EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E-2016-009
PARTIES
Sandra Gegeckiene
(Represented by Richard Grogan & Associates)
Vs
John Thomas Bradbury (t/a Bradburys)
(Represented by Fergal Fitzgerald-Doyle BL,
on the instructions of Frank Taaffe, Solicitor)
File Ref: EE/2014/346 & 402
Date of issue: 21 January 2016
1. Dispute
1.1 This dispute concerns an allegation by the Complainant that the Respondent discriminated against her on the ground of her race in terms of her dismissal contrary to the provisions of the Employment Equality Acts.
2. Background
2.1 Ms. Gegeckiene commenced her employment with the Respondent (Bradburys) on 20 February 2014 as an “assistant” at its catering business. Bradburys operate 2 small coffee shop outlets in Co. Kildare, one at Athy and another at Newbridge. Ms. Gegeckiene’s employment was terminated with one week’s notice on 26 June 2014. She subsequently referred 2 complaints of alleged discrimination to the Equality Tribunal, the first on 26 June 2014 and the second on 23 July 2014. At the hearing of these complaints on 14 October 2015 the Complainant confirmed that only her complaint of alleged discriminatory dismissal was being pursued. All other allegations of discrimination were withdrawn.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, the Director, on 5 May 2015, delegated the complaints to me - Gary Dixon, Equality/Adjudication 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 on which I commenced my investigation.
2.3 Written submissions were received from each party. As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on 29 May 2015. The hearing was adjourned at the request of the Complainant, as was a subsequent hearing scheduled for 2 October. The matter proceeded to hearing on 14 October 2015.
2.4 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.
3. Summary of Complainant’s Case
3.1 The Complainant is a Lithuanian national who was employed by the Respondent as an assistant at its coffee shop operations from February to June 2014. The Complainant alleges that she was dismissed without any appropriate procedures (disciplinary or otherwise) having been applied or invoked by the Respondent and that her dismissal constitutes discrimination on the ground of her race contrary to the provisions of the Employment Equality Acts.
3.2 In support of her allegation of discrimination on the race ground the Complainant relies on the decision of the Labour Court in Rasaq -v- Campbell Catering which found that a female Complainant of non-Irish nationality had been discriminated against in relation to her dismissal by Campbell Catering. In its findings in that case the Labour Court identified a “positive duty” on employers to take account of the practical implications of the cultural and linguistic diversity of their workforce when applying disciplinary procedures.
3.3 The Complainant states that there were no discussions entered into with her or warnings given to her, written or otherwise, by her employer prior to her dismissal. She submits that no proper procedures were applied in relation to her dismissal and that, therefore, she had no opportunity to engage an appropriate representative. In that regard she submits that the Labour Court decision in Rasaq -v- Campbell Catering made it clear that many foreign workers encounter difficulties during their employments arising from differences in culture and language.
3.4 The Complainant further submits that she was never informed of the grounds for her dismissal and that that fact alone is sufficient to establish an inference of discrimination on the ground of race which is of appropriate substance to place the burden on the Respondent to prove the contrary.
4. Summary of Respondent’s case
4.1 The Responded states that the Complainant was not dismissed because she was Lithuanian; she was dismissed because she was unable to reach an acceptable level of competence and because she had a poor attitude to her work. The Respondent states that it requires a minimum level of competence and attitude from all of its employees regardless of nationality and that the Complainant was dismissed because of her poor performance. As regards the Complainant’s “attitude” to work and her “demeanour” at work, the Respondent submits that, as it operates a small business in the hospitality sector, it requires its staff to multitask and also to have a pleasant disposition towards its customers. While stating that “they did all they could” to encourage the development of these skills, the Respondent submits that the Complainant continued to have a bad manner and was impolite to its customers.
4.2 The Respondent employs a variety of nationalities including Irish, Lithuanian, Polish, Romanian, Slovakian and Latvian workers, all of whom, it submits, are expected to reach a minimum level of competence. However, the Respondent states that during the Complainant’s 19 week tenure of employment – which was within the 52 week probationary period specified in her contract of employment – her performance or demeanour did not improve despite regular discussions and interventions by her manager concerning her attitude and work performance.
4.3 The Respondent states that it was left with no alternative but to terminate Ms Gegeckiene’s employment after 19 weeks of the 52 week probationary period specified in her contract of employment. (As per the terms of that contract, the company reserved the right to end her employment at any time during the 52 week probationary period).
4.4 The Respondent further submits that at no time during her tenure of employment did Ms Gegeckiene approach her manager, or any other member of management, in relation to any grievance or complaint. However, the Respondent states that Ms Gegeckiene’s manager (Mr Bradbury) had several conversations with her about her work performance, attitude and demeanour, as is the norm during any such period of probation.
4.4 In summary, the Respondent states that it invested 19 weeks of employment and training in an effort to help bring the Complainant to the required minimum level of performance for the job, but without success. The Respondent submits that it bore the costs of this lost investment. It denies any allegations of discrimination on the race ground or otherwise.
5. Conclusions
5.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.
Burden of Proof
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires a Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If the Complainant succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.
5.3 In Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) the evidential burden which must be discharged by a Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:
“The claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”
5.4 In evaluating the evidence, therefore, I must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts. As outlined above, the Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.
5.5 The Complainant has alleged that she suffered discrimination because of her Lithuanian nationality, i.e. the discriminatory ground of race cited at section 6(2)(h) of the Employment Equality Acts which defines the race ground as –
“… (h) that they are of different race, colour, nationality or ethnic or national origins...”
5.6 The Complainant argues that it has been established by the Labour Court in Rasaq -v- Campbell Catering that there is a “positive duty” on employers to take account of the practical implications of the cultural and linguistic diversity of their workforce. Essentially, therefore, it is submitted that the “bar is set higher” for employers when they are invoking disciplinary procedures against employees whose first language is not the English language.
5.7 I acknowledge that the Labour Court has held that, in certain circumstances, employers have a "positive duty" to ensure that "special measures" are taken for non-Irish workers to ensure that they understand disciplinary action that is taken against them. In the current case, the employer has shown that its workforce, albeit small, comprised at least 6 different nationalities, i.e. Irish, Lithuanian, Polish, Romanian, Slovakian and Latvian employees. The Complainant’s duties as a coffee shop assistant would have necessitated day to day interactions with customers and other staff members through the English language.
5.8 Having considered all the facts of the case, I do not consider that it is plausible that the Respondent would have decided to terminate the employment of one of its Lithuanian employees because of her nationality, while retaining other Lithuanian employees as well as Polish, Romanian, Slovakian, Irish and Latvian employees. In my opinion, there must have been a reason other than her nationality (or race) to terminate the Complainant’s employment, such as her poor work performance, as submitted by the Respondent.
5.9 Therefore, while I have had regard to the findings of the Labour Court in Rasaq -v- Campbell Catering, in my view no prima facie case has been established in relation to alleged discrimination on the race ground as no evidence has been presented to show that the Complainant was treated less favourably than any other comparable employee of a different race or nationality, bearing in mind the diversity of nationalities employed by the Respondent (including other Lithuanian employees).
6. Decision
6.1 I have completed my investigation of this complaint and, in accordance with section 79(6) of the Employment Equality Acts and section 41(5)(a)(iii) of the Workplace Relations Act 2015, I hereby make the following decision:
6.2 I consider that the Complainant has not established a prima facie case of discrimination on the race ground.
___________________
Gary Dixon
Adjudication Officer/Equality Officer
21 January, 2016