EQUALITY OFFICER'S DECISION NO: DEC-E/2012/144
PARTIES
Karolina Laskowska and Rafal Boguta
(Represented by Mr. Brendan Archbold)
Vs
Bardrew Limited t/a Cross' Centra Kilcullen
(Represented by Peninsula Business Services Limited)
FILE NO: EE/2010/497&498
Date of issue: 30th October, 2012
1. Dispute
1.1 This dispute involves a claim by two Polish complainants, Ms. Karolina Laskowska and Mr. Rafal Boguta against Hulex/Bardrew Limited t/a Cross' Centra Kilcullen, that they were discriminated against on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to conditions of employment and other. The complainants also claim that they are entitled to the same rate of remuneration as that paid to a named comparator in accordance with the provisions of Section 29(1) of the Acts and that they were victimised contrary to section 74(2) of the Acts.
2. Background
2.1 The complainants referred complaints under the Employment Equality Acts 1998 to 2008, to the Equality Tribunal, on the 5th of July 2010 alleging that the respondent had discriminated against them, on grounds of race, when they did not receive any proper contracts of employment, did not receive proper breaks and were forced to work more weekends and public holidays than Irish employees. The complainants also state that the respondents operated a blanket ban on the speaking of Polish. The first complainant, Ms. Laskowska also claims that her working hours were constantly changed and reduced while the company was hiring new employees. It is also submitted that the complainants believe they were not paid the same rate of pay as a named Irish comparator and that they were victimised contrary to section 74(2) of the Acts. In addition one of the complainants, Mr. Rafal Boguta, alleges that he was demoted from his position as supervisor and that this was due to his race.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated these cases on 3rd of August 2012 to me, Orla Jones, 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 both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 5th of October, 2012.
3. Summary of complainant's case
3.1 The complainants, Ms. Karolina Laskowska and Mr. Rafal Boguta, state that they are Polish Nationals and submit that they were employed by the respondent from 4th of August 2008 to 5th of February 2011 and from 10th of May, 2008 to 5th of February, 2011 respectively.
3.2 The complainants submit that they did not receive their legal entitlements as regards terms of employment and that they did not receive proper breaks and were forced to work more weekends and public holidays than Irish employees.
3.3 It is submitted that that the respondents operated a blanket ban on the speaking of Polish.
3.4 It is submitted that Ms. Laskowska's working hours were constantly changed and reduced while at the same time the company was hiring new employees.
3.5 It is also submitted that Mr. Boguta was not always paid overtime rates to which he was entitled.
3.6 It is submitted that Mr. Boguta, who was promoted to supervisor after 2 months service was later demoted from this position following a comment from the area manager Mr. H that the store was not doing well and that this was due to the fact that the public viewed the store as "too foreign".
3.7 The complainants submit that they were paid less than named Irish comparators.
4. Summary of respondent's case
4.1 The respondent agrees that the complainants Ms. Laskowska and Mr. Boguta were employed by them from 4th of August 2008 to 5th of February 2011 and from 10th of May, 2008 to 5th of February, 2011 respectively as submitted by the complainants.
4.2 The respondent submits that the complainants were provided with terms of employment.
4.3 The respondent accepts that Mr. Boguta worked more weekends and public holidays than most other employees as he preferred to do so, as this meant a substantially higher pay packet.
4.4 The respondent submits that Ms. Laskowska was recruited as a part-time sales assistant to work variable hours which included weekends and bank holidays and that her hours fluctuated in accordance with the needs of the business.
4.5 The respondent submits that there was no blanket ban on speaking polish but that staff were asked to be mindful of their colleagues and to speak in a language which all staff members understood as complaints had been made in respect of the complainants, that they spoke to each other in Polish to the exclusion other staff members rostered with them. The respondent also submits that it is crucial that customers should not feel alienated and shouldn't feel that their requests for assistance will not be understood.
4.6 The respondent submits that the failure to pay the overtime an error and that it was paid once it was brought to the attention of the respondent.
4.7 The respondent submits that Mr. Boguta was never demoted, that he remained a supervisor and that his rate of pay remained that of a supervisor.
4.8 The respondent submits that the Tribunal does not have jurisdiction to deal the claims of Equal Pay and victimisation as they were not included in the original EE1 forms.
5. Preliminary issues - Correct Respondent and Inclusion of matters not contained in the EE01 forms
5.1 The respondents submission referred to the fact that the correct respondent in these matters was in fact Bardrew Limited trading as Cross' Centra, Kilcullen not Hulex limited trading as Cross' Centra, Kilcullen. Both Hulex Limited and Bardrew Limited are holding companies for different branches of Cross' Centra stores. This matter had previously been investigated and decided upon by a Right Commissioner. At the hearing, both parties agreed that the correct respondent in these matters was Bardrew Limited trading as Cross' Centra, Kilcullen. I am satisfied that the correct respondent in these matters is Bardrew Limited trading as Cross' Centra, Kilcullen. The respondent confirmed that the matters at hand should be dealt with as Bardrew Limited trading as Cross' Centra, Kilcullen.
5.2 The respondent's representative, in its submission to the Tribunal and at the hearing, objected to the inclusion of claims relating to Equal Pay and Victimisation as they were not included in the original EE01 form. However these claims were detailed in the complainants' submissions of 1 March 2011, which were copied to the respondent on 4th of March 2011. The Tribunal had also advised the respondent in writing prior to the hearing that these matters would be addressed at the hearing. I am thus satisfied that the respondent was on notice of such matters. The claims in relation to victimisation were withdrawn at the hearing.
6. Conclusions of the Equality Officer
6.1 The issues for decision by me now are, whether or not Bardrew Limited t/a Cross' Centra, Kilcullen discriminated against the complainants on grounds of race, in terms of section 6(2) (h) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in relation to their conditions of employment. I must also make a decision on whether the complainants are entitled to the same rate of remuneration as that paid to a named comparator in accordance with the provisions of Section 29(1) of the Acts. 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 at the Hearing.
6.2 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)....."
Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
6.3 Thus the complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because they are Polish. In evaluating the evidence before me, I must first consider whether the complainants have established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.1
6.4 Conditions of employment
6.4.1 On the day of the hearing the complainants indicated that they did not receive written contracts upon commencement of their employment. The complainants upon questioning indicated that they had "no idea" whether any of the other employees, Irish or non-Irish had received contracts. However, it is clear from the submissions and evidence of both parties that the complainants did receive terms of employment. Accordingly, based on the evidence given I do not find that the complainants have established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
6.4.2 The complainants at the hearing indicated that they did not always receive breaks to which they were entitled. Ms. Laskowska's evidence was that she was on occasion called back from her breaks early if the shop became too busy. Mr. Boguta advised the hearing that, in his role as supervisor, he had some responsibility as regards ensuring that people took breaks, but that this was not always possible due to the volume of customers and the need for staff to be on the shop floor at busy times. Upon questioning both complainants conceded that all staff, were treated the same as regards the taking of breaks and that it was dependant upon how busy the shop was at any given time. Accordingly, based on the evidence given, I do not find that the complainants have established a prima facie case of less favourable treatment, on the ground of race in relation to this matter.
6.4.3 The first complainant, Ms. Laskowska, at the hearing, stated that she was made to work more weekends and public holidays than Irish staff. She advised the hearing that Irish staff also worked weekends. Ms. Laskowska did not offer any evidence to substantiate the claim that she worked more weekends or holidays and that this was due to her race. When questioned as to whether she was given a choice regarding weekend work she stated "not really" and advised the hearing that if she wanted the hours she had to work weekends. She also stated that she received higher pay for weekend work. The respondent advised the hearing that Ms. Laskowska was employed as a part time sales assistant and as such her hours varied and that it was a requirement under her terms of employment that her hours would include weekends and public/bank holidays. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
6.4.4 The second complainant, Mr. Boguta stated that he worked more weekends and public holidays than Irish staff. He also stated that, he had at one point worked eleven days straight without a break. He stated that Irish staff also worked weekends but that he was unaware of whether any Irish employee had worked this number of days without a break. When questioned as to whether he had raised this matter with the respondent, Mr. Boguta stated that there was no point in complaining about it. The respondent, in reply to this, stated that Mr. Boguta had asked to work Sundays as it meant more pay and that he had requested a day off mid week instead. Mr. Boguta did not dispute this. Witness for the respondent Mr. Osman stated that he had started in the company in September 2009 at which point Mr. Boguta had requested Saturdays off, which he was granted. The complainant did not produce any evidence on this issue to show that this treatment was in any way related to his race. Accordingly, based on the evidence given, I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
6.4.5 At the hearing both complainants gave accounts of what they described as 'a ban on speaking Polish'. Ms Laskowska stated that she would often speak Polish to "Polish guys coming in to the Deli" and that she was told, by the area manager Mr. H that she should speak English as other customers were also present. Mr. Boguta advised the hearing that Mr. H had told him that there was a perception amongst customers that the store was 'too foreign' and that this was affecting business. Mr. Boguta also stated that he had been reprimanded by Mr. H for speaking in Polish while training another Polish staff member. The second complainant, Mr. Boguta advised the hearing that staff members had complained to him, as supervisor, about other staff members who were speaking Polish, to each other, while working at the deli counter. The respondent stated that other staff members had complained of being alienated when working with Polish staff who spoke Polish to each other. In addition, the respondent in its submission, stated that complaints had been received regarding the speaking of Polish amongst staff, and that customers in a rural store in a country where English is the first language expect to be greeted in English and should not be made to feel that their requests for assistance might not be understood. The respondent added that if business is declining because of a perception (however erroneous or narrow-minded) then it has to address the issue in the interests of the business. The respondent advised the hearing that it has to please customers and that it had to address the language issue in the interests of the business. The respondent advised the hearing that in response to this, it did introduce a language policy, which asked that English be spoken when in the company of customers or staff members who may not understand other languages. The policy (which was submitted in evidence), also provided that staff members could if addressed by a customer in a language common to both communicate in that language, in the interests of good customer service. The respondent also advised the hearing that it employs staff of many nationalities and that good English was a pre requisite for the job and as such, speaking English should not have been a problem for staff.
6.4.6 I do not find that the introduction of such a language policy amounts to a ban on Polish or any other language. The respondent when faced with complaints which indicated staff alienation and customer dissatisfaction, due to a perception that their requests for assistance might not be understood, took action to rectify the situation. This action, the introduction of a language policy does not "ban" any language and seeks to facilitate customers in their language where possible. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
6.4.7 The second complainant, Mr. Boguta advised the hearing that the area manager, Mr. H, had made a comment to him around September 2008 that business was bad in the store and that the store was perceived by the public as "too foreign" and that changes would have to be made to turn the store around. Mr. Boguta could not recall exactly when this comment was made but stated that sometime after this he was demoted from supervisor back to sales assistant. Mr. Boguta advised the hearing that his wages did not change nor was he advised of this demotion in writing but that his demotion was evident from the position of his name on the roster. Mr. Boguta stated that his name on the rosters moved from being near the top of the roster near the managers and supervisors to further down the list near the sales assistants and deli staff. Upon examination of the five rosters submitted as evidence by the complainant, there are no headings on the roster to identify differences in staff grades. Mr. Boguta's name appears near the top in the first 2 rosters dated 20/07/08 and 07/09/08, and appears further down on the next two dated 14/09/08 and 14/11/08 but is back up near the top again in the roster dated 24/01/2010. Mr. Boguta did not offer any evidence to support the allegation of his demotion apart from the movement of his name on the roster. Mr. Boguta advised the hearing that his wages did not change and upon questioning stated that he remained a keyholder with responsibility for locking up, a responsibility which both parties agreed was only given to supervisors. Mr. Boguta did not offer any evidence to suggest a reduction in his role or responsibilities following his alleged demotion. It emerged at the hearing, that Mr. Boguta's alleged or perceived demotion was not permanent and he conceded that he had been reinstated again at a later date when his name moved back up the roster again. Again this alleged or perceived reinstatement was not advised to Mr. Boguta orally or in writing but was based on the fact that his name had moved up the roster. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
6.4.8 The first complainant, Ms. Laskowska claims that when she started working for the respondent she was on full time hours but that following Mr. H's comment to her colleague Mr. Boguta, that the store was being perceived as "too foreign" her hours were reduced. In support of this, the complainant has asked me to accept as evidence four 1 week rosters submitted. Two out of the four rosters submitted indicate that Ms. Laskowska worked few hours during the weeks of 14/09 (roster is incomplete as it has hours for Saturday and Sunday manually scribbled out) and 14/11, this in and of itself is not evidence of less favourable treatment due to her race. The complainant made no reference to the two month work periods in between these dates, or to the hours rostered or worked during these periods. In addition, it is clear from those rosters that other Polish staff members did not have their hours reduced during the periods in question. The respondent advised the hearing that Ms. Laskowska was employed as a part time sales assistant and as such her hours varied but were on average about 20 hours a week. The respondent stated that Ms. Laskowska did at times work additional hours to cover holidays and busy periods. The respondent added that during the period in question Ms. Laskowska's hours were reduced but that this was due to fluctuations in the business caused by the opening of a new shop in the area which had a negative effect on the respondents business. The opening of the new shop and its effect on the business of the respondent was a matter which was referred to in evidence by all parties at the hearing. The respondent stated that Ms. Laskowska had at one point requested that her hours be condensed into a three-day week in order to allow her to receive Social Welfare for the other 2 days. The respondent stated that it then facilitated Ms. Laskowska in this matter and wrote a letter on her behalf to Social Welfare to this effect. Ms. Laskowska at the hearing agreed that this was the case. The respondent advised the hearing that it had experienced an upturn in business when the new shop closed again and went on to state that when more hours became available, due to this upturn, they were offered to Ms. Laskowska but that she turned them down. Ms. Laskowska conceded that she had refused the extra hours as it would have meant losing her Social Welfare benefits as the extra hours would not have been enough to justify foregoing these benefits. Ms Laskowska stated that she was seeking full time hours and not just a few extra hours here and there. The respondent advised the hearing that it did take on new staff after Ms. Laskowska had refused the offer of working additional hours in order to facilitate the upturn in the business. Based on the totality of the evidence given on this matter I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
6.5 Equal Pay
6.5.1 The first complainant, Ms. Laskowska, at the hearing stated that she was entitled to the same rate of pay as a named Irish comparator. The complainant at the hearing stated that she had been €8.65 an hour rising to €9.15 an hour in the last few months. The complainant stated that she understood that the comparator was being paid €11 per hour for the same work. The respondent advised the hearing that the named comparator Ms. K was paid at a different rate but that there were grounds other than race for this difference. The respondent went on to state that Ms. K had worked as a deli charge hand in the Naas store for 5 years previously and had been transferred to the Kilcullen store, where the complainants worked, and that she had retained her previous rate of pay. The complainant did not dispute this fact. Accordingly based on the totality of the evidence presented on this matter I am satisfied that there were grounds other than race which explain the difference in pay between the complainant and the comparator.
6.5.2 The first complainant mentioned two other names of staff whom she thought were paid more than her but wasn't sure about. This was a mere assertion unsupported by any further information or evidence. Accordingly I do not find that the complainant has established a prima facie case regarding an entitlement to Equal Pay with a named comparator in respect of these two individuals.
6.5.3 The second complainant, Mr. Boguta, stated that he was entitled to the same rate of pay as a named Irish comparator. The complainant stated that his rate of pay had been €8.65 per hour but increased to €10.56 per hour when the respondent realised he had good organisation skills and promoted him to supervisor. The complainant stated that he understood that this person, Ms. K was being paid €11 per hour for the same work. Mr. Boguta had named the same comparator, Ms. K. whom the respondent had already advised the hearing, was paid at a different rate but that there were grounds other than race for this difference as she had worked as a deli charge hand in the Naas store for 5 years previously and had been transferred to the Kilcullen store, where the complainants worked, and that she had retained her previous rate of pay. Accordingly based on the totality of the evidence presented on this matter I am satisfied that there were grounds other than race which explain the difference in pay between the complainant and the comparator.
6.5.4 Mr. Boguta also named Ms. M , as an Irish comparator to whom he was entitled to the same rate of pay. The respondent advised the hearing that the named comparator, Ms. M was paid at a different rate but that there were grounds other than race for this difference. The respondent went on to state that Ms. M had worked for the company for 8-9 years as a Trainee Manager and had transferred from the Naas store to take up a position as Assistant Manager in the Kilcullen Store. Accordingly based on the totality of the evidence presented on this matter I am satisfied that there were grounds other than race which explain the difference in pay between the complainant and the comparator.
6.5.5 Mr. Boguta also advised the hearing that a Mr. B had received a pay rise at one point bringing him to higher rate of pay than that of the complainant during that period (prior to his promotion to supervisor). The respondent advised the hearing that Mr. B had worked as a Supervisor during part of that pay period and was paid at supervisor level for those hours. It stated that this was not a permanent pay rise for Mr. B. and that he had returned to his normal level of pay after that period. The complainant accepted this.
7. DECISION OF THE EQUALITY OFFICER.
7.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the first complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the ground of race pursuant to section 6(2) of the Acts in terms of her conditions of employment contrary to section 8 of the Acts
(ii) the first complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the ground of race pursuant to section 6(2) regarding an entitlement to Equal Pay with a named comparator in accordance with the provisions of Section 29(1) of the Acts.
(iii) the second complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8 of the Acts
(iv) the second complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) regarding an entitlement to Equal Pay with a named comparator in accordance with the provisions of Section 29(1) of the Acts.
____________________
Orla Jones
Equality Officer
30th October, 2012
1 Labour Court Determination No. EDA0917