THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 164
PARTIES
Mr Oleg Gerasymenko
(represented by Richard Grogan & Associates)
and
Dublin Meath Growers Society Ltd
File Reference: EE/2008/451
Date of Issue: 6th September, 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. Oleg Gerasymenko (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 his dismissal contrary to section 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 7th July, 2008, alleging that the respondent had discriminated against him on the ground of race.
2.2 Written submissions were received from the complainant. On the 29th March, 2011, 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. A hearing of the complaint was held on 15th April, 2011. Further documentation was sought from the respondent after the hearing and final correspondence in this respect was received from the complainant on 22nd June, 2011.
3. Summary of the Complainant's case
3.1. The complainant is a Ukrainian national who stated that he started working for the respondent in 9th September, 2003. He stated that his initial job was to label and package vegetables and he became a supervisor in June/July 2005.
3.2. The complainant stated that, on Saturday, 23rd February, 2008, he asked an employee, Mr A, why he was in at 9 a.m. when the starting time was 8 a.m.. He stated that Mr A ignored him and told him he was not aware it was any of his business. He stated that Mr A then started "walking around" chatting to people and making jokes and when he approached him about this, he said "you are a supervisor in Ukraine not here" and "fuck off you Ukrainian scumbag". The complainant said that he went to speak with another supervisor, Mr B, about the matter and was told to send Mr A home. He said that when he told Mr A to do so, he responded "you go home, you fucking prick". He said that he then took him by the arm and repeated for him to go home whereupon Mr A grabbed him by the throat and the complainant hit Mr A in the face.
3.3. The complainant said he then went to tell Mr B what had happened. He said Mr B's response was to tell him to go home, but he denied that Mr B rang Mr C, the General Manager, at this stage. The complainant said that he then went into the toilet to wash his face. He said that he saw Mr A in the toilet as well and apologised for what happened but that Mr A responded that it was "too late".
3.4. The complainant stated that he made contact with Mr C three days later and had a meeting with him and another Manager, Mr D, who was present at the hearing. He agreed that he had been offered the opportunity to have a representative at this meeting, but declined to do so. He said that he explained what had happened and was told they'd make a decision and let him know. He said that, after one week, they returned his contract along with a letter saying that he "was sacked". He said that he did not have any further communication with the respondent after this. However, when questioned about the matter later, he accepted that he did go to an interview in Drogheda arranged by Mr C. He said he had that job one week later but changed his mind and found a different job.
3.5. The complainant stated that, two months prior to the incident in question, there had been a problem with Mr A but that he had always tried to leave the matter up to two other supervisors who were related to Mr A "because it was family". He stated that he had also mentioned the situation to Mr D but that Mr D did not listen.
3.6. The complainant stated that, while he accepted that he struck someone, it was in the context that he was subjected to racial abuse and he had worked for the company from 2003. He stated that he had been promoted, he had a good work record and he had acted out of character and that, in those circumstances, he should not have been dismissed. Therefore, while he accepted that procedures were applied, he did not consider they were proper procedures because these factors were not taken into account. He confirmed that he had assisted with translating the company handbook. He also stated that he was aware that Mr A was also dismissed.
3.7. The complainant referred to the Labour Court decision in Campbell Catering -v- Rasaq, and stated there is a requirement to take special measures to advise a foreign national of their employment rights. He stated that he was not advised of his right to appeal and if he had been so advised it would have been to an independent person. He stated that serious statements were made that were derogatory of his nationality and it was important to highlight the stressful situation he was faced with in the circumstances of this case. He stated that the special arrangement proposed by an outside person involved (the respondent's HR consultant) would have meant he would have been entitled to maintain his job. He noted that Mr C backed this proposal, whereas Mr D had a different view and this was the view that won out. He stated that, in those circumstances, the dismissal was discriminatory.
3.8. The complainant stated that his claim of harassment related to the language that was used by Mr A in relation to the incident of February, 2008. 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. Mr D, who was present at the hearing, said that he had no major difficulties with the evidence of the complainant with respect to the facts of the case except to say that Mr A went to work with a different packer, and didn't just "walk around". He said that he met with Mr B who told him that he had spoken with Mr C on the day, and was advised by him to ask both parties to leave the premises and say that a full investigation would commence the following Monday at which point both parties would be asked to come in and outline their version of events.
4.2. Mr D stated that he and Mr C then met with the complainant under the respondent's disciplinary procedures. He said that they explained at the outset that he was entitled to be accompanied and that they would consider the evidence when they had all the information. He said that the complainant said he did not consider it necessary to be accompanied and proceeded to give his version of events.
4.3. Mr D said that they requested the services of a HR consultant with respect to this incident and that they met, together with Mr C, to give their thoughts to the matter. He stated that Mr A was dismissed for his physical assault on the complainant and this decision was easily made. However, he stated that the decision with regard to the complainant was not arrived at easily for the reasons the complainant had described (i.e. that he had a long and distinguished record with the company). He stated that the respondent considered two options in this respect: firstly, that it could impose a period of probation for six months with a lesser sanction, such as a final written warning; secondly, it could dismiss him.
4.4. Mr D said that, in making its decision, the respondent considered the working environment and that a large proportion of its staff used knives. He said that it felt it had to make a very strong stand against any kind of physical violence and that anything less than dismissal would make a mockery of the policies it laid down in that respect. He stated that the HR consultant pushed the probation option and that Mr C was also in favour of that option, but that he himself was not in favour of that option. However, he disagreed with the complainant that there was a split decision and his view held out; rather, they discussed it and came to a collective decision.
4.5. Mr D added that there had been an earlier incident involving the complainant. He said that Mr C had put this incident to the complainant at the time and there was no disagreement between them about it and the complainant did not dispute that this incident had taken place. He said his recollection was that Mr C would have mentioned this incident as having a slight bearing on the decision to dismiss the complainant.
4.6. Mr D confirmed that he met with the complainant about minor difficulties he was having with Mr A that were in the nature of him being slightly disrespectful rather than racially abusive. He said that his advice to the complainant was to use the company's disciplinary procedures but that he was reluctant to do so, possibly because of the familial relationship between Mr A and other Supervisors, which Mr D outlined.
4.7. Mr D stated that if the option to appeal should have been mentioned in his letter to the complainant, than he accepted that. However, he stated that this option was referred to in the disciplinary procedures that would, inter alia, have been advised to workers in the handbook issued in January, 2008. He stated that the complainant would have acted as interpreter in explaining the company handbook to employees and so was quite familiar with the procedures. Furthermore, he said the handbook was provided in multiple languages. With respect to the complainant's claim that he had no contact with the respondent after the letter dismissing him, Mr D stated that he and Mr C felt sympathy for the complainant and that Mr C made contact with a company in Drogheda to set up an interview with that company.
4.8. With respect to the harassment claim, Mr D stated that the company handbook has policies relating to harassment. He stated that the language used against the respondents informed its discussions about the matter. In that context, he did not dispute that there was provocation by Mr A or that the statements Mr A made were abusive. He stated that he did not know if they separated the physical assault from the abuse in coming to a decision on the dismissal of Mr A but they did consider it and questioned him about it at the time.
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 Ukrainian.
5.3. The issues for decision by me in this case, then, are 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(6)(c) of the Acts with respect to his dismissal and/or that the complainant was harassed by the respondent in terms of Section 14A of the Acts. 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.
Dismissal
5.4. It is crystal clear that the complainant was dismissed because he acted violently towards another employee. It is also crystal clear that fair procedures were followed with respect to the complainant's dismissal, in accordance with the principles of natural justice. I am perfectly satisfied that that the ultimate decision to dismiss him, as opposed to applying the lesser section that had been considered, was based on the legitimate reasoning outlined by Mr D at the hearing and described at pars. 4.3 to 4.5 above. In any event, that decision had nothing to do with the complainant's race. In particular in that respect, I am satisfied that an Irish person would not have been treated any differently in the same or similar circumstances.
5.5. The respondent may have erred in not drawing the complainant's particular attention to the appeal option. However, I am satisfied that this was either an oversight on its part or a result of its knowledge that the complainant was fully aware of its procedures in that respect. In all the circumstances of the present case, it was perfectly reasonable for the respondent to rely on such knowledge as I am satisfied that the complainant was fully aware of his right to appeal and chose not to do so. In any event, the failure to bring the appeal option to the complainant's particular attention was not related to his nationality, nor is there anything to suggest that this right would have been drawn to his attention in the same or similar circumstances if he had been Irish.
5.6. In that context, I am also satisfied that this case can readily be distinguished from the judgement of the Labour Court in Campbell Catering as the complainant in the present case was fully aware of the disciplinary procedures that applied in his case and was not set at any disadvantage vis-à-vis any employee, either real or notional, in that respect.
5.7. There is not even the tiniest scrap of evidence that the respondent discriminated against the complainant in any way, shape or form with respect to his dismissal. Indeed, it is clear that the respondent's procedures with respect to the dismissal were perfectly sound, that those procedures were followed by the respondent at every stage and that the complainant's failure to appeal the matter in accordance with those procedures was entirely his own doing. In any event, he has failed to establish a prima facie of discrimination with respect to his dismissal.
Harassment
5.8. The complainant was clearly harassed by Mr A and this is accepted by the respondent. He has therefore established a prima facie case of harassment by it. However, the Acts, through Section 14A(2), provide that, in all the circumstances, of the present case, it is a defence for the employer to prove that "(it) took such steps as are reasonably practicable.....to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim". Therefore, I must consider whether this provision applies in this case.
5.9. The respondent's policies with respect to harassment in the workplace are robust. They were clearly explained to all employees when the handbook was circulated, and I am satisfied that the respondent could not have done more to make all its employees aware of its policies and practices in that respect. I also note that the complainant's previous issues with Mr A were not related to his race and it is clear that the incident that is the subject of this complaint was the first incident of harassment of the complainant by Mr A. I am satisfied that this harassment was a factor in the dismissal of Mr A. I am also satisfied that had Mr A not been dismissed, the respondent would have followed its procedures with respect to the harassment in any event.
5.10. Therefore, I am satisfied that the respondent took such steps as are reasonably practical to ensure that harassment would not occur in its workplace. When it did occur, it took, or would have taken, appropriate and necessary steps to prevent any further incidents of harassment from occurring. In that context, Section 14A(2) of the Acts applies in this case and the respondent is entitled to avail of that defence. Consequently, it has successfully rebutted the prima facie case established by the complainant in that respect.
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 with respect to his dismissal contrary to S.8(6)(c) of the Acts.
6.3. I find that the complainant has established a prima facie case that he was harassed by the respondent on the race ground pursuant to section 14A of the Acts but the respondent has successfully rebutted this prima facie case.
6.4. Therefore, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
6th September, 2011