The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-090
PARTIES
Almute Malinovskaja
(Represented by Smyth Stapleton & Co. Solicitors)
AND
Martin Quigley (Nenagh) Limited
(Represented by Peninsular Business Services (Ireland) Limited)
File reference: EE/2009/321
Date of issue: 11 July 2012
HEADNOTES: Employment Equality Acts - Sections 6, 8, 14A & 74 - Race - Access to Employment - Promotion - Training - Conditions of Employment - Harassment - Victimisation.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Almute Malinovskaja that she was discriminated against by Martin Quigley (Nenagh) Limited on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to access to employment, promotion/re-grading, training and conditions of employment contrary to section 8 of the Acts, that she was harassed contrary to section 14A of the Acts and that she was victimised contrary to section 74 (2) of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 14 May 2009 under the Employment Equality Acts. On 13 March 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. Submissions were received from both parties. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 22 May 2012.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant is Lithuanian and started working for the respondent on 29 December 2007. She submits that 2 weeks after she started work she was told to drive her supervisor to Dublin so that she could meet a friend at the airport. It happened again and the aircraft was delayed. The supervisor refused to pay the parking fees.
2.2. The complainant submits that on one occasion she was asked to bring in tables at 5.30 pm by the Assistant Supervisor, then her Supervisor told her to put them out again because the café did not close until 6 pm. Also, the Supervisor made comments about her work and adopted an intensive supervisory role. She contends this was different from the way she treated fellow Latvians; she made constant remarks over the cleanliness of her work station, called the complainant stupid, criticised her English and said Lithuanians were not friendly. She would talk in Latvian to other colleagues and the complainant felt isolated and that extra demands were placed on her compared to other waiting staff.
2.3. The complainant submits that work task sheets were removed from the notice board which made it difficult to defend charges relating to her standards of work. She would be blamed for not completing tasks which should have been completed by other staff members.
2.4. The complainant submits that as the situation deteriorated she made a formal complaint to the Retail Manager on 19 or 26 February 2009. At this meeting, which was also attended by her Supervisor, she advised the Retail Manager that she was being bullied, harassed and discriminated by other staff members. The Retail Manager took issue with her ability to speak English, the complainant was not allowed to expand on her complaints and was told to work solely as a wash-up attendant. No issue was taken with her ability to speak English when she started work, nor was it mentioned as a job requirement. The complainant submits that after she made her complaints her supervisor threatened her with dismissal.
2.5. Shortly after she made her complaint her hours were reduced to working 3-4 hours on a Saturday. Subsequently, the respondent advertised for and took on other staff. The complainant submits this was part of a concerted effort to remove her from her position by staff and management of the respondent. As a result of the ongoing difficulties the complainant says that her health deteriorated.
2.6. The complainant submits that by being kept on wash-up she was demoted in breach of her contract when she was recruited as a Retail Assistant. Also, that the respondent was aware of her problems but had no effective policy for dealing with them.
3. RESPONDENT'S SUBMISSION
3.1. In relation to the complainant's claims regarding trips to the airport the respondent submits that the Supervisor asked a work colleague, who was an Assistant Supervisor, if she knew anyone who could drive her to the airport. The colleague told her that the complainant had a car and an arrangement was made between the Supervisor and the complainant and she was paid an agreed fee. Subsequently the Supervisor was looking for a new member of staff and asked the colleague if the complainant might be interested. When the complainant said she would be interested she was asked to come in for an interview. There was due to be another trip to the airport on the same terms but the complainant said she could not do it and her partner was due to step in. Ultimately this did not happen.
3.2. The respondent submits that the complainant started working for them on 29 December 2007 as a retail assistant. There was a note on her application form 'English not good enough to fill in - only looking for wash-up, cleaning'. She started working for the respondent in the wash-up area. When she started she was issued with a contract and an employee handbook, which contained disciplinary and grievance procedures and a detailed bullying and harassment investigation procedure.
3.3. The respondent submits that the complainant never raised any informal or informal complaints about bullying, harassment or other discriminatory behaviour. Furthermore, they submit that they have policies in place to deal with any complaints that are made, which are in their Employee Handbook.
3.4. The respondent submits that on 11 January 2008 the Retail Manager carried out an appraisal of the complainant and she was told that the respondent was happy with her work on wash-up but her English was still poor and this meant that she could not serve customers. On 16 January 2008 the Retail Manager spoke to the complainant and told her that her work in the wash-up area was very good. However, no full-time position will be available for wash-up and cleaning but she would be given any hours available in that area. The record of the meeting noted that the complainant did not want to work on the floor serving customers.
3.5. The respondent submits that on 22 September 2008 the Retail Manager spoke to the complainant to tell her that business was slacking off and there would be less hours available than were required in the summer. It was reiterated that her English was not good enough to work on the floor and that the hours in the wash-up will reduce due to the downturn in business.
3.6. On 6 October 2008 the complainant complained to the Retail Manager that other staff were not doing their jobs correctly. On 14 October 2008 the Retail Manager told the complainant that she had spoken to the supervisors and they are happy that other staff are doing their job properly.
3.7. The respondent submits that on 30 December 2008 the complainant was thanked for helping out in Athlone and told that business will go quiet in the New Year. She was told they were planning to reduce the number of staff on duty and they wanted to see if she could work on the floor serving customers. She was to be given a trial on the floor as there was not sufficient work in wash-up for a full-time person. On 6 February 2009 the respondent received a customer complaint about the complainant when she was working on the floor. On 11 February 2009 the respondent received a further customer complaint. Also, at the beginning of February 2009 both the Supervisor and Assistant Supervisor raised issues about the complainant's work in serving customers. On investigation it became clear that the complainant had insufficient command of the English language to understand what customers required. The Retail Manager decided to return the complainant to the wash-up area.
3.8. The respondent had a meeting with the complainant on 19 February 2009 in which she told her about the complaints. It was clear that these arose from her poor level of English and she was to return to work only in the wash-up area. Unfortunately because of the downturn in business there was only work her on a Saturday.
3.9. The respondent submits that there is no evidence of bullying and harassment. They also deny that the complainant was threatened with dismissal by her supervisor, who did not have the authority to dismiss staff, or that she was isolated by her supervisor and/or colleagues. In December 2009 the complainant requested her P45 and resigned.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against in relation to access to employment, promotion/re-grading, training and conditions of employment, if she was harassed and if she was victimised on the grounds of race. 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. 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. Section 6(1) of the Employment Equality Acts, 1998 and 2004 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).....".
4.3. The complainant contends that she felt pressurised into driving her Supervisor to the airport because of their working relationship. Whilst the respondent contends that the only time the complainant drove her to the airport was before she started working for the respondent. I accept the Supervisor's evidence and conclude that the trip to the airport has nothing to do with the complainant's employment. Furthermore, she was actually approached about working for the respondent as a result of driving the Supervisor to the airport. It is my view that the complainant's efforts to misrepresent these incidents undermines her credibility.
4.4. The respondent gave evidence that after the complainant came in to meet the Supervisor in the café she was asked back the following day for an interview with the Retail Manager. The complainant contends she met the Supervisor and was told to start the next day and it was two or three weeks later that she met the Retail Manager. On the balance of the evidence I accept the respondent's evidence that the Supervisor did not have the authority to hire staff and the complainant had to be interviewed by the Retail Manager before she could start work. I also accept the respondent's evidence, particularly the note on the application form which was not completed by the complainant, that the complainant was recruited in December 2007 to work on wash-up and cleaning only; as they considered she did not have good enough English to serve customers. The complainant was the only member of staff to work on wash-up only but the café had the level of business to give the complainant a number of shifts at that time. The complainant was given a trial to serve customers in May 2008. Whilst the complainant gave evidence that everything went well in the trial and she was not told of any problems until January 2009 the respondent gave evidence that but this trial did not work out and the complainant returned to wash-up and cleaning. On balance I accept the respondent's evidence.
4.5. The complainant gave evidence of a number of incidents that she alleges amount to harassment on the grounds of her race. The respondent denied there was any harassment and the Supervisor gave evidence at the hearing in relation to the allegations which I found credible. I also accept the respondent's evidence that at all times the café was staffed by a mixture of nationalities. The complainant's allegations that she was treated badly because she was Lithuanian by the rest of the staff who were Latvian does not stand up to scrutiny and I find it is not credible. I conclude that the Supervisor may well have given the complainant directions in her work which the complainant did not like. However, that was the role of the Supervisor and I can find no evidence that any harassment by the supervisor or other staff members took place.
4.6. The complainant contends that she complained about the harassment in a meeting with the Retail Manager in February 2009. The respondent denied that the complainant made any reference to such harassment at the meeting. At the hearing the respondent produced the originals of notes, which the respondent had attached to their written submission, written by the Retail Manager of a number of contacts with the complainant. These included the complainant's allegations that colleagues were not doing their job properly and lengthy notes of the meeting in February 2009 which includes no reference to the complainant's allegations. On balance I accept the respondent's evidence and conclude that the complainant made no complaint of harassment to the respondent. The complainant's representative wrote to the respondent in March 2009 stating they understood the complainant had made a formal complaint of bullying, harassment and discrimination which fell within the Employment Equality Acts. The respondent replied and gave them copies of documents requested, including notes of meetings between the complainant and the Retail Manager. They also explained the reasons for the change to the complainant's hours of work. They did not respond as to whether the complainant had made a formal complaint and the complainant's solicitor did not follow this up as far as I am aware. .However, I accept their evidence that they did not consider the complainant had made a formal complaint. I also accept that they had a Dignity In Work policy and procedure for dealing with complaints, which was in the Employee Handbook that was given to the complainant.
4.7. I also accept the respondent's written and oral evidence, supported by financial documentation, that their business was reducing and they decided to reduce their staffing of the café accordingly. This led to the complainant being given another trial to work on the floor in January 2009. Unfortunately, on the basis of complaints received, they decided that the complainant did not have the competencies to carry out this work; specifically that her English was not good enough to deal with customers. Because of their change in staffing the only time when they were consistently busy enough to warrant employing a person solely on wash-up and cleaning was Saturday. The complainant was given this shift. The respondent confirmed that one of the adverts for staff was for another location. Any staff recruited would have had to meet all the criteria of the job, which the complainant was not able to.
4.8. At the hearing the complainant put forward evidence that in November 2009 the Manager of the respondent's outlet in Athlone, where she had helped out the previous December, asked if she would be available to help out until the New Year. She contends this was blocked by the Retail Manager, even though she was only working on Saturdays.
4.9. The Retail Manager says she was contacted by the Manager in Athlone but there was only a maximum of four days work available and the Retail Manager said she needed to think about it and see whether the complainant was needed in her usual workplace. The complainant resigned on 13 December 2009 before a decision was made.
4.10. I conclude that the complainant has failed to establish any primary facts upon which a claim of discrimination could be inferred in relation to access to employment, promotion/re-grading, training or conditions of employment.
4.11. Section 74 (2) of the Acts states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to .... a complaint of discrimination made by the employee to the employer. In this case I can find no evidence to support the complainant's contention that she made a claim of discrimination. Consequently I conclude that victimisation could not have occurred.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
- the complainant has failed to demonstrate a prima facie case of discrimination in relation to access to employment, promotion/re-grading, training and conditions of employment, and
- the complainant was not harassed, and
- the complainant was not victimised.
____________________
Hugh Lonsdale
Equality Officer
11 July 2012