The Equality Tribunal
Employment Equality Acts 1998 to 2011
Case reference: EE/2014/277
Rogelio Recto
v.
HMSHost Europe (Ireland) Limited
Respondent
1. Introduction
1.1 On the 16th May 2014, the complainant referred a complaint to the Director of the Equality Tribunal on the grounds that he was discriminated against by the respondent, in that he was subject to harassment in the workplace and dismissed by the respondent for opposing discrimination.
1.2 On the 30th June 2015 and in accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made submissions in advance of the hearing and attended the hearing on the 8th July 2015.
1.3 At the hearing, the complainant was represented by Susan Lennox, BL instructed by Pádraig O’Donovan & Company Solicitors and was accompanied by his spouse. Declan Foley, General Manager and Catherine O’Donoghue, former HR Manager attended for the respondent and the respondent was represented by Siobhan McGowan, solicitor of Purdy Fitzgerald Solicitors.
2. Summary of the complainant’s case
2.1 In the complaint form, the complainant outlines that his employer, the respondent, discriminated against him and that he was subject to harassment. He says that he was dismissed from his employment because he opposed discrimination. He outlines that he was abused by his employer in having to use his car for work-related duties and for not being compensated for petrol expenses. He also had to work on rest days in order to meet end-of-month deadlines.
2.2 In a narrative submission, the complainant provides an outline of the events since the commencement of his employment on the 28th May 2008. The complainant submits his contract of employment and correspondence exchanged by the parties regarding his redundancy. This includes a letter notifying the complainant that he is at risk of redundancy, dated the 27th March 2014 and a letter of the 3rd April 2014 informing him of his dismissal. In further correspondence, the complainant challenges the fairness of the redundancy and accuses his General Manager of discriminating against him.
2.3 At the hearing, the complainant outlined that he was first hired by the respondent on the 28th May 2008 in the position of stock control manager. His employment ceased on the 28th May 2010 due to a work permit issue. He said that at his induction session in early June 2008, he had submitted the paperwork to allow the employer complete the work permit application, but this was not properly processed by the respondent for the period of a year. This led to the cessation of his entitlement to work in Ireland and his subsequent dismissal. He was later re-employed once the issue was resolved.
2.4 In respect of his hours of work, the complainant said that in one period, he had worked over 300 hours and had not been paid for this additional work, despite submitting the required time sheets. This occurred in January 2010 when six colleagues who worked for the complainant were made redundant. He was forced to do their work and carried this burden from the 25th January 2010 until the 23rd April 2010, at such time that a new distribution regime came into place. As well as long hours, he was forced to do tasks that were not his to do, for example driving a forklift. He had to get help from other airport workers, who worked for other companies. He said that this was an extremely difficult period. He outlined that his hours of work were 9am to 5pm, but that he was often required to come to work at 4.30am to receive deliveries. This work would continue until all deliveries were completed. He was not paid overtime for this.
2.5 The complainant said that the General Manager made him use his own car to take items from the airport to a storage facility. This required a great number of trips. He was never compensated for the claim of €658.32 he lodged in this regard. The complainant submits an email dated the 14th December 2012, addressing this matter and sent to the HR manager. In respect of parking, the complainant outlined that he never received the free car parking adjacent to his workplace as he was entitled to per his contract of employment. He was deducted a charge for parking from his salary. In respect of the Burlington event, the complainant said that he had been required to hire a tuxedo for an industry awards event, whereas the General Manager used a company credit card to pay for his. He also said that not every colleague attended the event. On the night, the complainant then drove the General Manager and colleagues to the event. The complainant said that the other managers had made fun of him during this drive. This event occurred in 2010 or 2011. The complainant also outlines that the respondent wrongly reduced his salary; a matter pursued previously before a Rights Commissioner under the Payment of Wages Act. The complainant outlined that he suffered high blood pressure leading to a mild stroke in May 2013; he attributes these health problems to his workplace.
2.6 The complainant said that in October or November 2013, company headquarters emailed all staff regarding a forthcoming survey; it stated that the survey would address the issues of racism and harassment at work. Staff members were emailed a link to the survey in January 2014. The complainant said that he felt obliged to complete it as the email said that if an employee knew of anything, they must report it. He said that he spoke with a colleague, who told him that he would not be answering it. The complainant said he completed the survey, stating that he had witnessed discrimination at work and that the HR manager had done nothing about it. He was concerned about having to input demographic data, such as in relation to his race, when completing the survey. He outlined that he was subsequently dismissed from the respondent for reporting these incidents in the survey response.
2.7 The complainant outlined that he had previously opposed racial harassment in the workplace by posting notices in prominent places to say that discrimination destroys lives. He said that these had been taken down and that they met with the disapproval of senior management. The complainant said that the General Manager continuingly reprimanded him, frequently saying that the complainant was lucky to have a job.
2.8 In respect of his dismissal, the complainant outlined that on the 27th March 2014, he was summonsed to a meeting, where he was informed that his job was at risk. This was followed by correspondence between the parties, where the complainant sought to prevent his dismissal. Later, on the 17th April 2014, he attended a meeting where he was formally dismissed. He said that this became a heated encounter and that he refused to sign the RP50 form. The General Manager threatened to call the airport police and to pre-empt this, the complainant made the telephone call. He described the General Manager’s behaviour as threatening and harassing. At this time, the complainant raised his entitlement to payments above and beyond statutory redundancy. This includes payment for the notice period. The complainant said this was his last day of employment with the respondent. At the time of his dismissal, there were two staff, including him, in the stock room. Since then, the other colleague, a Polish male, has been made redundant.
2.9 In cross-examination, it was put to the complainant that his complaint was made out of time and that the issues of parking, expenses, salary and minimum notices had been addressed in other fora. It was put to the complainant that he has not lodged a dispute under the Organisation of Working Time Act. It was put to the complainant that the respondent had no choice but to terminate his employment once the work permit issue came to light and that the respondent assisted the complainant in re-acquiring a work permit. It was put to the complainant that of the respondent’s 102 employees in Ireland, 35 were Irish. It was put to the complainant that he had not raised the survey issue at any stage before the hearing. The complainant said that his complaints were not out of time as there were recent events of harassment and discrimination. He said that he needed employment so could not just walk away. He said that he had been taken advantage of by the respondent and that they had exploited the fact that he needed a job.
2.10 In closing submissions, the complainant outlined that he had been subjected to direct and indirect discrimination relating to the conditions of his employment and his subsequent dismissal. The complainant stated that there had been a continuum of discriminatory events, including the non-renewal of his work permit, grossly excessive hours of works and the refusal to pay expenses submitted to the respondent.
2.11 In closing submissions regarding his dismissal, the complainant said the dismissal stemmed from the statements in the survey he made about harassment and discrimination on grounds of race. He outlined that the manner in which he was dismissed as well as the dismissal itself amounted to acts of victimisation for raising issues of discrimination in the workplace. It was submitted that the complainant was dismissed because of his responses to the survey. Those statements lead to his dismissal and in particular, the manner in which the dismissal was carried out. The complainant was summonsed to a meeting, where he was required to surrender his ID card or the airport police would be called. These actions amounted to unfavourable treatment and dismissal on the grounds of race.
3. Summary of the respondent’s case
3.1 In submissions made in advance of the hearing, the respondent outlines that it is an international food and beverage company located in 27 countries. Its Irish operation employs seven managers, two of whom are Irish; overall, the Irish company has 102 employees, of whom 35 are Irish. In respect of this complaint, the respondent denies the allegations made of discrimination and harassment. Furthermore, the respondent states that the complainant was made redundant due to a downturn in sales.
3.2 At the hearing, the HR manager said that she commenced employment with the respondent in 2012. She was not aware of any complaints made by the complainant regarding his working conditions. She denied receiving the email exhibited by the complainant, dated the 14th December 2012. She also said that the complainant did not make an expenses claim regarding the use of his car and that the expenses policy was available for all to inspect on a shared internal online resource. Addressing the issue of the survey, the HR manager said that this was a general staff satisfaction survey to establish whether employees of the respondent felt “good” about working for the company. The survey was conducted on behalf of the respondent and that the demographic data gathered in the survey was not forwarded to the respondent; the survey provider retained the data for analytical purposes. She outlined that the survey was not directed to assess issues of racism or harassment in the workplace. In respect of the complainant’s redundancy, the HR manager said that the complainant raised his entitlement for a greater payment than statutory redundancy, in particular his annual leave entitlements. He was clearly unhappy about his redundancy and complained of this at the meeting of the 17th April 2014.
3.3 At the hearing, the General Manager outlined that he commenced employment with the respondent in November 2007. He recruited the complainant in May 2008 to work in the distribution centre in the airport. He said that the complainant was a trusted employee and manager and that their relationship was a good one. He said that the complainant never made complaints about harassment in the workplace. In respect of the change in how product was received at the airport, the General Manager said that distribution had been centralised to one site away from the airport. He said that the complainant had attended meetings with the new distributor prior to the new system being in place; the complainant was aware and also involved in this process.
3.4 In respect of the Burlington event, the General Manager stated that he and the complainant had collected their tuxedos and that they called to his home on the way back to work; this was en route. He said that he paid for the hire of his tuxedo and he said that he was unsure how the complainant could allege that this had been paid for by the respondent. In respect of the storage facility, the General Manager said that this was not an active storeroom and any deliveries there were done on an ad hoc basis. He stated that the complainant never asked for help and it would have been available to him, had he done so. The General Manager outlined that he had no recollection of the notice board incident, i.e. where the complainant said he had attached a message about harassment in the workplace. In respect of the online survey, the General Manager said that this had been a HR survey carried out by the respondent company across its offices and that the demographic details entered by participants were not included in the narrative returned to the respondent. The demographic data was retained by the survey provider for wider analytical purposes.
3.5 In respect of the events of April 2014, the General Manager said the complainant did not raise the issue of discrimination at the meeting of the 17th April 2014. He stated that he had not previously seen the appeal letter referred to by the complainant, i.e. that of the 3rd April 2014. He outlined that it was clear that the complainant was unhappy about being made redundant. Under cross-examination, it was put to the General Manager that the respondent did not refund the complainant’s expenses despite their submission to the respondent. It was put to the General Manager that the complainant received less favourable treatment on the grounds of his race and that this motivated his dismissal from the respondent’s employment. It was put to the General Manager that the complainant was dismissed because he had opposed discrimination, including the complainant’s responses to the survey. The General Manager did not accept that these statements were true.
3.6 In closing submissions, the respondent denied that the complainant had been subject to discriminatory treatment or that his dismissal was discriminatory. It was submitted that no comparator had been provided to show discriminatory treatment in respect of working hours or the processing of the complainant’s expenses claims. It was submitted that the complainant’s dismissal was soley due to the redundancy of the complainant because of a change in the manner in which the employer carried out its functions. The complainant’s redundancy followed six other redundancies in the storeroom, implemented as a consequence of changes in how the respondent received goods for distribution in the airport. It was submitted that there was no differential treatment or dismissal in the instant case.
4. Findings and reasoning
4.1 In his complaint of the 16th May 2014, the complainant outlines that he was subject to discriminatory treatment by the respondent, including acts of harassment and that he was subject to a discriminatory dismissal. The complainant left the respondent’s employment on the 17th April 2014 and subsequently received a redundancy payment.
4.2 Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in Melbury Developments Ltd v. Valpeters [2010] E.L.R. 64, the Labour Court held, at page 68, as follows:
“Section 85A of the Act 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.”
4.3 In his complaint, the complainant has raised the issues of his opposing discrimination in the workplace and that this led to his dismissal by the respondent. He also raises issues from some years before the referral of his complaint to the Equality Tribunal. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination or victimisation be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It can be possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, however, establish that a discriminatory act occurred within the limitation period (see the decisions of the Labour Court in Cork County VEC v. Hurley EDA 24/2011 and County Dublin VEC v. Dodo EDA1327/2013).
4.4 In this case, the complaint states that he suffered detrimental consequences for opposing racism in the workplace in the months before his dismissal. This the causative factor behind his dismissal. He outlines that he reported incidents of racism in his reply to the respondent’s survey in early 2014. In assessing this evidence, I note that the hearing was the first occasion in which such an allegation was made. The complainant did not raise the issue of his reply to the survey at the time he was being made redundant by the respondent. He did not raise the issue on referring a complaint to the Equality Tribunal. If the survey response was as explosive as suggested in the evidence, I would have expected the complainant to have kept a screenshot or other record of the document. The complainant states that the survey response contained information about his race and other demographic information; the respondent denies receiving this part of the survey responses. Even if the information was forwarded to the respondent, I do not see what new information they would have learned about the complainant, in particular regarding his race or nationality. The complainant had worked as a manager in the employment of the respondent for some years, so the respondent was aware of his nationality and race. The complainant says that he felt compelled to complete the survey; in his own evidence, he referred to a colleague who told him that he was not responding to it; I find as fact that there was no compulsion on the complainant to complete the survey. The complainant gave evidence that he had placed notices about fighting racism in workplace common areas. I note that the evidence in this regard was vague, with no precise dates or corroborative evidence given of the impact such notices had in the workplace.
4.5 My role is not to decide whether the dismissal was fair or unfair under the Unfair Dismissals Acts; it is to determine whether the dismissal was discriminatory or a step taken in response to the complainant opposing acts of discrimination in the workplace. On the basis of the findings made above, I conclude that the complainant’s dismissal was not discriminatory on the grounds of race and that he was not otherwise subjected to discriminatory treatment, harassment or victimisation.
4.6 The other issues raised by the complainant cover the duration of his employment with the respondent, dating back to the commencement of his employment in 2008. They fall outside the limitation period provided in section 77(5) of the Employment Equality Act. Given that I have found that no discriminatory act occurred within the limitation period, it is not permissible for me to examine the older complaints as they are made out of time.
5. Decision
5.1 In accordance with section 79 of the Employment Equality Act, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subject to discriminatory treatment, dismissal or harassment on grounds of race.
_________________________________
Kevin Baneham
Equality Officer
September 2015