EQUALITY OFFICER'S DECISION NO: DEC-E/2014/064
PARTIES
Ms. Ying Ying Sun Summer
Vs
Mc Graths Pub t/a Dawn Taverns Limited
FILE NO: EE/2011/531
Date of issue: 1st of September, 2014
1. Dispute
1.1 This dispute involves a claim by Ms. Ying Ying Sun Summer against Mc Grath's Pub t/a Dawn Taverns Limited that she was discriminated against on grounds of race and gender in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to her conditions of employment and other and in relation to her dismissal. There is also a complaint of Equal Pay.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 4th of July 2011 alleging that the respondent had discriminated against her on grounds of race and gender when her hours of work and her rate of pay were reduced without warning before being dismissed when other male Irish workers were retained. The complainant also submitted a claim of Equal Pay with a named comparator which she later withdrew.
2.3 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 12th of September, 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. A written submission was received from the complainant. The respondent did not provide any submission in relation to this matter and was not present at the hearing. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 14th of March, 2014. Final correspondence in relation to this matter took place on 26th of May 2014. Final information in relation to this matter was received on 6th of June 2014.
3. Summary of complainant’s case
3.1 The complainant states that she is a Chinese National. She submits that she was employed by the respondent from February, 2002 to January, 2011. The complainant was employed on a part time basis and worked weekends.
3.2 It is submitted that the complainant had been working for a rate of €15 per hour and was suddenly without explanation reduced to €10 per hour in June 2010.
3.3 Following this the complainant’s hours were reduced without explanation.
3.4 The complainant continued to work and to be paid at this rate until 27th of December, 2010 after which she received no hours at all.
3.5 The complainant contacted the respondent by phone on a number of occasions and was eventually told that there was no more work for her at the moment
3.6 The complainant submits that another staff member Mr. M who was male and Irish was taken on after her and continued to work there after the complainant was told there were no more hours for her.
3.7 The complainant submitted that Mr. M was also employed on a part time basis and normally worked weekends the same as the complainant.
3.8 The complainant has submitted that she was awarded a lump sum payable under the Redundancy Payments Acts by the Employment Appeals Tribunal but submits that the respondent has refused to comply with this award.
3.9 The complainant advised the hearing that during the time period in question she was the only female member of staff. She stated that there had been other females working there from time to time but that they were either related to the owner or family friends.
4. Summary of Respondent’s case
4.1 The respondent has not provided the Tribunal with any submission in relation to the above matters.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender and race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008. 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 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".
5.3 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)…..” Sections 6(2)(a)(b) and (c) of the Acts define the discriminatory grounds of gender and race as follows – “as between any 2 persons, ............
(a) that one is a woman and the other is a man,..
(h) that they are of different race, colour, nationality or ethnic or national origins… “
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Chinese, and on grounds of gender i.e. because she is female. 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.[1]
5.4 Preliminary Jurisdictional Issues- Time Limits
5.4.1 The complainant submitted her claim on 4th of July 2011 and cited the date of termination of her employment as 27th of January, 2011. The complainant advised the hearing that the last date on which she actually worked for the respondent was on 27th of December, 2010. However it is submitted that the complainant was entitled to 4 weeks notice given her service therefore the date of her dismissal would be the date on which her employment can be considered to have terminated which taking into account the notice period would have been 27th of January, 2011.
5.4.2 Section 77(5) of the Acts provides as follows:
“(a) 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 occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
5.4.3 It is submitted that the last date on which the complainant worked for the respondent was the 27th of December, 2010, this would mean that the last date by which the complainant could submit her complainant is 26th of June, 2011. The complainant submitted her complaint to the Tribunal on 4th of July 2011. However although the complainant has stated that the last date on which she actually worked for the respondent was 27th of December, 2010 the complainant advised the hearing that she was not at this point aware that this was her last day at work. The complainant gave evidence at the hearing that she was not advised by the respondent at this point that she was not returning to work, the complainant was instead lead to believe that she would be rostered again as hours became available. The complainant advised the hearing that she had phoned the respondent on a number of occasions after this date during January 2011 and was told that there were no hours for her at the moment but that they would be in contact with her again as hours arose. The complainant contacted the respondent on a number of occasions to enquire as to when she was being rostered to work again before eventually being told that there was no more work for her. The complainant did not receive any official documentation that her employment had come to an end and so was unaware that her employment had ended on the last day she had been rostered to work.
5.4.4 Section 77(6) of the Employment Equality Acts provides for the circumstance where an employee submits a late claim due to a misrepresentation on the part of the respondent. Section 77(6) states as follows
(6) Where a delay by a complainant in referring a case under this
section is due to any misrepresentation by the respondent, subsection
(5)(a) shall be construed as if the references to the date of occurrence
of the discrimination or victimisation were references to the date on
which the misrepresentation came to the complainant’s notice.
5.4.5 In my view this case falls into the category provided for under Section 77 (6) as the complainant in this case, was unaware, due to misrepresentation on the part of the respondent that she would not be rostered to work any more hours after 27th of December, 2010. The complainant advised the hearing that she had contacted the respondent on a number of occasions and was told that there were no hours for her at the moment but that she would be given hours when they arose. The complainant was eventually told by the respondent that there was no more work for her. I am also mindful of the fact that the complainant has submitted that if she had been given her 4 weeks notice on the 27th of December 2010 her date of termination of employment would have been 27th of January, 2011 as cited in her claim form. Accordingly I am satisfied based on the totality of the evidence adduced in relation to this matter that the complaint was submitted within the 6 month’s time limit set out in Section 77(5) of the Acts.
5.5 Dismissal and Section 101 of the Acts
5.5.1 The complainant advised the hearing that she had made a number of claims to the Employment Appeals Tribunal including a claim under the Unfair Dismissal Acts. The complainant provided the Tribunal with a decision of the Employment Appeals Tribunal (EAT) in respect of the Redundancy Payments aspect of her claims. The complainant advised the hearing that she had withdrawn her claim in respect of the Unfair Dismissals Act, at the EAT hearing. The EAT decision indicates that the Unfair Dismissals aspect of the claim was in fact withdrawn by the complainant.
5.5.2 S.101 (4) of the Employment Equality Acts provides that a person who has been dismissedor constructively dismissed cannot seek redress in respect of that dismissal from more than one forum.
Section 101(4) provides
"An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if
(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,
(b) in the exercise of powers under the Unfair Dismissals Acts, 1977-1993, a Rights Commissioner has issued a recommendation in respect of the dismissal, or
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal."
5.5.3 Thus according to section 101(4) it is clear that where a complainant refers a case of discriminatory dismissal to the Tribunal and a complaint of unfair dismissal to the EAT, under the terms of section 101(4) the Tribunal cannot proceed to hear the case if it has already been heard by the EAT. In the present case the complainant has stated that she withdrew the Unfair Dismissals aspect of her claim from the EAT and the EAT decision indicates that it was withdrawn. I am thus satisfied that the complainant’s dismissal was not dealt with by the EAT and that I have jurisdiction to hear this aspect of her claim.
5.6 Equal Pay
5.6.1 The complainant advised the hearing that in June 2010 her wages had been reduced from €15 to €10 per hour without warning. The complainant in her submission has named Mr. M as a comparator with whom she was being paid less. However the complainant when questioned could not say how much Mr. M was being paid or whether he was being paid more or less than her. I explained to the complainant at the hearing what was involved in an Equal Pay claim and outlined the relevant provisions of the Act. The complainant stated that she was not aware of how much Mr. M was being paid and conceded that hers was not an Equal Pay claim for the purposes of the Act.
5.6.2 The complainant went on to state that her issue with Pay was the fact that her wages were reduced without warning or reason in June 2010. I have thus decided to look at this aspect of the complaint under conditions of employment and other.
5.7 Discriminatory Treatment in relation to conditions of employment and other.
5.7.1 The complainant advised the hearing that in June 2010 her wages had been reduced from €15 to €10 per hour in 2010 without warning. It is submitted that the complainant had been working for a rate of €15 per hour in 2010 and was suddenly without explanation reduced to €10 per hour. The complainant advised the hearing that she only realised that her hourly rate had been reduced when she received her payslip. The complainant stated that she had received no warning or discussion in relation to the reduction. The complainant advised the hearing that she approached the respondent when she noticed the new rate in her payslip and asked why her wages had been reduced. The respondent told her “that’s all I can pay you”. The complainant advised the hearing that she told the respondent that she was not happy with this reduction in her salary and asked to be shown some documentation to indicate the reason for the reduction. The respondent did not provide any documentation to indicate the reason for the reduction in her salary. The complainant advised the hearing that she asked on a number of occasions why her wages had been reduced but was never provided with a reason.
5.7.2 The complainant advised the hearing that she was the only staff member whose wages were reduced at the time and stated that this was due to the fact that she was Chinese and female. The complainant stated that she was the only non-Irish person working for the respondent during the time in question and also the only female. The complainant stated that other females had in the past been employed there but that these were family members or girlfriends of family members.
5.7.3 The complainant advised the hearing that she was the only staff member whose wages were reduced at the time and added that wage cuts were introduced for other staff members months later but that these cuts were agreed between staff members and the respondent with the involvement of the staff union. The complainant advised the hearing that these cuts were implemented in February 2011 some 8 months after the complainant’s wages had been reduced without consultation or discussion. The complainant in support of this produced a letter from the respondent’s representative to the union dated 11th of February, 2011 which indicated that a 10% pay cut was being proposed for all staff and would be subject to review after a 6 month period.
5.7.4 It is clear from the evidence adduced that the respondent, in February 2011, was in a position where it had to reduce staff wages but what is not clear is the reason for the complainant’s wages being reduced unilaterally in June 2010, 8 months earlier than other wage reductions. The complainant submits that she was not the newest member of staff and that others had joined the organisation after her but that she was the only staff member whose wages were reduced in June 2010. The complainant submits that she was the only non-Irish member of staff and the only female member of staff at the time. I am satisfied based on the totality of the evidence adduced that the complainant has established a prima facie case of discrimination on grounds of race and gender which the respondent has failed to rebut. Accordingly I am satisfied that the complainant was discriminated against by the respondent on grounds of race and gender in relation to this matter.
5.8 Discriminatory Dismissal
5.8.1 The complainant advised the hearing that following the reduction in her wages she continued to work and to be paid at this reduced rate until 27th of December, 2010 after which she received no hours at all.
5.8.2 The complainant advised the hearing that another staff member Mr. M who was Irish and male started work with the respondent in 2008 or 2009 a number of years after the complainant. The complainant stated that she worked part time and was usually rostered to work at weekends. The complainant stated that Mr. M was also part time and also worked weekends the same as the complainant. The complainant stated that her hours began to be reduced in late 2010 until eventually she was not rostered for any hours at all. The complainant advised the hearing that Mr. M was still getting hours while she was being told there was no work for her. The complainant states that this is due to the fact that he is male and Irish and she is female and Chinese.
5.8.3 The complainant stated that she had not been rostered for any hours after 27th of December, 2010. The complainant advised the hearing that she contacted the respondent by phone on a number of occasions and was told on a number of occasions that they had no hours for her at the moment but that they would call her when they had hours for her. The complainant stated that she kept calling and was eventually told that there was no more work for her. The complainant was given no reason or explanation for this.
5.8.4 The complainant advised the hearing that she had worked for the respondent since 2002 and stated that Mr. M who was male and Irish was taken on after her and continued to work there after the complainant was told there were no more hours for her. The complainant advised the hearing that she was only available to work weekends and the odd night during the week. She stated that Mr. M had another job and was also only available to work weekends or the odd week night. The complainant stated that she was told there were not enough hours for her yet Mr. M who was taken on after her was still being given hours and was kept on after the complainant was told there was no more work for her. The complainant advised the hearing that she and Mr. M did the same job. The complainant stated that the respondent claimed they had no hours for her but gave all the hours to Mr. M. The complainant submits that the reason for this was due to the fact that she is non-Irish and female. The respondent did not provide any submission to the Tribunal and was not present at the hearing therefore produced no evidence to rebut the claims made by the complainant. I am satisfied based on the totality of the evidence adduced that the complainant has established a prima facie case of discrimination on grounds of race and gender which the respondent has failed to rebut. Accordingly I am satisfied that the complainant was discriminated against by the respondent on grounds of race and gender in relation to her dismissal.
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 -
- the that the respondent did discriminate against the complainant on grounds of gender and race in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of the reduction in her wages in June 2010
- the that the respondent did discriminate against the complainant on grounds of gender and race in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of her dismissal
6.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld.
6.3 In considering the redress in this case, I am mindful of the fact that I have found that the complainant has been subjected to discrimination on grounds of her gender and race and that she was dismissed in circumstances amounting to discrimination. In addition, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the remuneration which the complainant was in receipt of at the relevant time, and the length of time she was employed by the respondent. I consider an award of compensation in the sum of €10,000 to be just and equitable.
6.4 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This component of the award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
____________________
Orla Jones
Equality Officer
1st of September, 2014
'Footnotes'
[1] Labour Court Determination No. EDA0917