THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-187
PARTIES
Lina Siaudvytyte
(Represented by Richard Grogan & Associates, Solicitors)
-v-
Kylemore Foods Group Limited
File Reference: EE/2009/192
Date of Issue: 5th October 2011
Decision DEC - E2011-187
Lina Siaudvytyte
(Represented by Richard Grogan & Associates, Solicitors)
-v-
Kylemore Foods Group Limited
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a) and (h) - Gender and Race, Section 8- conditions and discriminatory dismissal, Section 14A - harassment and sexual harassment, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1) and 6(2)(a) and (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to her condition of employment, and dismissal. She also claims that she was harassed contrary to Section 14A. A complaint in relation to sexual harassment, the provision of a contract of employment, health and safety training and the provision of a safety statement was withdrawn at the hearing. At the end of the hearing the complaint on the gender ground was withdrawn.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 18th March 2008 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 24th May, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 16th June 2009 and from the respondent on the 29th July 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 27th May 2011 and the final documentation was received on 2nd June 2011.
3. Summary of the Complainant's Case
3.1 The complainant is a Lithuanian national and was employed by the respondent from 14th October 2008 until 12th December 2008 when her employment terminated. The complainant was employed as a supervisor in a café/restaurant operated by the respondent in a maternity hospital. She submitted that she was subjected to a lot of shouting by her manager (MR) from very early on in the employment and other members of staff were laughing at her. She said that there were two doors to the café one which opened on to the street which was closed on Sunday and the other entrance was from the hospital. On a Sunday she was instructed by another member of staff to open the street door and when she did security told that door was not supposed to be open. When she reported for work next morning two members of staff laughed at her for opening the door and subsequently she got into trouble with management about it.
3.2 On another occasion when she was very busy at the counter serving customers she was approached by a customer who asked her for an extra butter. She said that she was very polite to the customer and told her that she was very busy and that she should get it herself. The customer made a complaint to management. Later in the day she had a meeting with her manager MR about the customer complaint. She said MR accused her of laughing at her. The complainant said that MR was always picking on her unfairly and shouting at her for any mistake. The following day she was called to another meeting with MR and the area manager (AR). She said that she was again accused of laughing at the previous meeting with MR. They told her that she had already got three warnings. She believes from the tone of the meeting that they wanted to push her out of the job. The complainant said that she started crying. She said that she was so upset she could not return to work that day. She telephoned MR the following morning and was told not to come to work that day. The complainant went out sick for two days from the 11th December 2008 due to stress. She was then called in to a meeting with AR. She said AR was not suitable for the position. The complainant asked to be transferred to another branch of the cafe but AR refused. The complainant said that she was dismissed without proper procedures. She denied that she resigned from the job.
3.3 The complainant's legal representative submitted that the complainant did not resign but was dismissed following a disciplinary hearing. He further submitted that even if the complainant said something in the heat of the moment which indicated she was resigning there was an onus on the respondent to get back to her and this did not happen and instead she was sent her P 45. He further submitted that the respondent did not follow their own policy and procedures in relation to the dismissal. He referred me to a number of cases in support of the case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001). He submitted that the Campbell Catering case is particularly relevant in that non-Irish workers encounter particular difficulties arising from their lack of knowledge concerning their rights and additional procedures were required to ensure employment rights and procedures are applied to non Irish employees. It would have been reasonable in the circumstances for the respondent to ask the complainant to come back in and sort out the problem. He submitted that a notional Irish person would know their employment rights and that the correct procedures would have been applied.
4. Summary of the Respondent's case
4.1 The respondent submitted that the complainant was interviewed for the position of supervisor in the coffee dock operated by the respondent in a maternity hospital and following the signing of a contract of employment on the 9th of October 2008 she commenced employment on the 14th of October 2008. She was given a full day induction course at the company's head office which all staff are expected to complete before commencing work. A number of modules are covered during the induction training including health and safety and the bullying and harassment policies. These policies are translated into a number of different languages and are available to staff on the notice board in the unit. During the time the complainant was employed there, the café employed eight females and three males. They had employees from Slovakia, Brazil, Mauritius, India, Spain and Ireland.
4.2 On the 9th December 2008 a customer made a complaint about the complainant. The customer was from the perinatal clinic and had been fasting all night and had a voucher from the hospital to get food in the café. She asked for more butter and the complainant told her to get it in the fridge as she was too busy. The customer made a complaint about her treatment. On the 9th of December she was called to a meeting with her manager MR. At the meeting the complainant did not take the complaint seriously and was laughing about it. MR said she decided to report the matter to head office and a meeting was arranged with the area manager. The complainant was told that her behaviour in relation to the butter incident was unacceptable and they asked her not to do that again. Issues about lateness were also raised and they asked her to text MR in future if she was ever going to be late. MR said that the meeting was an opportunity for the complainant to express her views but she made no response. The issues about lateness had already been discussed informally with the complainant by AR and raising them at this meeting was to ensure the complainant notified the café if she was going to be late. The complainant told them that she could not longer work there and left the meeting. She changed out of her work clothes and briefly spoke to AR before she went home. AR asked her to reconsider her position and the complainant refused saying that she had enough and requested her P45. The respondent said that the meeting was not a disciplinary meeting and no disciplinary action was being proposed. The complainant did not come to work the following day and a further meeting was arranged with her at which the respondent accepted her resignation. She was asked to put her resignation in writing but no letter was received from her. The complainant requested her P45 by text message on the 15th of December 2008.
AM said that she never shouted at the complainant. She believed she got on fine with her. She said that she did speak to her about being late but she did not make a big issue about it and she believed that there was no reason for her to resign.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(1) and (h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 and 14A of the Acts as regards her conditions of employment and dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
..........
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which she is relying on in seeking to raise an inference of discrimination. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of her the case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Harrassment
Firstly, I will consider the issues which have been raised by the complainant in relation to her conditions of employment which she contends constituted harassment and unlawful discrimination on the grounds of race contrary to the Acts. Section 14A provides inter alia (7)(a) "any form of unwanted conduct related to any of the discriminatory grounds, and........
(b) 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."
The Act goes on to give examples of unwanted conduct and states:
(c) "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."
The Labour Court in the case of, Nail Zone Ltd and A Worker Determination No. EDA1023, defined the law in relation to harassment as follows:
"The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."
The complainant case is that MR shouted at her on a regular basis and that some of the other employees were laughing at her. The respondent denied that management shouted at the complainant or that any of the staff including management were laughing at her.
In considering the evidence presented, I find the complainant has not presented any compelling evidence in relation to this aspect of her complaint. In applying the test to establish harassment, I am satisfied that the complainant has failed to establish that she was subjected to an environment which was either intimidating, hostile, degrading or offensive. Therefore I find that the complainant has not raised an inference of discrimination in relation to harassment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of her complaint.
5.4 Dismissal
The next matter I have to consider is whether the complainant was dismissed for reasons connected with her race. The complainant submits she was dismissed because of her race. The respondent submits that she resigned at a meeting called by management to discuss various work issues and she refused to withdraw her resignation. I note from the complainant's evidence that while she denied laughing at the first meeting with AM about the butter incident she said that she was in a good mood. I am satisfied therefore that the respondent was entitled to call the complainant to a second meeting about the butter incident given that management believed that the complainant had not taken the matter seriously at the first meeting. I cannot accept the argument put forward by the complainant's solicitor that Irish employees would know their rights and consequently it could be inferred from that that they would not be treated in such a manner. I am satisfied that an Irish employee or an employee of a different nationality would have been called to such a meeting with management in similar circumstances. I am also satisfied that the complainant resigned and walked out of the meeting because she was upset by the work related matters management raised with her. Likewise I am satisfied that she was given an opportunity to reconsider position which she did not accept. The respondent then accepted her resignation and sent her her P45. There has been no evidence provided by the complainant to support the contention that an Irish employee or an employee of a different nationality would have been any different any differently. Even if I were to accept that the complainant had been dismissed, I am satisfied that there was no connection to her race. I consider the reasoning in the case of Melbury Developments and Valpeters (Det. No. EA AO917) is relevant in this case. The Labour Court stated:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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."
5.5 In applying the above reasoning of the Labour Court and having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has not adduced any supporting evidence from which I could reasonably conclude that she was treated less favourably than an Irish person was treated or would have been, in similar circumstances, in relation to work issues. I found above that the complainant resigned. In order to raise an inference of discriminatory dismissal on the grounds of nationality, the complainants must produce some evidence of less favourable treatment and that treatment must have some connection with her nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on the grounds of her race.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts in terms of her conditions of employment in relation to harassment and contrary to Section 14A of the Acts;
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts, in respect of the ending of her employment contrary to section 8(6) of the Acts.
________________________________
Marian Duffy
Equality Officer
5th October 2011