THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 180
PARTIES
An Employee
(Represented by Bonnie Hickey BL, instructed by Able Solicitors)
v
An Employer
(Represented by IBEC)
Date of issue: 20 December 2012
File reference: EE/2010/055
Headnotes: Employment Equality Acts, 1998-2011 - sections 6,8 and 77 - race- employment status - conditions of employment - prima facie case - disability - reasonable accommodation- victimisation - burden of proof.
1. DISPUTE
This dispute involves a claim by an employee (hereafter "the complainant") who is a Malaysian national, that he was (i) discriminated against by an employer (hereafter "the respondent") in respect of his conditions of employment on grounds of race and disability, in terms of section 6(2)(g) and (h) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts and that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011. He also claims that he was victimised contrary to the provisions of section 74 (2) of the Acts.
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 1 February, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 20 July, 2012 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 13 August, 2012. Final supplementary documentation was received by the Tribunal on 17 October, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced working as a team member with the respondent on 7 September, 2007. The complainant worked circa 40 hours per week while also studying computers. In February 2008, he got promoted to assistant shift manager and in October 2008 he got the post of first assistant manager. The complainant was admitted to hospital for 3 nights in July 2009 to undergo an operation to remove a lump. The complainant states that he was told by doctors to take 6 weeks rest from work to recover from the procedure. The complainant states that he advised his manager of same and provided a doctor's certificate but that his manager stated that he had issues with staff cover at this time. The complainant states that he said to his manager he would come back after 2 weeks on the condition that he would only work day shifts and that his duties would not involve lifting heavy materials. The complainant states that when he returned to work after the two week period, around mid August, his manager requested him to change the oil barrels. The complainant states that he refused to do this on the basis of the operation he had recently undergone and that normally team members would undertake this duty. The complainant states that the oil barrels contained 15 litres of oil and they had to be carried to a lift and he was fearful of doing some damage/injury due to the recent procedure which he had undergone.
3.2 Following the above incident, an area manager for the respondent met with the complainant on 22 September, 2009 and issued the complainant with a final warning letter and requested him to sign same. The final warning related to changing clock-in/clock-out times for himself and his failure to carry out instructions relating to changing the oil. The complainant states that he never received any warnings previously and many staff members in various shops changed clock-in/clock-out times on different occasions. At the end of the meeting, the area manager asked the complainant what type of a student visa he had and stated to him that he should only be working 18 hours per week outside the holiday period for colleges. In October, 2009 the complainant's hours were reduced to 2 shifts which comprised 18 hours. He states that he previously had been working a 45 hour week. In this regard, the complainant is alleging that he was subjected to victimisation by the respondent. The complainant made an appeal to the personnel manager in head office regarding the final written warning, however, under appeal this sanction was upheld by the personnel manager and she requested that he sign a copy of the final written warning letter.
3.3 Following the complainant getting the post of first assistant manager in October 2009, he requested a written contract from his manager, however, the manager did not provide him with same. Later that year, the complainant states that his manager promised him that he would receive extra wages for his new post and duties. The complainant states that his manager subsequently gave him an envelope with €25 for a number of weeks to compensate him for the extra duties he was carrying out as first assistant manager. In January 2010, his manager refused to give the complainant the €25 and the updated contract and took him off his night shift allowance. The complainant states that his manager advised him that head office were not giving any more night shift allowance to staff. The complainant checked with some of the other respondent's stores and was advised by colleagues that they continued to receive the night duty allowance. The complainant subsequently made enquires to head office and received the night duty allowance back.
3.4 Due to the company reducing the complainant's hours to two shifts consisting of 18 hours, he decided to seek part-time work elsewhere. The complainant was successful in gaining extra part-time hours with another company. In this regard, he gave his manager in the respondent company the hours he was available for, factoring in his hours in the new part-time job. However, his manager in the respondent company did not give the complainant the hours which he was available for and a conflict arose between his availability for the respondent and his commitments to his other part-time job, so he resigned from the respondent by letter dated May 2010. The complainant further submitted that the respondent had a policy of placing Irish and European staff on the counter and non-nationals of other countries were placed working in the back and he contends that this was further evidence of discriminatory treatment by the respondent on the grounds of race.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed as a team member with the company in September, 2007 and he was promoted to shift manager in February 2008. The respondent denies that the complainant was promoted to first assistant manager in late 2009. The respondent further states that the complainant, at his own request on 21 December 2009, was returned to the position of team member as he did not wish to be a supervisor/shift manager any longer. The respondent states that there has never been cash payments made to an employee and the manager in question denied ever making cash payments to the complainant. The respondent suggests that there may have been a personality clash between the complainant and his manager. The respondent states that there were no problems at the start but after the complainant contacted head office regarding salary issues, night duty allowances etc, conflicts arose and the working relationship deteriorated between the complainant and his manager. The respondent states that the complainant received a final written warning dated 22 September 2009 from his area manager. The warning was as a result of him altering his own "clock-in" times on the time-keeping system to hide the fact that he was coming in late for work which the respondent states he admitted to management. The warning also related to the refusal to carry out normal and reasonable work instructions assigned to him by his manager in that he would not filter the oil in the fryers.
4.2 The respondent states that in July 2009, the complainant was admitted to hospital for three nights from 27 to 30 July and it received a medical certificate in this regard. The respondent states that the complainant told his manager that he would be unable to work for a few weeks following the procedure. The complainant started back at work on 10 August, 2009 however, he never showed the manager or the company any letter from a doctor stating that he required 6 weeks off work. In addition, the respondent submits that the complainant did not state that there were any restrictions placed on his ability to work nor did he submit any medical certificates to that effect. The respondent states that the complainant returned to work on 10 August without any requests for special treatment. However, two weeks later, he requested to work day shifts only for a couple of weeks and this was agreed with his manager.
4.3 The respondent states that on the second week in September 2009, the complainant was supposed to do a count in the stock room and was told by his manager to filter the oil in the fryers. The respondent states that the complainant replied that it was not his job to change the oil and he refused to do it and said it was a job for one of the other employees. The respondent states that the specific day in question the barrels of oil were in situ on the floor as they had been brought up the night before and therefore no heavy lifting was required. Following this incident, an area manager for the respondent met with the complainant on 22 September, 2009 and issued him with a final warning letter and requested him to sign same. The complainant appealed the final warning letter to the personnel manager. The respondent states that the personnel manager, considered his request for an appeal but after making contact with the relevant parties, she felt she was justified in upholding the letter. The respondent further states that the complainant's manager previously gave the complainant a verbal warning in June/July 2009 following the company failing an inspection relating to cleanliness of oil. The respondent submits that the complainant had been responsible for filtering the oil during that time.
4.4 The respondent states that around September 2009, the company had contact from the National Employment Rights Agency and the Garda National Immigration Bureau. As a result, they became more aware of their obligations regarding employment contracts and issues regarding their staff who had student visas and that it was illegal to give persons on student visas more than 20 hours per week during term time. However, during holidays from college staff with student visas were allowed do extra hours. The respondent states that circa October 2009, it reduced the hours of all such staff members with student visas to 18 hours per week and the respondent argues that is not a case of victimising the complainant but fulfilling their legal obligations under employment legislation. In conclusion, the respondent denies that the complainant was discriminated against on the grounds of race and disability in relation to his working conditions and in the provision of reasonable accommodation and it rejects the allegation that the complainant was subjected to victimisation. The respondent also states that it is a significant employer and has many diverse nationalities in its company who are at various different levels within the organisation. It further denies, in the strongest terms, that it has a policy of placing Irish and European staff on the counter and placing non-nationals of other countries to work in the back area of the shop.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race and disability, in terms of section 6(2) (g) and (h) of the Employment Equality Acts and contrary to section 8 of those Acts as regards his conditions of employment and the provision of reasonable accommodation and victimised the complainant contrary to the provisions of section 74 (2) of the Acts. 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.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability". Section 6(2)(h) of the Acts defines the discriminatory ground of race "as between any 2 persons...that they are of different race, colour, nationality or ethnic or national origins".
5.4 In the present case, it is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
5.5 The complainant submitted that he contracted mumps and his condition necessitated a surgical procedure to remove his testicle and that his disability is covered by the definition in Section 2 (1) of the Acts. The respondent states that the complainant never stated that the reason he would not follow instructions regarding filtering the oil in the fryers was due to the surgery he was after undergoing but instead asserts that he would not carry out same as he claimed it was the job of another employee. There is a dispute over the testimony given in relation to this matter. However, I find the testimony of the respondent more compelling and I am of the view that the complainant did not state to his manager at that time that he could not carry out the task due to having recently undergone surgery. I am of the view that as the complainant was in a managerial role, he found this task to be quite menial in nature and on the basis of prestige did not want to carry out same. The task did not involve heavy lifting.
5.6 While the complainant submitted a doctor's certificate to the respondent stating that he was hospitalised for a period of three nights in July 2009 for an unspecified medical investigation, the complainant did state at the hearing that given the sensitive nature of the procedure, he was quite guarded about the matter. He states that he did not advise his manager of same and did not request his doctor to provide a more detailed report as he did not want his co-workers to find out about the matter. Having examined all the evidence on this issue, on balance, I find that the respondent was not aware of the complainant's disability and this issue only came to light on the day of the hearing. In my view, if the complainant felt he was being discriminated against on grounds of disability, there was an onus on the complainant to arrange for his doctor to provide a second certificate relating to the recent surgery which he had undergone and in that regard, state for example that the complainant required time off/to be placed on lighter duties/cannot carry out certain duties. Overall, taking all of the evidence into account, I find that there were no indications/signs to alert the respondent to enquire about the complainant's need for reasonable accommodation and therefore I find that the complainant has not demonstrated evidence of a prima facie case on the issue of alleged discrimination on the grounds of disability in relation to the provision of reasonable accommodation.
5.7 The complainant also alleges that he was discriminated against on the grounds of his race in relation to his working conditions. The complainant states that the respondent failed to furnish him with a contract after he was given the duties of first assistant manager. The complainant alleges that his manager kept promising him a new contract and also gave him an envelope with €25 per week for a number of weeks to compensate him for the extra duties he was undertaking. However, in January 2010, his manager refused to give the complainant the €25 and the updated contract and took him off his night shift allowance. The complainant states that his manager advised him that head office were not giving any more night allowance to staff. The complainant checked with some of the other stores operated by the respondent who advised him that they continued to receive the night duty allowance. The complainant subsequently made enquires to head office and received the night duty allowance back. On the day of the hearing, the manager denied giving the complainant €25 in an envelope and states that under no circumstance would an employee of the company be given cash in hand. However, on balance, I prefer the evidence of the complainant on this issue as he came across very clear on this matter and was consistent in his testimony. His manager, on the other hand was inconsistent and less than convincing in his testimony in this regard. I am satisfied that the complainant was given €25 per week cash in hand for a number of weeks. I am also cognisant of the fact that English was not the complainant's first language and that only having come to this country in 2007, he would not be aware of his rights/entitlements under employment legislation. In this regard, I am satisfied that the complainant has demonstrated prima facie evidence that he was treated less favourably on the grounds of his race in relation to his working conditions. In this regard, I am satisfied that the complainant received €25 euro cash in hand from the respondent for a number of weeks in late 2009. The respondent has failed to rebut the evidence in this regard.
5.8 The complainant also alleges that he was victimised by the respondent. In relation to the issue of victimisation, Section 74 (2) states:
.....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ......."
In this regard, the complainant alleges that he was victimised as a result of his refusal to lift the oil barrels and that his hours of work were greatly reduced in October 2009, in that, his hours were reduced to 18 in contrast to 40/45 hours which he carried out previously. Having examined these issues in detail, I am satisfied that the final warning letter was issued to the complainant on the basis of the number of times he changed his own clock in/clock out times together with the failure of the complainant to carry out instructions regarding filtering the oil in the fryers. The normal procedure in relation to the operation of the clock-in system is that a manager would change clock in/clock out times for a staff member and in the case of the complainant, any changes which were required were carried out by his own manager. In relation to the reduction in the complainant's hours down from 45 to 18; the respondent provided documentary evidence which was submitted to the Tribunal showing that as a result of enquires on behalf of the Garda National Immigration Bureau and the National Employment Rights Agency, a decision was made to reduce the hours of stamp 2 holders within the company to 18 hours in October 2009 so as to fulfil their legal obligations under employment legislation. Therefore, I am satisfied on balance that the complainant was not victimised as a result of making a complaint about his alleged unfavourable treatment.
6. DECISION OF THE EQUALITY OFFICER
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that:
(i) the respondent did discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(g) of the Acts in relation to the provision of reasonable accommodation.
(iii) the respondent did not victimise the complainant contrary to the provisions of section 74 (2) of the Acts.
I, therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2011 that the respondent pay to the complainant the sum of €4000 by way of compensation for the distress suffered and the effects on him of discrimination in his working conditions on grounds of race. This compensation does not contain any element of remuneration and therefore not subject to PAYE/PRSI.
_____________________
Valerie Murtagh
Equality Officer
20 December, 2012