Equality Officer's Decision No: DEC-E/2011/192
Parties
Taranda
(Represented by Richard Grogan and Associates - Solicitors)
And
Grosvenor Cleaning Services Ltd
(Represented by IBEC)
File No: EE/2009/643
Date of issue: 14 October, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6&8 -race- discriminatory dismissal - fair procedures - prima facie case
1. DISPUTE
This dispute involves a claim by Ms. Liana Taranda, who is a Latvian national, that she was (i) discriminated against by the respondent in respect of his conditions of employment 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 (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.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a cleaner from December, 2007 until April, 2009. She contends that during her period of employment she was (i) treated less favourably as regards his conditions of employment on grounds of race (Latvian nationality) and (ii) was dismissed by the respondent on the same basis (Latvian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 31 August, 2009. 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 5 September, 2011 - the date it was delegated to me. Submissions were received on behalf of both parties and a Hearing on the complaint took place on 21 September, 2011. The complainant withdrew the entire discriminatory treatment component of her complaint at the beginning of the Hearing. The respondent rejects the complainant's assertion that it dismissed her in circumstances amounting to discrimination contrary to the Acts.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she was employed by the respondent as a cleaner from 6 December, 2007 until 2 April, 2009 when she was dismissed. She adds that during this period she performed cleaning duties on behalf of the respondent at a number of locations in the Dun Laoghaire area. The complainant further states that on the day she was dismissed she reported for duty at 7am at a Department Store (details supplied) where she was assigned. She adds that about an hour after she arrived at work her Supervisor told her she was to report to the Store Manager's Office. She states that when she arrived at the Office her Supervisor, the Store Manager and another man - whom she did not know - were in the room. The complainant adds that she was shown some CCTV footage which purported to show her stealing some items from the store. She states that the Store Manager subsequently called the Gardaí and she was brought to the local Garda Station where she was charged with theft.
3.2 The complainant states that later that day she received a telephone call from her Supervisor who informed her she was dismissed. The complainant states that she was unaware of the respondent's Disciplinary Procedure - she denied ever receiving the Staff Handbook furnished to the Tribunal by the respondent - and was not aware that the meeting was part of the investigation/disciplinary process. However, in the course of the Hearing she confirmed that she understood the seriousness of what she was being accused at the meeting due to a combination of her comprehension of English and her Supervisor's translation of the discussion into Latvian. She rejects the respondent's assertion that during the meeting on 2 April, 2008 she (i) admitted to stealing the items or (ii) was informed she was suspended pending a disciplinary hearing and she requested that the matter be dealt with immediately without any further delay. The complainant also denies that she received the respondent's letter of 2 April, 2008 confirming her dismissal and advising of her right of appeal. In the course of the Hearing the complainant confirmed that she subsequently appeared in the District Court on charges of theft in respect of the incident where she pleaded guilty and received a fine.
3.3 It is submitted on behalf of the complainant that the respondent failed to apply any procedures, including its own procedures to the matter. In addition, there were no notes of the meetings of 2 April, 2008 and the respondent failed to have any of the personnel present at that meeting in attendance at the Hearing. It is submitted that in the circumstances the evidence of the complainant should be preferred as regards events on that day. It is further submitted that the respondent's departure from applying any procedures to the circumstances surrounding the termination of the complainant's employment amounts to discriminatory dismissal of her on grounds of race contrary to the Acts and she seeks to rely on the Determination of the Labour Court in Rasaq v Campbell Catering Ltd.
SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it dismissed her in circumstances amounting to discrimination contrary to the Acts. It states that on 1 April, 2008 the Store Manager involved contacted the respondent's District Operation's Manager (Mr. A) and informed him that he had reviewed CCTV footage and had observed the complainant and a colleague stealing items from the store. It adds that Mr. A requested the Store Manager to attend a meeting the next day when he (Mr. A) would put the issues to the complainant and her colleague. The respondent accepts that the complainant and her colleague were requested to attend a meeting on 2 April, 2008 and that Mr. A, the Store Manager and the complainant's Supervisor were also present. The respondent adds that the complainant's Supervisor provided translation for the complainant and her colleague during this meeting. The respondent states that the complainant initially denied the allegation of theft when it was put to her but when she was shown the CCTV footage she admitted she had stolen the items. The respondent adds that the complainant also admitted that she had stolen from the store on a previous occasion. It adds that the Store Manager then informed the complainant and her colleague that he was calling the Gardaí as it was Store Policy to prosecute shoplifters.
4.2 The respondent states that the complainant enquired about her job and Mr. A informed her that both she and her colleague were to be suspended on full pay pending a disciplinary meeting. It adds Mr. A also explained that the disciplinary process was separate to any legal investigation by the Gardaí. The respondent states that the complainant and her colleague, having admitted to the allegations of theft, indicated to Mr. A that they would rather the disciplinary meeting proceed that day, instead of having to wait several days for an outcome. It adds that Mr. A decided to facilitate this request and the disciplinary meeting proceeded with the complainant's Supervisor again assisting with translation. The respondent states that during this meeting the complainant and her colleague again accepted taking the items and provided no mitigating reasons for their behaviour. It adds that Mr. A spoke with the respondent's HR Manager and in the circumstances it was decided that both the complainant and her colleague should be dismissed with immediate effect for acts of Gross Misconduct in terms of the respondent's Disciplinary Procedure. The respondent states that this decision was confirmed in writing to the complainant later that day, in which she was also advised of her right of appeal. The respondent adds that the complainant never exercised this entitlement. In conclusion, the respondent states that the complainant admitted to acts of Gross Misconduct in terms of its Disciplinary Policy and was dismissed in accordance with that Policy, adding that her nationality had no bearing on the matter.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is 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. 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 the primary facts upon which she relies in seeking to raise an inference of discrimination in respect of her dismissal. It is only if this initial burden is discharged and I am 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, her case cannot succeed.
5.3 The core of the complainant's case is that the respondent dismissed her without applying any procedures whatsoever, not least its own procedures contained in the Staff Handbook. It is submitted on her behalf that an Irish employee would not have been treated in the same manner in similar circumstances and consequently, her dismissal is discriminatory. She seeks to rely on the Determination of the Labour Court in Rasaq v Campbell Catering Ltd in this regard. In that case the complainant was also dismissed following an accusation of theft - which was deemed to constitute gross misconduct. The Labour Court found, inter alia, that it was normal practice within the respondent company to afford employees accused of gross misconduct fair procedures in the investigation of the allegations and in that case the respondent conducted "no investigation in any meaningful sense into the allegations made against the complainant". This was not the position in the instant case. I am satisfied that the initial meeting during which the complainant was shown the CCTV footage amounts to the investigatory component of the process. The complainant confirmed that she was fully aware of the seriousness of the allegations made against her - a factor which also was not present in the Rasaq case. Moreover, I am satisfied, on balance, that during this meeting the complainant admitted her guilt in the theft of the items when confronted with the CCTV footage and consequently no further investigation of the matter was necessary. This also differs from the circumstances in the Rasaq case where there was significant doubt as to whether or not the actions of the complainant amounted to theft. Consequently, I find that the Rasaq case is of no particular benefit to the complainant.
5.4 The next question which arises in the instant case is, when presented with this admission of guilt, whether or not the speed with which the respondent proceeded to the disciplinary component of the process amount to less favourable treatment of the complainant on grounds of race. The respondent states that at the outset Mr. A advised the complainant she was suspended on full pay pending the completion of the disciplinary process and that the complainant (and her colleague) requested that this part of the process proceed immediately as they did not wish to have the matter drag on. In the course of the Hearing the complainant denied that she made such a request. However, on balance I prefer the respondent's version of events. It is clear to me that the procedures operated by the respondent fall short of what might be expected from such a large employer and indeed they fell short of what is prescribed in the respondent Staff Handbook. However, what is at issue here is not whether or not the complainant was unfairly dismissed, rather the issue to be decided is whether or not the termination of her employment was influenced in any way whatsoever because of her nationality. Having considered the evidence adduced by the complainant I am not satisfied that the complainant has established facts from which it could be inferred that she was treated any differently to another employee was, or would, be treated in similar circumstances - i.e. where the employee admits to theft - which is clearly an act of Gross Misconduct under the respondent's Disciplinary Policy. Moreover, the Labour Court has said on many previous occasions that from its own experience the failure of an employer to apply fair procedures to the dismissal of an employee is by no means confined to non-national workers and this is a comment with which I agree.
5.5 Finally, the respondent wrote to the complainant on 2 April, 2009 confirming her dismissal, setting out the reasons for same and advising of a right to appeal the decision. The complainant contends that she never received this correspondence. However, I note that this letter was addressed to her at the same address provided on her referral form to this Tribunal and I find, on balance, that the complainant is mistaken in her contention on this point. In light of my comments in this and the preceding paragraphs I find that the complainant has failed to establish a prima facie case that she was dismissed 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 her complaint cannot therefore succeed.
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 the complainant has failed to establish a prima facie case that she was dismissed 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 her complaint therefore fails.
_______________________________________
Vivian Jackson
Equality Officer
14 October, 2011