EQUALITY OFFICER'S DECISION NO: DEC-EE/2014/073
PARTIES
Neil Mulvey
Vs
Epulet Ltd
(Represented by Peter Connolly Solicitors)
FILE NO : EE/2012/269
Date of issue: 3rd of November, 2014
1. Dispute
1.1 This dispute involves a claim by Mr. Neil Mulvey that he was discriminated against by Epulet Ltd on grounds of race , in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to his dismissal.
2. Background
2.1 Mr. Neil Mulvey referred a complaint under the Employment Equality Acts 1998 to 2008, to the Equality Tribunal, on the 9th of May 2012, alleging that the respondent had discriminated against him, on grounds of race, when he was dismissed from his job as a Sony-Ericson handset repair technician.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated this case on 17th of July 2014 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 25th of July, 2014. The respondent was not in attendance at the hearing.
3. Summary of complainant’s case
3.1 The complainant submits that he is Irish and was employed by the respondent from 15th of November, 2010 until 1st of May 2012. It is submitted that the respondent is an agency and that it had placed the complainant in employment with a company called SBE Ireland.
3.2 The complainant submits that he was initially employed on a three month contract and then from 3rd of February, 2011 on a temporary contract of employment.
3.3 The complainant submits that he was dismissed on 1st of May, 2012 and that this dismissal was due to his race.
4. Summary of respondent’s case
4.1 The respondent submits that the complainant was employed by them as a Sony-Ericson handset repair technician.
4.2 It is submitted that the complainant’s employment was terminated due to a lack of viable work. SBE Ireland had experienced a drop in volume in the preceeding months The Sony-Ericson volume nearly halved between January 2012 and May 2012, reducing from 978 handsets in January to 593 in May.
4.3 The complainant’s position has not since been filled as the volume has not picked up.
4.4 Statements provided by Mr. K, Production Supervisor and Mr. T, General Manager indicated that the complainant had complained that a colleague Mr. P was giving him phones to fix that had failed Quality Assurance. Following this the complainant had said that Mr. P was laughing in his face. The complainant walked out without explanation at 2pm that day.
4.5 It is submitted that Mr. K and Mr. T spoke to Mr. P following the conversation with the complainant and that Mr. P had stated that he had been returning all Sony Ericson phones to the complainant as he himself had now been moved on to work on a different provider. Mr. K and Mr. T advised Mr. P that he himself needed to finish any Sony Ericson phones he had started before being transferred and that he should not transfer these to the complainant.
4.6 The complainant sent an email to Mr. T later that night apologising for storming out. He returned to work the next day.
4.7 A statement provided by Mr. S, Managing Director, stated that the complainant was initially given two weeks’ notice following an incident where he became very aggressive and used offensive language towards a supervisor, Ms. W. Mr. S submitted that he had dealt with the matter as Mr. D who normally dealt with SBE issues was away on leave. Mr. D on his return from holiday advised Mr. S that he was informed that due to a drop in volume the complainant would no longer be required by SBE. Mr. D then discussed the matter with the complainant over the phone and followed up with his letter of termination.
5. Preliminary Jurisdictional Issue- Correct respondent
5.1 The first matter I must determine is whether the claim is correctly taken against Epulet Ltd. The complainant in his complaint to the Tribunal named Epulet Ltd as respondent to his claim. The complainant advised the hearing that he had been employed by Epulet Ltd an employment agency who had placed him in employment with SBE Ireland. The complainant has not named SBE Ireland as a respondent to his claim.
5.2 The complainant advised the hearing that his contract of employment was with Epulet Limited.
5.3 The terms ‘employer’ and ‘employee’ are defined by Section 2 of the Employment Equality Acts, 1998-2008 as follows –
" 'employee'...means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment",
" 'employer'..... means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employment has ceased, entered into or worked under) a contract of employment",
" 'contract of employment' means....
(a) a contract of service or apprenticeship......
whether the contract is or implied and, if express, whether oral or written".
5.4 It is clear from the evidence adduced that the complainant entered into a contract of employment with Epulet Ltd. I am thus satisfied that Epulet Ltd, as the person with whom he has entered into that contract, is to be regarded as his employer for the purposes of the Act.
5.5 In addition, it is clear from the evidence adduced at the hearing that Epulet Ltd was responsible for the payment of the complainant’s salary. Thus, having evaluated all of the evidence adduced I find, that the named respondent Epulet Limited was the complainant's ‘employer’, in terms of Section 2 of the Acts, for the period encompassed by his complaint.
5.6 I am thus satisfied that I have jurisdiction to investigate the complaint before me.
5.7 Preliminary jurisdictional issue- Conditions of employment
5.7.1 The complaint from submitted by the complainant made a claim of discriminatory dismissal on grounds of race. The complainant’s submissions of 21st and 22nd of June 2012 provide details of allegations of unequal treatment on the grounds of race in relation to the complainant’s conditions of employment. These allegations were also raised by the complainant at the hearing but were not referred to in the original complaint form. I must decide whether or not these allegations outlined in the complainant’s submissions and at the hearing fall within the scope of the original complaint and can be considered as part of the claim.
5.7.2 The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same.
In Brannigan McGovern, J said:
I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints, which are made within that expanded period, are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice
5.7.3 I am satisfied, that in the instant case, all of the incidents contained in the June 2012 submissions relate to allegations of discrimination on the grounds of race. In addition, it is not envisaged that a complainant should have to submit an additional claim form for each and every alleged incident of discrimination. I am also satisfied that the respondent was on notice of the matters referred therein having received a copy of the submissions in June 2012. I am thus satisfied that I have jurisdiction to investigate matters referred therein.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to his conditions of employment and in relation to his dismissal. 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.
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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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… “
6.4 Conditions of Employment
6.4.1 The complainant advised the hearing that there had been a number of occasions where he felt he was doing more work than his colleagues of varying nationalities. The complainant at the hearing submitted that many of his co-workers were Polish and he has provided details of incidents where he feels his co- workers did not work as hard as he did. He has also cited incidents where he felt that his Polish co-workers were being treated more favourably. The complainant advised the hearing that a colleague of his Mr. P, who was Polish, had returned Sony Ericson handsets to him to be fixed when Mr. P himself had made no effort to fix them. These were then recorded as Quality Assurance fails against the complainant. The complainant advised the hearing that he had complained about this to Mr. T who had undertaken to speak to Mr. P about this practice and to tell him to refrain from doing this.
6.4.2 It is submitted that Mr. T spoke to Mr. P following the conversation with the complainant and that Mr. P had stated that he had been returning all Sony Ericson phones to the complainant as he himself had now been moved on to work on a different provider. Mr. T advised Mr. P that he needed to finish any Sony Ericsson phones he had started before being transferred and that he should not transfer these to the complainant. The complainant advised the hearing that Mr. P was using the fact that the complainant was now the only person doing Sony phones to bypass/offload his own work.
6.4.3 The complainant at the hearing acknowledged that Mr. T had taken action and had spoken to Mr. P following the complaint raised by the complainant. Following this the complainant stated that Mr. P had told him to be careful about what he says to Mr. T. The complainant advised the hearing that he took this to be a threat. The complainant advised the hearing that following this incident with Mr. P he had walked out of work without explanation around 2pm on the day in question. The complainant at the hearing acknowledged that he shouldn’t have walked out and stated that he returned to work the following day and apologised to Mr. T and Mr. G for walking out. The complainant stated that he later heard from another colleague that Mr. G and Mr. P had been ‘slagging him off’ behind his back and calling him stupid, while speaking in Polish.
6.4.4 The complainant is claiming that these matters amount to discrimination on grounds of race and would not have happened if he had been Polish. It emerged at the hearing that Mr. P was dismissed a few weeks later by the respondent for not meeting his targets.
6.4.5 Having regard to the totality of the evidence adduced in relation to these matters, I am not satisfied that the complainant has adduced any supporting evidence from which I could reasonably conclude that he was treated less favourably on grounds of his race, in relation to his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of his complaint.
6.5 Discriminatory Dismissal
6.5.1 The complainant has submitted that he was subjected to a discriminatory dismissal by the respondent on the grounds of his race. The complainant advised the hearing that he believes he was dismissed because of an argument he had with another member of staff Ms. W, who is Polish. He is claiming that this is discrimination on grounds of race and would not have happened if he had been Polish. The respondent submitted that the complainant was dismissed due to the fact that they no longer had the volume of work for him. The respondent submitted that 5 other technicians were also dismissed and named these 5 people in its submission. The 5 other individuals dismissed were of varying nationalities including Polish. The complainant’s case centres on the fact that he considers that he was subjected to less favourable treatment by his employer due to the fact that he was Irish. The complainant submits that many of his co-workers were Polish and he has provided details of incidents where he feels his co- workers did not work as hard as he did. He has also cited incidents where he felt that his Polish co-workers were being treated more favourably.
6.5.2 The complainant advised the hearing that his supervisor Ms. W was Polish. He submits that it was a part of her job to collect phones from technicians. He advised the hearing that Ms. W had refused to collect phones from his desk stating that she was too busy to do so. He stated that she was too busy to collect the phones but that she had plenty of time to chat to her friends. The respondent has submitted that Ms. W was in charge of the distribution of parts to technicians. This meant that technicians in need of parts would bring the phones to Ms. K for the parts and after wards she would return the phones and parts to them.
6.5.3 The complainant advised the hearing that an incident took place at the team meeting on in April 2012, where Ms. W accused the complainant of hiding phones in his work bench. The complainant explained that these phones were being held waiting for parts. The complainant advised the hearing that he would often have a number of phones waiting for parts on his desk. He stated that Ms. W had on several occasions walked past his desk when she could have collected the phones from him. The complainant advised the hearing that he had asked Ms. W to collect the phones from him but that she had refused stating that she was too busy. The complainant advised the hearing that Ms. W often spent 10 minutes chatting to her friends when she could have spent that time collecting phones. The complainant advised the hearing that he had said this to Ms. W.
6.5.4 The complainant advised the hearing that Ms. W had kept ‘pushing it’ every day and stated that on Good Friday April 6th, he had finally ‘lost it’ and shouted at Ms. W, as he had lost his temper with her and stated that she would have time to collect the phones if she wasn’t chatting to her friends.
6.5.5 The complainant advised the hearing that he knew he was out of order and had later apologised for his behaviour. The complainant advised the hearing that he was suspended from SBE following this incident which they referred to as “aggressive behaviour” and he had also received a final warning. He received this by email from Mr. S on 17th of April 2012 and immediately rang Mr. S to explain what had happened. He stated that he told Mr. S that he knew he was out of order and apologised for the incident.
6.5.6 Following this the complainant was told that his employment was to terminate in two weeks as per the notice period in his contract. When the complainant queried this further he received an email from Mr. S stating that he was getting two weeks notice, but that if the two weeks were to pass without any incident of aggressive behaviour then all would continue as normal. The complainant on 19th of April, 2012 then wrote a detailed email to the respondent outlining the various incidents and issues he had while employed there. The complainant received no response to this email and the next contact he received from Epulet was when he was told on 30th of April, 2012 by Mr. T that he was to finish up on 1st of May in accordance with his contract.
6.5.7 The complainant’s employment was terminated on 1st of May 2012 and the reason given by the respondent was a fall in the volume of handsets. The complainant agrees that there was a fall in the volume of handsets but disputes that this was the reason for his dismissal. The complainant advised the hearing that he believes he was dismissed due to the incident with Ms. W. The complainant submitted prior to the hearing that he was dismissed due to his race. The complainant at the hearing seems to be linking the fact that he was not Polish as the reason for his dismissal and for his treatment in respect of a number of incidents. The complainant also gave examples of other colleagues of differing non Irish nationalities whom he felt were treated unfairly due to the fact that they were not Polish.
6.5.8 The complainant advised the hearing that the incident of the 6th of April, 2012 occurred due to the fact that he had been reprimanded in front of his colleagues for failing to meet his target. He advised the hearing that it was a common occurrence in the respondent organisation that technicians would be called out in front of their colleagues and verbally abused for failing to meet targets. The complainant named colleagues of differing nationalities who had been subjected to this treatment. The complainant stated that it happened to everyone.
6.5.9 It would appear that the complainant received mixed messages from the respondent regarding the issue of his dismissal and was unclear following the emails of 17th of April, 2012 as to whether he was being given two weeks’ notice or not. The complainant advised the hearing that Mr. K told him on 30th of April, 2012 that he should have been told sooner that his employment was to be terminated and that it had not been well handled.
6.5.10 While the circumstances of the complainant’s dismissal are not entirely clear and while there may have been an element of unfairness in the way he was treated it is not possible to say that this was in any way related to his race. The complainant has not adduced any evidence to substantiate his claim that he was dismissed due to his race and I find no connection between the complainant's nationality and his dismissal.
6.5.11 The complainant himself has indicated that he believes the reason for his dismissal related to the way he behaved towards Ms. W. The complainant prior to the hearing submitted that his dismissal was due to his race however the complainant has not produced any evidence to substantiate his claim that his dismissal was due to his race other than an unsubstantiated claim that this would not happen if he were Polish. The complainant conceded that other employees of differing nationalities had also been dismissed by the respondent though not in the same circumstances.
6.5.12 When asked how his dismissal related to his race the complainant replied that it wouldn’t have happened if he was Polish. 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.
7. DECISION OF THE EQUALITY OFFICER.
7.1 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 by the respondent on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his conditions of employment
(ii) the complainant was not discriminated against by the respondent on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his dismissal
_________________
Orla Jones
Equality Officer
3rd of November, 2014