DEC-E2012-072- Full Case Report

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC - E2012- 072

PARTIES

Dariusz Mozolowicz

-v-

Ryanair Ltd
(Represented by Frank Beatty BL
Instructed by O'Rourke Reid Law Firm)

File Reference: EE/2008/608
Date of Issue: 12th June 2012

Keywords
Employment Equality Acts 1998-2011, Section 2(1) and section 2(3)(c) - Agency Worker, Section 2(5) provider of Agency work, Section 77(5)- statutory time limits, Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8 discrimination in relation to conditions of employment, Section 85A- burden of proof, no prima facie case.

1. Dispute

This dispute involves a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of the Employment Equality Acts 1998-2011 and contrary to section 8 that Act in relation to his conditions of employment.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 10th September 2008 alleging that the respondent discriminated against him relation to his conditions of employment.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on the 30th June, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant 4th August 2009 and 18th April 2012 and from the respondent on the 18th September 2009 and the 27th March 2012. A hearing on the complaint was held on the 29th November 2011 which was adjourned and a further hearing was held on the 2nd May 2012 and the last correspondence was received on the 29th May 2012.

3. SUMMARY OF THE COMPLAINANT'S CASE

3.1 The complainant is from Poland and was employed by Manpower Ltd, an Employment Agency, and he was assigned to work in the respondent company. He started work with the respondent on the 8th May 2007 and worked there until he left the employment in June 2008. He was employed as a Ground Handling Agent (GHA) servicing the aircraft uploading and unloading baggage. The complainant claims that during the course of his employment that he was subjected to discriminatory treatment on a regular basis by his supervisors and managers because of his nationality. He said that there is a large crew room at Dublin Airport where the crew sat to eat, rest and they could also change their clothes there. There are three or four tables in the crew room and the tables were generally occupied by the crew who spoke the same language, e.g. Polish, Slovakian and Irish. The complainant said that he sat at the Polish table which was the largest table and could accommodate about twenty people and it was the furthest away from the entrance. The Ramp Coordinator and the Team Leaders' Office were located in an office near the entrance to the crew room. If a flight was delayed and came in while he was on break in the crew room or if there was a shortage of staff on a crew, the ramp co-ordinator Mr. B or the Team Leader would come to the Polish table having passed the Irish table and the Slovakian tables to tell staff to go and work on the particular ramp or flight. This work, which was over and above scheduled work, was referred to by the crews as the "bonus" even though there was no extra payment. The complainant complains that it was always the Polish employees who were ordered to go and do this work while the Irish or Slovakian was not asked. He said that he did not object because he was paid for the hours he worked, but he believed it was discriminatory in the way it was allocated. He also objected to the manner in which Mr. B addressed the Polish table. He said that Mr. B did not say please or thanks and shouted at them when someone did not offer to do the work straight away. He believes this was racial discrimination and the fairer way to allocate work which arose during breaks was to address the request to the whole crew room.

3.2 The complainant stated that in December 2008 the ramp co-ordinator Mr. B was about to let the staff go home early because all the planes had departed and the incoming flights which were serviced by the night shift were delayed. They were in the crew room and Mr. B said to them that they could leave when they had cleaned the crew room. One of the Irish GHA's started to vacuum the carpet and Mr. B said to him to "leave it for Polish guys". It was said in a loud voice and everybody in the crew room could hear it clearly and all the Polish workers were upset. He said that this happened on only one occasion. He submits that it was a discriminatory remark and it was an indication of Mr. B's attitude towards foreign workers.

3.3 He said that a lot of the GHAs were not of Irish origin. On one occasion a poster with simple English words and pictures of simple items like tables, chairs and spoons appeared on the wall in the crew room. It appeared as if the posters were designed for children learning to read and write. He said that the poster suggested that his level of English was equivalent to a child aged five or six. He believed from the content of the posters they were put there by the Irish employees to humiliate non-Irish staff whose first language was not English. At the time one member of the crew wanted to hang a poster of a topless woman on his locker and he was prevented from doing so. Management said it was sex discrimination because there were some women on the crew. If it had been an all male crew it would have been allowed. He contrasted this treatment to the poster of first English words which he believed was abusive disgusting and offensive towards the non-Irish staff.

3.4 The complainant submitted that he was treated unfairly and issued with a warning by his employer (the Employment Agency) as a result of an incident in the Ticket Sales Office on the 13th of August 2007. He said that he accompanied his Polish friend to the Travel desk to purchase a concession ticket for him with his credit card because his friend did not have one. He said there were two points of purchase. He said that he was interviewed by Mr. B and the Duty Manager, Ms. A, about the incident the following day. He said that he told Ms. A that the employee (Irish) in the ticket office said that she was not going to sell any more tickets to the ramp staff because of an incident with him. The complainant said that he told her there were a number of witnesses to the incident and they should be interviewed. During that meeting he said that he complained about discrimination and about the way foreign workers were treated in the company. He said that Ms. A did not ask him for the names of the witness nor did she interview them. He believes that Ms. A believed the Irish worker's version of the incident and believed that there was no need to interview the witnesses who were all foreign nationals. He was disciplined as a result of the incident. He believes this would not have happened if the incident was investigated properly and if Ms. A did not take the side of the Irish employee. He submits this was discriminatory treatment on the race ground.

3.5 The complainant submitted that on the 4th of May 2008, he was racially abused by a pilot. The pilot in question was walking around the aircraft before departure to Poland. He said that he suggested to him that he should not be walking in that area without wearing a high-vis vest which is a mandatory health and safety regulation at the Airport. He said that the pilot became aggressive towards him and told him to go back to his f*****g country about 3 times and he also said "go and report me f*****". He found this particularly insulting given that this pilot was about to fly 180 Polish people to Poland. He reported the matter to his Team Leader and while doing so the pilot came over and repeated the abuse. He was asked by his supervisor to do a report about the abuse and he did. The following day the pilot attempted to apologise to him about the incident. The complainant said that he believed that the apology was not genuine and that he was being forced to apologise by management. He understood that the matter was investigated and he got a letter dated the 16th of May 2008 stating that the matter had been investigated under Ryanair Disciplinary Procedures. He said that he did not know the outcome of the disciplinary action until he received the respondent's response to the complaint of discriminatory treatment in March 2012. He submitted that he was not happy about the outcome of the investigation and said that he had been treated much more severely in relation to the ticket sales office incident in comparison with the sanction imposed on the pilot. The complainant submitted that the discriminatory treatment was ongoing throughout the time he worked with the respondent. He said that he did not make any complaint about the discriminatory treatment, except the pilot incident which was reported to management by his team leader, because he was afraid if he complained his contract would not be extended. He said that he was unhappy about the treatment and decided to get another job and he then made a complaint to the Equality Tribunal about discriminatory treatment.

4. SUMMARY OF THE RESPONDENT'S CASE

4.1 The respondent denies that the complainant was discriminated against on the race ground. The complainant was employed by Manpower Ltd as a Ground Handling Agent (GHA) from the 8th of May 2007 until he voluntarily resigned on 2nd June 2008. Manpower Ltd supply ground services personnel to Ryanair and the complainant was assigned to work at Dublin Airport for them. He was never employed by Ryanair. The respondent submitted that they employ a multi-cultural workforce and there are currently 102 GHAs, representing 12 different nationalities employed directly at Dublin Airport. Almost 50% of GHAs employed by Ryanair are of Polish nationality and 70% are non-nationals. In addition to the directly employed GHAs, there are about 60 staff supplied by the employment agency including the complainant.

4.2 The respondent stated that it is an equal opportunities employer and upholds the rights of workers be they direct employees or contractors. The respondent does not tolerate discrimination on any grounds and any allegations are thoroughly investigated by the respondent and appropriate disciplinary action is taken. The respondent submitted that they received one complaint from the complainant in relation to racial discrimination. This complaint was in relation to an exchange which took place with a pilot on 4th of May 2008. The company investigated the matter and following an investigative meeting decided to have a disciplinary hearing with the pilot concerned. Given the assurances from the pilot that the incident was an isolated one and that it would not happen again and the fact the he had attempted to apologise to the complainant the following day, a first written warning under the Disciplinary Procedures was deemed to be an appropriate sanction. The complainant was informed by letter dated the 16th of May 2008 that his complaint had been dealt with under the Disciplinary Procedures and the matter was now closed.

4.3 In relation to the complaint about the incident at the travel desk the respondents submits that the complainant has provided no information about the incident. He was interviewed by Ms. A, the duty manager in the area where the complainant worked, but he did not provide the names of the four employees the complainant says witnessed the incident. The respondent submits that the incident was investigated by the complainant's employer Manpower and the complainant was issued with a final written warning. He was subjected to a disciplinary investigation for his aggressive and abusive behaviour towards a work colleague. The complainant was advised by Manpower that he had seven days to appeal if he felt he had not been dealt with fairly. He did not appeal the decision and he made no other complaint of discrimination at the time the incident occurred. The respondent submits that the complainant failed to advance his complaint in a manner that allows it to be investigated. Ms. A has been made redundant and is no longer available or compellable to give evidence because she lives in England. The respondent no longer has a relationship with Manpower, the complainant's employer at the time of the incident, and is therefore not in a position to investigate the incident through them.

4.4 In relation to the complainant's complaint that the Ramp Co-ordinator Mr. B and the Team Leaders discriminated against Polish workers in relation to the assignment of work, the respondent submitted that they never received any complaints about such treatment. The respondent stated that they operate a multi cultural workplace with approximately 70% of the workforce non-nationals and of these 50% are of Polish origin and it is inconceivable that such a large group could suffer discrimination in the manner alleged without complaints being made. Furthermore the complainant alleged that these incidents occurred on a daily basis over a period of months but he did not make any complaint about them when he made the complaint about his treatment by the pilot. The grievance procedures were well known to him but he did not report these alleged incidents at the time they occurred and only did so after his employment ended with Manpower on the 2nd June 2008. Mr. B, the only person identified by the complainant as being involved in the alleged discrimination, was interviewed by the respondent and he denies that the incidents occurred in the manner alleged. Mr. B states that he did ask employees to clean up after themselves when they created a mess. The respondent accepts that staff of the same nationality congregates at the same tables in the crew break room. This is not of the respondent's making and is merely a natural consequence of the cultural and language affinities of the various groups of workers.

4.5 In relation to the allegation about the poster known as "first words" displayed in the break room, the respondent stated that no complaint was made to management about an inappropriate poster being displayed. The respondent initiated an investigation following the complaint to the Equality Tribunal and learned that a poster depicting basic English words may have been displayed in the break room for a very short period of time but this could not be confirmed. The respondent states that it does not tolerate discrimination on any grounds and this is clearly demonstrated by the swift removal of any poster or material which may cause offense. Material which may be offensive to any person working in the company is not permitted or tolerated in any circumstances. It was submitted that the complainant's evidence acknowledges this policy when he stated that the respondent forbade the display of a poster of a topless woman on the grounds of gender discrimination. In the circumstances the respondent submits that it dealt with the matter promptly and acted entirely reasonably and appropriately in removing the poster.

4.6 In relation to the complainant's allegation that the Irish workers were told to leave the cleaning of the crew room to the Polish workers, the respondent submits that this complaint was not referred to the Tribunal within the statutory 6 months time limit and consequently I have no jurisdiction to hear the complaint. Without prejudice to the above submission the respondent refutes the allegations. Following receipt of the complaint from the Tribunal the respondent said that they investigated the matter with Mr. B and he has denied that the incident occurred as alleged.

4.7 A number of witnesses gave evidence on behalf of the respondent. Ramp Team Leader Mr. L. said that he has been employed by the company since 1989. During the complainant's employment he was a team leader of a crew of four baggage handlers (GHAs). He said that crews were called do a "bonus" duty almost daily. It was an extra duty over and above the rostered duties and people were selected on the basis of who was in the crew room at the time the task arose and who was on break the longest and on occasions people volunteered. Some bonus jobs involved towing aircraft or toilet servicing and only trained staff could do this job and the complainant was not trained. He said that the people who spoke the same language sat together but there was no question of only approaching the Polish table to seek GHAs for the "bonus" duty. He believed that over 65% of the 102 GHAs were not Irish and that there were more of the GHAs of Polish nationality than of Irish nationality. He disagreed with the complainant's contention that the "bonus" work was allocated in the main to Polish workers. He said that he did not hear anyone making a remark to leave the hoovering of the crew room to the Polish workers. He said that he often came out of his office and gave instructions to start cleaning up. The workers sitting at the particular tables would have to clean that particular table. He said that the hoovering was not done on a regular basis and he never asked any of the crew to hoover but people do it on a voluntary basis. He said that he never saw the "first words" poster and if it was there he believes that it would have been removed if people were offended by it. He said that any offensive pictures e.g. topless women were taken down immediately.

4.8 Mr. E, Ground Ops Manager said that it was not true for the complainant to state that the "bonus" work was only given to the Polish Workers. He said that he has a list of each crews work for the day and he would know if the crew was on break or engaged on a particular job at any given time throughout the day. His staff would normally allocate the "bonus" through the team leader to the crew longest on break and they are only asked to do "bonus" work if they are free. He is satisfied that Mr. B as trained manager did not allocate the "bonus" in an unfair manner. In relation to the "first words" poster Mr. E said he never saw it and he does not accept it was on display for a number of months because he uses the particular wall for staff notices and he would have seen it if it was there. After he learned about the complainant's complaint he checked walls and also checked with the staff and one baggage handler thought he saw it and nobody else knew anything about it. He said that he does not allow any notices or poster in the area the complainant alleged the poster was hanging because he regularly put up notices there and if it was there he is certain he would have seen it.

4.9 Mr. B, Assistant Ramp Coordinator, said that he managed the GHAs. He denied that he targeted the Polish workers for the "bonus" work. There were 9 teams made up of 4 GHAs and a team leader and each team had different nationalities given the diverse nationalities employed. He said that he had the planning list for the day and he would go through it when a "bonus" job came up to find the crew longest on break and allocate the work to them. He said that "bonus" work came up between 10 and 15 times per day and was allocated strictly on the basis of which team was on break the longest apart from the tow drivers who might have to do a couple of extra ones. He said that he got on well with the whole crew and he never got any complaints. He denied that he was rude or impolite to the complainant or to any of the crew at the Polish table. He said that he never made the comment "leave it to the Polish guys" to an Irish person who was hoovering. He said that he always tried to get the crews off early when they were finished their flights and he would ask the people in the crew room to clean up so that they could go home. He denied that he ever picked on the Polish staff to do the cleaning. He said that he never saw the "first words" poster and if it was up on the wall he believes he would have seen it. He said that offensive posters or pictures are not allowed and are taken down. The complainant never complained to him about the poster and if he was offended by it he could have taken it down. He remembers sitting in on the meeting that Ms. A had with the complainant about the incident at the travel desk. He said that he complainant was involved in an incident in front of other passengers and the supervisor reported his conduct to the Duty Manager. The complainant was reminded of the proper procedures to follow and told that staff travel was a privilege and he could lose it. He said that he did not recollect the complainant stating that he had witnesses to the incident or asking Ms. A to interview them. He had no further involvement in the matter.

4.10 Mr. J said that he was employed as a GHA during the time the complainant was there. He is from Hungary and he said that he has never experienced any discriminatory treatment. He sat at the Irish table and he was always treated very well and in the last eighteen months he has been promoted to ramp team leader. He said every table got the "bonus" which is done by the team and there are mixed nationalities on the team. His team was asked to do the bonus on a daily basis and he was also asked to do the towing. He said that he said that he did hear a rumour about the "leave it to the Polish guys" incident. He said that everybody did cleaning including the Irish. He said that people were never asked to hoover but someone would grab the hoover and start cleaning up. He did not see the "first words" poster displayed but he did see some lewd pictures which were taken down.

5. CONCLUSIONS OF THE EQUALITY OFFICER

Preliminary Jurisdictional Issues
5.1 The respondent's counsel submitted that they were not the employer of the complainant and therefore not liable. He submitted that Manpower Ltd was the employer in accordance with the definition at Section 2(3)(c) of the Acts which provides: "(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer,"
I note that at the time the complainant worked in Ryanair he was an employee of Manpower which is an employment agency providing workers to the respondent. I note the Act provides:
"Section 2(1) of the Act defines a contract of employment as follows: -
contract of employment means, subject to subsection (3) --
(a) a contract of service or apprenticeship, or
(b) any other contract whereby --
(i) an individual agrees with another person personally to execute any work or service for that person, or
(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),
whether the contract is express or implied and, if express, whether oral or written;"
The term 'agency worker' is also defined in Section 2(1) of the Act and provides as follows: -
"agency worker" means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;"
The term 'employer is defined by the same subsection as: -
"employer" , subject to subsection (3) , means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;"

The Act also applies to 'a provider of agency work'. Section 2(5) of the Act provides as follows: -
"A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act 1971 , obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the "provider of agency work".
Section 8 of the Act contains the general prohibition of discrimination. Section 8(1) provides:
"In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker."
Having regard to the above mentioned Sections of the Acts and the evidence presented to the hearing, I find that the Respondent was the "provider of agency work" to the complainant who was "an agency worker" within the meaning of the Acts and is therefore covered by the general prohibition of discrimination contained in Section 8 cited above. In order to establish discriminatory treatment under the provisions of the Act the complainant has to compare his situation to that of another agency worker. Accordingly, I am satisfied that I have jurisdiction to hear the claim referred against the respondent.
Statutory Time Limits

5.2 The next matter I have to consider is whether the complaints were referred within the statutory time limits. Section 77(5) of the Acts provides as follows:

"(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".

Section 77(6A) of the Acts provides as follows:

"For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
period"

The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. I am now considering whether there was ongoing discrimination and whether all of the incidents were interlinked.

5.3 The complainant submitted a complaint of discriminatory treatment on the race ground in relation to his conditions on the 10th of September 2008. Appended to the complaint form he had an account of three incidents of alleged discriminatory treatment. In further correspondence dated 25th February 2009 the complainant outlined five incidents, the three mentioned in the complaint form of the 10th September 2008 and a further two incidents, which he stated constituted discriminatory treatment. On the 4th of August 2009, in response to a request from the Tribunal secretariat, the complainant submitted a statement setting out further details of the five alleged incidents of discriminatory treatment. The respondent's solicitor raised issues about the referral of the complaints and statutory time limits in correspondence with the Tribunal secretariat. The case was assigned to me for investigation and decision and I set a hearing for the 29th of November 2011. At that hearing these issues were raised again and the Counsel submitted that I could not hear evidence in relation to the two later alleged discriminatory acts mentioned in the complainant's submission. I adjourned the hearing as the respondent wished to consider their position given that I had indicated I was proceeding to hear all the evidence the complainant wished to offer. Following extensive correspondence between the respondent and the Tribunal in which the issues were raised at length I resumed the hearing on the 3rd May 2012. Counsel for the respondent submitted that there were time limit issues in respect of some of the complaints referred to the Tribunal by the complainant. He said that the "leave it to the Polish Guys" incident which took place on the 27th of December 2007 was not referred to the Tribunal until the 10th of September 2008, the Travel Desk incident which took place on the 23rd December 2007 and the Pilot incident which took place 4th May 2008 were referred to the Tribunal on the 25th of February 2009 and outside the six month statutory time limit. He submitted that the complainant was well aware of his rights and believed he was discriminated against at the time these incidents occurred and the Pilot incident was the only one he brought to the attention of management. Counsel further submitted that the complainant had not applied for nor was he entitled to an extension of time for referring these complaints in accordance with S. 77(5)(b). I was referred to the Labour Court decision in the case of Department of Finance v IMPACT & others EET042 where the Court held that it was for the complainant to explain the delay and to put forward a reason for the delay and the Court must be satisfied that the explanation offered was reasonable and not irrational or absurd and based on the facts known to the complainant at the material time. Counsel submitted that the complainant offered an absurd excuse for not mentioning all of the instances of alleged discrimination in his referral to the Tribunal. He further submitted that the respondent was prejudiced by the delay in defending the case by the vagueness of the claims and the fact that one of the named persons who allegedly discriminated against the complainant was no longer employed by the company.

5.4 In making my decision on this matter I have taken into consideration the complainant's referral of the complaint and his further letters and statements submitted in support of the complaint, the extensive correspondence of the respondent with the Tribunal and the oral evidence from both parties. I note that the complainant directed his complaint against Ryanair - Supervisors and the Ramp Co-ordinator complaining about discriminatory treatment in relation to his conditions of employment and he states that this treatment started when he commenced with the respondent and occurred many times every day up until he left. From the evidence it seems to me that the complainant is complaining about a general policy of discriminatory treatment on the race ground which he alleges was practiced by people in authority in Ryanair against Polish GHAs. In support of this contention he has put forward a number of instances set out at paragraphs 3.1 to 3.5 where he believes he was unfairly treated or singled out for treatment which he considered was discriminatory and not acceptable

5.5 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Don Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.
In Department of Health and Children v Gillen EDA0412 the Court considered an application to include a claim of discrimination, which occurred outside the time limit, the Court found:
"The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time. Section 77(5) of the Employment Equality Act states that
"a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence, or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The complainant's complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground".

5.6 The respondent accepts that two of the allegations of discrimination were referred to within the statutory time limit. Having considered the totality of the evidence presented at the hearing and taking into account the complainant's referral form of 10th September 2008 and the appended pages, his letter of the 25th of February 2009 and the statement of the 4th August 2009, I am satisfied that the complainant has established a link between the incidents and they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing act or a continuum of discrimination within the meaning of section 77.

5.7 In considering whether all the incidents are properly before the Tribunal I have applied the jurisprudence of High Court in the case of County Louth VEC v The Equality Tribunal [2009] IEHC 370 to the facts of the case herein. Mc Govern J. stated at para. 6.2:

"I accept the submission on behalf of the respondent the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint ..... remains the same. What is at issue is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say, that complaints going back over a very lengthy period would have to be considered, as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.

I further note that in his Judgment in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated:-

"It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein."

5.8 The form EE1 received by the Tribunal on the 10th September 2008 indicated that the complainant was complaining about discriminatory treatment on the race ground in relation to his conditions of employment. I am satisfied the letter of 25th February 2009 which mentioned two further instances of alleged discrimination and the statement of the 4th August 2009 which provided further details was an expansion on the details of the claim form referred on the 10th September 2008 and the general nature of the complaint remained the same in that the complaint was about an alleged policy of race discrimination in relation to conditions of employment. Accordingly, I find that the complaints form a continuum which were referred to the Tribunal and within the six month time limits provided for in section 77(5)(a) of the Acts and that I have jurisdiction to hear evidence in relation to the five instances complained about.

The Substantive Equality Claim
5.9 In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing. The respondent submitted that the complainant had failed to establish a prima facie case of discriminatory treatment and referred me to the Labour Court jurisprudence in the case of Southern Health Board v Mitchell ELR 201 and Cork City Council v McCarthy EDA0821 with regards to the burden of proof.

5.10 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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."

It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the race ground in relation to his conditions of employment. It is only when he has discharged this burden to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
The Labour Court in the McCarthy case applying the principles set out in Mitchell stated:
"Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. 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 decisions of this Court starting with the Determination in Mitchell v Southern Health Board [2001] ELR 201. That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged 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 which he bears, his case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts."
In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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."

5.11 I am now going to examine each incident put forward by the complainant in the context of the above principles. In relation to the "bonus" work complaint set out at paragraph 3.1 above, I find that the complainant has put forward no evidence to support his complaint that it was always the Polish workers who were called on do this work. I found the evidence of the respondents' witnesses compelling and I am satisfied that there was no coordinated plan by the Team Leaders or Mr. B the Ramp Coordinator to allocate the "bonus" work to the Polish GHAs only. I accept the evidence of Mr. B that he selected people for these extra duties in accordance with a set criteria i.e. people on break the longest and the skill set required for the particular "bonus" job. I note that of the 102 Ryanair GHAs and 62 contracted from Manpower about 70% of them are non Irish and representing about 12 different nationalities and of these 50% are of Polish nationality. The complainant accepted this evidence and stated that there were about 34 non Irish and 4 Irish on his shift. He also accepted that Polish were the largest group and hence had the largest table in the crew room. I note that Mr. B said in evidence that there were about 15 bonus duties throughout a shift. Taking all these matters into consideration and given that Polish workers were the largest grouping it was inevitable that Mr. B may have to approached the largest table more often than other tables in the crew room to find workers who were longest on their break. I am satisfied that Mr. B allocated the bonus work in a fair and consistent manner and I am also satisfied from the evidence of the respondent's witnesses that Mr. B was courteous and polite when he approached the Polish table. I find that the complainant has made "mere assertions" unsupported by any facts in relation to this aspect of his complaint.

5.12 The next matter complained about is "leave it for the Polish guys" as set out at paragraph 3.2 above. The complainant said that there were a large number of witnesses to this incident but other than to say that Mr. B made the remark in a loud manner to an Irish GHA who was doing the hoovering he did not bring any of these witnesses to the hearing. Mr. B denied that he ever made such a remark and stated that he often gave instructions near the end of the shift to clean the crew room to the staff sitting at the tables but the instructions were never directed at the Polish staff only. One of the respondent's witnesses said he heard a rumour about the remark being made. It is for the complainant "to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination" and I am not satisfied that he has provided any evidence to prove that the remark was made. A rumour cannot be construed as a fact. I find the complainant has failed to establish a prima face case of discriminatory treatment in relation to this aspect of his complaint.

5.13 The next matter for consideration is the "first words" poster as set out at paragraph 3.3 above. The complainant said that the poster which he submits was discriminatory and mocked Polish employees whose first language was not English and indicated that the level of English they had was equivalent to a young child was on the wall in the crew room for a number of months and was there when left the employment. I note the complainant did not make any complaint about the poster to management even though he found it offensive. Four witnesses gave evidence on behalf of the respondent and they all said that they did not see the poster on the wall. They all said that if it had been there they would have seen it as they passed by the wall many times a day. The Head of Ground Handling stated that after he received the complaint about the poster he investigated the matter with the staff and only one person said he thought he saw the poster and nobody else saw it. He said that the area where the complainant said the poster was on display is an area where he puts up staff notices and he would be in that area numerous times per day and if it had been there he would have seen it. He said that he does not allow posters other than official notices on that wall. He also said that any posters which are offensive are not tolerated and removed. I am satisfied from the evidence that the poster was not on display for a couple of months as stated by the complainant. It is clear from the evidence even if the poster was on display it was there for no more than a very short period of time before it was removed. I accept the respondent's evidence in this regard and I am satisfied that posters which offend staff are not tolerated in any circumstances and are removed from the walls in the crew room. I find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to this complaint.

5.14 The next matter I have to consider is the ticket office incident at para. 3.4 above. It is clear from the evidence that an incident involving the complainant and a number of other non Irish GHAs took place at the desk when the complainant was attempting to purchase a concession ticket with his credit card for his friend. The complainant's case is that the ticket office in the arrival area was closed and they were directed to the departures ticket office and they were told they didn't have to queue there. The person in the sales office in departures told them they had to queue. The complainant accepted that there was an exchange of words with the sales woman. The respondent's evidence is that staff can purchase tickets between 1 and 3 o'clock at the check in. The complainant was attempting to purchase a ticket outside this time which was in breach of the rules for purchasing staff tickets and he created a scene in front of paying passengers. The matter was reported to Ms. A, the Duty Manager, in the complainant's work area. The complainant was called to a meeting with Ms. A and Mr. B was also present. The complainant submits he was discriminated against on the race ground in that the matter was reported to his management in ramp handling by the travel ticket office and despite informing management that there were five witnesses to the incident all non-Irish and they were not interviewed and Ms. A believed the account from the woman in the travel ticket office because she was her friend and she was Irish. He also said that he was discriminated against when the respondent reported the incident to Manpower and as a result he was subject to a disciplinary hearing and given a final written warning.

5.15 I am satisfied from the evidence that the complainant was involved in an incident with a staff member of the travel office and he was reported to his management because his behaviour was unacceptable particularly in front of full paying passengers. Likewise I am satisfied that if an Irish agency worker or an agency worker of a different nationality was involved in such an incident that person would have been dealt with in the same manner. In relation to the disciplinary sanction imposed on the complainant by Manpower the respondent had no responsibility for it as it was imposed by his employer and is not a comparable situation to the sanction imposed in pilot incident. I find that the complainant has failed to establish that he was discriminated against in relation to this complaint.

5.16 The next matter I have to consider is the pilot incident set out at paragraph 3.5 above. It is clear that following the complaint about the offensive comments and the racial abuse directed at the complainant by the pilot the matter was investigated thoroughly by the respondent and the complaint was upheld and a sanction was imposed on the pilot. The complainant submits that the matter was not investigated properly and that he was not satisfied with the outcome of the investigation. He did not know from the letter dated 16th May 2008 that he received from the respondent which offensive comments were investigated and he did not know that there was disciplinary action taken against the pilot until he received a statement from the respondent in March 2012. He submitted that the first written warning was not an appropriate sanction given that he had been given a final written warning in relation the travel desk incident and this was another example of unfair treatment against Polish workers. He did not accept the apology from the pilot because he believed the pilot was forced to apologise by management and it was not genuine. The respondent submitted that the incident was reported to management and the matter was investigated under the disciplinary procedures and a sanction imposed. It was submitted that the respondent did everything to prevent employees acting in a discriminatory manner by having policies in place and the pilot knew of these policies. The respondent also stated that they were prevented from informing the complainant of the sanction imposed on the pilot under the Data Protection Act.
The complainant cannot compare the sanction imposed on the pilot to the sanction imposed on him to establish discriminatory treatment on the race ground in relation to his conditions of employment because two different employers imposed the sanction and therefore they were not in comparable situations. The complainant who works as an agency worker for the respondent had his sanction imposed by his employer Manpower and the pilot had his sanction imposed by his employer Ryanair. Therefore the complainant has not established he was treated less favourably than another agency worker of a different nationality was treated or would have been treated in similar circumstances.

5.17 In relation to the action taken by the respondent I am satisfied that action was taken immediately to prevent the reoccurrence of any offensive abuse. In considering this matter I have taken account and the defence set out at S.15 (3) of the Acts cited below and it applies to the complaint herein.
"(3) In proceedings brought under this Act against an employer in
respect of an act alleged to have been done by an employee of the
employer, it shall be a defence for the employer to prove that the
employer took such steps as were reasonably practicable to prevent
the employee --

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of
that description."
I find that that the respondent complied with this section.

5.18 In relation to the outcome of the investigation the complainant was informed that the complaint was fully investigated under the Disciplinary Procedures and that the matter was closed. While the letter was unclear and did not inform the complainant that his complaint was upheld or that any disciplinary action was taken, the contents of the letter is not evidence of less favourable treatment. It would have been better if the respondent had, in the interest of good industrial relations, informed the complainant that his complaint was upheld and that the pilot had been sanctioned. However, I cannot find any evidence of discriminatory treatment in relation to this aspect of the complaint.
For all the foregoing reasons and applying the above reasoning of the Labour Court in the Melbury case cited and having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any supporting evidence from which I could reasonably conclude that he was treated less favourably than an Irish agency worker or an agency worker of a different nationality was treated or would have been, in similar circumstances, in relation to his conditions of employment. In order to raise an inference of discriminatory treatment in relation to his conditions of employment on the grounds of nationality, the complainant must produce some evidence of less favourable treatment and that treatment must have some connection with his nationality. The complainant failed to produce any evidence to support his contention that there was a general policy of discriminatory treatment directed against Polish workers. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to his conditions of employment on the grounds of his race.

6. Decision

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 to 2008. I find that:

(i) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts in terms of Section 8 in relation to his conditions of employment

________________________________
Marian Duffy
Equality Officer
12th June 2012