FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : EME LIMITED T/A AS SPAR CLAREHALL (REPRESENTED BY VIVIENNE MATTHEWS O NEILL BL) - AND - DICKSON UGWUNNAYAN DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 26th July, 2011. A Labour Court hearing took place on the 23rd April, 2012. The following is the Court's Determination:
DETERMINATION:
1. Dispute
This is an appeal by EME Ltd. t/a Spar Clarehall, ("the respondent") against Decision DEC-E2011-125 of the Equality Officer that it dismissed Mr Dickson Ugwunnayan (“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. The Equality Officer awarded the Complainant compensation of €10,000 for the distress suffered and the effects of the discrimination on him.
The Equality Officer found that the complainant had failed to establish a prima facie case in respect of related complaints submitted by the Complainant under sections 6(2) and 74(2) of the Act.
The Equality Officer’s Decision was issued on 27 June 2011. On 26thJuly 2011 the Respondent appealed against the decision of the Equality Officer that it had dismissed the Complainant in circumstances amounting to discrimination on the grounds of race and against the award of €10,000. The Complainant did not appeal the decision.
The appeal came on for hearing on the 11 January 2012 and was adjourned for further submissions to 23rdApril 2012. Both parties made extensive oral and written submissions to the Court in relation to the issues under appeal.
2. Facts
The complainant, who is a Nigerian national states that he was employed by the respondent as a Duty Manager in its shop at Clarehall, Dublin between April, 2008 and September, 2008, at which time he contends he was dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts.
The respondent submits that complainant was dismissed in the course of his probation period because he had demonstrated that he was unsuitable for appointment to a managerial position on a permanent basis. The respondent submits that his racial origin played no part in the decision to dismiss the complainant.
SUMMARY OF COMPLAINANT'S CASE
The complainant is a Nigerian national. In his submission He states that, following an interview with a Mr Michael Keating, area manager, he was offered employment in the Clare Hall location without further interview. He commenced employment with the respondent on 7 April, 2008 and was employed as a Duty Manager. He rejects the respondent's assertion that he received a Contract of Employment and copies of the respondent's Disciplinary Policy, Bullying Policy and Sexual Harassment Policy at the beginning of his employment. The complainant adds that shortly after he commenced employment with the respondent he had a slight altercation with Ms. X - a junior staff member employed as a Shop Assistant. He submitts that he was harassed, humiliated and insulted by her in the shop in front of customers. The complainant states that he reported the incident to Mr. D, the Store Manager, but the matter was never formally pursued by him with Ms. X. He submits that Mr D never reverted to him regarding this matter.
The complainant adds that on 13 September, 2008 he was the Duty Manager in charge and was told that there was a problem with the tills. He states that when he went to fix the tills he initially asked Mr Y what had happened. Mr Y told him to ask Ms X. He submits as he proceeded to the tills he was preoccupied with the problem at hand but nevertheless asked Ms. X what had happened. He submits that as he hurried to the till all he could hear was foul and abusive language by way of response. He submits that there were customers present at the time who heard what had been said.
He submits that after the customers left he approached her and said “can we talk? She said “okay”. As they were heading to the office through the store he asked her if everything was okay. She enquired why he asked. He referred to the manner in which she had spoken to him and embarrassed him in front of the customers. He submits that she said she had no regret for what she had done.
He says that he became angry and told her that the first time she had insulted him nothing had been done but this time he would take the issue to the director or better still deal with her himself. He says that the conversation took place in a store room on the way to the office. He says that she then left the store room and returned to the shor floor. He says that he returned to the office to continue complete some paperwork.
He says that whilst in the office he observed from the cctv cameras that she was not working but rather was talking to a customer. He said he had contacted the store manager to seek instructions and he had told him to handle the matter himself. He says that he approached her and told her she had better clock out and go home if she was not going to do any more work that evening.
He says that sometime later Ms X’s boyfriend came to the shop with a gang of friends and threatened and intimidated him. He said that he told him to leave the shop or he would call the Gardai. He asked another employee to phone the Gardai. At this point the boyfriend left the shop.
He says that on 14 September the Store manager rang him to ask him what happened. He suggested they leave the matter until he reported for work on 15 September. The Store Manager agreed to this.
He says on 15 September, at the end of his shift, the Store Manager asked him what had happened. He says he gave the Store Manager a report of the events that had occurred on 13 September. The Store Manager then asked him why he shouted at Ms X. He said he could see from the CCTV records that she was crying. He says that he responded by asking “is it all you have to say?” He says the manager proceeded to advise him that Ms X had made a complaint to the Gardai that he had assaulted her and that a Garda investigation was now underway. He says that the Store Manager asked him for the keys of the premises and suspended him with immediate effect pending the Garda investigation. He says the Store manager told him that the Gardai were due at the shop at 2 pm. He said that he went home suspended while Ms X continued to work.
He says that he phoned the Store Manager the following day to establish the outcome of the investigation. He was told that the Gardai had not arrived. He says he rang again the following day. But again he was told that the Gardai had not arrived. He says that at this time he began to suspect that his suspension may be related to an argument he had had with the Store Manager a week earlier. He says that the argument related to an issue he (the complainant) raised regarding some cash that the Store Manager could not account for.
He says that he rang the Gardai to make enquiries about the progress of the investigation. He submits that the Gardai told him that there was no such investigation in progress.
He says that he again rang the Store manager and a meeting was arranged to finally resolve the matter. He says that on arrival at the meeting he was told that he was on probation and accordingly could be dismissed under the terms of his contract. He was then dismissed.
The complainant states that Ms. X was not disciplined for her role in the incident and he was dismissed. He submits that this sanction was excessive and was motivated by the fact that he was a black man. He adds that he knows of no other employee who was dismissed by the respondent during his period of employment with it. He argues that a white person would not have been treated in the same way in the circumstances and submits that this amounts to discriminatory dismissal on grounds of race contrary to the Acts.
He says that he rang the Director Mr Z and arranged to meet him some days later on his return from holidays. He says that the Director told him that he could not work in the Clare Hall store any longer but that he would try to source another job at a lower level and would revert to him. He says that, despite several phone calls, the Director did not revert to him. Finally he made contact with Mr Z who told him that he had not found anything yet. The following day he received his P.45 in the post.
SUMMARY OF RESPONDENT'S CASE
The respondent rejects the complainant's assertions in their entirety. It accepts that there was an altercation between the complainant and Ms. X on the day in question. It submits however, that the complainant was a Manager and it would have expected him to have handled the matter in a better fashion and not argue with Ms. X on the shop floor in front of customers. It states that Mr. D made the decision to dismiss the complainant as he (Mr. D) was of the view that the complainant was not suitable for the position. It adds that a similar view was subsequently reached by Mr. G (the respondent's Managing Director) following investigation. The respondent submits therefore that Mr D formed the reasonable belief that the complainant was not capable of performing the functions attached to the post. The respondent submits that it was not required to retain an unsuitable person in employment. The respondent seeks to rely on section 16(1) of the Acts in this regard.
Ms. X agrees that there was a problem with the tills that day. She adds that when the complainant came to the area she offered an opinion as to how the problem might be rectified and he spoke to her in a dismissive manner. She states that she felt belittled as the altercation took place in front of customers and that she became angry and used foul language at him. Ms. X adds that she ran from the shop floor into a storage area but the complainant followed her. She states that when she tried to pass him to get out of the area the complainant prevented her doing so with his elbow and that whilst he was turning his body he struck her in the face. She adds she was very upset, was crying and that when she went back to the shop floor she comforted by a customer that noticed she was crying. She says that she told the customer what had happened.
She says that she sent the Store Manager, who was not on duty, an sms message seeking his permission to go home. She says that he gave her permission to go home. She says that she phoned her boyfriend to come and collect her. She says that he arrived shortly afterwards and that she went home at that point.
She adds that she reported the matter to the Garda� and later that evening she informed Mr. D that she had done so. She says that she received a verbal warning from Mr. D for her involvement in the altercation. She adds that Mr. D informed her that the complainant would not be working for the next week.
The respondent (Mr. D) states that he spoke to the Complainant on two occasions about his manner in which he dealt with customers. He says that, shortly after he commenced work in the store, he had received a complaint from a customer that the Complainant had been aggressive towards his wife. He says that he spoke to the Complainant about his approach to customers but did not treat the issue as serious or as a disciplinary matter.
He says that on another occasion he found it necessary to again speak to the Complainant regarding his aggressive approach to customers. Again he says he treated this as a training rather than a disciplinary issue. The Complainant denies that these conversations ever occurred.
The respondent (Mr. D) states that he made the decisions to (i) suspend the complainant and (ii) subsequently dismiss him. He adds he decided to suspend the complainant because he had failed to contain the situation and deal with it. Instead he had allowed it grow out of proportion and become a serious and significant issue.
In the course of the Hearing Mr. D stated that he viewed CCTV footage of the altercation on the shop floor between the complainant and Ms. X and it appeared to him that the complainant was more to blame for the incident as he was the Duty Manager and should have acted in a more professional manner. He added that he decided not to suspend Ms. X because he considered her to be the victim in the situation, although she received a verbal warning for her role in the incident.
He says that the area where the alleged assault occurred was not covered by CCTV. The respondent (Mr. D) states that he considered the matter further over the next couple of days and decided that the complainant was not suitable for the position and dismissed him. In the course of the Hearing Mr. D stated that (i) he was not aware of any disciplinary issues concerning the complainant adding that he considered the sanction of dismissal to be appropriate and in accordance with the respondent's Disciplinary Procedure and (ii) he could not say whether or not the complainant had received any staff management training.
The respondent Managing Director (Mr. G) states that he spoke with the complainant a few days later and suggested that there may be a vacancy at another shop, although not at Duty Manager level. He adds that he reviewed the information furnished to him by Mr. D and having spoken to the Complainant upheld the decision to dismiss him as he formed the opinion that he was unsuitable for appointment to a managerial position with responsibility for staff supervision.
It is submitted on behalf of the respondent that the complainant was not treated any differently than any other employee, including an Irish employee, would have been treated in similar circumstances and therefore his dismissal does not constitute discrimination of him contrary to the Acts.
CONCLUSIONS OF EQUALITY OFFICER
There was no appeal against the decision of the Equality Officer not to uphold the complaints made pursuant to section 14A and section 74(2) of the Employment Equality Acts, 1998-2008.. Accordingly the Court did not consider these matters as part of the Appeal.
Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which 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 in a line of Determinations of the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Labour 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 complainant does not discharge the initial probative burden required his case cannot succeed.
It is also common case that the complainant was dismissed by the respondent on 18 September, 2008. The respondent submits that it terminated the complainant's employment because it considered him unsuitable to perform the duties associated with the position for which he was on probation and under consideration for permanent appointment. It further submits that the complainant's dismissal was not connected with his nationality or skin colour and that the termination of his employment was lawful even if inept. It seeks to rely on section 16 of the Employment Equality Acts, 1998-2008 in this regard.
Section 6(1) of the Employment Equality Acts, 1998-2008 provides that discrimination shall be taken to occur where " a person is treated less favourably than another person is, has or would be treated in a comparable situation" on any of the discriminatory grounds. The language of this provision clearly permits the use of a hypothetical comparator, an approach acknowledged by the Labour Court in Zilys and Volkovas v Barnmac Contracting Ltd. The Court added however, that there has to be some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances.
It is common case that no actual comparator exists in this case and accordingly the Court must consider the matter in the context of a hypothetical comparator.
The net question therefore for the Court to decide is whether there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances.
Having reviewed the submissions made and having listened to all of those involved in the incident the Court finds that Mr D made his decision to suspend and subsequently dismiss the Complainant for a number of reasons. Firstly he appears to have genuinely formed the view that the Complainant was not capable of managing and diffusing the escalating situation that developed on 13 September 2008. Ms X’s decision to report the matter to the Gardai escalated the incident considerably and impacted him in a profound way. This played a significant role in his concluding that the Complainant was not suitable for appointment to a permanent management position within the store. The Court finds that the fact that the Complainant was in the fifth month of his probation influenced Mr D’s decision also. The Court finds that Mr D mistakenly, but genuinely, believed he could dismiss the complainant with impunity whilst he was on probation. He appears to have been of the view that this would no longer be the case after the probation period had expired. Accordingly he felt that he had to act quickly and did so. The Court finds no evidential basis for concluding that Mr D would have acted differently had the Complainant been of Irish origin. The Court finds that Mr D’s motivation was to terminate someone he felt was not suitable for appointment to a permanent position whilst he was, in his view, free to do so. The Court finds that whilst the decision may have been inept, ill-judged, inappropriate and unfair the Court can find no racial motivation in the decision taken by Mr D. The Court is satisfied that had the Complainant been of Irish origin Mr D would have made the same decision for the same reasons.
The Court finds that the Mr Z simply rubber stamped the decision made by Mr D and did not carry out any proper review of the incident or evidence when arriving at his decision. Whilst he failed in his duty and in his obligations to the Complainant the Court can find no evidential basis on which it could conclude that race played any part in his decision. Rather the Court takes the view that he would have supported Mr D had the Complainant been of Irish origin regardless of the evidence adduced or the merit of the decision.
The Court is mindful of the comments it made in A Technology Company v A Worker when it stated that "the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution." The Court must also be careful not to automatically impute unconscious or inadvertent discrimination simply because such a claim is asserted.
For the reasons set out above the Court finds that an Irish employee, in similar circumstances, would have been treated in the same way by the respondent and it follows that the complainant has not established a prima facie case of discrimination which the respondent must rebut.
Determination
The Court determines that the complaint is not well founded and upholds the appeal.
Signed on behalf of the Labour Court
Brendan Hayes
9th July, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.