THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013 - 071
PARTIES
Mr Igor Szymanski (represented by Mr Tiernan Lowey B.L., instructed by Crimmins Howard Solicitors)
and
Shannon Logistics and Transport Ltd (represented by IBEC)
File References: EE/2010/122
Date of Issue: 19th July 2013
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondent's Written Submission 4
Conclusions of the Equality Officer 5
Discrimination 5
Harassment and Victimisation 7
Equal Remuneration 7
Dismissal 8
Decision 9
Keywords: Discrimination - conditions of employment - harassment - victimisation - victimisatory or discriminatory dismissal - no prima facie case - equal pay - reasons other than race for pay and bonus differential.
1. Claim
1.1. The case concerns a claim by Mr Igor Szymanski that Shannon Transport and Warehouse Co. Ltd t/a STL Logistics discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, harassment, discriminatory dismissal, victimisation and victimisatory dismissal. Mr Szymanski is further claiming discrimination with regard to his remuneration pursuant to S. 29 of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 25 February 2010. A submission was received from the complainant on 29 July 2010. A submission was received from the respondent on 2 September 2010. On 23 October 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 8 November 2012. The last piece of correspondence relating to the complaint was received on 24 April 2013.
2. Summary of the Complainant's Written Submission
2.1. The complainant is a truck driver who was employed by the respondent to deliver kegs to licensed premises, on a contract from a major brewery. He alleges that he was paid less than a number of named comparators, without providing any details in this regard.
2.2. The complainant further states that a named Irish comparator was allowed to start his shift at 5am and finish at 10am whereas he was not given this option. The complainant also alleges that this same comparator was only required to work between 25 and 30 hours per week, whereas the complainant was required to work more hours.
2.3. The complainant further submits that he sustained an injury to his ankle one day when he jumped off a truck, and was out of work for two weeks without pay, whereas a named Irish comparator who suffered a hand injury and was out of work for three months was paid by the company.
2.4. Last, the complainant states that when a named Irish co-worker had problems with his truck, he refused to do a second scheduled run because he had been in work for the full amount of his normal hours, and was not disciplined for this, whereas when there was a problem with the complainant's truck and it had to be put into a garage in Cork, he was nevertheless required to finish his runs after the repair work was carried out, and with no overtime pay. According to the complainant, when he insisted on overtime pay, he was called to a disciplinary meeting and his employment was terminated.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant as alleged or at all. With regard to the colleague who started and finished his work early, the respondent submits that this man, who was a UK national, was very efficient in his work and thus got through his deliveries faster than other drivers. However, he was not allowed to begin delivering before 7am to any customers, in line with company policy. Both the complainant and the named UK national staff members received warning for violating this policy. It further states that several named Irish drivers had longer average daily working hours than the complainant.
3.2. With regard to the truck repair, the respondent states that all drivers are instructed to attend a specified repair facility when they have problems with their trucks. They are then requested to wait with the truck until repairs are completed, and if trucks are repaired on time, drivers are requested to carry on with their duties. When the repairs are considerable and it is not possible for a driver to make deliveries within the time frames expected by customers, another driver may be dispatched to assist with that task.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, harassed, discriminatorily dismissed and discriminated with regard to his remuneration within the meaning of the Acts and whether he was victimised or victimisatorily dismissed.
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. In coming to my conclusions, I have considered all oral and written evidence presented to me by the parties.
Discrimination
4.4. With regard to the complainant's complaint of discrimination in his conditions of employment, he stated again that one named colleague was permitted to start work at 5am and finish early, that this named colleague worked less hours than he did, and also that another named colleague refused to follow instructions and was not penalised for doing so. These colleagues were of UK and Irish nationality, respectively.
4.5. The respondent stated that it was a transport and logistics operation who carried out deliveries for a number of clients, including a large multinational manufacturer from the food and drinks sector with a considerable presence in Ireland. It had specific agreements with this client not to deliver to the client's retail partners before 7am in the morning and after 7pm at night due to noise and the risk of theft. The respondent's drivers for worked for that client each had a daily round of deliveries. Efficient workers would finish that round earlier than less efficient ones. The respondent produced evidence which showed that the complainant was more efficient than two Irish staff and as a result, worked about an hour per day less than these two drivers, although he worked more hours per day than the named UK national.
4.6. Apropos of their wage policy, the respondent stated that it paid all drivers a flat weekly wage in line with their seniority, and paid overtime only on Saturdays and Sundays. If the company was busy for their client and it became necessary to do a second round of deliveries in a day, drivers would be paid per delivered keg for this. Doing a second round was voluntary. Under cross-examination, the complainant accepted that he very rarely volunteered for second rounds, because he organised shows of Polish music groups in his spare time.
4.7. The respondent further stated that the UK national was disciplined several times for doing early deliveries in breach of the arrangements agreed with the client, and was eventually dismissed for his continuous breach of procedure.
4.8. With regard to the named Irish colleague and his refusal to follow instructions on one occasion, the respondent stated that it had dismissed Irish staff who had refused to follow instructions, and that it reserved its position on how severe it rated any specific instance of insubordination and therefore, reserved its position on how to discipline it. With regard to the insubordination which led to the complainant's dismissal, as set out in paragraphs 4.14 to 4.17 below, it stated that it took this matter very seriously due to the impact it had on the company's operation and that the complainant's nationality did not have a bearing on same.
4.9. I prefer the respondent's evidence in this matter and find that it was the respondent's work practices which led to fluctuating work times. I am further satisfied that these practices did not put workers of different nationalities at any particular disadvantage, so that apart from there being no direct discrimination of the complainant vis-à-vis another worker of a different nationality, the question of indirect discrimination within the meaning of S. 31 of the Acts does not arise, either. Accordingly, the complainant's claim of discrimination in his conditions of employment must fail.
Harassment and Victimisation
4.10. The complainant did not make a valid case of harassment on the ground of race, within the meaning of the Acts, in his evidence, and neither did he so with regard to victimisation. Accordingly, both of these complaints must fail.
Equal Remuneration
4.11. With regard to the complainant's case for equal remuneration on the ground of race, the respondent accepts that the complainant performed "like work" with his comparators within the meaning of the Acts. However, the respondent submitted that the pay rate the complainant was on after he achieved promotion to delivery driver on 18 February 2008 was the normal starting pay rate for this role, and that named Irish workers who were similarly promoted in 2012, started on the same rate of €420 per week, as did an Irish staff member who was promoted at the same time as the complainant, in February 2008. The respondent further argues that the complainant's named comparator had six years more service than the complainant in the same role, and had received regular annual 3% pay increases to reflect his seniority and experience. The respondent supported this argument with written evidence in the form of payslips.
4.12. With regard to bonus payments, the respondent stated that these are within its own discretion. From data submitted by the respondent for the 2008 bonus payments, it is clear that two long-serving staff members, including the complainant's named comparator, received 1.5 weeks' pay as bonus, whereas the complainant, and several colleagues, both Irish and Polish, received one week's pay as bonus.
4.13. I am satisfied, from the evidence submitted by the respondent, that it did not discriminate against the complainant in his remuneration on the ground of race, and that another reason unconnected to race or nationality, namely, length of service, is responsible for the wage differential between the complainant and his named comparator. Accordingly, S. 29(5) of the Acts avails the respondent and this part of the complainant's complaint can not succeed.
Dismissal
4.14. The complainant also complains of discriminatory, or in the alternative, victimisatory dismissal. It is clear from the evidence adduced at the hearing that the complainant had his employment terminated for gross misconduct. The question therefore is: Would an employee of a different nationality have been dismissed for the same conduct?
4.15. The facts surrounding the complainant's dismissal can be summarised as follows: On 15 December 2009, the complainant drove one of the respondent's trucks, and the engine blew up. The complainant was not implicated in this failure. However, the repair came to €11,000 and when the complainant reported to work the next day and was given a different truck of the same make, he received instructions from the respondent to drive the truck to a named garage and have it checked out before proceeding with the day's work. The respondent, in response to a direct question, estimated the replacement cost of a truck of this model to be between €50,000 and €60,000.
4.16. The process of having the truck checked out would delay the complainant in terms of his delivery route. When he was told he would not receive overtime payments in respect of this, he refused to comply with the instruction, despite receiving two calls to his mobile phone, in which the importance of having the truck checked out was emphasised to him. On the following day, 17 December 2009, the truck would not start, which caused significant disruption to the respondent's operations and made it necessary to bring in a specialised engineer from Cork. The complainant was subsequently dismissed on 18 December 2009 for gross misconduct. He appealed his dismissal, but the appeal was rejected by the respondent.
4.17. It is important to remember that the case on hand is not one of unfair dismissal, but one of either discriminatory or victimisatory dismissal. A claim of victimisatory dismissal clearly can not succeed as the complainant's employment was terminated as a result of his own misconduct. As for a claim of discriminatory dismissal, it should be pointed out that according to Regan, Employment Law, "the employee has a personal obligation to serve the employer in a manner that is competent and careful. The employee also has an implied duty to carry out the reasonable instructions of his or her employer." (Janice Walsh, "The Terms of the Employment Contract", p. 76). Furthermore, it should be noted that for a truck driver, the truck he drives is his workplace and therefore, the complainant may have had additional statutory obligations towards the respondent under health and safety legislation. The complainant adduced no evidence, that a driver of a different nationality would not have had his employment terminated if he had behaved like the complainant did on the day in question, and did not rebut the respondent's evidence that two Irish drivers had also had their employment terminated because of a refusal to carry out reasonable instructions. Accordingly, the complainant's case of discriminatory dismissal must also fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Shannon Transport and Warehouse Co. Ltd. t/a STL Logistics, did not discriminate against Mr Igor Szymanski in his conditions or employment or remuneration, and did not victimise or discriminatorily or victimisatorily dismiss the complainant within the meaning of the Acts.
______________________
Stephen Bonnlander
Equality Officer
19 July 2013