EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 151
PARTIES
Krzystof Partyka and Olga Lech
(represented by Mr Brendan Archbold)
and
Hulex Ltd
(represented by Peninsula Business Services)
File References: EE/2010/033, EE/2010/205 & EE/2010/206
Date of Issue: 13th November 2012
1. Claim
1.1. The case concerns claims by Mr Krzystof Partyka and Ms Olga Lech that Hulex Ltd discriminated against them on the ground of race (Ms Lech) resp. gender and race (Mr Partyka) contrary to Sections 6(2) (a) and (h) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment and harassment. Mr Partyka's written submission from 1 October 2010 further included a complaint of victimisation.
1.2. Mr Partyka referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 25 January 2010. He and Ms Lech each referred a complaint on 26 March 2010. Submissions were received from both complainants on 1 October 2010. Submissions were received from the respondent on 17 December 2010 and 22 October 2012. On 26 April 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 23 October 2012.
2. Summary of the Complainants' Written Submissions
2.1. Both complainants are Polish nationals and were employees in one of the respondent's convenience stores. Mr Partyka was a store manager and Ms Lech an employee.
2.2. Mr Partyka states that he was rostered for less working hours than two female colleagues, which he alleges is discrimination on the ground of gender.
2.3. He further states that he was rostered on separate shifts to those of Ms Lech, his partner, which he states disrupted their private life considerably. He does not state under which of the protected grounds he thinks this is discriminatory conduct on the part of the respondent.
2.4. He also states that he was not permitted to speak Polish at work. He does not describe any conduct on the part of the respondent which may be said to be harassment.
2.5. Ms Lech states that her signature on her contract of employment was forged, and that this is a discriminatory act. Like Mr Partyka, she also complains that she was rostered on different shifts than him, and that she was forbidden to speak Polish at work. In addition, she complains that she did not get her legally prescribed breaks, which she contends amounts to discrimination on the ground of race.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainants as alleged or at all. It accepts that Ms Lech's signature on her contract of employment was forged by the area manager, but denies that this was done as an act of discrimination. According to the respondent, the area manager went into a state of panic when an audit was announced, because he did not want to lose a "Store of the Year" accolade for the store Ms Lech was working in, and so forged her signature.
3.2. The respondent further accepts that Ms Lech was deprived of her rest breaks on occasion, but again denies discriminatory conduct, and states than a named Irish employee likewise was denied her rest breaks on a number of occasions.
3.3. With regard to the policy that only English should be spoken at work, the respondent states that the purpose of this policy was to ensure that customers would not feel alienated and feel they can approach staff and communicate with them, and to ensure team coherence among a multinational team of employees. The respondent states that apart from Irish employees, it also has Polish, Estonian, Chinese, Russian, South African and Turkish employees, and that in order that no one feels left out, the fairest approach is to institute an "English-only" policy in the workplace. In respect of this matter, the respondent further states that all staff have English as a second language and no staff member had difficulties complying with this policy.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainants were discriminated against and harassed on the grounds of gender and race within the meaning of the Acts, and whether Mr Partyka was victimised within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. Mr Partyka's complaint that he was rostered for less hours than two female employees because of his gender was rebutted by the respondent, who was able to show that the complainant and these two named employees worked virtually identical hours, all around 37 hours per week. Accordingly, this part of his complaint can not succeed.
4.4. With regard to the two complainants being rostered on different shifts once their relationship became known, evidence was contradictory. Mr Partyka claimed that he and Ms Lech were originally rostered to work on the same shift, but that after the relationship became known, Mr C., the respondent owner, told him he did not want couples to work together. Mr Partyka stated that he and Ms Lech were treated differently from one Irish couple in another of the respondent's convenience stores, who were rostered together. On the other hand, Mr H., area manager for the respondent, stated that their relationship was widely known, and the only reason for starting to roster them on different shifts were the requirements of the store. He stated that a Chinese couple with childcare requirements were specifically rostered on different shifts in order to facilitate their childcare. He further stated that the complainants had never applied to him to be rostered together. The complainants did not dispute that they never made any such application. Accordingly, I do not find that they have succeeded in discharging the proof that they were treated as described for reasons of their Polish nationality, rather than simple business needs, and this part of both of their complaints must fail.
4.5. With regard to the alleged requirement that only English be spoken in the workplace, the respondent's evidence differed between Mr C., the owner, and Mr H., the area manager. Mr H. claimed that no such policy existed at any time. Mr C. stated that a policy to speak English in the workplace was introduced in 2010. Mr C. stated that in his view, speaking English was implied into the contract of employment for his staff. The complainants stated that they were told not to speak Polish among themselves or to customers.
4.6. Be that as it may, in order for any workplace policy or practice to be indirectly discriminatory within the meaning of either S. 22 or S. 31 of the Acts, it is for the complainant to show that the policy or practice put him or her at a "particular disadvantage". This is normally understood to mean presenting either a significant challenge to the complainant to fulfil any obligations that arise under the policy, or else that the policy has very disruptive consequences for other aspects of the complainant's life.
4.7. In the complainants' case, that would mean not being able to speak English well enough to fulfil the request to speak only English during business hours. From both complainants' evidence, I am satisfied that they are completely fluent in English, close to the level of a native speaker. Accordingly, I am unable to accept that either complainant would have difficulty to comply with the policy, or any informal request for that matter to speak English at work. Accordingly, the complainants have failed to establish a prima facie case of discrimination with regard to any formal or informal language policies the respondent might have had, and this part of their complaints can likewise not succeed.
4.8. With regard to Mr Partyka's complaint of harassment, he stated in evidence that it happened from both Mr H. and Mr C. Mr Partyka only complained in writing about Mr H.'s harassment to Mr C., which, according to his oral evidence, included terms like "F***ing lazy Polish", and which Mr H. would use if something was wrong in the shop. The complainant's letter, which Mr C. accepts he received, is dated 23 August 2009. Mr H. disputes using any such language. However, I prefer the evidence of the complainant in this matter for reasons I will set out in the following paragraphs, where I examine whether the defence set out in S. 14A(2) of the Act avails the respondent.
4.9. When Mr C. received the complainant's letter, he wrote back to him on 24 August 2009, stating that he, Mr C., would "act as mediator in an informal manner (subject to the approval of both parties)." When asked why he did not engage an outside mediator, Mr C. replied that he felt in a position to reach a "fair and equitable decision" in the matter. When I suggested to him that a mediator normally performs quite a different role between two parties in a conflict rather than that of decision-maker, he stated that his aim was to resolve the matter informally and have the two men "shake hands and move on", which he felt he achieved. He further stated that either party could have objected to the process. This meeting took place on 28 August 2009. Mr Partyka stated that Mr H. simply denied any harassment and that no further follow-up to his complaint happened.
4.10. In terms of the generic harassment policy which is provided to store owners by the respondent's franchise, Centra, and which was submitted in evidence by both parties, I find that Mr Partyka's letter to Mr C. constitutes a formal written complaint. The policy specifies that when a written complaint is received, it should be investigated, whereas informal resolution approaches are recommended for verbal complaints about inappropriate behaviour. Mr C. confirmed at the hearing that he consulted the policy for guidance on what step to take after the receipt of Mr Partyka's letter. In the light of this, I find that his attempt at an informal resolution to be insufficient. Furthermore it is worrying that Mr C. had apparently not grasped the difference between a mediation process and what he described as "informal decision making". I can not accept Mr C.s argument that under the circumstances, Mr Partyka could have objected to the process, since the process itself was entirely wrongly described in Mr C.s letter. Mr Partyka then found himself in a meeting where Mr H simply denied everything, which was chaired by someone who he has alleged also racially abused him on occasion, and which was furthermore also dedicated to discussing allegations against him of poor performance, and by the end of which he found himself demoted, circumstances I will address in due course.
4.11. With regard as to whether Mr C.'s actions constitute the taking of appropriate steps to prevent the complainant's harassment pursuant to S. 14(2) of the Acts, I can not find that this was the case. Mr C.s entire approach was badly flawed. At the very least, Mr C. ought to have informed himself as to the difference between the mediation and the investigation of such a complaint and be sure to describe these alternatives to both Mr Partyka and Mr. H. in such a way that the men would have known clearly what approach they were consenting to. Furthermore, the option of requesting an outside mediator or investigator should have been made clear to the parties. Last, I consider it wholly inappropriate that Mr Partyka's complaint and issues which concerned his own work performance should have been discussed in the same meeting.
4.12. Mr H. stated that Mr Partyka's performance had been unsatisfactory, and that he had called a meeting with Mr Partyka a few days beforehand to call Mr Partyka's attention to these matters. However, apart from a written appraisal form from December 2008, which is some eight months before the meetings in question took place, no documentation of any kind exists with regard to these problems. Furthermore, Mr Partyka's CV, which the respondent submitted in evidence, states that he holds a degree in Marketing and Management from a Polish university, had studied the same subjects as an Erasmus exchange student in Denmark, and had previously served as a deputy store manager with Lidl, where he had responsibility for 20 staff. According to Mr H., Mr Partyka requested that these issues were discussed with Mr C. as the respondent's owner. This happened at the same day and in the same meeting as the Mr C. attempt to resolve the harassment complaint. Mr H. stated that Mr Partyka said at the meeting with him and Mr C., where the harassment was discussed, that he (i.e. Mr Partyka) brought the harassment complaint because he thought he would be dismissed for poor performance. Mr H. stated in his evidence and in his view, bringing the harassment complaint was something akin to a strategic gambit on the part of Mr Partyka. The respondent submitted absolutely no evidence to support any of these claims. I find that this is damaging to the credibility of the Mr H's and Mr C.'s oral evidence.
4.13. I am mindful of the fact that Mr C. businesses are part of a nationwide franchise, Centra, whose policy he used and who Mr C. could have approached for advice in that matter if he had felt the need. Taking all of this into account, I find that the defence set out in S. 14A(2) of the Acts does not avail the respondent, and that Mr Partyka is entitled to succeed in his complaint of harassment.
4.14. There is no dispute between the parties that Mr Partyka was demoted from manager to shift supervisor following this meeting. The circumstances which surrounded this demotion would appear to me to merit further investigation; however, I am precluded from doing so because the victimisation complaint brought on behalf or Mr Partyka only dates from 1 October 2010, which is more than one year after the occurrence of the relevant events at the end of August 2009 mean that it was brought out of time pursuant to S. 77(5) of the Acts, and that I do not have jurisdiction to investigate this matter.
4.15. With regard to Ms Lech's complaint, the respondent accepted that the signature on her contract of employment was forged. However, there was no evidence that this unlawful act occurred for discriminatory reasons. Her partner, Mr Partyka, received a copy of his contract for his signature, and so did all other store employees, including Polish employees, according to Ms Lech's own evidence. Therefore there is no evidence that Ms Lech was singled out for Mr H.'s unlawful conduct because of her Polish nationality. Accordingly, this part of her complaint can not succeed.
Decision
4.16. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(a) Hulex Ltd did not discriminate against Mr Krzystof Partyka on the ground of gender within the meaning of the Acts.
(b) Hulex Ltd did discriminate against Mr Krzystof Partyka in his terms and conditions of employment by not taking reasonably practicable steps to prevent his harassment on grounds of race contrary to S. 14A(2) of the Acts.
(c) I have no jurisdiction to investigate whether Mr Partyka's demotion following his complaint of harassment constitutes victimisation pursuant to S. 74(2) of the Acts because this complaint was brought outside the time limits specified in S. 77(5) of the Acts.
(d) Hulex Ltd did not discriminate against Ms Olga Lech in any aspect of her complaint.
4.17. I therefore order, in accordance with Section 82 of the Acts, that the respondent pay to Mr Krzystof Partyka:
(i) €8000 (equal to 3 months' gross salary in his role as manager) for the harassment endured.
(ii) This award is made in compensation for the distress suffered by the complainant in relation to the respondent's unlawful conduct and is not in the nature of pay and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
13 November 2012