The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-171
PARTIES
Hichem Mahroug
AND
Noel Ebbs Taxi Group (Global Taxis)
File reference: EE/2008/795
Date of issue: 14 September 2011
Headnotes: Employment Equality Acts - sections 6 and 19 - discriminatory dismissal - equal pay - race
DISPUTE
1.1 This dispute involves a claim by Mr Hichem Mahroug that he was dismissed in a discriminatoty manner contrary to section 8 of the Employment Equality Acts by Noel Ebbs Taxi Group, t/a City Cabs on the grounds of race contrary to section 6 of the Employment Equality Acts and that he performs "like work", in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 17 November 2008. On 5 May 2011 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 31 August 2011.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started working for the respondent on 17 February 2008. He worked as a tour operator which he says was a very stressful job.
2.2 His initial pay was €8.65 per hour. He submits that when he started work he was told that he would be given a rise of €1 per hour after 3 months of training but he was not paid this amount. He further submits that a named comparator, Mr Anthony Murphy, who started at the same time, was doing the same work but was paid more than him.
2.3 The complainant submits that he always answered the phones in very mannered and respectful way but felt bullied by his manager because she told him he was not confident and she would not trust his work when he made bookings for her.
2.4 The complainant submits that he was dismissed on 25 July 2008. He was told that he had screamed at a client and the respondent had consequently lost the contract with the client. The complainant submits that the respondent did not yet have the account with that customer. He says that at that time the respondent was only doing test runs with the client. Furthermore he denies the accusations that were made against him.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent confirms that the complainant started work for them on 17 February 2008 and was employed as a customer service representative. This role requires the complainant to be friendly, helpful and courteous to all clients. He started on €8.65 per hour, which was the same for all customer service representatives recruited at that time. The complainant was informed during his induction given by his manager on 18 February 2008 that there would be three month review of his progress. If warranted his pay could be revised up to a maximum of €9.50 per hour. Furthermore, the complainant was on a probationary period of six months.
3.2 The respondent submits that the complainant's progress was regularly monitored by his manager. His attendance and time keeping were noted as excellent but there seemed to be a communication barrier with clients. In May and June the respondent had reports of poor quality bookings and appeared to be getting worse.
3.3 On 24 June 2008 his manager spoke to the complainant about the quality of his bookings. He was also told that his bookings were taking an unusually long time; the majority longer than 1minute 30 seconds. He was also told that an important client complained that it took the complainant over 3 minutes to take a simple booking. These matters were discussed with the complainant and suggestions were made as to how he could control calls better and become more efficient.
3.4 The respondent submits that the complainant's official review was held on 8 July 2008. It had been delayed to give him time to address the problems that had been raised previously, particularly at the meeting of 24 June 2008. The review gave him recognition for attendance, time keeping and flexibility. He was given constructive feedback regarding his communications issues. The respondent felt that the complainant was committed to address his problems and his pay was increased to €9.10 per hour.
3.5 The respondent submits that on 19 July 2008 they received a serious complaint from a client about that complainant's phone manner. They said he had been rude and aggressive. The complaint was investigated in accordance with their internal company procedures. The allegations were upheld and the decision was made to dismiss the complainant. A meeting was held with the complainant on 22 July 2008 and he was informed of the decision. He was paid one week's notice, all holiday pay and pay for outstanding hours.
3.6 In relation to the claim for equal pay the respondent submits that the comparator started work for them on 13 March 2008 and was also paid €8.65 per hour. His performance was reviewed on 15 July 2008 and his pay was then increased to €9.10 per hour. The respondent submits there was no difference in pay between the complainant and the comparator.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether the complainant was dismissed in a discriminatory manner under section 8 of the Acts and if he has a claim for equal pay on the grounds of race. In reaching my decisions 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.
Discriminatory Dismissal
4.2 At the hearing the complainant went through the events that led to his dismissal following a difficult phone call with a client. The respondent confirmed the events and said that the tape of the phone call showed that the complainant had been "rude and aggressive". They could not be confident that such an incident would not happen again and they decided the complainant was someone they could not keep on. He was dismissed at a meeting on 22 July 2008. The respondent agreed that their procedure in relation to the complainant's dismissal could have been better.
4.3 Section 85A (1) of the Acts states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. 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)....." In this claim the ground is race.
4.3 Despite the imperfect disciplinary procedures used by the respondent no evidence was given from which it could be inferred that the complainant was treated differently than anyone else would have been in the same circumstances. When I asked the complainant directly he replied "we were treated the same" and confirmed there was no discrimination in relation to his dismissal. I therefore find he has failed to demonstrate a prima facie case of discriminatory dismissal.
Equal Pay
4.4 The complainant contended that Mr Murphy started around the same time, was doing the same work and was paid more than he was but did not adduce any evidence to support his claim.
4.5 The respondent confirmed that Mr Murphy started just over three weeks after the complainant and was paid the same starting hourly rate. The complainant's pay was increased to €9.10 after his review on 8 July 2008. The comparator had his review on 15 July 2008 and his pay was also increased to €9.10 per hour. The respondent produced pay slips for the complainant and the comparator to confirm this.
4.6 It is agreed that the complainant and the named comparator perform "like work" in terms of section 7(1)(a) of the Acts, in that "both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to work". Section 29 (1) of the Acts states: "It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer". However, for all the relevant time the complainant was receiving equal remuneration with the complainant. I therefore find the complainant has failed to prove his claim in relation to equal pay.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts:
I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established and this element of the complaint fails.
I find that a prima facie case of equal pay on the basis of the race ground has not been established and this element of the complaint fails.
_____________________
Hugh Lonsdale
Equality Officer
14 September 2011