EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-064
PARTIES
Sundra Mullen
AND
Teamkit Limited
(Neil J. Breheny & Co Solicitors )
File reference: EE/2010/613
Date of issue: 8 July 2013
HEADNOTES: Employment Equality Acts - Race - Promotion, Conditions of employment, Victimisation, Harassment
1. DISPUTE
1.1. This dispute concerns a claim by Ms Sundra Mullen that she was discriminated against by Teamkit Limited on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to promotion, conditions of employment and discriminatory dismissal in terms of section 8 of those Acts, that she was harassed contrary to section 14A of the Acts and victimised and suffered victimisatory dismissal contrary to section 74 (2) of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 4 August 2010 under the Employment Equality Acts. On 5 November 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 12 March 2013.
2. COMPLAINANT'S SUBMISSION
2.1 The complainant submits that she is Asian and started working for the respondent on 1 November 1999 and was unfairly dismissed in May 2010.
2.2 In 2008 the complainant decided not to comply with management's new working conditions when she stopped being paid time and a half for overtime and she stopped working overtime. In April 2008 when she asked why one hour had been deducted from her pay she was abused by the Managing Director's wife (Ms A). In May 2008 whilst having a sip of water she was told by Ms A that no drinks were allowed on the floor, but everyone else was allowed to bring drinks on to the floor.
2.3 In August 2008 she was given a verbal warning because she failed to make a rugby sample, after she asked for help but had forgotten to give special threads to her co-worker. She apologised to the Floor Manager (Ms B). On 6 August 2008 the complainant submits she was accused of taking pictures of co-workers and told she was not allowed to use her mobile phone by Ms B. She contends she never took photos and everyone else was allowed to use their mobile phone. Also in August 2008 because of the problems regarding her change in conditions of employment she asked for a new contract of employment. She was not happy with parts concerning a body search and flexible hours and she did not sign the contract.
2.4 In November 2008 the complainant submits she was not allowed to play music on a radio whereas a number of Irish members of staff had been allowed previously. Ms B did nothing when asked by the complainant.
2.5 At a meeting on 22 January 2009 with the Managing Director, Ms B, the Personnel Manager (Ms D) and the Planning Manager (Ms E) the complainant was accused of not acknowledging Ms B and accused of not taking instructions. Because of these accusation the complainants submits she was off sick for a week due to stress. On 30 January 2009 the complainant was asked to a meeting to continue the meeting of 22 January 2009 with the Managing Director, Ms E, a machinist and a newly appointed supervisor. The complainant raised the issue of discrimination & victimisation. The Managing Director thought it was ridiculous, he ignored the complaints and said nobody can work with the complainant or communicate with her. He also pointed out that her level of work was not acceptable.
2.6 On 20 July 2009 Ms A told the complainant to 'stop tapping' and on 21 July 2009 she was given a verbal warning letter stating there was constant and unnecessary banging emanating from her work area.
2.7 In December 2009 the complainant submits she was repeatedly asked to stop talking while working by her supervisor and asked why she was not working whilst everyone else was allowed to talk. Later that month the supervisor resigned and blamed the complainant for making her ill. The respondent appointed a new supervisor without advertising the post. On 19 December 2009 the complainant was verbally abused by a co-worker when she asked her to stop talking and the new supervisor did nothing.
2.8 In January 2010 the complainant had several complaints after she brought in her radio. She was accused of annoying staff. On 21 January 2010 the complainant was ordered to leave the workplace after she failed to see the Managing Director when requested. On 26 January 2010 the complainant received a letter of complaint signed by members of staff who were all non nationals and a verbal warning letter. On 2 February 2010 the complainant received a letter from management stating that they had appointed an HR Consultant to investigate the complainant's alleged behaviour. The following day the complainant was informed of five alleged incidents of misconduct. The complainant received the investigation report on 11 March 2010. Two of the complaints were upheld: disorderly conduct while on duty and acts of intimidation, harassment, victimisation or discrimination. The complainant was dismissed for gross misconduct on 22 April 2010. After negotiation she was suspended with pay for two weeks.
2.9 On 23 April 2010 the complainant submitted a letter of complaint but received no reply until August. On 11 May 2010 the complainant received a letter from the respondent stating that her employment was terminated with immediate effect. The complainant decided not to appeal this decision.
3. RESPONDENT'S SUBMISSION
3.1 The respondent submits that the complainant only made this complaint as a result of her dismissal on 10 May 2010. The complainant's dismissal arose from a report resulting from an investigation carried out by an external consultant into allegations made against the complainant by fellow workers, who were non-nationals. The allegations made by the complainant are refuted and it is denied that she made any complaints to the company.
3.2 The respondent submits that all jobs are initially advertised internally and the complainant never applied for any vacancies
3.3 In relation to the overtime rates the respondent submits that the Company went through difficult trading conditions and all other members of staff accepted the change in overtime rates.
3.4 When the complainant enquired about pay being deducted for latenesses the respondent accepts that Ms A did raise her voice but this was done in frustration and did not amount to 'extreme verbal abuse'.
3.5 The respondent submits that drinks are not allowed on the factory floor and this is a rule which is enforced.
3.6 The respondent agrees that in August 2008 the complainant was given a verbal warning but this was a standard disciplinary issue and was carried out under company's guidelines.
3.7 The complainant was questioned about the taking of photographs as she was walking around holding her phone out in front of people and other staff members had made complaints. The respondent spoke to the complainant and they considered the matter to be resolved. All staff are allowed to carry mobile phones.
3.8 The respondent submits that one radio is provided for all staff. There were no other staff had private radios in the main work area. The complainant was repeatedly asked to take her radio home.
3.9 At a meeting on 22 January 2009 the respondent tried to clarify an issue raised by the complainant. No one accused the complainant but she left the factory saying she was stressed.
3.10 At a meeting on 30 January 2009 the quality of the complainant's work and her attitude to co-workers was discussed. Concern was expressed to the complainant that she was isolating herself from her co-workers. The respondent had concerns about the effect this was having on the workplace and a verbal warning was issued.
3.11 On 9 February 2009 the complainant was given a record of the warning and minutes of the meeting. The complainant was invited to review the minutes, in accordance with their procedures.
3.12 The respondent refutes the complainant's allegations that in February 2009 the allocation of work was carried out unfairly
3.13 In relation to the incident on 20 July 2009 the respondent submits that the complainant's constant tapping, cursing and banging scissors on the table were seen as intimidation by other workers and formed part of the official complaint they made
3.14 In December 2009 the supervisor found the complainant's continual difficult behaviour so stressful that it contributed to her decision to resign. The new supervisor had worked for the company previously and she was promoted on the basis of her ability and suitability for the post after an interview process involving a HR/Recruitment Consultant/Specialist.
3.15 In January 2010 the complainant's use of her own radio again antagonised staff.
3.16 On 26 January 2010 the complainant was asked to see Mr D in his office but she refused to attend saying she was having a nervous breakdown. The complainant was told she should see a doctor and asked to leave the premises on Health & Safety grounds. She was given a verbal warning on her return.
3.17 The respondent submits that it received complainants from six members of staff against the complainant and it undertook a full investigation. The complainant proffered no evidence of allegations of discrimination. The complainant was made aware of the rules of the investigation but still tried to interfere in the process. The complainant did not lodge a grievance until 23 April 2010 which was after she had been made aware of investigation results. However, her complaints were investigated.
4. FINDINGS & CONCLUSIONS
4.1 The complainant has made claims in relation to relation to promotion, conditions of employment, discriminatory dismissal, harassment, victimization and victimisatory dismissal. Shortly before the hearing it came to my attention that the complainant had taken a claim under the Unfair Dismissals Acts, 1977 - 2007, that a hearing of that claim had taken place in the Employment Appeals Tribunal and they had issued a Determination. Section 101(4)(c) of the Employment Equality Acts states: "an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if .... the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal". In this claim the Employment Appeals Tribunal had not only begun a hearing into the complainant's dismissal but had also issued a Determination. I therefore have no jurisdiction in relation to the claims of discriminatory dismissal and victimisatory dismissal, and can consider no issues in relation to the complainant's dismissal. I do, however, have jurisdiction to investigate the other aspects of the claim.
4.2 Therefore I have to decide if the respondent discriminated against the complainant in relation to promotion and conditions of employment, if she was harassed and if she was victimised on the grounds of race. 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 presented at the hearing.
4.3 The complainant has given a long series of incidents which she contends amount to discrimination, arising from the time she questioned the change in her contractual terms of employment in 2008. The complainant did make a complaint of discrimination to the respondent on 23 April 2010 but I note that this was the day after she had been informed she was being dismissed. This complaint referred to the same incidents that were cited in this claim.
4.4 Section 85A (1) of the Employment Equality Acts states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. . Furthermore, the Labour Court in Arturs Valpeters v Melbury Developments Ltd, Determination No. EDA0917 [2010] 21 E.L.R said there has to be "evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence." I have looked at all the incidents cited by the complainant as discriminatory, together with the responses given by the respondent. It is clear that the working relationship became increasingly difficult. The complainant's behaviour led to complaints from six members of staff being made to the Managing Director. He initiated an independent investigation which upheld some of the complaints and this resulted in the complainant's dismissal.
4.5 This complaint is made on the ground of race but, as held by the Labour Court in Graham Anthony v Mary Margetts, ADE/03/1 - Determination No. EDA038: "The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred."
Having thoroughly considered all the evidence adduced by the complainant I conclude that she has failed to demonstrate any evidence that might be give rise to an inference of discrimination on the grounds of race in relation to promotion, conditions of employment, harassment or victimisation. I therefore find that the complainant has failed to establish a prima facie claim in all aspects of her claim.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of discrimination on the basis of the race ground in relation to:
- promotion,
- conditions of employment,
- harassment and
- victimization
and the complaint fails.
____________________
Hugh Lonsdale
Equality Officer
8 July 2013