The Equality Tribunal
Employment Equality Acts 1998 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-001
Parties
Mokhtar Hbari
(Represented by Grogan and Associates Solicitors)
V
Noonan Services Limited
(Represented by Irish Business and Employers Confederation)
File Reference No. EE/2009/179 and EE/2009/423 and EE/2009/475
Date of Issue: 26th January 2012
Key words:
Employment Equality Acts - Discriminatory treatment - Training - Conditions of Employment -- Victimisation - Race- Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Mokhtar Hbari (hereafter "the complainant") that he was subjected to discriminatory treatment and victimisation by Noonan Services Limited (hereafter "the respondent") on the grounds of his race.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 16 March 2009 under the Employment Equality Acts. Further complaints alleging harassment and victimisation on the race ground were received on 24th June and 14th July 2009. The complaint of harassment was withdrawn at the hearing. In accordance with his powers under section 75 of the Acts, the Director then delegated these cases to Orlaith Mannion - 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 29th September 2011. The investigation commenced on that day. As required by Section 79(1) and as part of my investigation, a hearing was scheduled for 12th October 2011. An Arabic interpreter was requested by the complainant.
2. Case for the complainant
2.1. The complainant - who is an Irish citizen - is originally from Tunisia. He is employed as a cleaner with the respondent company since 11 January 2001. He is still in the respondent's employment.
2.2. The complainant submits that he was not provided with a contract of employment. It was submitted that there is a requirement to take special measures to advise a foreign national of employment rights.
2.3 The complainant maintains he was not provided with proper Health and Safety documentation and/or training in accordance with the Health and Safety Act 2005. The complainant contends that subsequent to the decision 58 complainants v Goode Concrete (DEC-E2008-020) there is a requirement to provide foreign nationals with health and safety documentation in a language likely to be understood by the complainant.
2.4. The complainant submits that he was not paid overtime at higher rates despite the complainant is covered by Joint Labour Committee for the cleaning industry.
2.5 The complainant submitted that he was called to a disciplinary meeting after he lodged his complaints. During this meeting, Mr Hbari was told that one of the reasons why the complainant had been called to such meeting was because he had accused the respondent of being racist. The complainant submits that has never made such allegations against his employer. Furthermore he claims he was asked about the claims he had made to this Tribunal.
2.6 The complainant submitted in his complaint lodged on 14 July 2009 that at this meeting his hours were reduced from 48 to 42 hours per week.
3. Case for the respondent
3.1. The respondent provides, inter alia, contract cleaning services.
3.2. The respondent submits that a contract of employment was provided to the complainant in the same manner as to any other employee regardless of nationality/ethnic background.
3.3. The complainant was shown what to do - he also completed a one-day training course in how to operate a particular vacuum cleaner. This training was provided to the complainant in the same manner as any other employee regardless of nationality/ethnic background.
3.4. The respondent rejected the complainant's claim that he was called to a disciplinary meeting. A supervisor had approached the complainant to ask him about a number of complaints the respondent had received from various employment bodies as she was surprised that the complainant has taken such an approach without speaking to the respondent first. This is because the supervisor was friendly with the complainant - she invited him to her wedding and her housewarming party. During the Christmas holidays each year, she and her husband invited Mr Hbari to dinner as he was alone in Ireland. It was firmly denied that the respondent accused the complainant of calling the respondent racist. It was explained to him that one of the complaints they received from his solicitor was that he was been treated unfairly on grounds of his nationality and that the respondent was merely querying why the complainant felt this way.
3.5. Handwritten minutes of this meeting on 23 June 2009 between the complainant, the Head of Human Resources and his supervisor were submitted as evidence:
Explained to Mokhtar that we had got instructions from his solicitor stating that he was taking a complaint because we were treating him unfairly on grounds of nationality. I asked him if he thought this true and he said never said that. I told him that's what his solicitor said.
I also advised Mokhtar his solicitor said the following
- He never got a contract - Mokhtar said he got one and had never told solicitor he didn't
- We had not completed risk assessment or given him safety statements. He said he had full training and that he knew how to use all equipment
- He never got rest breaks. He said sometimes he only took short breaks but that he takes a number of smoke breaks throughout the day.
- He was made work long/excessive hours. Mokhtar said he requested extra hours as his mother and father were sick and his rent was €800
- He did not get holiday entitlement - he said he always did
- We treated him unfavourably as he's Tunisian
- always treated fairly
- Noonans paid for my permit
- got on very well with [supervisor]
I asked Mokhtar why would solicitor say these things - he told me he never said them - he was just looking for overtime.
3.6 Regarding victimisation, the respondent acknowledges that they reduced his working hours following the lodging of his complaints including a claim under the Organisation of Working Time Act 1997. Previously Mr Hbari was constantly seeking overtime. As one of his complaints was working excessive hours the respondent wanted to ensure that they were in compliance with the above Act.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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'.
4.2 Written records of training courses completed were submitted to me and the complainant could not cite a comparator who received more training. Therefore, he has failed to establish a prima facie case of discrimination on the race ground regarding training.
4.3 The complainant was given his terms and conditions of employment in English on 3rd May 2001. I am satisfied that English is a language easily understood by him as one of the reasons he was placed in the store he worked is that good English was specifically required for that position. That is because the day-to-day duties were communicated to him by the manager of that store rather than Noonan Services Ltd. Therefore, this strand of his complaint fails.
4.4 This Tribunal has no jurisdiction per se in relation to the Health and Safety Act 2005. It ought to be noted that the there is a legal requirement to provide health and safety documentation to all employees in Ireland. However, the jurisdiction of this Tribunal is limited to that which investigates less favourable treatment in a comparator situation.
4.5 Regarding overtime, the respondent explained at the hearing that some clients sanctioned overtime depending on the busyness of the store and some did not. His store did not. However, I accept the respondent's contention that Mr Hbari got first refusal on overtime in other stores. In direct evidence Mr Hbari accepted this and he said that he usually took it as he needed the money.
4.6 This is the least meritorious complaint that I have come across as an Equality Officer. Far from treating the complainant less favourably, the respondent (especially his supervisor) has been exceptionally kind to him. Not a scintilla of evidence has been adduced that would lead me to the conclusion that Mr Hbari has been discriminated on the ground of race in relation to his conditions of employment.
4.7 Section 74 (2) of the Act states that victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.8 It is common case that the complainant's hours were reduced after he lodged complaints to various employment rights bodies. However, I accept the respondent's contention that this is because it was being prudent in ensuring that the complainant's hours complied with the Organisation of Working Time Act 1997. Therefore, I do not find the complainant has been victimised within the meaning of the Acts.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
(i) The respondent did not discriminate against the complainant regarding his conditions of employment on the ground of race.
(ii) The respondent did not discriminate against the complainant regarding training on the ground of race.
(iii) The respondent did not victimise the complainant within the meaning of the Acts
The complainant's case fails.
___________________
Orlaith Mannion
Equality Officer