EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012-102
PARTIES
Libner and Wensierski
(Represented by Maguire McClafferty Solicitors)
- V -
Carlow Warehousing Ltd (Represented by Management Support Services (Ireland) Ltd.
File references: EE/2009/381 & 380
Date of issue: 3 August 2012
Headnotes: Employment Equality Acts, 1998-2008 - sections 6 and 8 - race- - conditions of employment - prima facie case - discriminatory dismissal - burden of proof.
1. Dispute
1.1 This dispute concerns claims by Kazimierz Libner (hereinafter the first complainant) and Dariusz Wensierski (hereinafter the second complainant) that they were each subjected to discriminatory treatment in terms of access to employment and conditions of employment and subjected to discriminatory dismissal by Carlow Warehousing Ltd (hereinafter the respondent) on the grounds of their race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts
1.2 The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 4 June 2009 under the Employment Equality Acts. On 30 March 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Deirdre Sweeney - 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 13 April 2012.
2. Summary of the Complainants' Cases
2.1 The complainants are Polish nationals. It was stated, in the submission on their behalf, that they were employed by the respondent as pickers with each of them responsible for collecting orders from all over the warehouse onto a single pallet and then taking it to wrapping and properly describing it. However, at the hearing the first complainant confirmed that he was employed as a "wrapper" at all times in his employment and the second complainant confirmed that he was employed as a "wrapper" for his second period of employment with the company. The first complainant was employed with the respondent from September 2006 to 7 December 2008 when he was dismissed. The second complainant was employed with the respondent from May 2007 until May 2008 when he left Ireland to return to Poland. He returned to Ireland in September 2008 and obtained employment in another company. Sometime in November 2008 he recommenced employment with the respondent and worked there again until 7 December 2008.
2.2 The submission, on their behalf, stated that throughout their employment both complainants were threatened, abused, shouted at without any particular reason or for reasons which did not deserve such treatment including offensive and abusive remarks relating to the complainants' nationality. Both were under constant pressure to improve their performance. At the hearing each of the complainants gave evidence that throughout their employment Mr A, a named manager, shouted at people and used bad language. Mr. A was a son of the owner of the business and acted as a manager. They stated that he had many outbursts of anger and when he lost his temper he was unable to control himself and used bad language. They stated that people were under constant pressure to improve their performance. If their performance fell short of the manager's expectations they would be verbally abused. They both stated that bad language was used daily and gave examples as "lazy b*****ds" and "get the f**k off" and "f**king Polish".
2.3 It was stated in the submission on their behalf that on 7 December 2008 Mr. A, their manager, came to where both complainants were working, was visibly furious, toppled down pallets, kicked boxes of goods and shouted abuse. Both complainants went outside to have a cigarette in order to let him cool down and some minutes later came after them and told them to "get the f*** out". The next day both complainants were offered return to work by means of a message passed by a colleague. The first complainant turned down this offer and did not wish to continue working under these conditions. The second complainant returned to work supported by a host of colleagues hopeful that a change for better is possible. As soon as Mr A came he told him to again "f**k off home" and he was humiliated for the second time and his employment ended.
2.4 At the hearing both complainants separately gave evidence that on 7 December 2008 at about 9pm when Mr A became aware that a pallet for a delivery had been left behind he became very angry. In his evidence the first complainant stated that it was not his (the complainant's) responsibility to ensure that all pallets were loaded. He also stated that he felt that there was no urgency about this as it could be delivered in another lorry the following day. He stated that when Mr. A became aware that it had not been loaded he was visibly furious, kicking boxes of goods and using abusive language. The first complainant stated that he became concerned for his safety and walked outside. He stood there for about 10 minutes and Mr. A approached him saying that he was responsible for the pallet. Mr. A then told him to "f**k off home" and told him not to come back to work.
2.4 At the hearing the second complainant stated he was working on the night shift and that Mr. A arrived and he was very angry at the first complainant. It seemed that one of the pallets for a delivery had been left behind. The second complainant stated that this was not a major problem as a transport was due the next morning. However Mr. A was furious, kicking boxes and knocking over pallets and boxes. The second complainant stated that he could not take this and went outside for smoke until Mr. A calmed down. Some minutes later, the first complainant joined him and Mr. A came after him. The second complainant stated that Mr A told them "get the f***k out of here" and then also told them "f**k off back to Poland". The next day he was told that Mr. A had said that it was not his fault and he could come back to work. He was surprised at this as once Mr. A took against someone he did not back down. When he went to the office the next night Mr. A asked him in the presence of another colleague why he had left the workplace the previous night. The complainant told him that he had told him to go home and that he had said "f**king Polish" to him. Mr. A started shouting saying that was not true. The second complainant said that he had enough and left. On his way to the gate he stated that Mr. A followed him and when there were no witnesses present repeated what he had said to him the previous day.
2.5 Two witnesses for the complainants attended the hearing. However neither of these witnesses worked with the complainants. One of the witnesses Mr. X worked for the respondent for 8 days in September 2008. The second witness Mr. Y he worked for the respondent between one to two months in September/October 2006 following which he was let go and in July to August 2010 when he was also let go. Each of the witnesses gave evidence that during his employment that bad language was used regularly and that Mr. A had a very bad temper, using the "f" word regularly and on occasion saying "f**king Polish".
3. Summary of the Respondent's Case
3.1 The respondent denies that either of the complainants was treated in a discriminatory manner. The respondent states that the company employs a wide range of nationalities including Irish, Polish, Portuguese, Slovakian, Hungarian, Estonian, American, Russian and Turkish. The respondent contends that in the complainants' submissions there are no references as to how this discrimination manifested itself except for an accusation of abusive language, during which it is alleged that reference was made to the complainants' nationality.
3.2 The respondent states that the first complainant commenced employment with the company in September 2006 and worked as a wrapper for the duration of his time with the company until he left in December 2008. At no time did he work as a picker. A wrapper is responsible for receiving pallets which came from the pickers and have to be wrapped with clear film before they are loaded to be shipped by transport to client locations. The company had no cause to take disciplinary action against the complainant throughout his employment nor did it receive any complaints from him. The first complainant was spoken to on a few occasions when the wrapping line appeared to be slow as he would be inclined to pace himself but it denies that abusive language was ever used towards him.
3.3 The respondent contends that neither of the complainants has identified any actions by the respondent which would suggest discrimination in relation to access to employment. In relation to the second complainant, the respondent contends that its action in employing him on two separate occasions does not suggest that there was any denial of access to employment. The respondent also contends that each of the complainants have failed to produce any evidence to suggest that their terms and conditions of employment were any different to any other employee employed by the respondent. In the case of the second complainant the respondent submits that his approach to the company on his return from Poland, to see if he could be employed again, is at odds with his description of an employer who was so abusive towards their employees. The respondent does not deny that swear words were used on the shop floor but argues that this was part of general language used on the floor. It also contends that Polish employees taught Irish employees how to swear in Polish. However the respondent denies that comments such as "f**King Polish" were made.
3.4 In relation to the first complainant's dismissal the respondent maintains that his employment was terminated as a result of his unacceptable behaviour at work and towards senior staff. It contends that had any employee regardless of nationality behaved in that way they too would have been dismissed. The respondent states that on 7 December Mr. A instructed the complainant to prepare one specific order to allow the transport to get away and deliver the product to particular shop location. He had identified to the complainant the pallets that needed to be wrapped. Later that day, another employee, Mr. B, who gave evidence at the hearing, approached Mr. A and indicated that while the load had been dispatched one pallet had been left in the wrapping area. Mr. B told him that he had spoken to the complainant about this and he had simply laughed at him. Mr A then challenged the complainant about this who did not appear worried about what he had done. As a consequence of his challenge the complainant became abusive to him and eventually Mr. A instructed him to leave the premises.
3.5 Mr B an Irish national who has been employed by the respondent for over 17 years gave evidence at the hearing. Mr. B stated that they were loading a lorry for a particular shop and all the pallets for that delivery should have been wrapped and put on the lorry. He understood that that had been done but when he came back in after the lorry was gone he saw a pallet was left. He approached the complainant about this the complainant smirked at him and said "put it in another lorry". He went to Mr. A and told him a pallet had been missed. In his evidence Mr. A stated that the lead up to Christmas was a very busy time for them when products were required by shops urgently. He had told the first complainant to wrap these pallets and bring them out to Mr. B for this particular delivery. When Mr. B told him a pallet had been left out he approached the complainant and asked why this had happened and the complainant just shrugged his shoulders. He stated that he told the complainant that he had specifically pointed out the pallets for that delivery to him. He stated that the complainant started speaking loudly and aggressively, first in Polish and then in English the complainant said "f**k off, "f**king Irish b*****d, you are a f**king Irish dog". Mr. A stated that he was shocked at this response and told the first complainant to get out, the first complainant started shouting at him in Polish and eventually he (Mr. A) reacted by telling the complainant to "f**k off "and he was fired.
3.6 In relation to the second complainant the respondent contends that at no time was he dismissed. It was stated in the submission on their respondent's behalf that when Mr. A told the first complainant to leave that the second complainant also proceeded to leave. When Mr. A asked the complainant what he was doing the complainant stated that if the first complainant was going he was also. At that stage Mr. A warned the complainant that if he left then he would not be allowed to return. Despite this warning he left the premises. The following day he returned to the company and suggested that he felt that he too had been told to leave by Mr. A. Mr. A indicated to him that he would not be willing to take him back. The respondent contends that his employment ended as a result of him deciding to leave the workplace at a very busy time because Mr A had a disagreement with his work colleague.
3.7 At the hearing in evidence Mr. A stated after he had told the first complainant to leave the premises the first complainant continued shouting and called to the second complainant. The second complainant then started to leave. Mr. A asked him what he was doing and the complainant stated to him that if the first complainant was going he was going also. At that stage Mr. A warned the complainant that if he left then he would not be allowed to return. Despite this warning the complainant left the premises. Mr. A stated at the hearing that he had had no issue with the second complainant and that it was not in the respondent's interest that night to lose another employee at their busiest time of the year. The following day the second complainant came into the office where clocking in took place and indicated to him that he was sorry. He tried to suggest that he felt that he too had been told to leave. Mr. A said he reminded the complainant that he had told him if he left he would not be allowed to return. He said the complainant said to him that he was a bad man, always calling him a Polish f**ker. Mr A said he denied this and told him to get out. At the hearing Mr. D, a witness for the respondent, stated that he had come into the office before the second complainant. Mr D. stated that Mr. A asked the second complainant why he had gone home and the complainant replied stating he had told him to go home and called him "f**king Polish". Mr A said that that was not true and that he had never said that. Mr D in his evidence stated that he had never heard the respondent refer to anyone's nationality in such a manner. Mr. D is a Polish national who has been employed by the respondent for over four and a half years.
3.8 The respondent submits that the complainants have failed to produce any facts or establish prima facie cases to support their allegations of discrimination on grounds of race. The respondent strongly refutes any allegation that it treats any of its employees in a discriminatory manner.
4. Conclusions of Equality Officer
4.1 At the hearing, the complainants' representative on their behalf withdrew their claims of discrimination in relation to access to employment. The issues for decision by me are whether the respondent discriminated against each of the complainants on grounds of race in terms of Section 6 of the Acts and contrary to Section 8 of those Acts in terms of conditions of employment and dismissal.
4.2 Section 6(1) of the Employment Equality 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 terms of subsection (2)...". Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows "as between any two persons.. that they are of different race, colour, nationality or ethnic or national origins..."
It follows therefore that each of the complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Polish.
4.3 In evaluating the evidence before me I must first consider whether the complainant has established a prima facie pursuant to Section 85A of the Employment Equality Acts .This requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The Labour Court has stated in Melbury Developments Limited and Valpeters:
"Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to case and there is no closed category of facts which can be relied upon all that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule."
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Discriminatory Dismissal
4.4 The first issue that I must consider relates to the complainants' claims that each of them was subjected to a discriminatory dismissal by the respondent on the grounds of his/her nationality. In considering this issue, I note that there is a serious conflict between the parties in relation to the facts of these cases. In such circumstances I must decide whether the complainants have proven, on the balance of probabilities, the primary facts on which each of them rely in seeking to raise a presumption of unlawful discrimination.
4.5 Both the complainants and the two individuals they called as witnesses all gave evidence that when things went wrong Mr. A had an extremely bad and uncontrollable temper. Mr. A denied this. However I consider that notwithstanding whether Mr. A had a "short fuse" or not, it is clear that on the night of 7 December there was pressure on the respondent to make timely deliveries to shops. It was their busiest time of the year. I consider that it would have been clear to the first complainant that Mr. A as a manager would be at least concerned that a pallet had been left behind from a delivery. It was clear from the first complainant's evidence and demeanour at the hearing that he did not consider that it should be a matter of any concern that the pallet had been omitted. He was adamant that it was not his responsibility and indicated that he considered its omission at the time to be a trivial matter. I am satisfied having heard his evidence and that of Mr. A that Mr. A was annoyed about the omission of the pallet and particularly annoyed at the first complainant's lack of concern about this. I am satisfied that a verbal altercation of some kind took place between Mr. A and the first complainant during which Mr. A told the first complainant that he was fired.
4.6 I have carefully examined the evidence presented by the first complainant in the instant case and although the complainant's representative has argued that fair procedures were not complied with in relation to his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in relation to his dismissal. This is not a complaint of unfair dismissal, but one of discriminatory dismissal. I have no jurisdiction to decide on the unfairness or otherwise of the dismissal or whether it falls below the standard that one might expect from a reasonable employer. The complainant needs to establish a prima facie case that his dismissal was influenced by his nationality. I am not satisfied that he has adduced evidence to support his assertion that his nationality was a factor which influenced the respondent's behaviour. I am not satisfied that there is any evidential basis to enable me to conclude that an Irish employee would have been treated more favourably in the circumstances. Indeed Mr. A gave undisputed evidence at the hearing that he had dismissed Irish employees in a similar fashion. In light of my comments in this and the preceding paragraphs, I find that the complainant has failed to establish facts from which it could be inferred that the respondent would have treated an Irish employee differently in the circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
4.7 In relation to the second complainant having heard both his evidence and that of Mr. A, I am satisfied that while he was not involved in the verbal altercation involving the pallet he did leave the premises. There is a conflict of evidence regarding the timing and manner of his departure. He stated he went outside when the argument was ongoing, the first complainant subsequently joined him and Mr. A told both of them to leave and they were fired. Mr A stated in his evidence that when the first complainant was leaving the warehouse he called to the second complainant to join him. Mr A stated that he then told the second complainant if he left then he would not be allowed to return and despite this warning the second complainant then left. I find the respondent's evidence in relation to this to be more credible. In coming to this conclusion I have taken into account the complainant's own evidence that it would be unlike Mr. A to back down having fired someone and call someone back in. I have also taken into account that the vagueness of the complainants' response to questioning regarding the identity of the person who told him that both complainants were being offered their jobs back. I consider it to me more credible that the complainant left the premises in support of his friend and colleague that night, and on reflection thought better of this and returned the following day in order to regain his job. This is in keeping with the complainant's own evidence that Mr. A asked him on his return why he had left the night before. I am not satisfied that there is any evidential basis to enable me to conclude that an Irish employee would have been treated more favourably in the circumstances and given his job back when he had walked off the job at a very busy time as the complainant had. I reiterate that the complaint before me is one of discrimination not of unfairness. It is not my role to consider whether complainants have been unfairly treated, rather to consider the issue of discrimination in relation to the protected grounds. Unfairness and discrimination are not synonymous.
Conditions of Employment
4.8 The complainants, both in their submissions and in their oral evidence, outlined that they were under constant pressure to improve their performance, if their performance fell short of expectations and they were verbally abused and shouted at. Both the complainants and their witnesses all gave evidence that all workers were treated in a similar manner. The evidence at hearing from both parties was that a number of different nationalities were employed by the respondent including Irish nationals. The evidence provided by each of the complainants in relation to his claim of less favourable treatment in terms of his conditions of employment was that abusive language was used which included references to their Polish nationality.
4.9 Having carefully considered the evidence adduced by both parties at the hearing I am satisfied that the working environment in which the complainants worked was one in which coarse language was a daily feature. The first complainant in evidence accepted that a Polish swear word was used. The interpreter had difficulty in giving an exact translation of this word - it was a derogatory or vulgar term for a woman. The complainant's representative, who is a Polish speaker, explained that this word is simply used as an adjective by some Polish speakers in their conversation. I asked him did he mean in the same manner that the way the "f" word is used by some Irish people and he agreed. Again there is a clear conflict of evidence as to whether this coarse language degenerated in the heat of the moment or otherwise into racist language. In their evidence each of the complainants and their witnesses all gave instances of coarse language without reference to nationality used daily in the workplace and all then added that "f**king Polish" was also used. They gave evidence that this was only said to Polish people and no similar reference to other nationalities was made. The second complainant's evidence differed from that of the first complainant and of the original submission in relation to Mr. A's alleged comments on the night of 7 December. His evidence was that Mr. A told them to "f**k off" and also added "f**k off back to Poland". The first complainant's evidence tallied somewhat with the original submission and Mr. A's evidence that no reference to his country of origin was used in the exchange. The respondent and its witnesses accepted that coarse language was used in the workplace but denied that any references to a person's nationality or country of origin were made. However the respondent alleged that on the night of 7 December the first complainant was abusive to Mr. A and referenced his Irish nationality. The first complainant denied this.
4.10 Having regard to the written and oral evidence available to me, I am not satisfied that I am in a position to decide on the balance of probabilities that racist language was used. I did not find the evidence of the complainants and their witnesses in this regard compelling. I am not satisfied that the complainants have established, in the first instance, facts from which discrimination on the grounds of race may be inferred in the circumstances outlined to me. I find the evidence available to me does not raise a prima facie case to support the claim that the respondent treated the complainants less favourably than any other employee on grounds of their race.
5. DECISION
5.1 I have completed my investigation of the above complaints and in accordance with section 79(6) of the Employment Equality Acts I issue the following decision:
(i) the respondent did not discriminate against each of the complainants on the race ground pursuant to section 6 (2) (h) of the Acts, in respect of discriminatory dismissal contrary to Section 8(6) of the Acts
(ii) the respondent did not discriminate against each of the complainants on the race ground pursuant to section 6(2) (h) in their conditions of employment contrary to section 8 of the Acts.
___________________
Deirdre Sweeney
Equality Officer
3 August 2012