EDA1221

The Respondent employed the Complainant, a Latvian national, as a Cleaner between December 2007 and April 2009. The Complainant contends that during her period of employment she was (i) treated less favourably as regards her conditions of employment on grounds of race (Latvian nationality) and (ii) was dismissed by the respondent on the same basis (Latvian nationality) contrary to the Acts. She referred a complaint to the Equality Tribunal pursuant to Section 8 of the Acts. The Equality Officer investigated the Complaint and decided as follows“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 complainant has failed to establish a prima facie case that she was dismissed 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 and her complaint therefore fails.”

The Complainant appealed this decision to the Labour Court.

The Complainant’s Position

The complainant states that she was employed by the respondent as a cleaner from 6 December, 2007 until 2 April, 2009 when she was dismissed. Over the course of her employment the Respondent assigned her cleaning duties at a number of different locations in the Dun Laoghaire area.
On the day of her dismissal she reported for duty at 7am to a Department Store (details supplied) to which she was assigned. About an hour after she arrived for work her Supervisor told her to report to the Store Manager's Office. When she arrived at the Office, her Supervisor, the Store Manager, and another man - whom she did not know - were waiting in the room. The Complainant submits that she was shown CCTV footage that purported to show her stealing some items from the store. She submitted that the Store Manager subsequently called the Garda� and she was brought to the local Garda Station where she was charged with theft.

The Complainant states that later that day she received a telephone call from her Supervisor who informed her she was dismissed. The Complainant states that she was unaware of the respondent's Disciplinary Procedure - she denied ever receiving the Staff Handbook furnished to the Tribunal by the respondent - and was not aware that the meeting was part of the investigation/disciplinary process.

However, in the course of the Hearing she confirmed that she understood the seriousness of what she was being accused at the meeting due to a combination of her comprehension of English and her Supervisor's translation of the discussion into Latvian. She rejects the respondent's assertion that during the meeting on 2 April, 2008 she (i) admitted to stealing the items or (ii) was informed she was suspended pending a disciplinary hearing and she requested that the matter be dealt with immediately without any further delay. The complainant also denies that she received the respondent's letter of 2 April, 2008 confirming her dismissal and advising of her right of appeal. In the course of the Hearing the Complainant confirmed that she subsequently appeared in the District Court on charges of theft in respect of the incident where she pleaded guilty, was convicted and received a fine.

It is submitted on behalf of the Complainant that the Respondent failed to apply its own or any fair procedures in this matter. In addition, there were no notes of the meetings of 2 April, 2008 and the Respondent failed to have any of the personnel present at that meeting in attendance at the Hearing. It is submitted that in the circumstances the evidence of the complainant should be preferred as regards events on that day. It is further submitted that the respondent's failure to apply fair procedures in deciding to terminate the complainant's employment amounts to discriminatory dismissal on grounds of race contrary to the Acts. She seeks to rely on the Determination of the Labour Court in Rasaq v Campbell Catering Ltd.


The Respondent’s Position

The Respondent rejects the Complainant's assertion that it dismissed her in circumstances amounting to discrimination contrary to the Acts. It states that on 1 April, 2008 the Store Manager involved contacted the Respondent's District Operation's Manager (Mr. A) and informed him that he had reviewed CCTV footage and had observed the Complainant and a colleague stealing items from the store. It adds that Mr. A requested the Store Manager to attend a meeting the next day when he (Mr. A) would put the issues to the complainant and her colleague. The respondent accepts that the complainant and her colleague were requested to attend a meeting on 2 April, 2008 and that Mr. A, the Store Manager and the Complainant's Supervisor were present at that meeting. The Respondent adds that the Complainant's Supervisor provided translation for the Complainant and her colleague during this meeting. The Respondent states that the Complainant initially denied the allegation of theft when it was put to her but when she was shown the CCTV footage she admitted she had stolen the items. The Respondent adds that the Complainant also admitted that she had stolen from the store on a previous occasion. It adds that the Store Manager then informed the Complainant and her colleague that he was reporting the matter to the Garda� as it was Store Policy to prosecute shoplifters.

The Respondent states that the Complainant enquired about her job and Mr. A informed her that both she and her colleague were to be suspended on full pay pending a disciplinary meeting. The Respondent submits that Mr. A also stated that the disciplinary process was separate to any legal investigation by the Garda�. The Respondent states that the Complainant and her colleague, having admitted to the allegations of theft, told Mr. A that they would rather proceed with the disciplinary meeting that day. They told him they did not wish to wait several days for an outcome to that process. It adds that Mr. A agreed to facilitate this request and proceeded with the disciplinary meeting directly. The Complainant's Supervisor again assisted with translation. The Respondent states that during this meeting the Complainant and her colleague again accepted they had taking the items and offered no explanation in mitigation of their behaviour. It adds that Mr. A spoke with his superior in this matter, the HR Manager, and in the circumstances decided that both the Complainant and her colleague should be dismissed with immediate effect for acts of Gross Misconduct in accordance with the terms of the Disciplinary Procedure.

The Respondent states that this decision was confirmed in writing to the complainant later that day. The Respondent further submits that the Complainant was advised of her right of appeal at that time. The Respondent adds that the Complainant never exercised this entitlement. In conclusion, the Respondent states that the Complainant admitted to acts of Gross Misconduct in terms of its Disciplinary Policy and was dismissed in accordance with that Policy, adding that her nationality had no bearing on the matter.

Conclusions of the Court

The issue for decision by the Court 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.

Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof that 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 by this Court and it requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination in respect of her dismissal. It is only if this initial burden is discharged and the Court is 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 evidence put forward by the Complainant does not meet this test the complaint cannot succeed.

The Complainant submits that she was dismissed without access to fair procedures. She submits that an Irish employee would not have been treated in the same manner in similar circumstances. Consequently she submits that her dismissal is discriminatory.

In advancing this position she seeks to rely on the Determination this Court in Rasaq v Campbell Catering Ltd. In that case the Complainant was dismissed following an accusation of theft - which was deemed to constitute gross misconduct. This Court found, inter alia, that it was normal practice within the respondent company to afford employees accused of gross misconduct fair procedures in the investigation. In that case the Respondent conducted what the Court described as"no investigation in any meaningful sense into the allegations made against the complainant.”

This was not the position in the instant case. The Court finds that the initial meeting during which the complainant was shown the CCTV footage amounts to an investigation into the Complainant’s actions. Following the presentation of the video footage her she was advised of the Client’s intention to report the matter to the Gardai and to seek to bring charges against her for theft.

The Respondent submits that it immediately advised the Complainant that her behaviour would now be addressed through the Company’s Disciplinary Procedures. The Complainant confirmed that she was fully aware of the seriousness of the allegations made against her. This awareness distinguishes this case from that of Rasaq. In that case the Complainant was unaware of what was going on, of what charges had been levelled against her, of the seriousness of the charges or of the fact that she was subject to a disciplinary hearing into those charges. She had no understanding of English and consequently she was unaware of what was happening substantively or procedurally.

On the balance of probability the Court finds that the Complainant, when confronted with the CCTV footage, admitted she took items from the client’s store without authorisation. In those circumstances no further investigation into the facts of the matter was necessary. In this regard also the circumstances of this case differs from those in Rasaq. In that case the unauthorised taking of goods was in dispute between the parties.

Accordingly the Court finds that the Complainant cannot rely on Rasaq at the circumstances of both cases are substantively different.

The Court must decide whether the manner in the Respondent acted, after the admission by the Complainant, amounted to discrimination on the race ground within the meaning of the Acts.

The Respondent states that initially Mr. A advised the Complainant she was suspended on full pay pending the completion of the disciplinary process. It submits that it was the Complainant that requested that the matter be dealt with immediately as she did not wish to have the matter prolonged. In the course of the Hearing the Complainant denied that she made such a request.

The Court was presented with a clear conflict of evidence on this matter. The Court, on balance, prefers the Respondent's version of events.

The procedures operated by the respondent were inadequate and fall short of what might be expected from such a large employer. Furthermore they fell short of what is prescribed in the respondent’s Staff Handbook.

However, what is at issue here is not whether or not the Complainant was unfairly dismissed. Rather the issue to be decided is whether or not the Complainant has presented facts from which an inference of discrimination might be drawn.

The facts presented were that the Respondent invited the Complainant to a meeting at which CCTV footage that purported to show her stealing goods from a client company was presented to her. She admitted taking the goods without authorisation. She was arrested and charged. She knew that this raised serious issues regarding her continued employment with the Respondent and would give rise to a review of her behaviour in line with the Disciplinary Procedures. Rather than prolong the matter she sought to have it dealt with expeditiously. She now complains that the expeditious nature of the Disciplinary hearing into the matter was racially motivated.

The Court does not accept this view. The Court finds that the expeditious nature of the Respondent’s processing of this matter through the Disciplinary Procedure is consistent with Complainant’s request to do so and with the grievous nature of her behaviour. The Court finds that the Complainant’s behaviour, not her nationality, and her request for a speedy hearing of her case, were the sole reasons for expeditious processing of this matter. The Court is satisfied that the Respondent would have taken a similar approach to an Irish employee in similar circumstances.

Accordingly the Court finds that the Complainant has failed to establish facts from which an inference of discrimination can be drawn.

Accordingly the Court finds that she has she was not dismissed 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 and her complaint cannot therefore succeed.

Determination

The Court finds that the Complainant has failed to grounds from which an inference of discrimination may be drawn and accordingly her complaint that she was dismissed 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 and her complaint fails.

The Court so determines.




Signed on behalf of the Labour Court



Brendan Hayes
31st July 2012______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.