DECISION NO: DEC-E2013-26
PARTIES
Jakub Sieron
(Represented by Brendan Archbold)
v
Vista Primary Care Ltd.
(Represented by John Barry)
Date of Issue:27 March 2013
File No. EE/2010/796
Keywords
Employment Equality Acts - discriminatory treatment - race - conditions of employment - dismissal - prima facie case - equal pay
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Jakub Sieron (hereafter "the complainant") that he was subjected to discriminatory treatment in his working conditions on grounds of race by Vista Primary Care Ltd. (hereafter "the respondent") and discriminatorily dismissed on the grounds of his race. The complainant has also made a claim for equal pay with two Irish security guards.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 27 October 2010 under the Employment Equality Acts. On 21 December, 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 February 2013.
2. Summary of Complainant's case
2.1 The complainant is a Polish national who commenced employment as a security guard with the respondent on 23 March 2010. The complainant did not receive a contract of employment or any documentation regarding his terms and conditions of employment. The complainant was on annual leave from 28 July to 10 August 2010. On 7 August 2010, while on annual leave, he received a telephone call from his supervisor who informed him that 'Mr. R said you are fired because he wants to give more hours to Patrick and Conor'. The complainant attended a meeting with Mr. R and another member of management on 11 August 2011. In the course of this meeting, the complainant states that Mr. R stated to the complainant that he was being dismissed because he wanted to give more hours to Patrick and Conor (Patrick is a nephew of Mr. R). He also informed the complainant that he was unaware that the complainant was on holidays when he instructed the complainant's supervisor to telephone him on 7 August with news of his dismissal. The complainant's representative contends that no criticism of the complainant's work was indicated to him nor was there any reference to the complainant's right to representation at the meeting when his employment was terminated. The complainant also contends that he fared worse than the two Irish security guards as regards the number of hours allocated, in that, the Irish workers were given a greater number of hours on the roster. The complainant is also making a claim of equal pay with two Irish security guards and states that they were earning a higher rate of pay although they all carried out the same work.
3. Summary of Respondent's case
3.1 The respondent provides a medical care facility. The complainant commenced as a security guard with the company on 23 March, 2010. The complainant worked part-time and was on a rate of €10 per hour. The complainant's duties were to monitor CCTV cameras and conduct patrols of the premises. His normal working hours were from 6pm to 8am Monday to Friday and he also provided cover on Saturdays and Sundays. The complainant was one of five personnel doing security work for the respondent at that time. The respondent submits that the complainant was on a 6 month probationary period which it states was consistent with the probationary period applicable to all employees in the organisation. It states that none of the security officers were issued with terms and conditions of employment. The complainant was contacted by his supervisor on 7 August 2010 by telephone and informed that Mr. R wished to meet him. The supervisor stated during the telephone conversation that a decision had been made not to keep him on and his hours would be distributed amongst the remaining security officers. The complainant's supervisor is also a Polish national and the conversation took place in their native language. At that time, there were 5 persons carrying out security duties including the complainant, 2 of which were Irish and the remainder were Polish.
3.2 On the day of the hearing, when questioned as to why he let the complainant go, Mr. R advised that shortly before he was let go, he found the complainant asleep on two separate occasions while he was supposed to be carrying out patrols on the building. On another occasion, Mr. R explained that there were kids skateboarding on steps outside the building and he observed the complainant going out and chastising the kids while knocking one of them against the wall with his chest. Mr. R states that while these matters were not in the respondent's submission he only brought them to light on the day of the hearing as he did not want any confrontation with the complainant but he felt that he needed to explain why he terminated the complainant's employment with the company. The respondent submits that given the above incidents, Mr. R was of the view that the complainant was the weakest of the five security personnel and made a decision to let the complainant go and redistribute his hours among the other security staff but he submitted that it was unrelated to his race and contends that he has twenty Polish nationals currently employed in the company. The respondent further submits that 50% of its workforce are non-Irish nationals.
3.3 In relation to the complainant's claim for equal pay, the respondent states that all security personnel get paid €10 per hour however, the complainant's supervisor and another security guard carry out security duties in tandem with maintenance works and in such cases, they get a slightly higher rate of pay for carrying out maintenance duties. The complainant also stated that he fared worse than the two Irish security guards as regards the number of hours allocated. In response, the respondent submitted a chart providing details of the 5 security personnel and their hours of work. The respondent submits that the complainant's hours were the second highest out of the 5 staff working in security with the complainant's supervisor who is also a Polish national being the highest.
4. Conclusions of Equality Officer
4.1. I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court1, whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
4.2 The complainant has received recompense from the Rights Commissioner for breaches of the legislation relating to the Organisation of Working Time Act and the Terms of Employment (Information) Act. Having examined all the evidence relating to this complaint under the Employment Equality Acts, I am satisfied that there is no prima facie evidence to substantiate a complaint of discriminatory working conditions on behalf of the complainant. Based on the evidence, the respondent did not provide contracts of employment to any of its security personnel either to Irish employees or Polish employees. The respondent states that the complainant's employment was terminated with the company as he was the weakest of the 5 security personnel employed and gave testimony that he found the complainant asleep on two occasions when he was supposed to be carrying out patrols of the building and referred to the incident when children were skateboarding at the front of the building and the alleged unprofessional manner in which the complainant dealt with same. The complainant denies that he was caught sleeping on two occasions and states that in relation to the incident regarding children skateboarding, he simply requested them to leave the area. While there is a clear conflict between the parties on this issue, I find it most unfair to the complainant that these issues were not brought to his attention at the time they occurred so that he would have had an opportunity to deal with the issues and respond to same.
4.3 There is a clear conflict of evidence in relation to what was said in connection with the meeting where the complainant's employment was terminated and the redistribution of the complainant's hours of work. The complainant states that he was told by his supervisor by telephone and at the meeting where he was dismissed that Mr. R was letting him go so that his hours could be allocated between the two Irish workers. On the other hand, the respondent reaffirms that the complainant was informed that his employment was being terminated and the hours would be redistributed between all the other security guards. On balance, I prefer the evidence of the respondent on this issue as documentation was submitted to the Tribunal in evidence in relation to average hours worked by the various security staff following the complainant being let go which demonstrates that the complainant's hours were distributed between the various members of staff working in security. The respondent states that a number of months following the complainant's termination of employment, another Polish employee was hired to do security work in tandem with some maintenance duties. In that regard, the respondent argues that nationality was not a factor in the complainant's dismissal and contends that 50 % of its employees are non-Irish nationals.
4.4 Overall, taking all the evidence into consideration, I am of the view that the respondent's lack of policies and procedures was unfair to the complainant. In that regard, the respondent did not make a complaint to the complainant about (i) the times he allegedly found him asleep or (ii) raise the issue of the manner in which the complainant dealt with the children skateboarding at front of the premises. In addition, the manner in which the complainant was contacted by his supervisor while on annual leave to be advised that he was being dismissed was not in line with fair procedures. Furthermore, the complainant was not given the option of representation with the meeting with management when he was being dismissed and the complainant was not given specific reasons for his dismissal apart from being told that his employment was being terminated so as they could allocate his hours to the other security staff. While the complainant has argued that fair procedures were not complied with in relation to his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in relation to his dismissal. I conclude that the complainant has not provided any substantiating evidence to demonstrate a nexus between his dismissal and his race. Overall, on balance and taking all the evidence into account, I am satisfied that the complainant's employment with the respondent was not terminated on the grounds of his race.
4.5 In relation to the claim of equal pay with two named Irish security guards; given the documentary evidence including payslips for the personnel involved which was submitted in evidence to the Tribunal, I am satisfied that all security personnel including the two Irish named comparators were paid the same rate of €10 euro per hour. In the case of the complainant's supervisor who is also a Polish national, he was in receipt of a higher rate of pay when carrying out maintenance duties but all employees receive the same rate of pay in connection with their security duties. In that regard, I find that the complainant's claim of equal pay with two Irish named comparators fails as the complainant was on the same rate of pay as his two Irish co-workers.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that
(i) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment, contrary to section 8 of the Acts.
(ii) the respondent did not discriminate against the complainant on the grounds of his race pursuant to section 6(2) of the Acts and contrary to section 8 of the Acts in relation to his dismissal.
(iii) the respondent did not discriminate against the complainant pursuant to section 6(2) of the Acts contrary to section 19 and/or section 29 of the Acts in relation to his remuneration.
____________
Valerie Murtagh
Equality Officer
27 March, 2013
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.