The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-099
PARTIES
Karel Reznicek
(Represented by Richard Grogan & Associates)
AND
Gate Gourmet (Ireland) Limited
(Represented by IBEC)
File reference: EE/2010/052
Date of issue: 2 August 2012
Head notes: Employment Equality Acts - sections 6, 8 and 14A - conditions of employment - harassment- race
1. DISPUTE
1.1 This dispute involves a claim by Mr Karel Reznicek that he was discriminated against in relation to conditions of employment contrary to section 8 of the Employment Equality Acts and that he was harassed contrary to section 14A of the Acts by Gate Gourmet (Ireland) Limited on the grounds of race contrary to section 6 of the Acts.
1.2 The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 28 January 2010. On 23 April 2012 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(1) of the Acts and as part of my investigation I proceeded to a hearing on 4 May 2012 and final information was received on 6 June 2012.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is a Czech national and he started work for the respondent in June 2007 as a driver. He submits that he did not receive a proper contract and did not receive a contract in a language likely to be understood by him. He further submits that he was employed on fixed-term contracts whereas Irish workers were employed on permanent contracts.
2.2 The complainant submits that he did not receive any proper Health and Safety documentation or training and there was an obligation on the respondent to provide these in a language likely to be understood by him.
2.3 The complainant submits that he was given more onerous work schedules, in that he was required to service more and larger planes, than Irish workers. He also believes that Irish workers were paid more than he was.
2.4 The complainant submits that on 19 September 2009 he was dismissed without any procedure when he was told there was no more work for him. Furthermore a Lithuanian and a Polish worker who were taken on after the complainant were kept on. The complainant submits that if it was a redundancy situation he received no redundancy payment.
2.5 The complainant submits that he was harassed when he was subjected to racial abuse by his supervisor (Mr A) in the form of derogatory comments which contained very bad language and made reference to the complainant's nationality. He complained to his manger (Mr B) and was told that if he was not happy then he could leave.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent confirms that the complainant commenced employment with them as a Driver in June 2007 and worked under fixed-term contracts. The complainant signed standard fixed-term contracts, which ran from 1 November 2007 to 31 October 2008 and from 1 November 2008 to 31 October 2009. The respondent submits that the contracts were the same as issued to other workers; both Irish and non Irish. As far as they were concerned English was a language likely to be understood by the complainant and there was no obligation on themto provide these contracts to him in any other language. Throughout the course of his employment the complainant conducted his employment affairs through English without any difficulty. The respondent was not aware of any difficulties that he had or that he did not understand English. Also the complainant's assigned Team Leader would have explained all the conditions of employment to him. The respondent also submits that the complainant never raised any difficulties about problems understanding his contract, or any of his conditions of employment, under their Grievance Policy or informally.
3.2 The respondent submits that the complainant received Health and Safety training to the extent mandated and necessary by the nature of his work and he was no less favourably treated than any other worker. They also submit that they do have the necessary documentation, including a Health and Safety Statement, of which the complainant was given a copy and copies were available in the workplace. Again, the respondent submits that the complainant had a sufficient level of English to understand all training given and documentation provided.
3.3 The respondent submits that the work schedules assigned to the complainant were consistent with the level of activity in the company and were no different to those assigned to other employees performing the same duties. Furthermore no detail has been provided of any particular period when the complainant was given more onerous work than a relevant or appropriate comparator.
3.4 The respondent submits that in relation to the allegations of racial abuse the complainant has given no dates when it took place. The complainant's supervisor (Mr A) denies it took place. His manager (Mr B) submits that he was not approached by the complainant regarding these allegations and did not say to the complainant that he should leave if he did not like it. The respondent submits that they have a comprehensive grievance procedure and a dignity at work policy. These are explained to all employees upon commencement and are given a copy when they start on the job training. Also copies are available in the canteen. At no point did the complainant raise a grievance or make a complaint to them under these policies. The respondent submits that no complaint was made and they have taken reasonable precautions to deal with any incidents that might arise.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether the complainant was discriminated in relation to conditions of employment and if he was harassed. 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.
4.2 The complainant alleges that he was already working for a different company in Dublin airport and says he was not interviewed but went to Mr B and asked if there was any work. He contends he was told they needed someone quickly and he started working for the respondent shortly afterwards. The respondent contends there was an interview and after the hearing submitted an Interview Assessment Form completed by Mr B which noted, under the section headed Communication (level of oral and written skills/ability to work with others, "Oral good during interview and he completed airside written application so seemed good". This was uncontested by the complainant. The respondent also gave evidence that the complainant attended a day long induction course on conditions of employment and Health & Safety and he also received on-the-job training including ramp safety, door opening and manual handling.
4.3 In relation to the work schedules the complainant contended at the hearing he was discriminated against because his work schedule was regularly altered three times a week. This was more than other people and effected his free days. He also claimed that he was given the worse planes to clean and often made to work without a break whilst Irish workers always had their breaks and lunches. The respondent contends the complainant has given no particular details of his allegations. The work was scheduled three weeks in advance and might be changed in accordance with their business needs and the complainant was treated the same as any other worker.
4.4 The complainant did not make a complainant in relation to his dismissal but did claim that the respondent discriminated against him when they did not renew his fixed-term contract, whilst other workers from different countries who started after him were kept on. The respondent gave evidence that at the time the complainant was let go they were going through a difficult time financially. Therefore he was let go at the end of his fixed-term contract because he did not have the full range of skills, whilst the staff who were kept on did have the full range of skills they needed from staff. They accepted it was a mistake that he was not paid redundancy when he was let go and this was rectified.
4.5 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 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. Furthermore, in accordance with Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R there has to be "evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
4.6 In looking at all the evidence in relation to conditions of employment I find that the complainant has relied on "mere assertion" and has failed to establish primary facts on which to ground his claim. I accept the respondent's contention that the complainant had a sufficient level of English to understand the contract he was given and the health and safety training and documentation he received. I accept their contention he was treated the same as any other worker in relation to work schedules. I also accept their evidence that he did not have the full ranges of skills to be kept on when his fixed-term contract came to an end. I find that the complainant has therefore failed to establish a prima facie case of discrimination in relation to conditions of employment.
4.7 At the hearing the complainant expanded his claim of harassment. He related many incidents when not only Mr A but three other supervisors made insulting and disparaging comments some of which made reference to his country of origin. He also claimed that Mr A kicked him on one occasion. He contends that he complained to Mr B on many occasions but that he (Mr B) did nothing other than to suggest he might leave if he was not happy. He accepts that he did not put his complaints in writing but contends he did not know he could put a complaint in writing.
4.8 The respondent contends that their grievance procedure would have been explained to the complainant as part of his induction training, also they have a Dignity at Work Policy which is available on the employee notice board. The respondent accepted that banter can take place but that if the abuse as described by the complainant took place then it would be a cause for dismissal. They contend there is no evidence the complainant made a complaint of any sort and they were therefore unable to take any action.
4.9 If the behaviour described by the complainant took place then it would fall within the definition of harassment in section 14A (7) of the Acts which states:
"references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ....
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".
4.10 The complainant made generalised claims regarding the alleged harassment and, as I have already stated, expanded his claim at the hearing to include three other supervisors. The respondent did not make available Mr A or Mr B to give evidence at the hearing about the incidents described by the complainant.
4.11 Section 14A (2) states: "it is a defence for the employer to prove that the employer 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" Usually this defence is used where an employer contends they had an appropriate policy and procedures in place and carried out a full and satisfactory investigation following a complaint of harassment. In this case no investigation took place. The complainant gave evidence that he did complain to Mr B verbally but did not know that he could put his complaint in writing. However, from the evidence given I am happy that the complainant was aware of the respondent's grievance procedure and could easily have referred to this in order to find out how to pursue a complaint. I also note that complainant was a member of a union for at least the last six months of his employment but did not ask for their assistance. Given the extent of the alleged harassment I conclude the general nature of his allegations, his expansion of the claim at the hearing and, as the respondent had the appropriate policies in place, his lack of pursuit of a complaint undermine the complainant's credibility and find that he has not established a prima facie case of harassment.
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 that:
- the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment, and
- the complainant has failed to establish a prima facie case of harassment.
_____________________
Hugh Lonsdale
Equality Officer
2 August 2012