The Equality Tribunal
Employment Equality Acts 1998-2011
DECISION NO: DEC-E2013-118
PARTIES
MR. DAMIAN TOMASZEWSKI
(Represented by Mr Diarmuid Murphy B.L.
instructed by Maguire McClafferty Solicitors)
AND
INTEGRATED COMMUNICATIONS LIMITED
(Represented by Peninsula Business Services)
File No: EE/2010/685
Date of issue 26th September 2013
1. DISPUTE
This dispute involves a claim by Ms. Damain Tomaszewski (hereafter called "the complainant") that he was discriminated against by Integrated Communications Limited (hereafter called "the respondent") on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998-2011 and contrary to section 8 of the Acts when he was dismissed from his employment. The complainant withdrew family status as a ground, at the outset of the hearing of this claim.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent in July 2006. His duties primarily related to the installation of cable T.V. and home I.T. networks in the Dublin Area. In April 2010, following a disciplinary procedure the complainant was dismissed from his employment. The complainant contends that that the respondent's disciplinary procedures were not applied fairly to him because of his Polish nationality. The respondent denies the allegation.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on the 14 September 2010. On 13 June 2013, in accordance with his powers under the Acts the Director delegated the complaint to me, Mr. Peter Healy, an Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on 28 June 2013. Final submissions were received on 9 August 2013.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant submits that his employment history was not out of the ordinary until May 2009 when he received a verbal warning to clean up his company van.
3.2 The complainant says that on 2 July 2009 he was suspended from his duties with pay following a disciplinary hearing.
3.3 On complainant states that on 16 July 2009 he received a final letter of warning based on a number of allegations. The complainant contests all of these allegations which included specific examples of poor work, failure to attend required meetings, arriving late for work, refusal to follow instructions and failure to follow rules and procedures.
3.4 The complainant states that he recieced an "extended final warning" on 4 September 2009 in respect of a number of allegations and informing him of a disciplinary meeting to be held on 26 August 2009. Allegations in this letter included, failure to follow company vehicle policies and procedures, breach of health and safety regulations, and failure to follow management instructions.
3.5 The complainant submits that at the disciplinary meeting in August 2009 he was able to demonstrate that it was standard practice among employees to secure ladders to company vehicles in a manner for which he was now being disciplined. He says he also gave extensive explanations for his vans poor appearance. The complainant says that none of his explanations in regards to the various allegations were taken into account by the respondent. The complainant submits that he is not aware of disciplinary procedures being instigated against any other employees for what he says are the same offences that made him the subject of such procedures.
3.6 The complainant submits that on 4 December 2009 he suffered an injury at work as the result of falling from a ladder. The complaint submits that the ladder was found to be defective by a person who investigated the incident on behalf of the employer.
3.7 In relation to some of the allegations, specifically failure to follow safety procedures, the complainant names an Irish Comparator (hereafter called "employee A") whom he says also failed to follow these procedures. The complaint submits that he worked with employee A as a two man team for a significant period and he gave examples of how they both broke the companies health and safety procedures together, i.e. failure to wear a hard hat, not footing a ladder for each other. The complainant submits that employee A had never been subject to the same disciplinary procedures.
3.8 In his written submission the complainant identified a further comparator "employee B" whom he says has was subject to similar disciplinary proceedings which did not result in dismissal.
3.9 The complainant says that following a disciplinary meeting on the 10 March 2010 he was dismissed.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that his dismissal was on the ground of race and emphasise that at the time they had 25 other Polish employees. It states the only reason his employment ended was due to his consistent poor performance and refusal to follow instructions. They submit that the complainant was dismissed following an extensive and well documented disciplinary procedure. The respondent submitted a large volume of letters, investigation notes and minutes of relevant meetings as evidence of what they regard as their normal disciplinary procedure. They submit that this documentation demonstrates that the respondent had been afforded the right to representation, given proper notice of each meeting and allowed to appeal the outcomes. The respondent submits that the complainant did not appeal the outcome of any of the original disciplinary meetings.
4.2 The respondent submits that the complainant received appropriate training and other relevant employment documentation when taken on by the company but that he had not returned a signed copy of his terms and conditions.
4.3 The respondent provident the tribunal with the full uncontested transcripts of three disciplinary hearings held on 7th July 2009, the 28th August 2009 and the 12th March 2010. They also provided copies of all warning letters and other correspondence and minutes of the final appeal meeting. The respondent submits that these demonstrate that the complainant failed to satisfactorily respond to most of the issues raised about his work performance.
4.4 The respondent submits that the complainant signed a safety procedure document but failed to implement the procedures which they say caused him to fall of a ladder. The respondent says that the complainant has admitted his failure to implement particular safety and other procedures.
4.5. The respondent submits that their disciplinary procedure is applied equally to all employees.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination, on grounds of race, in terms of section 6 of the Acts and contrary to section 8 of the Acts. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases.
In the case of Dylan Publications Limited and Ivan Spastic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madras v Nomura International plc [2007] IRLR 246, and stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ..."
5.4 I have examined the uncontested full transcripts of the disciplinary meetings and I am satisfied that, in accordance with the respondents procedures, the complainants work record warranted the hearings and that the complainant by his own admission both at the time of the those meetings and at the hearing of this complaint admits that had ignored company policy in regards to health and safety and other matters. I note that at the hearing of this complaint that the complainant still argues that he does not agree with the respondent's procedures on ladder safety, it's clear therefore that he would never intend to implement same. I find no fault with the manner in which the disciplinary procedure was applied and that the respondent gave the complainant more than reasonable opportunity to address the allegations of poor performance before finally deciding they had to end his employment.
5.5 I am not satisfied that the complainant has adduced any evidence to substantiate his claim that he was dismissed because of his nationality. It is certainly clear from the respondent's submission that the complainant was dismissed following warnings both verbal and written about the poor standard of his work. The complainant accepted at hearing that he had failed to follow the respondent's procedure going so far as to state during the hearing that he still disagreed with some of the safety procedures. If the complainant was dismissed for this reason it is clear there was no connection between the complainant's nationality and the reason for his dismissal. The complainant's only evidence of a link to the race ground is his contention that two other Irish Comparators were also guilty of the same behaviour and were not subject to the same disciplinary process as he was. I find no evidence that the two comparators were ever accused of the full range of transgressions attributed to the complainant. I find that the complainants evidence in relation to the application of the disciplinary process to the two comparators amounts only to speculation.
5.6 In regards to these two comparators, the complainant submitted that employee A was not subjected to the company's disciplinary procedure due only to his important family business connections. The complainants only evidence, in this regard, therefore is that employee A was not treated in the same manner for reasons other then his race.
5.7 The complaint accepted during the hearing that he was aware that Employee B had since been dismissed following disciplinary hearings. Therefore, I am satisfied that an Irish employee or an employee of a different nationality was dismissed in similar circumstances.
5.8 In order to raise an inference of discriminatory dismissal on the grounds of nationality, the complainants must produce some evidence of less favourable treatment and that treatment must be linked to his nationality. I find no connection between the complainant's nationality and his dismissal. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his dismissal on the grounds of his race.
6. DECISION OF THE EQUALITY OFFICER.
6.1 Having considered all of the written and oral evidence presented to me. I find that that a prima facie of discrimination in relation to dismissal on the ground of race has not been established and the complaint fails.
____________________________
Peter Healy
Equality Officer
26 September 2013