EQUALITY OFFICER'S DECISION NO: DEC-E/2013/076
PARTIES
Mr. Krystian Szmul
(Represented by Padraig Murphy Solicitors)
Vs
Dakota Packaging Limited
(Represented by Mason Hayes and Curran Solicitors)
FILE NO: EE/2011/317
Date of issue: 23 July, 2013
1. Dispute
1.1 This dispute involves a claim by Mr. Krystian Szmul, that he was discriminated against by Dakota Packaging Limited grounds of disability and 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 training, conditions of employment and other and in relation to his dismissal. There is also a complaint of Equal Pay. In addition the complainant has submitted a claim on the disability ground in relation to the respondent's failure to provide him with reasonable accommodation.
2. Background
2.1 The complainant referred complaints under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 7th of March, 2011 and on 5th of April, 2011 alleging that the respondent had discriminated against him on grounds of disability and race when he was demoted from his position as a printer and replaced by an Irish National. The complainant further submits that he was dismissed by the respondent on grounds of disability and race. Claims in relation to training, other conditions of employment, equal pay and failure to provide reasonable accommodation were also made but were withdrawn at the hearing.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case, on 19th of March 2013 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 26th of April, 2013 and again on the 30th of May, 2013.
3. Summary of complainant's case
3.1 The complainant states that he is a Polish National and submits that he was employed by the respondent as a printer 25th of June 2007 to 17th of February, 2011.
3.2 It is submitted that the complainant had been working as a printer but was demoted to the position of general operative due to his race and that his job was given to an Irish National Mr. M.
3.3 It is submitted that the complainant suffered an injury at work on 14th of September, 2010 while lifting a heavy roll of paper and that this resulted in his going on sick leave for an extended period.
3.4 It is submitted that the complainant was dismissed in February 2011 after being on sick leave since September 2010. It is submitted that this dismissal was due to his race and disability.
4. Summary of Respondent's case
4.1 It is submitted that the complainant was employed by the respondent, as a general operative from June 2007 to February 2011.
4.2 It is submitted that the complainant worked initially in the Print Department as a general operative but that he was later moved to the Finishing Department, due to performance issues. He continued to work as a general operative in the Finishing Department with the same salary and conditions as he had in the Print Department.
4.3 It is submitted that the complainant was replaced by Mr. D in the Print Department and that Mr. D also worked as a general operative on the same salary and conditions as the complainant.
4.4 It is submitted that the respondent has an agreement with the union which permits full movement and flexibility of staff at general operative level across all departments in the organisation.
4.5 It is submitted that the complainant went on sick leave from 14th of September 2010. It is submitted that the complainant on 14th of September, 2010 was asked by Mr. M if his sick leave was caused by anything at work. It is submitted that the complainant replied 'No' to this question. It is further submitted that Mr. M advised the complainant that if this relate to an injury at work he would have to fill out an accident report in the accident book. It is submitted that the complainant was adamant that he had not incurred an injury at work.
4.6 It is submitted that the complainant had for a time during his sick leave submitted medical certificates citing various reasons for his absence such as groin injury, suspected hernia and lower spinal injury but that these medical certs ceased after a short period. It is submitted that the complainant was dismissed in February 2011 due to his failure to contact the respondent and clarify his position despite numerous requests to do so.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now is whether or not Dakota Packaging Limited discriminated against the complainant on grounds of race, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 and 2004 in relation to his demotion. I must also make a decision on whether the complainant was subjected to a discriminatory dismissal on grounds of race and or disability in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 and 2004.
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.
5.2 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... "
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his 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
5.3 Less favourable treatment - Demotion
5.3.1 The complainant at the hearing stated that he had been demoted from the position of printer to general operative and that his job as a printer was then given to Mr. D an Irish national. The complainant stated that he had been working in the Print Department for 3 years but that he was suddenly moved to the Finishing Department, which he saw as a demotion. The complainant stated that his salary had remained the same. When asked why he was demoted the complainant replied that it was because he was not a good worker. The complainant added that Mr. D, an Irish National, was given his job in the print Department.
5.3.2 The respondent advised the hearing that the complainant had, from day one been employed as a general operative and had never worked as a printer. The respondent produced a contract signed by the complainant in June 2007 which stated that he was being employed as a general operator. The respondent also produced decisions by the EAT and the Right Commissioners with findings that the complainant had been employed as a general operative. The respondent also produced payslips of the complainant to indicate that he had always been paid as a general operative.
5.3.3 Witness for the respondent Mr. W, Manager of the Print Department gave evidence that the complainant had worked as a general operative in the Print Department. He advised the hearing that the complainant had assisted the printers. Mr. W advised the hearing that the complainant, during his time in the Print Department had to be spoken to on several occasions about his performance and behaviour. Mr. W stated that after a while it was decided that the complainant would be taken under the wing of a more senior employee Mr. K in order that his performance might improve with some assistance and training from Mr. K. Mr. W described how this approach had worked well until Mr. K retired. Mr. W stated that the complainant's performance and behaviour became problematic again to the point where Mr. W was receiving complaints from other staff members that the complainant would often go missing for periods of time when he was needed or that he would use his mobile phone excessively while he was meant to be concentrating on a job. Mr. W advised the hearing that he tries to give every one a chance and stated that he spoke to the complainant on several occasions about this behaviour advising him that it was dangerous to be on the phone while working around machinery such as printers and that such tasks required concentration. Mr. W also added that the complainant's performance didn't improve and so, he eventually felt that he had exhausted all options within the Print Department and decided that a move to another Department within the organisation might be what the complainant needed. Following this the complainant was moved to the Finishing Department in September 2010. The complainant when questioned as to whether he had been spoken to about his behaviour by Mr. W and by another manager Mr. P answered 'of course'. The complainant did not dispute the fact that his performance had been raised as an issue with him and advised the hearing that he had been moved after being told he 'was not a good worker'. Mr. W stated that Mr. D was then moved into the Print Department in place of the complainant as both worked as general operatives on the same salary and conditions. Mr. W added that the respondent has an agreement with the unions permitting full flexibility of movement between all Departments of staff at general operative grade. The complainant worked in the Finishing Department for c 1 to 2 weeks before he went out on sick leave.
5.3.4 The complainant when questioned at the hearing stated that the reason he was moved was that he was not a good worker. He later stated that the reason he was moved was because he was a single man with no family.
5.3.5 In the first instance I must examine whether or not the complainant was demoted. The complainant has not produced any evidence to substantiate the claim that he was employed as a printer other than to state that that it was his ambition to become a printer and that he had worked in the Print Department. The complainant at the hearing stated that Mr. W had told him from the start that he could in the future be promoted to printer. Mr. W at the hearing stated that he most likely did say this to the complainant as there are many opportunities for promotion within the respondent organisation. Mr. W added that it takes many years to become a printer beginning with 5 years apprenticeship but stated that many staff work their way up through the organisation provided they work hard. Mr. W stated that the complainant could also have done this of he worked hard and applied himself.
5.3.6 The respondent submits that the complainant was employed as a general operative from day one and that he had remained at the grade until his termination of employment. The respondent produced substantial documentary evidence to this effect and I am thus satisfied from the totality of the evidence submitted that the complainant was at all times employed as a general operative. It follows then that the complainant was not demoted as he remained at the same grade with the same pay and conditions in both the Print and the Finishing Department.
5.3.7 The complainant has submitted that he was replaced by Mr. D who was an Irish national. The respondent has agreed that the complainant was replaced by Mr. D as it was a straight swap of two staff at the same grade between two Departments. The respondent has submitted evidence that Mr. D was also employed as a general operative on the same pay and conditions as the complainant. I am thus satisfied from the totality of the evidence submitted that Mr. D was also employed as a general operative.
5.3.8 The complainant submitted that his alleged demotion occurred due to his race. The respondent has given evidence that this was not a demotion as both jobs were general operative posts and that the reason for this move was due to the complainant's performance and behaviour issues. The complainant when questioned as to whether he had been spoken to about his behaviour by Mr. W and by another manager Mr. P answered 'of course'. The complainant did not dispute the fact that his performance had been raised as an issue with him and advised the hearing that he had been moved after being told he 'was not a good worker'. I am thus satisfied that the complainant was not demoted and that his move from one Department to another did not amount to a demotion but was due to issues with his performance and was unrelated to his race. Accordingly based on the totality of the evidence given I find that the complainant was not discriminated against on grounds of race or disability in relation to this matter.
5.4 Disability Ground
5.4.1 It is submitted that the respondent does not accept that the complainant has a disability as no confirmation of such has ever been provided. It is also submitted by the respondent that the complainant did not ever make the respondent aware of this disability.
5.4.2 In the present case, it is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
5.4.3 At the hearing, the complainant, when questioned about his disability replied that he had a problem with is hip and spine. Neither the complainant nor his representative at the hearing was able to elaborate on this. When asked for medical evidence the complainant produced a translated certificate from the Polish Government indicating that the complainant was entitled to disability Benefit. This certificate was dated 1 March, 2011 (after the date of his dismissal). While the complainant did submit some medical certificates to the respondent for short period, these certificates, from a GP indicated a variety of reasons for his absence from work including groin injury, suspected hernia and spine injury. These certificates are evidence of the reasons for his absence on sick leave and do not amount to notification of a disability. The complainant did not produce any evidence of his alleged disability and stated that the GP who had provided the certificates had disappeared and was not available to provide evidence at the hearing.
5.4.4 It is the complainant's position that he submitted medical certificates during his sick leave and was dismissed on grounds of race and disability. It is the respondent's position that the complainant only submitted certificates for a short period and after that made no contact with the company despite repeated requests from the respondent to engage with them.
5.4.5 At the second hearing a medical report completed by the complainants GP Dr. K, dated 25th of April, 2011 (again after the date of his dismissal), was presented to the hearing. This report stated that the complainant was found not to have a hernia and stated that it was not possible to unequivocally diagnose his condition and how it relates to the reported injury. The report indicates that all orthopaedic tests and assessments to date reveal no abnormality in his hip joint. The report states that Mr. S (the complainant) does complain of chronic pain and in view of that it suggests further tests to assist the diagnosis.
5.4.6 The complainant submits that he was dismissed on 17th of February, 2011 due to his disability. When questioned as to whether he had notified the respondent of his disability the complainant answered, No and stated that he couldn't tell them as he was only diagnosed in March, 2011. This diagnosis which the complainant refers to is a document dated 1st of March, 2011 from a Dr. C, orthopaedic specialist and states that the complainant has a pain complex of both hips and requires a surgical treatment called an arthroscopy of the hip joint.
5.4.7 While the complainant did submit some medical certificates to the respondent for some of his absence period, these certificates are evidence of the reasons given for his absence from work on sick leave for a given period and do not amount to notification of a disability. These medical certificates from a GP indicate a variety of reasons for his absence from work including groin injury, suspected hernia and spine injury. In addition, it is notable that Medical Reports indicate that there is no evidence of a hernia, even though 'a suspected hernia' was cited as one of the reasons for the complainant's absence from work.
5.4.8 It is also necessary to distinguish between absence on sick leave and a disability related absence. The complainant cannot rely on the protection offered by the disability legislation simply because he was absent from work on sick leave. While the complainant did submit some medical certificates indicating he was unable to attend work for a variety of reasons such as groin injury, suspected hernia and spine injury I find that these are not numerous enough or consistent enough to infer the existence of a disability simply from their existence. In addition the complainant only submitted these certs up until 15th of November, 2010 though he remained absent from work until his dismissal on 17th of February, 2011. After the 15th of November, 2010 the only documents submitted to the respondent are documents faxed from Poland which the complainant purports are medical certificates. These 1 page documents were unaccompanied by any explanation or cover note and did not give any indication as to the reason for the complainant's absence and merely contain details of his name and address and that of the respondent as well as dates and numeric codes. These documents were stamped with what is purported to be a clinic or doctors stamp and in the complainants own hand writing at the bottom state 'Unable to Work' and give the dates covered. It emerged at the hearing that these are documents issued for the purposes of claiming social welfare in Poland. There are no details of any illness or disability contained in these documents and these documents, even if translated, do not provide any detail or shed any light on the reason for the complainant's absence, thus the respondent could not be considered to be advised of any illness or disability from the contents of these documents. I am thus not satisfied that such documents and the lack of detail contained therein provided any information regarding any alleged illness or disability. They simply stated that the complainant was 'unable to work'.
5.4.9 The respondent following receipt of these documents was not satisfied that these amounted to notification of reason for the complainant's absence and Mr. R requested that the complainant contact him by phone to discuss the content of same and the reason for his continuing absence. The complainant was further requested by phone and email to make contact with Mr. R regarding his absence. Following this the respondent submits that they received no documents or contact from the complainant for a further five weeks, after which the respondent dismissed the complainant. The complainant alleges that he had sent another one of these same documents which he purports is a cert to cover the period from 18th of January, 2011. The respondent has no record of receiving this document and states that the complainant made no contact with them after 11th of January, 2011. In any event I am not satisfied that these documents can be considered as notification of reason for absence on sick leave and certainly do not amount to notification of a disability. In addition the complainant by his own admission advised the hearing that he could not have advised the respondent of any disability as he was only diagnosed in March 2011. It is thus clear that as the complainant had been dismissed on 17th of February, 2011, the respondent had not at this time been made aware of any disability suffered by the complainant.
5.5 Discriminatory dismissal -Disability
5.5.1 I am thus not satisfied based on the totality of the evidence presented that the complainant was, at the time of his dismissal, a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008. Thus I am also satisfied that the complainant was not discriminated against on grounds of disability in relation to this matter.
5.6 Discriminatory Dismissal-Race
5.6.1 From my investigation of the matters surrounding the complainant's alleged disability and his dismissal outlined at pghs 5.4 and 5.5 above I have concluded that the complainant was not discriminated against on grounds of disability in relation to his dismissal. I must now examine whether the complainant was discriminated against on grounds of race in relation to that dismissal.
5.6.2 The complainant, following an alleged accident at work, was out on sick leave from 14th of September 2010. Witness for the respondent, Mr O advised the hearing that he had asked the complainant if he had injured himself at work and had advised the complainant that if he had it would have to be reported and an account of it must be given in the accident book. Mr O stated that the complainant had responded twice that it had not been caused at work and or due to a work injury and so the matter was not recorded in the accident book. The respondent stated that the complainant has since raised this as a workplace injury and is pursuing the matter through other channels. Following this the complainant went on extended sick leave and his employment was terminated on 17th of February, 2011. It is the complainant's position that he submitted medical certificates during his sick leave and was dismissed on grounds of race and disability. It is the respondent's position that the complainant only submitted certificates for a short period and after that made no contact with the company despite repeated requests from the respondent to engage re his absence and reason for same.
5.6.3 The complainant, during the first two months of his absence from work submitted medical certificates to the respondent indicating that that he was unable to work and citing a variety of reasons such as groin injury, suspected hernia and spine injury. The complainant submitted these medical certificates until 15th of November, 2010 and remained absent from work until his dismissal on 17th of February, 2011. After the 15th of November, 2010, the only documents submitted to the respondent by way of explanation for his absence are documents faxed from Poland which the complainant purports are medical certificates. These 1 page documents which were unaccompanied by any explanation or cover note, do not give any indication as to the reason for the complainant's absence and merely contain details of his name and address and that of the respondent as well as dates and numeric codes. As outlined above at paragraphs 5.4.8 and 5.4.9 above, I am not satisfied that such documents and the lack of detail contained therein provide any information regarding any alleged illness or disability. The respondent following receipt of these documents was not satisfied that these amounted to notification of the reason for the complainant's sick absence and Mr. R requested that the complainant contact him by phone to discuss the content of same and the reason for his continuing absence. In addition, witnesses for the respondent Mr. R and Mr. O, at the hearing gave evidence that they had requested the complainant by email and by phone to make contact with Mr. R regarding his absence and stated that they had advised the complainant that there was a problem with the documents being submitted by him. Despite these requests the complainant did not make contact with Mr. R and was finally dismissed on 17th of February, 2011.
5.6.4 I am satisfied that by failing to make contact with Mr. R or to provide the respondent with adequate reasons for his absence, despite being requested to do so on numerous occasions, the complainant himself contributed to his eventual dismissal and I am satisfied that this dismissal related entirely to the complainants absence from work and was not in any way related to his race. Thus I am satisfied, from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against on grounds of his race in relation to this matter.
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 was not discriminated against on grounds of race or disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his alleged demotion, and
(ii) the complainant was not discriminated against on grounds of race or disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his dismissal
____________________
Orla Jones
Equality Officer
23 July, 2013
Footnotes:
1 Labour Court Determination No. EDA0917