Equality Officer's Decision No: DEC-E/2011/193
Parties
Ola-Samuel
And
Alliance Nursing Agency
File No: EE/2009/024
Date of issue: 14 October, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6&8 -race- discriminatory dismissal - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Olafemi Ola Samuel, who is a black Nigerian national, that he was 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 Care Attendant from March, 2003 until November, 2008. He contends the respondent dismissed him on grounds of race - colour and nationality - contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 20 January, 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 17 June, 2011 - the date it was delegated to me. Prior to delegation of the file the complainant had filed his submission on the complaint and this had been copied to the respondent on 25 November, 2009 seeking its response to same. The respondent failed to file its response and it was again requested to do so by me in my letter of 22 June, 2011 in which I also advised of the Hearing arrangements - that it would take place in this Tribunal on 27 September, 2011 commencing at 10:30am. This correspondence was sent by recorded delivery. The respondent failed to file its response as requested. The complainant attended the Hearing at the scheduled time but the respondent did not. In accordance with the standard practice of the Tribunal I allowed a short period within which the respondent might to arrive but it failed to do so. As I was satisfied the respondent was on notice of the Hearing arrangements - I had a signature from the respondent confirming delivery - I proceeded with the Hearing.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that the respondent is an Employment Agency who provides medical professionals to hospitals and other institutions providing care to the sick and elderly. He adds that he was employed by it as a Care Attendant from March, 2003 until 6 November, 2008 when he contends he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race contrary to the Employment Equality Acts, 1998-2008. The complainant adds that he worked mainly in Hospital 1 (details supplied) although he worked occasionally in other hospitals. He adds that the respondent fully controlled his assignment in terms of location - including hospital and ward - and indeed on occasion to particular tasks or patients. The complainant states that he would ring the respondent each week confirming his availability for the following five/seven days and the respondent would contact him by telephone advising of his shifts/assignments for that period. He adds that he received assignments/shifts every week during his period of employment - between two-five days each week - and he filled any gaps by securing additional shifts with another Agency.
3.2 The complainant states that he received no assignments/shifts during the last two weeks of October, 2008 and he contacted the respondent's Office to enquire why this was happening. He adds that he got no satisfaction from the person with whom he spoke and he went to the Office to discuss the matter. The complainant states that when he attended the Office he was informed by a lady (Ms. M) that she had been instructed by a senior member of staff (Ms. A) - who was on leave at that time - that the complainant was not to receive any shifts during her absence. The complainant adds that he telephoned Ms. A on 2 November, 2008 on her return to work and she informed him she was issuing his P45 to him - he received this shortly afterwards and it showed his last day of employment as 6 November, 2008. The complainant states that he asked her give him reasons for the termination of his employment and she refused to so. In the course of the Hearing he stated that he had never previously been subjected to the respondent's Disciplinary Policy and although he was aware one existed he never received a copy of it. In the course of the Hearing the complainant set out three incidents which occurred in the weeks before early/mid-October, 2008 which he believes influenced the respondent's decision to terminate his employment.
3.3 The complainant states that the first of these incidents took place on a Sunday night when the complainant was caring for four patients with MRSA at a ward in Hospital 1. He adds that he was tasked with bathing these patients with the assistance of a Care Assistant who was a direct employee of the hospital. The complainant states that he had prepared the necessary items and called the Care Assistant, who was talking to another member of staff, to come help him with the task. He adds that the Care Assistant arrived and instructed him to change his gloves and apron. The complainant further states that he informed the Care Assistant that he (the complainant) had already done so when the Care Assistant was talking and he (the complainant) did not change the apron and gloves. The complainant states that the Care Assistant refused to work with him in the circumstances and subsequently reported the matter to the Clinical Nurse Manager (CNM). He adds that shortly before the end of his shift the CNM called him to an office and reprimanded him for failing to follow an instruction. He adds that the CNM would not listen to his version of events and told him to go home. The complainant adds that he immediately contacted Ms. A, who asked him to put down his version of events in writing and it would be investigated. The complainant states that he did so but he heard nothing further about the matter.
3.4 The complainant states that the other two incidents occurred on the same shift (although he cannot be specific about when they happened he is sure that they occurred after the incident mentioned in the previous paragraph) when he was working at Hospital 2 (details supplied). He adds that that assignment on that shift was a "Special" i.e. he was assigned to the care of one or two specific patients. He states that during the course of his shift he was asked by staff of the hospital to assist in the care of other patients on the ward and whilst he did so on some occasions he did not provide assistance every time because of the specific nature of his assignment. The complainant states that on one such occasion when he assisted with another patient (on the instruction of a Staff Nurse on the ward) he (the complainant) cleaned the patient using an alcohol based wipe. He adds that the patient informed him not to do so and when he realised his error he washed the complainant with soap and water. The complainant assumes the patient subsequently complained about this matter because he (the complainant) states that he received a phone call from Ms. A advising that the Hospital had complained about him and he was again asked to write down his version of events, which he did, and heard nothing further until he was dismissed.
3.5 The complainant states that a number of his colleagues who are also agency workers employees by the respondent were subjected to the respondent's Disciplinary Procedure and were treated differently to him. Two of these were Indian Care Assistants who following an investigation of the complaint were called into the Office and given verbal warnings. In one case the employee was sent on language training because her English was not adequate. The complainant adds that an Indian agency nurse administered incorrect drugs to a patient and that after an investigation he was given a final warning. The complainant submits that he was treated differently to these employees as there was no investigation of the matters he believes to have been taken into account by the respondent in deciding to dismiss him.
4. SUMMARY OF RESPONDENT'S CASE
The respondent failed to engage with the Tribunal at any level in the course of my investigation.
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 he 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, his case cannot succeed.
5.3 The first matter I must satisfy myself of is whether or not the complainant was an employee of the respondent and if so, was his employment terminated. The complaint furnished the Tribunal with a copy of his P45 and other correspondence which clearly shows that he was an employee of the respondent and that it terminated his employment on 6 November, 2008. The complainant states that in the course of his telephone conversation with Ms. A on 2 November, 2008 she told him she would issue him with his P45. The information contained on the P45 is consistent with the complainant's version of events and I am satisfied, on balance, that the respondent dismissed the complainant at that time.
5.4 The next issue to be addressed is whether or not the dismissal of the complainant was influenced in any way whatsoever by his colour or nationality. The complainant states that despite a number of requests to the respondent, he was never given any reason or explanation for his dismissal. I accept his evidence on this point as it is entirely consistent with the manner in which the respondent engaged, or more correctly failed to engage, with this Tribunal in the course of my investigation. The complainant adds that in the absence of any such explanation he assumes the three incidents which occurred in the period just before his dismissal are factors which the respondent took into account in reaching its decision. Whilst this is an assertion on the complainant's part I am satisfied that the rationale underpinning his view is entirely reasonable in the circumstances. The complainant was forthright in his evidence as regards the events which formed the three incidents outlined above. He stated that he furnished Ms. A with his version of those incidents, at her request, and she informed him that they would be investigated. He states that no such investigation took place, indeed he heard no more about the matter and I accept the complainant's evidence on this point.
5.5 It is clear to me that the process which the respondent adopted before dismissing the complainant fell miserably short of the standard of fairness which one might expect from a reasonable employer and I am satisfied that there was no investigation, in any meaningful sense, into the allegations made against the complainant. Indeed, the complainant was never advised at any stage that the disciplinary process had been applied to him. However, an employer's failure to apply fair procedures is not, of itself, sufficient to discharge the initial probative burden required of the complainant. The uncontested evidence of the complainant is that a number of his fellow agency workers - of a different nationality to him - were subjected to the respondent's Disciplinary Code for similar performance related issues and following a more tangible form of investigation, they received lesser sanctions than him. I accept the complainant's evidence on this point. He has therefore established a prima facie case of less favourable treatment in comparison with those employees and the burden shifts to the employer to rebut the inference of discrimination raised. The respondent's failure to engage with the Tribunal means it has failed to discharge that burden and the complainant is entitled to succeed with his complaint.
6. DECISION OF THE EQUALITY OFFICER
6.1 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 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.
6.2 In accordance with my powers under section 82(1) of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant the sum of €25,000 by way of compensation for the distress suffered by him as a consequence of the discrimination. This award does not contain any element in respect of remuneration and is therefore not subject to PAYE/PRSI.
_______________________________________
Vivian Jackson
Equality Officer
14 October, 2011