maintain those elements of his complaint which are based on the ground of membership of the Traveller community. 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 grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds'." Section 6(2) of the Acts defines the Traveller community ground as follows "that one is a member of the Traveller community and the other is not...". It follows therefore that in the instant case less favourable treatment can only arise when one compares the alleged treatment of two people, one of whom is a member of the Traveller community and the other is not such a member. Section 2 of the Employment Equality Acts, 1998-2008 defines Traveller community as follows - "the community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically a nomadic way of life on the island of Ireland.". The complainant states that he is a political refugee from the former East Germany and has a traveller history in that context and is thus entitled to maintain his complaint on membership of the Traveller community ground under the Acts. It is a fundamental tenet of statutory interpretation that words or phrases in a statute should be given their literal meaning, unless such an interpretation would amount to an absurdity. On the basis of the arguments advanced by the complainant it is clear that he does not possess the characteristics of a member of the Traveller community as that term is defined above and understood in Ireland. Consequently, I find that the complainant cannot maintain those elements of his complaint premised on that discriminatory ground.
5.3 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.
5.4 The complainant states he was worked as part of a three person team and that he was the only person in that team who was required to perform cleaning duties and that this amount to discrimination of him on grounds of race. In this regard he strongly argues that these tasks were not included in his contract of employment. The respondent states that the complainant was employed as a General Operative, that all manual tasks of a general nature are encompassed by that title and rejects the assertion that it discriminated against him by requiring that he perform hygiene/cleaning duties. The respondent furnished me with a copy of the complainant's signed contract of employment and this clearly states he was engaged as a General Operative. Whilst this document does not refer to specific tasks it contains the following clause "In order to help in the efficient and smooth running of the company ... you may be required to help in any department carrying out other work and duties as directed by your manager.". I am satisfied that the hygiene/cleaning duties which the complainant was required to perform are tasks which fall squarely within the range of duties one might expect a General Operative to carry out, particularly in terms of the aforementioned clause. The complainant states that he was the only member of his team required to carry out these tasks. I note that Mr. M (who was English) was the complainant's supervisor and as such I consider it reasonable that he would not be expected to carry out the same functions as the complainant on a daily basis. I further note that Mr. E (who was Irish) had been employed by the respondent for a longer period than the complainant had been and on the basis of this greater service primarily drove the forklift. In addition, I note the nature of the respondent's business and accept its arguments as regards the importance of hygiene and general cleanliness to that business. I am satisfied, on balance, that all thirty General Operatives employed by the respondent at that time were required to perform cleaning tasks at regular intervals, particularly before it was subjected to Quality Assurance Reviews/Audits by external inspectors. The cadre of staff comprise several different nationalities. Having carefully considered the evidence adduced by both parties on this issue I find that the complainant has failed to establish facts from which discrimination could be inferred and this aspect of his complaint cannot succeed.
5.5 The complainant submits that the manner in which he was treated on 28 & 29 May, 2008 amounts to discrimination on grounds of race contrary to the Acts. The events of these days result from the failure of complainant to follow an instruction from two Senior Managers in the respondent - Mr. C and Mr. L. The complainant fully accepts that during the early part of 28 May, 2008 Mr. C, who is both the Operations Director and HR Director in the respondent, gave him a direct instruction to remove waste from the floor near the compactor and place it in a bin but instead of doing so he brought the waste to another area of the warehouse and placed it on the floor there. He further accepts that later that same afternoon he refused - on three separate occasions - to carry out a similar instruction issued to him by Mr. L - the respondent's Operation's Manager informing him that "not a cleaning lady for the other idiots in the company". The respondent (Mr. L) sent the complainant home before the end of the shift and requested that he attend a Counselling Meeting the following day. I note that this Counselling Meeting comprises the first stage of the respondent's Disciplinary Policy, notwithstanding that it is informal in nature. It is clear that the complainant wilfully refused to carry out a reasonable instruction from a member of Management - behaviour which I note is regarded as Gross Misconduct under the respondent's Disciplinary Policy. I further note the Policy indicates that such behaviour may result in summary dismissal. In the course of the Hearing the complainant confirmed that he received and understood the respondent's Disciplinary Policy and I am satisfied therefore that he was aware of the possible consequences of his actions. It was open to the respondent to dismiss the complainant as a result of his behaviour but instead it chose to have him attend a Counselling Meeting and no formal sanction was applied to him. The respondent furnished me with a copy of the Discussion Record of this meeting, which was signed by the complainant at that time. This record clearly indicates that the complainant acted in an aggressive and defensive manner at this meeting, although he ultimately agreed to carry out all future instructions and to invoke the Grievance Procedure with any future issues with colleagues. In the circumstances I cannot accept that the respondent treated the complainant less favourably than it would have treated any other employee in a similar situation, indeed it could be said that treated him in a lenient manner because this was his first offence. Consequently, I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint and it therefore fails.
5.6 It is common case that the complainant was requested to drive a forklift between the respondent's two units which were located in same industrial estate and that he was not insured for this task. The respondent states that other employees also carried out this task without insurance. In the course of the Hearing Mr. C stated that he had assumed the respondent's policy provided such cover and when he found out it did not he ordered that the practice cease immediately until proper cover was arranged. The complainant accepts that the practice stopped at some stage -he was unable to say when though - but disputes that other employees were required to drive the forklift between the two units. When there is conflict between the parties as regards the events around a certain incident, an Equality Officer must deicide, on balance of probabilities, which version of events s/he finds more compelling. I note that there is significant inconsistency in the complainant's versions of events on this issue between that contained in his submission to the Tribunal and the evidence he gave in the course of the Hearing in terms of when it started, the frequency it occurred and when it ended. I therefore find, on balance, the respondent's version of events to be more compelling. I further find that the complainant has failed establish facts from which discrimination could be inferred and this aspect of his complaint cannot succeed.
5.7 The complainant states that both Mr. M and Mr. L (on one occasion only) instructed him to stand into a skip in order to "press the air" out of the contents of the skip and crush it down. The respondent (Mr. L) rejects this assertion stating that if material in the skip needed to be flattened it was the practice to use the prongs of a forklift. The complainant is unable to state when he first received this instruction although he states he was required to do so on a weekly basis and that he carried out the instruction without query. He adds that the skip was full of rats and this was a source of great concern to him from a health and safety perspective. It is interesting to contrast the complainant's behaviour in respect of this issue with his reaction to the waste incident at paragraph 5.5 above. I find it extremely unlikely that if the complainant was instructed to stand in a rat infested skip on a regular basis he would have followed that instruction at all given his strong resistance to pick up waste from the floor in the other incident. I have examined the copies of the pest control specialist's Service Reports for the period March-June, 2008 furnished to me by the respondent. I am satisfied that the respondent made all reasonable efforts to ensure that pest/vermin were controlled and kept to a minimum in the warehouse and surrounding areas. In light of the foregoing I am not satisfied that the complainant has established a prima facie case and consequently, this element of his complaint fails.
5.8 It is common case that the complainant was dismissed by the respondent on 13 June, 2008. The complainant submits that this constitutes discriminatory dismissal of him on grounds of race contrary to the Acts. The respondent rejects this assertion and states that the reason it dismissed the complainant was because he had been caught on CCTV placing a case of champagne into a waste trolley and concealing it with plastic and other material with a view to stealing same. In the course of the Hearing Mr. Y, the Site Manager, gave evidence of his involvement in the dismissal of the complainant. He stated that he had personally checked the waste trolley when the CCTV footage was brought to his attention and was satisfied that the complainant was guilty of theft, that such behaviour amounted to Gross Misconduct in terms of the respondent's Disciplinary Policy and that he (Mr. Y) considered summary dismissal to be the appropriate sanction. I found Mr. Y to be a forthright and truthful witness who gave his evidence with clarity. He furnished the Tribunal with a copy of his contemporaneous notes of the discussion he had with the complainant at the meeting that day and the complainant confirmed that they represent an accurate account of that meeting. It is clear from these notes that the complainant was (i) advised of the allegations against him, (ii) given the opportunity to have a colleague or other person present - which he declined, (iii) given an opportunity to respond to the allegations and (iv) informed of his right to appeal the decision. What he was not given was an opportunity to view the CCTV footage. It is clear that the termination of the complainant's employment falls short of the procedures required by the Code of Practice on Grievance and Disciplinary Procedures. However, the claim before this Tribunal is not one of unfair dismissal, rather it is that the complainant's dismissal was contrary to the employment equality legislation on grounds of race. The Labour Court stated in Muleadys Ltd v Aidotas Gedrimas that it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland.". The complainant has adduced no evidence to support the assertion that he was treated less favourably than another employee has or would have been in similar circumstances. Indeed, the respondent furnished details of an Irish employee (details supplied) who was found guilty of theft six/eight weeks after the complainant had his employment terminated and that employee was also dismissed. Having carefully considered the evidence adduced by the parties on this issue I find that the complainant has failed to establish a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts and this element of his complaint fails.
5.9 The complainant also submits that his dismissal constitutes victimisation of him in terms of section 74(2) of the Acts. 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 take 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 not adduced any evidence which satisfies this test. Accordingly, I find that the complainant has failed to establish a prima facie case of victimisation in respect of this aspect of his complaint and it cannot therefore succeed.
5.10 Finally, the complainant asserts that the failure of the respondent to make good on the terms of the Rights Commissioner Recommendation (dated 8 May, 2009) in respect of a complaint submitted by him under the Industrial Relations Acts, 1969-1990 constitutes victimisation of him contrary to the Employment Equality Acts, 1998-2008. It is clear that the referral of the complaint under the industrial relations legislation does not amount to a protected act in terms of section 74(2) of those Acts - as set out in the preceding paragraph - and therefore the failure of the respondent to comply with the terms of the Recommendation cannot amount to victimisation contrary to the Employment Equality Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2011 I issue the following decision. I find that -
(i) the complainant does not possess the characteristics of a member of the Traveller community as that term is defined at section 2 of the Employment Equality Acts, 1998- 2008 and is understood in Ireland and he cannot maintain those elements of his complaint premised on that discriminatory ground.
(ii) the complainant has failed to establish a prima facie case of discrimination of grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts in relation to his conditions of employment.
(iii) the complainant has failed to establish a establish a prima facie case that he was dismissed by the respondent in circumstances amounting to discrimination of 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
(iv) the complainant has failed to establish a prima facie case that he was dismissed by the respondent in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008 or that any other treatment of him constituted victimisation of him in terms of that section.
and his complaint therefore fails in its entirety.
_______________________________________
Vivian Jackson
Equality Officer
23 November, 2011