DECISION NO: DEC-E/2013/119
PARTIES
Mr. Rolandus Mitkevicius
(Represented by Richard Grogan & Associates )
Vs
Tesco Ireland Limited
(Represented by Tesco Ireland Legal Department)
FILE NO: EE/2011/391
Date of issue: 26th of September, 2013
1. Dispute
1.1 This dispute involves a claim by Mr. Rolandus Mitkevicius, that he was discriminated against by Tesco Ireland Limited on grounds of race in terms of section 6 of the Employment Equality Acts, 1998 to 2011 and contrary to section 8 of those Acts, in relation to his conditions of employment and other. There is also a claim of victimisation following a complaint to the Tribunal.
2. Background
2.1 The complainant referred complaints under the Employment Equality Acts 1998 to 2011, to the Equality Tribunal on the 14th of April, 2011 and on 30th of May, 2011, alleging that the respondent had discriminated against him on grounds of race, when he was viciously assaulted following a request for holidays and holiday pay. The complainant further submits, that he was victimised by the respondent, when he was moved to the worst shifts, following his complaint to the Tribunal.
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. Final information in respect of this matter was received on 13th of September, 2013.
3. Summary of complainant's case
3.1 The complainant states that, he is a Lithuanian National and that he has been employed by the respondent as a Security Officer since August 2007.
3.2 It is submitted that the complainant had at the time of the allegations been working as a Security Officer in the respondent's Petrol Station.
3.3 It is submitted that the complainant had been absent from work on sick leave, for 8 months and upon his return, had inquired about his holiday pay entitlements.
3.4 It is submitted that the complainant had returned to work in March 2011 and had inquired about his holiday entitlements and holiday pay, as he was aware that the deadline for the taking of holidays was the 1st of April and he did not want to lose his holidays. It is submitted that the complainant approached his manager, Mr. K about this and that Mr. K undertook to sort it out for him.
3.5 It is submitted that on 4th of April, 2011 the complainant and Mr. K engaged in a heated discussion regarding his holiday entitlements, which resulted in the complainant being assaulted by Mr. K.
3.6 It is submitted that the complainant, following the alleged assault lodged a complaint with the Equality Tribunal. It is submitted that following his complaint to the Tribunal, the complainant was given the worst shifts and that this constitutes victimisation of the complainant .
4. Summary of Respondent's case
4.1 The respondent denies that the complainant has been subjected to discrimination or victimisation.
4.2 The respondent denies that any assault took place or that any comments were made or acts committed, which could amount to discrimination on grounds of race or victimisation.
4.3 The respondent accepts that there was a disagreement between the complainant and Mr. K regarding the complainant's holiday pay. The complainant had been absent from work for 8 months during which, he had accrued 55 hours of holiday time and for which he was anxious to be paid.
4.4 This disagreement took place during a meeting on the 4th of April, 2011 and was witnessed by Tesco staff. The disagreement was not physical.
4.5 Following the meeting of 4th of April, 2011 the complainant took his holidays and returned to work with the respondent, where he continues to work.
4.6 The respondent submits that the complainant's shifts were not altered in any way following the alleged incident of the 4th of April, 2011.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is whether or not Tesco Ireland 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 conditions of employment and other. I must also make a decision on whether the complainant was subjected to victimisation following the making of a complaint to the Tribunal.
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... "
5.3 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 Lithuanian. 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.
5.4 Less favourable treatment - Holiday Pay and Alleged Assault
5.4.1 The complainant at the hearing, stated that he had been absent from work, on sick leave for eight or nine months and that he had returned to work on 2nd of March, 2011. The complainant advised the hearing that he had at this point accrued about 48 hours' holidays, which he knew he would have to use before 1st of April 2011 or he would lose them.
5.4.2 The complainant advised the hearing, that he spoke to his manager Mr. K about taking these holidays and that Mr. K assured him that he would sort it out. The complainant advised the hearing, that he was not seeking to take the holidays but, that he wished to be paid for them. The complainant advised the hearing, that Mr. K undertook to speak to the Store Manager about the matter and that he would arrange for the complainant to be paid for his holidays, on the basis of ten hours each week, to be added on to his wages. The complainant was happy with this arrangement.
5.4.3 Witness for the respondent Mr. K agreed with this account and stated that he had told the complainant he would arrange this. Mr. B union representative was also present at the hearing and stated that the complainant had advised him of this agreement on 25th of March 2011 and that the complainant was happy with this arrangement.
5.4.4 The complainant advised the hearing that he had received his payslip on the 4th of April, 2011, but that the payslip did not include the additional ten hours holiday pay, which had been agreed with Mr. K. The complainant upon discovering this omission from his payslip approached his union representative Mr. B and told him what had happened. Mr. B advised him to speak to Mr. K about the matter.
5.4.5 The complainant advised the hearing that himself and Mr. B went to speak with Mr. K, in the security office and advised him that the holiday pay had not been included in his payslip, as had been previously agreed. The complainant stated that Mr. K said that he would speak to Ms. C who dealt with the wages. The complainant stated that Mr K then returned to the security office and was agitated and shouting and threw down some papers in temper.
5.5.6 The complainant stated that Mr. K then shouted at him "are you happy now I got you your two weeks holidays" the complainant stated that Mr. K then lifted him out of the chair and told him to get the f**k out of the office and pushed him towards the door. The complainant advised the hearing that, while Mr. K was shouting at him he was pointing his finger into the complainant's face and that he had poked the complainant in the eye, while doing so. The complainant stated that he had gone home following this meeting and that he had to attend a doctor due to his eye injury.
5.5.7 Witness for the respondent, Mr. K advised the hearing that he had arranged for the complainant to be paid ten hours holiday pay per week and had been told that this would happen. However, when the complainant discovered that he hadn't received the holiday pay he had blamed Mr. K and stated that he couldn't trust Mr. K or anyone else in the place. Mr. K advised the hearing that he himself had then approached Ms. C, about the matter, and was told that the complainant would have to take his holidays and get paid for them, as it was not possible to just add on the holiday pay each week. Ms. C was present at the hearing and agreed that his was the case. Mr. K advised the hearing that he returned to the security office and told the complainant that he would have to take his holidays in order to get paid for them. Mr. K stated that the complainant's response to this was that he knew he couldn't trust Mr. K.
5.5.8 Mr. K stated that he was annoyed when he returned to the office, as he had previously been assured that the complainant would receive his holiday pay, but was now being told that payment was not possible without taking the holidays. Mr. K stated that he was also annoyed that the complainant appeared to be blaming him by stating that he couldn't trust him, when he had genuinely tried to arrange for the complainant to be paid his holiday pay. Mr. K stated that was annoyed at the complainant for blaming him but he added that this was nothing to do with the complainant's race. Mr. K acknowledged that he did shout at the complainant but stated that he had never touched the complainant and had certainly never lifted him out of the chair. The respondent, at the hearing added that, this was the first time any mention had been made of lifting the complainant out of his chair.
5.5.9 Witness for the respondent, and Union Representative Mr. B, advised the hearing that he had been in the room with the complainant and Mr. K, at the time in question and he advised the hearing that, the discussion had become heated but he stated that, Mr. K did not lift the complainant out of the chair or touch him at any stage. Mr. B added that it was a tiny room and that he could clearly see everything that went on. Mr B advised the hearing, that Mr. K had pointed his finger at the complainant but, stated that, he had not touched the complainant and had not poked him in the eye. Mr. B also stated that he had told the complainant and Mr. K to "calm down and shake hands" following the discussion. Mr. B stated that the two men then shook hands and that Mr. K apologised to the complainant for shouting at him and told the complainant to go home and that he would see him in the evening. Both Mr. K and the complainant acknowledged that they had shook hands at the end of the discussion.
5.5.10 The complainant advised the hearing that he had, following the meeting, stayed on in the security office, for a few minutes with Mr. B, as he was upset after the argument and didn't want others to see him so upset. The complainant stated that he then went home as it was the end of his shift. The complainant advised the hearing that, his eye was sore and bloodshot and so he had gone to a doctor about it, he produced a doctor's note to this effect at the hearing. The respondent, at the hearing objected to the doctor's note, on the basis that, they had no knowledge of it prior to this. The doctor's note was dated 5th of April, 2011, and indicated that the complainant's right eye was bloodshot and that he had an abrasion on it. Witness for the respondent, Mr. B, stated that the complainant had not mentioned anything to him, about his eye, on the day of the argument and stated that, he had not noticed anything wrong with the complainant's eye, on that date. Mr B advised the hearing that he met the complainant in the car park, the following day and he had noticed that the complainant was rubbing his eye a lot and that it was red. Mr B stated that he had then asked the complainant what was wrong with his eye and that the complainant replied "it happened yesterday". The complainant, at the hearing stated that, he had never produced the doctor's note to Mr. K or to his employer as he had given it directly to his solicitor. The complainant advised the hearing that he did not mention his eye to Mr. K or to anyone else on his return to work.
5.5.11 The complainant at no point offered any evidence to link this incident to his race and did not offer any comparator to whom he had been treated less favourably. The complainant advised the hearing that, following the incident in the security room, Mr. K had told him to take his holidays as soon as possible. Mr. K advised the hearing that it was not ideal for the complainant to take holidays at that time as he had just returned from eight months sick leave and others had already put in for their holidays. Mr. K stated that the complainant was not asking to take holidays but that he had said he would be happy as long as he received the holiday pay. However, Mr. K added that, once it became clear that the only way the complainant could be paid for the holidays was to take them, he advised the complainant to take the holidays straight away rather than lose them.
5.5.10 The complainant did not complain about Mr. K, or the alleged incident to anyone in the respondent company, until July 2011, when he lodged a grievance against Mr. K, about the hours he was being rostered to work. Witness for the respondent Ms. M, stated that, the complainant, when asked to provide further details of his grievance refused to give any statement or particulars in this regard. The complainant had advised Ms. M that he would have to speak to his solicitor about the matter. The respondent advised the hearing that they had approached the complainant a second time, requesting a statement of particulars of his grievance, but that the complainant had again refused. The complainant, when questioned on this matter at the hearing, stated that this was the case, as he had received advice from his solicitor that he should not give any statement.
5.5.12 In the first instance, I must examine whether or not, the complainant was discriminated against in relation to his conditions of employment and other. The complainant has not produced any evidence, to substantiate the claim, that he was treated less favourably, on grounds of race, in relation to his holidays or in relation to his holiday pay. In fact, the evidence adduced at the hearing, indicates that the complainant had agreed with his manager, that he would be paid for his holidays, in lieu of taking them, but that, due to company policy, this arrangement was not permitted. Following this, the complainant did take his holidays and did get paid for them. The complainant has not offered any comparator to whom he was treated less favourably and has not, in any way, linked his alleged less favourable treatment to his race. I am satisfied that the complainant has not substantiated the claim that he was less favourably treated, on grounds of his race, in relation to this matter.
5.5.13 In addition, in relation to the alleged assault I find the respondent's account of the incident to be more credible. I found Mr. B in particular to be a very consistent, credible and honest witness. The fact that the complainant has a doctor's certificate indicating that his eye was bloodshot and scratched on the 5th of April, 2011 is not, in and of itself, compelling evidence that this alleged injury was caused by Mr. K, on the 4th of April, 2011. In addition, I find it strange that the complainant never confronted Mr. K about the eye injury and never produced this doctor's cert to the respondent, therefore, never affording Mr. K or the respondent the chance to confirm or deny the allegation of assault. Instead the complainant alleges that he gave the certificate directly to his solicitor.
5.5.14 In addition, the complainant has not provided any evidence to substantiate the claim that the alleged assault was in any way connected to his race. Accordingly I am satisfied from the totality of the evidence adduced in relation to these matters that the complainant was not discriminated against on the grounds of race in relation to these matters.
5.6 Victimisation
5.6.1 It is submitted by the complainant that following his complaint to the Tribunal he was assigned the worst shifts, and that this amounts to victimisation under section 74(2) of the Employment Equality Acts, 1998-2011. Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
"For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer.............
(f) an employee having opposed by lawful means and act which is unlawful under this Act.......
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs"
5.6.2 In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
(i) The complainant, in identifying the protected act, referred to his complaint to the Equality Tribunal, the first of which was submitted on 13th of April, 2011. I am satisfied that the complainant's complaint of racial discrimination to the Tribunal of 13th of April, 2011, amounts to a protected Act for the purpose of this Section.
(ii) The complainant submits that, following his complaint to the Tribunal, he was assigned to the worst shifts, and that this was due to the fact that, he had made a complaint of discrimination against the respondent. The complainant at the hearing outlined the shifts, to which he was assigned, and how these shifts were not as good as those assigned to others. The complainant advised the hearing that, other staff members had better rosters and often had weekends off, whereas the complainant's days off were usually mid week, and he rarely if ever got a weekend off. The complainant also stated that he was never rostered to finish early, before his days off, whereas other benefitted from doing an early shift in the run in to their days off, therefore giving them a longer stretch of time off. The complainant submits that this treatment continued from April 2011 until the end of that year, after which, he had no problem with his rosters. The complainant, at the hearing, stated that Mr. K was responsible for drawing up the rosters, and that it was Mr. K who decided to give the complainant the worst shifts and that the reason for this, was due to his complaint to the Tribunal.
5.6.3 Witness for the respondent, Mr. K, advised the hearing that the shifts which the complainant perceives to be the worst, are those which are the highest paid. In addition, Mr. K stated that when a staff member requested time off or a different shift, they would ask him and he would then do his best to change that shift. Mr. K stated that this was the case with the complainant and with all staff in the area. Mr. K added that, in any event, he could not have given the complainant bad shifts due to his complainant to the Tribunal, as he himself, was not aware of the complaint to the Tribunal, until a few weeks prior to this hearing. The complainant had submitted that this alleged adverse treatment was due to his complaint to the Tribunal.
5.6.4 Before assessing whether the rosters allocated to the complainant following the protected act amount to adverse treatment, I will firstly examine the respondent's contention that he was unaware of the complaint, during the time period in question.
5.6.5 At the hearing, witness for the respondent, Mr. K stated that he had only become aware of the complaint a few weeks before the hearing. Other witnesses for the respondent, at the hearing stated that, they had not received a copy of the complaint form or of the complainant's submission as it had gone to the respondent's head office initially, and had then been forwarded on to IBEC, but was never sent on to the complainant's place of work. It emerged, at the hearing, that the complaint form had not been copied to the respondent, at the complainant's place of work, and the respondent had not been advised that any such complaint had been made, until it was notified of the hearing date, some weeks prior to the hearing. The respondent's representative, at the hearing, confirmed that this was the case and that there had been an oversight on the part of the respondent's Head Office who on receipt of the complaint had forwarded it on to IBEC. The respondent's submission in this matter, was only sent to the Tribunal on 23rd of April, 2013 and was accompanied by a covering letter, apologising for the late submission, and indicating that there had been a misunderstanding regarding who was responsible for the matter, which had only just come to light at that time (April, 2013). I am satisfied, from the totality of the evidence adduced here, that the respondent, and in particular, Mr. K had only recently become aware of the complaint to the Tribunal and therefore Mr. K could not, when drawing up the rosters in 2011, have been influenced by the fact that a complaint was made, as he was not aware of the complaint at the time. I therefore find that the alleged adverse treatment cannot be linked to the complainant's complaint to the Tribunal and thus the alleged adverse treatment cannot have occurred as a reaction to the protected act, as set out by the Labour Court, in the Barrett determination, and his complaint that he was victimised contrary to the Acts cannot succeed. Accordingly I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not victimised by the respondent 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 pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his conditions of employment and/or other
(ii) the complainant was not victimised by the respondent following a complaint of discrimination to the Tribunal contrary to section 74(2) of the Acts
____________________
Orla Jones
Equality Officer
26th of September, 2013