DEC-E2016-114

Employment Equality Acts

DECISION NO: DEC-E2016-114

Mr Dominik Hrynczuk

(Represented by SIPTU)

V

Noonan Services Group Limited

(Represented by Management Support Services.)

File Nos. ET-155259-ee-15

Date of Issue: 2nd August 2016

DISPUTE

The case concerns a claim by Mr. Dominik Hrynczuk (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by Noonan Services Group Limited (hereinafter referred to as ‘the respondent’) on the grounds of race contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) when they treated him unfavourably for speaking Irish in the workplace.

The complainant referred his claim to the Director of the Equality Tribunal under the Employment Equality Acts (hereinafter referred to as “the Acts”). on the 6th April 2015. On the 20th January 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A hearing took place on the 5th April 2016 at the WRC, Davitt House, Dublin 2.

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.

SUMMARY OF COMPLAINANT'S CASE

2.1 The complainant, a Polish national, commenced employment as a security guard for the Respondent in September 2010 and he was assigned to work in a shopping centre.

2.2 The complainant submits that on the 19th December 2014 while on duty in the shopping centre that he received a call from the control room instructing him to go on break, to which he replied “ Go raibh maith agat” to which his supervisor (not an Irish national) said “only English.”

2.3 The complainant cites another specific incident when he attempted to speak Irish on the job but was instructed to use English by his supervisor and other occasions when he raised the issue of the Irish language. The complainant also cites the negative reaction of a colleague when the complainant presented him with a copy of the constitution.

2.4 The complaint submits that on one occasion he was accused of calling a colleague an “amadon” and that a complaint was made against him. The complainant submits that he requested a copy of the complaint and shortly after had his employment terminated on the grounds that he had breached the dignity at work policy.

2.5 The complainant submits that he was treated less favourable than an Irish employee would have been for using similar language and that the treatment he received is discriminatory.

SUMMARY OF RESPONDENT’S CASE

3.1 The respondent provides security services to their client, the Shopping Centre. A number of Security Officers would be assigned to the site and they would be required to communicate between themselves and the client's representatives, both directly and through the medium of a radio. The respondent submits that as Security Officers they would be responsible for providing a security service and support throughout the shopping centre and to attend different locations throughout the centre to assist both the operators of the shopping centre itself, shop staff who would be the clients of the shopping centre and colleagues, in relation to matters of security.

3.2 The respondent submits that the complainant had been living in Ireland for at least eight years at the time of employment and was able to speak English to a level that was satisfactory for him to carry out his Security Duties.

3.3 The respondent submits that, the complainant commenced work on the 15th September 2014 and was required to complete a six month probation period. During the course of his employment with the company it became apparent that the complainant had decided that he had the right to speak Irish at work and in fact maintained that this was his right under the Irish Constitution, as it is the official language of the country. The respondent submits that as their company employed personnel of different nationalities, it was company policy that all employees should communicate in a common language and that language was English.

3.4 The respondent submits that on a number of occasions the complainant was advised that he should communicate at all times in English whilst at work, and this was highlighted in an incident that arose on the 19th December 2014. The following is the respondent’s account of that incident. On this occasion the complainant was on duty and received a call from the control room instructing him that it was time for him to take his break. The complainant chose to reply to his supervisor in Irish stating "go raibh maith agat". The Supervisor immediately responded reminding the complainant that he must only speak in English and should not be communicating in Irish. Later, the complainant met the Supervisor and stated to him that he believed that he was entitled to speak in Irish as the national language, while he was in Ireland. It is the respondent’s position that having said this, the complainant has acknowledged that he had been told by his Supervisor and also the Manager responsible for cleaning that he must speak English whilst at work and in fact references in his own claim form that his Supervisor was Polish and another colleague, who was present, was Latvian and he conforms that he was again told of the need to speak a common language and that he was not allowed to speak in Irish.

3.5 The respondent submits that a further incident arose in February 2015 when the complainant called a fellow Security Officer an "amadon" which means a fool or idiot. The respondent submits that comment was passed not in conversation with the member of staff concerned but was a reference to the member of staff when talking to one of the employees of one the shops in the centre.

3.6 The respondent submits that a complaint was made to the respondents Management by the Centre (Client) Manager. In this regard the client wrote to the company on the 21st February 2015 indicating that in her opinion the complainant was being disruptive and appeared to regularly complaining about his working conditions, which he was discussing not with his own colleagues, but with various staff members in the centre, who were finding it unsettling. She also expressed a concern regarding the incident where he actually referred to one of the respondents staff as a "fool", in Irish and also made reference to the fact that at all times English must be spoken over the radio and not Irish.

3.7 The respondent submits that at this stage the complainant was in his fifth month of his probation period and was subsequently invited to a review meeting which took place on the 24th February 2015. He was also made aware that at the review meeting the complaint of the 21st February was going to be discussed.

3.8 The respondent submits that arising from this review meeting that they advised the complainant that they were not going to be making him permanent and were exercising the right under the probation period to terminate employment on the grounds of his unsuitability. In this regard in a letter of the 7th March 2015 the company indicated that the complainants behaviour was in breach of the respondents dignity at work policy and also that his behaviour had undermined the trust and confidence that the company required to have in him with regard to him attending work and carrying out his duties to a professional standard.

3.9 The respondent confirms that it operates an English only policy and in this regard maintains that this is an essential requirement in the operation of this business and confirms that this rule applies to all staff irrespective of nationality. It is the respondent’s position that the communication between parties, especially by radio, must be in a language that is understandable to all concerned both for the efficiency of the transmission of information and also to allow for effective responses to emergencies and any other situations that may arise.

3.10 The respondent submits that the complainant, by his own acknowledgment, identified that he himself is Polish, his Supervisor was Polish and there was a Manager on site who was Latvian. The respondent asserts that it would be standard practice within this industry to have a range of nationalities, all of whom would speak different languages based on their own nationality. Whilst these languages may be similar, in many occasions this is not a standard language and therefore it is not unreasonable to expect that whilst in work they would communicate in one single language.

3.11 The company would contend that it is accepted that an English only policy can be applicable where it is necessary for operational reasons and is applied on a reasonable basis. In this regard the company refers to the decision of Ms Katarzyna Fluda and Ms Jolanta Jarmolinska V MBCC Foods Ireland Limited Reference ee-2010-329,333.

3.12 The respondent contends that this is well established, not just within this particular country but even on international basis where you would have a business language which is applicable for the purposes of business communications. Therefore, the company contend that the English only principle is not an unreasonable operational requirement in relation to the operation of providing a security service.

3.13 The respondent submits that complainant maintains the cause of his dismissal, was the use of a language which had nothing to do with that fact that he was Polish. The language was another language and not his own language. Therefore, the respondent would question whether there is even a valid question as to whether or not the claimant was treated any differently because he was Polish, bearing in mind that the Irish language had nothing to do with his nationality, and as he has stated in his own evidence, he was told by someone who was Latvian that they must also speak in English.

3.14 The respondent submits that this policy is applied to every nationality and is not applied to one particular nationality in preference to another. This being the case, the respondent submits that the claim must fail because the basis for the discrimination, speaking a language that is not his own native language has not been associated in this instance with the nationality of the complainant.

3.15 The respondent submits that the question which they had to address, when they were considering the complaint from their client, was the fact that the complainant was discussing issues with members of staff that were of no relevance to them and were causing other members of staff to feel uncomfortable. Furthermore, the respondent asserts that it was faced with a situation where a member of staff was persistently breaching the language policy and, when challenged, clearly argued that be was not obliged to follow instructions which the company believed to be legitimate.

3.16 Finally, the respondent submits that the matter in relation to the complainant's employment came to a head when he spoke inappropriately about a fellow colleague to third parties. The respondent states that every employee is entitled to be treated with integrity and respect and that in this case the claimant was derogatory about a fellow colleague to a third party, which clearly made that person uncomfortable with the complainant's behaviour, to the extent that the matter was reported to the respondent.

3.17 The respondent submits that in this particular case the complainant not only referred to a colleague in a derogatory fashion, he also did that using the Irish language rather than English language. The respondent submits that this behaviour was unacceptable and, as indicated in the letter of termination, the reason why the employment was ended was due to the claimants failure to conduct himself properly at work and to comply with a reasonable instruction regarding speaking English, and not because he wished to speak a language which had nothing to do with his nationality.

3.18 In conclusion, the respondent contends that it did not discriminate against the complainant on grounds of his nationality for the reasons outlined above, but in fact terminated his employment because it became clear to the respondent that the complainant was not suitable to act as a Security Officer in accordance with the rules and standards applicable in the company and therefore under those circumstances was unsuitable.

FINDINGS & CONCLUSION

I have to decide if the complainant treated less favourably on the ground of race. In reaching my decisions 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 presented at the hearing.

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.

In this case the parties are mostly in agreement regarding the incidents when the complainant attempted to speak Irish and the response he received, the only significant difference being who exactly was called an “amadon”. I note that at no time has the complainant rejected the respondent’s assertion that the Irish language is not connected to his nationality.

The complainant attending the hearing of this complaint and gave direct evidence that he is unable to speak Irish and a full account of the alleged incidents when he attempted to communicate in Irish. The complainant gave evidence that he was aware that the individuals he was addressing were unable to speak Irish. Having heard full details of all the relevant incidents as outlined by the complaint I am fully satisfied that there was never any genuine desire or attempt by the complainant to communicate through Irish and that his behaviour was simply intended to frustrate his colleagues and manager.

Witnesses for the respondent including the complaints supervisor attended the hearing of this complaint and gave a full account of all the incidents complained of by the complainant. I accept the account of the respondent in regards to all aspects of this complaint. I accept that the complainant’s behaviour resulted in a complaint from the respondent’s client which had to be addressed formally by the respondent. I accept that this complaint was dealt with in a fair manner and that the respondent was at all times extremely patient and reasonable in response to unacceptable behaviour by the complainant. I am satisfied that had an Irish person behaved in the same manner as the complainant that they have been treated in the same manner by the respondent. I find that the respondent’s decision that the complainant was not suitable to act as a Security Officer was rationally based on the complainant’s job performance and not linked to the ground of race.

DECISION

5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that

(i) the complainant was not subject to discrimination on the ground of race and his conditions of employment were not affected,

(ii) the complainant was not subject to discrimination on the ground of race in relation to dismissal from his employment.

____________________

Peter Healy

Adjudication Officer/Equality Officer

2nd August 2016