DEC-E2014-098

The Equality Tribunal

Employment Equality Acts, 1998 to 2008

Decision DEC-E2014-098

Mr Dmytro Ilchenko

-v-

Leslie Kirk, Campus Petrol Station

[Represented by David Kent B.L.]

File Ref: EE/2009/736

Date of Issue: 30 December 2014

Headnotes: Discriminatory dismissal – race, disability - Prima facie case - Employment Equality Acts 1998 to 2008 ss.2, 6 and 8.

1. Dispute

This case concerns complaints by Mr Dmytro Ilchenko (the “Complainant”), of Ukrainian nationality, that he was discriminated against on the ground of race and disability, within the meaning of sections 6 (2) (g) and (h) in dismissal and otherwise contrary to section 8 of the Employment Equality Acts 1998 to 2008 ("the Acts") by Mr Leslie Kirk, Campus Petrol Station, Charleville, Co. Cork (the “Respondent”).

2. Background

The Complainant referred complaints under the Acts to the Director of the Equality Tribunal on 30 September 2009. The Complainant sent in a written submission to the Equality Tribunal which was received on 18 February 2010. As required by section 79 (1) of the Acts and as part of my investigation I proceeded to hearing on 16 July 2012 which was attended by both parties.

3. Summary of Complainant's case.

3.1 The Complainant gave written and oral evidence. He stated that he was employed in a supermarket in Charleville Co. Cork for over six years when his hours were reduced due to the recession. He approached the Respondent for part time employment as he required additional hours in order to support his wife and children. He was interviewed by the Respondent’s manager and offered employment, 5 nights a week for about €500 a week. In the course of the interview, when the Complainant indicated he was working for the supermarket, he was told that he would have to resign his other position as they competed with the Respondent. The Complainant gave 3 weeks’ notice to the supermarket and commenced employment with the Respondent on 24 August 2009. The Complainant stated that he needed some time to settle in to his new employment and become accustomed to the procedures with the Respondent. He was not given that time. On his first day he was put on the till without being shown how to operate it. It was different to the supermarket because petrol sales and Lotto tickets had to be accounted for as well. The reconciliation at the end of the day was different too. The manager was unhelpful and unfriendly to him. The Complainant stated he was treated very badly by the manager. She was very aggressive towards him; she did not give him enough time to show his working abilities; she ignored him and did not answer his questions related to the tasks for which he was employed; she said offensive things about him and foreigners in general.

3.2 He had a slight problem with an infection in his eye and he informed the manager that he had an appointment on 4 January 2010 at a hospital in Cork to have the problem investigated. He alleges that the manager told him that he could not continue in employment because of his eye problem and suggested he take up farm work instead. She had no one to cover for him. He alleges that the manager, on hearing that he had a medical card said: “It’s nice for foreigners to have medical cards but we do not need sick people here.”

3.3 On his second day, 25 August 2009 a delivery man arrived. The complainant said he would find out what to do. He found the manager and told her but she ignored him. 10 minutes later the manager found him at the till and shouted at him because he did not open the storeroom for the delivery man, which was locked. Later that evening the manager told him that he should get the unsold newspapers ready for returns. He brought the newspapers and said he was familiar with the procedure for returns. However, he could not remember exactly because in his previous employment another employee did this task. The manager was not happy and said that she guessed he did not know how to do it. At the end of the second day the Manager said that she was not impressed with the complainant and she did not want to lose customers because the complainant was awkward and sick.

3.4 On the third day the Complainant said he was very busy on the till. The manager threw bags of coins on the floor when he asked her where he should put them. The manager told him he was no good for her. She said that she couldn’t employ sick people because she would have no one to cover for him when he had to go to hospital with his eye. She said that she had seen his previous place of employment. It was dirty and messy and the queue was long. She said it was indicative of unprofessional standards. She also criticised the complainant for not taking notes as he was being trained in. She was not satisfied that he could manage on his own at nights, should the till go down. He said to her that if he was let go he could not return to his previous employment because he had been replaced. She said sorry but she did not have work for him. The Complainant says he was not given an understandable reason for his dismissal. The manager should have talked to him. He was given no guidance. He was dismissed precipitately and without notice. An Irish person would not have been so treated.

4. Summary of Respondent’s case

4.1 The manager of the Respondent gave written and oral evidence. She said that the complainant came to the Respondent seeking full time employment. The witness and the Respondent’s accountant interviewed the complainant. The complainant stated that he was currently working at a supermarket but his hours were cut to 15 – 20 hours a week. The complainant stated that he was an evening manager in the supermarket with 6 years’ experience and his responsibilities were working on the till, doing cash up, working in the store and making deliveries.

4.2 The manager informed the Complainant that the only position currently available was the position of night shift sales assistant; this position involved working from 10pm to 7am in the shop alone, tending to customers from the night hatch and food preparation and baking also. The Complainant was told he would be employed initially on a trial basis and if it worked out she would be able to give him 5 shifts a week at 1 1/3 rate of pay equivalent to approximately before tax of €505 per week and that his induction/training would be as follows: 3 weeks training during the day and evenings in both the deli and the shop followed by 1 week supervised training on the night shift with a trained night shift assistant before he would be working night shift on his own.

4.3 The manager asked him if he intended to continue working at the supermarket. He replied that he would try to keep both jobs and see how it went. She told him that he could not work for both employers because he would be working 42 hours a week for the respondent 5 nights a week and there was no possibility of him working 2 jobs to the best of his ability with those hours. She denied saying that he could not continue to work for the supermarket because they were competitors. She did say that the standard of service expected by customers from the Respondent, a fast food, convenience store and petrol station, was greater than from a supermarket where customers would expect to queue.

4.4 On the first day of work the manager introduced the complainant to the other employees and in particular to the shop supervisor whom he was to shadow on the tills for the day. The manager told him he should take notes and ask lots of questions and get to know the shop, stock and surroundings. The manager was surprised but pleased that the Complainant took the initiative and started using the tills straight away. The tills of the Respondent are more complex than those of a supermarket because of the necessity to integrate fuel pump controls as well as ordinary purchases and Lotto. It was not surprising that the Complainant made mistakes in transactions but when the manager tried to instruct him he would say “I know! I know!” in an arrogant manner. At the end of his shift the manager showed the complainant how to do up his till as it was a new system for him. The manager denied passing any remarks about his eye complaint (of which she was unaware), sickness or access to medical cards. She also denied recommending farm work to him. She has no knowledge or experience of farm work.

4.5 On the second day the owner of the Respondent asked the manager to take over the complainant’s till because the queue of customers had built up and he was taking too long. The owner asked the manager about the Complainant’s previous experience and seemed astonished that the Complainant claimed to have had 6 years relevant experience and management experience. The owner also said that on the previous day his wife had entered the shop to purchase and such a queue had built up she had to go behind the counter and serve. The owner told the manager to watch the Complainant’s performance and to let him go if he did not improve.

4.6 On the question of the delivery, the manager denies ignoring the Complainant. She was busy serving customers in the deli and when all the customers were served she went into the shop and asked the Complainant if he had opened the door for the delivery men. The complainant just stared at her blankly. She said no more to the Complainant and went to the store room and checked in the order herself. She was disappointed that the Complainant, who claimed to be an experienced manager, had not shown more initiative and asked a member of staff about the delivery procedure.

4.7 Later that night the manager asked the Complainant if he knew about unsold newspaper returns. The Complainant said he was unsure because it had not been his responsibility in his previous employment. The manager prepared the newspapers for returns with a view to showing the Complainant how it was done. However, the Complainant did not want to learn and simply walked back to his till and stood there doing nothing. The manager denied utterly that she commented on the cleanliness or efficiency of the Complainant’s previous place of work. She denies ever having entered the premises.

4.8 The manager formed the opinion that the Complainant had no interest in learning the systems and procedures of the business. He did not show any interest and competency in the job. The manager concluded that the Complainant’s claims to have worked in a managerial position in the supermarket were false. On the third day she told the Complainant that it wasn’t going to work out. She said to him to go back to his previous employer to see about getting his job back. She did not believe that after 5 – 6 weeks training he would be up to speed to be able to work nights on his own.

4.9 She denied that she was prejudiced against foreigners. She had a multinational force of 23 staff, 6 of whom were Irish. Latvians and Lithuanians had worked the night shift before and the Complainant was replaced by a Hungarian woman. She had dismissed an Irish national also for under performance.

4.10 The Complainant was dismissed because of his personality, his poor performance, his unwillingness to take instruction and because he had misrepresented his experience. His nationality was immaterial. She would have dismissed an Irish person who had behaved as the Complainant had done. The Respondent was not aware of the complainant’s eye condition and it therefore played no part in the decision to dismiss him.

5. The Issues

5.1 Discrimination is defined in section 6 of the Acts as follows:

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned.

5.2 Disability is defined in section 2 of the Acts as –

(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.

5.3 The complainant claims that he was less favourably treated because he had, in his own words, a red and swollen eyelid which he described as a minor eye problem and not a sickness. Objectively he did not have a disability under the Acts. He alleged that the Complainant imputed that he was sick and this was a factor in the decision to fire him. The Respondent denies that. On balance I prefer the Respondent’s evidence that they were not aware of the Complainant’s eye condition and did not impute a disability to him.

5.4 The complainant claims that he was treated harshly and dismissed precipitately in a manner in which an Irish national would not be treated. Certainly the complainant has reason to believe that he was severely disadvantaged by the Respondent. He was told at interview (according to the manager) that there would be a period of 3 weeks training during the day and evenings in both the deli and the shop followed by 1 week supervised training on the night shift with a trained night shift assistant before he would be working night shift on his own. He was dismissed without consultation or notice for poor performance after 3 days of initial training, because the manager and owner had formed the conviction, as early as the second day, that even after 5 – 6 weeks training he would not be up to speed to be able to work nights on his own. The issue to be decided is whether the Complainant was treated less favourably than an Irish person would have been in a comparable situation.

6. Conclusions

6.1 I have considered all the evidence both written and oral presented to me.

6.2 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 Court[1], 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.

6.3 On the question of the Complainant’s allegations of discrimination on the ground of disability, I conclude that the Complainant did not have a disability within the meaning of the Acts and that the Respondent did not impute a disability to him. Therefore his complaint of discrimination on the ground of disability falls.

6.4 It is not my function under the Acts to determine whether or not the Complainant was fairly treated. It is my function to determine whether or not the Complainant was discriminated against i.e. whether he was threated less favourably than a person of a different nationality is, has been or would be treated by the Respondent in a comparable situation.

6.5 From the evidence of the Respondent’s manager it was the Respondent’s policy that when new staff members were being trained that their shifts would coincide with when management and senior personnel were working so that new staff’s capabilities could be monitored and reviewed. The manager also stated that Irish staff members were also fired for non-performance. It is clear to me that the owner and manager very quickly formed a dislike for the Complainant fuelled by a belief that he had overstated his experience. The Complainant has not established any facts from which I can presume that the Respondent would not have reacted in the same way if the Complainant was an Irish person.

7. Decision

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 the Complainant was not discriminated against by the Respondent in relation to conditions of employment on grounds of race or disability, in terms of section 6 (2) the Acts and contrary to section 8 of the Acts by not offering him the same treatment in relation to dismissal and otherwise as the Respondent afforded or would have afforded to other persons (“the comparators”) where the employment circumstances of the Complainant and the comparators were not materially different.

_________________

Niall McCutcheon

Director

30 December 2014 

'Footnote'

[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.