FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : APPAREL SUPPLY SOLUTIONS LIMITED (FORMERLY TEAMKIT LIMITED) - AND - SUNDRA MULLEN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011
BACKGROUND:
2. This is an appeal under Section 83 of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 22nd January 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal against the decision of an Equality Officer in a claim by Ms Sundra Mullen against Apparel Supply Solutions Limited (formerly known as “Teamkit Limited”) where she alleged that she was discriminated against contrary to the Employment Equality Acts 1998 to 2011 (“the Acts”) in relation to promotion, conditions of employment and discriminatory dismissal on the grounds of race.By decision dated8thJuly2013 the Equality Tribunal found that she had not established aprima faciecase of discrimination and held that her complaints under the Acts had failed.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Sundra Mullen will be referred to as “the Complainant” and Apparel Supply Solutions Limited (formerly known as “Teamkit Limited”) will be referred to as “the Respondent”.
The Complainant referred her claim under the Acts to the Equality Tribunal on 4thAugust 2010. She also submitted a claim of unfair dismissal to the Employment Appeals Tribunal under the Unfair Dismissals Acts 1977 to 2007. The EAT found that the dismissal procedures were seriously flawed and therefore found that the dismissal was unfair and awarded her €7,500 in compensation.
Background
The Complainant is Asian. She commenced employment with the Respondent on 1stNovember 1999. She was dismissed on 10thMay 2010.
Summary of the Complainant’s Case
The Complainant referred to a number of incidents which she alleged were discriminatory and occurred between 2008 and May 2010. Examples of the incidents cited by the Complainant ranged from not being allowed to use her mobile phone at work, to complaints from other staff when she brought her radio to work. The Complainant also claimed that when she raised the issue of discrimination and victimisation with management in January 2009 it was ignored.
On 26thJanuary 2010 the Complainant received a letter of complaint concerning her actions in the workplace signed by members of staff, who were all non-nationals. By letter dated 2ndFebruary 2010 Management notified her that it had appointed a HR Consultant to investigate the complaints made about her alleged behaviour by her work colleagues. She received the investigation report on 11thMarch 2010. Two of the complaints were upheld: disorderly conduct while on duty and acts of intimidation, harassment,victimisation or discrimination.
The Complainant was notified that she was being dismissed for gross misconduct on22ndApril2010and she received aletter dated 10thMay 2010 stating that her employment was terminatedwith immediate effect.
Summary of the Respondent’s Position
The Respondent denied the allegation of discrimination made and stated that none ofthe allegations made were the result of any discrimination, deliberate action, inaction or negligence on the part of the Company. It informed the Court that it is pro-active in promoting diversity and equality and that this was evidenced by a workforce that includes many different nationalities. It currently employs 10 non-nationals from a totalworkforce of 30 people. The Respondent contended that all disciplinary issues relating to the Complainant were dealt with in a manner which was fair and consistent and were not discriminatory in nature.
The Respondent maintained that the Complainant’s complaint of discrimination was made solely as a result of her dismissal on 10thMay 2010.
Conclusions of the Court
The dismissal giving rise to this aspect of the complaint was the subject of proceedings before the Employment Appeals Tribunal under the Unfair Dismissals Acts 1977-2007. Therefore by operation of Section 101(4) (c) of the Act the Complainant is estopped from seeking redress under both Acts, consequently the Court has no jurisdiction to hear this part of her claim.
In her submission to the Court the Complainant referred to instances of alleged discrimination which dated back to 2008. The Complainant’s claim before the Court was lodged with the Equality Officer on 4thAugust 2010. Therefore any instances of alleged discrimination prior to the period from 5thFebruary 2010 to the date of termination of employment on 10thMay 2010 are outside the time limit prescribed by Section 77(5) of the Acts.
Section 77(5) of the Acts provides: -
- (5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
The Court must consider whether the complaints (if any) which are within the time limit constitute acts of discrimination. If they do then the Court must consider whether they are part of a series of related events which are sufficiently connected so as to make all of them part of a continuum and therefore time runs from the date of the most recent discriminatory act.
The essence of the Complainant’s claim of discrimination relates to how she was treated by both management and fellow colleagues at work, which she maintains was discriminatory on the race ground. These related to incidents between the period 22nd January 2009 and 3rd February 2010 e.g. not being allowed to use her mobile phone at work, being ordered to stop "tapping", not being allowed to listen to her radio etc.. In order to succeed in her contention that these acts amounted to acts of discrimination, the Complainant must produce some significant evidence of discrimination and not mere supposition in order to allow the Court to draw an inference that persons of a different race or nationality were or would have been treated more favourably. However, the Court is of not satisifed that evidential proof of discrimination on grounds of race were furnished to the Court and other than her dismissal there were no alleged acts during the period 5thFebruary 2010 to 10thMay 2010. On that basis the Court cannot uphold her claim.
As was held by this Court inToker Developments Limited v Edgars Grods EDA10the mere fact of a difference in status (in this case race) and a difference in treatment is in itself insufficient to shift the probative burden, as can be found inMadarassy v Nomura International pls, [2007] IRLR 246) a Judgment of the Court of Appeal for England and Wales.In theTokercase, no evidence was adduced to substantiate this contention “and it would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.”
Determination
In the absence of any evidence to substantiate her allegations the Court finds that the Complainant has failed to establish aprima faciecase of discrimination.
Accordingly, the Court concurs with the findings and Decision of the Equality Officer and the Complainant’s case cannot succeed. The Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th February 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.