DECISION NO: DEC-E/2013/012
PARTIES
Ms. Malgorzata Rozumska
(Represented by Ms. Joanna Kwiatkowska)
V
Compass Group VU & Ireland, Eurest Catering
(Represented by IBEC)
FILE NO: EE/2010/211
Date of issue: 26th of February, 2013
1. Dispute
1.1 This dispute involves a claim by Ms. Malgorzata Rozumska that she was discriminated against by Compass Group VU & Ireland, Eurest Catering, 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 her conditions of employment and in relation to her selection for redundancy. It is further submitted that the complainant was victimised contrary to section 74(2) of the Acts. Claims in relation to access to employment and discriminatory dismissal were also submitted but were withdrawn at the hearing.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 31st of March, 2010 alleging that the respondent had discriminated against her on grounds of race when she was unfairly selected for redundancy. The complainant further submitted that she was discriminated against in relation to her conditions of employment as her workload was greatly increased in the months prior to her dismissal but her wages remained the same. In addition it is submitted that the complainant repeatedly asked for assistance when carrying out her duties but did not receive any. It is also submitted that the complainant was victimised contrary to section 74(2) of the Acts.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 27th of September, 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 12th of October, 2012.
3. Summary of complainant's case
3.1 The complainant states that she is a Polish National and submits that she was employed by the respondent from September 2007 to August 2008 and again from September, 2008 to March 2010 when she was dismissed.
3.2 The complainant submits that in the months prior to her dismissal the company had reduced staff which meant that the complainant's workload had more than doubled but that her wages had remained the same. She also submits that she had no assistance with her work and that she had requested help on many occasions.
3.3 It is submitted that the complainant made many complaints to her employer regarding bullying conduct and discrimination which resulted in an increased workload and a poor atmosphere at work.
3.4 It is submitted that the respondent did not apply the same selection criteria when selecting employees for redundancy and that she was selected due to her race.
3.5 It is also submitted that the complainant was victimised.
4. Summary of Respondent's case
4.1 It is submitted that the complainant was employed by the respondent, as a catering assistant from September 2007 to August 2008 and again from September, 2008 to March 2010.
4.2 It is submitted that the respondent on 18th January, 2010 advised staff at Carlow IT, where the complainant was employed, that there would be possible redundancies due to the recession. The respondent advised staff that these would be based on last in and first out basis (LIFO). The respondent submits that no individuals were identified for redundancies at this time but that staff were advised that a decision would be made in the coming weeks.
4.3 The respondent submits that the complainant went on sick leave the day after this announcement and having informed her manager that she was ill made no further contact with the respondent after 2nd of February, 2010.
4.4 It is submitted that the respondent selected the employees for redundancy and advised the relevant employees on 22nd and 25th of January and that the complainant was not one of those selected for redundancy.
4.5 It is submitted that the respondent made several attempts to contact the complainant to establish an update on her absence (by letters dated 23 February 2010, 3 March 2010 and 11 March 2010) but received no response from the complainant.
4.6 Following this the respondent terminated the complainant's employment on 23 March 2010. The complainant was given the right to appeal this decision but did not appeal.
5 Preliminary Issue-Time Limits
5.1 It is submitted that the complaint is out of time, as the respondent submits that the complainant's employment was terminated on 23 March, 2010 and that her claim was received by the Equality Tribunal on 10 March, 2011. The respondent submits that the claim was thus lodged approximately 6 months outside of the 6 month time limit stipulated under Section 77(5)(a) of the Acts.
5.2 The EE1 form submitted by the complainant gives the date of the most recent discriminatory act as 18th of January, 2010 and this claim form was received by the Tribunal on 31 March, 2010 placing it well inside the 6 month time limit stipulated under Section 77(5)(a) of the Acts. I am thus satisfied that the complaint was submitted within the 6 months time limit set out in Section 77(5) of the Acts.
6. Conclusions of the Equality Officer
6.1 The issues for decision by me now are, whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 and 2004 in relation to her conditions of employment and in relation to her dismissal whether the complainant was victimised contrary to section 74(2) of the Acts.
6.2 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.
6.3 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... "
6.4 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Polish. In evaluating the evidence before me, I must first consider whether the complainant has 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
6.5 Conditions of employment
6.5.1 The Complainant at the hearing stated that she had been employed to work in the canteen and that her duties included, clearing tables and dishes and working outside the kitchen. She stated that, over time, more tasks were added both inside and outside of the kitchen as well as in the canteen. The complainant stated that her hours of work did not increase but remained the same even though her workload increased. The complainant, at the hearing, gave a detailed description of her duties and responsibilities and advised the hearing that she was always very busy and worked hard. She stated that she complained to her supervisor about the amount of work she had to do and that she had often asked for help in carrying out her duties. The complainant stated that another staff member was taken on to help her but that he only lasted for a month. The complainant stated that she was the only person who had so many duties and that she had to run around to get her work done. The complainant stated that this was due to her race.
6.5.2 The complainant advised the hearing that 8 other staff, of differing nationalities, were employed in the canteen including 3 Irish staff. She advised the hearing that she had on occasion asked the cashiers (1 Irish and 1 Polish) for help with her work and that they would give her some help but would then return to their own posts. The complainant, at the hearing gave details of an altercation between herself and another member of staff whom she said had added to her work by spilling coffee into a bin. The complainant stated that she was reprimanded for this altercation as the other staff member had been upset and had reported it to the supervisor. The complainant stated that shortly after this her hours were cut from 39 to 24 hours per week. She added that this meant that she worked during the canteen busy period every day from 10 to 3. She stated that she asked why her hours were cut but that she didn't understand the answer. The complainant advised the hearing that she did not raise this with the respondent again. The complainant stated that she returned to a 39 hour week in September 2009. The respondent advised the hearing that the complainant's contract ran from September to June to coincide with the college year as she was employed in the student canteen of Carlow IT. The respondent went on to state that the hours worked by canteen staff varied in accordance with busy periods. The respondent advised that this was included in the contract (copy supplied) a copy of which the complainant was given and asked to return but which was never returned. The complainant neither confirmed nor denied that she had received this. The complainant went on to describe how she had worked under 3 successive line managers while employed by the respondent and that each one had treated her badly. She also added that this was probably due to the fact that she kept asking for help. The complainant went on to outline many incidents and occasions where she felt she had worked harder than other staff of varying nationalities. She also added that there were many times when other staff pretended to be busy. The complainant when questioned stated that she had not raised any issues with the manager as she was scared she would lose her job.
6.5.3 While it is clear that the complainant worked very hard and that she felt overworked in her job, while others who were less busy and could have helped her out did not do so, she has not offered any evidence to show that any of this related to her race and in fact stated several times that she thought that the line managers had treated her badly due to the fact that she kept asking for help. The complainant did not produce any evidence on these issues to show that this treatment was related to her race. Accordingly, based on the totality of the evidence adduced, 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 these matters.
6.5.4 Selection for redundancy
The complainant advised the hearing, that she had been unfairly selected for redundancy on the race ground. She went on to state that, the respondent had called a meeting on 18th of January 2010 where she and other staff present were told that they were to be made redundant. The complainant stated that following this meeting she went on sick leave and supplied a medical certificate dated 19th of January, 2010. The respondent advised the hearing that the manager Ms. R travelled to the site on 18th of January 2010, in order to advise staff that redundancies were to be considered due to the recession, but that no decision had been made as to who was to be made redundant. The respondent added that the complainant was present when Ms. R spoke to staff on this matter and that another Polish staff member was also present. The respondent stated that it was decided to use LIFO as the means for deciding who would be made redundant and that, following a review of the payroll, 2 staff members were selected for redundancy, using this method, and were notified in writing on 22nd and 25th of January, 2010. The complainant was not one of those selected for redundancy.
6.5.5 The respondent, at the hearing, stated that the complainant went on sick leave from 19th of January, 2010 and submitted a medical certificate on this date with no end date. The respondent stated that following this they received no further medical certificates from the complainant. The respondent stated that they had contacted the complainant by phone, on 4th and 8th of February 2010 to ascertain the reason for her continued absence and had written to the complainant on a number of occasions in February and March 2010 to ascertain whether or when she was returning to work, but that they had received no response from the complainant. The complainant, at the hearing stated that she had received a phone call from her line manager but that, at the time she was on a lot of medication so didn't know what was going on, but that she had said that her husband gave in her medical cert. The complainant also acknowledged that she had received the letters from the respondent but that she did not respond to them. She added that the letters were only sent as they (the respondent) felt guilty and wanted to protect themselves.
6.5.6 The respondent, at the hearing went on to state that after 3 letters to the complainant and having received no response or reason for her, now unauthorised, absence, they initiated the job abandonment procedure, in accordance with company policy, and wrote to the complainant on 23rd of March, 2010 advising that her employment was to be terminated and offering her the right to appeal this decision. The complainant did not reply to this letter and did not appeal the decision.
6.5.7 I am satisfied from the evidence adduced on this matter that the complainant, upon hearing that redundancies were afoot assumed that she was to be made redundant and proceeded accordingly. The complainant following the announcement went on sick leave but only provided one medical certificate dated 19th of January, 2010. Thereafter, the complainant did not attend work and did not provide any reason for her non attendance, even when the respondent made enquiries as to the reason for her absence. I am also satisfied from the evidence adduced by both parties that the complainant was not selected for redundancy by the respondent. Accordingly, based on the totality of the evidence adduced, 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.
6.6 Victimisation
6.6.1 The complainant, at the hearing, stated that she had often complained about being so busy and had often asked for help and that following her requests for help she was treated worse. The complainant also stated that on occasion other staff were instructed to help her but that this help was not adequate. The complainant did not provide any specific details of complaints made regarding discriminatory treatment or resultant adverse treatment. The respondent, at the hearing stated that they were not aware of any issues or complaints raised by the complainant during her employment. The complainant, when questioned stated that she had not raised any issues with the respondent as she was scared she would lose her job. Accordingly, based on the totality of the evidence adduced, I do not find that the complainant has established a prima facie case of victimisation contrary to section 74(2) of the Acts.
6.7 Discriminatory Dismissal
6.7.1 At the hearing, the complaint of discriminatory dismissal was withdrawn as it was indicated that a complaint of unfair dismissal was being pursued in another forum.
6. DECISION OF THE EQUALITY OFFICER.
6.1 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 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) and contrary to section 8 of the Acts in terms of her conditions of employment or in relation to her alleged selection for redundancy
(ii) the complainant has failed to establish the facts from which it may be presumed that she was victimised contrary to section 74(2) of the Acts.
____________________
Orla Jones
Equality Officer
26th of February, 2013
1 Labour Court Determination No. EDA0917