ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000297

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 04/02/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Sections 79 and 85a of the Employment Equality Acts, 1998-2011, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This complaint refers to the unfair dismissal of an employee due to his sexual orientate

Preliminary Issues:

The Respondent argued that it was not aware of the basis of the equality claim before the hearing as the Claimant did not submit a detailed complaint as it understood he was required to do. Referring to the WRC guideline document “Procedures in the Investigation and Adjudication of Employment and Equality Complaints”, the Respondent argued that contrary to (section 5 of) these procedures the Claimant failed to provide, at the time of lodging the complaint form, as much detail as possible; and failed to set out the facts, the link between the grounds cited and the alleged discrimination, and any other relevant information. Furthermore the Respondent argued that the Claimant failed to adhere to (Section 6 of) the said procedures where any relevant information and documentation will be required prior to the hearing. Accordingly as no statements were received from the Complainant the Respondent argued that the Director General should decide to dismiss the complaint for non-pursuit (in accordance with section 5 of the WRC procedures).

In this regard the Respondent advised that the Claimant’s initial complaint which was raised directly to it by the Claimant’s solicitor on 16^th October 2015 only referred to a lack of fair procedure contrary to his contract of employment. There was no reference to an equality issue at that time, and the absence of any clear reasons for alleging a breach of the Employment Equality Acts places it at a disadvantage. The Respondent also argued as there is no prima facia case of discrimination the complaint must fail.

Referring to this the submission of documents prior to the hearing, the Adjudication acknowledged that a precise detail from the Claimant was not provided in advance. However it was acknowledged by the Adjudication that the claim form did refer specifically to an employment equality complaint. It was explained that it was the view of the Adjudication that the complaint form allows for a hearing to take place and that the Adjudicator has the right to vary the procedures as appropriate in the circumstances of the individual case. In this regard the parties were advised that the hearing would proceed on the basis that an opportunity would be provided for the Claimant to clearly present the basis of his complaint and where an opportunity would be provided for the Respondent to make their submission. If during the course of the hearing information was presented that warranted an adjournment the adjudicator would facilitate same at that time, and if warranted the Respondent could make a further submission having heard the complaint. The parties were agreeable to progress on that basis, and all issues relevant to the claim were heard, and cross-examination was facilitated to allow for a fair hearing.

Accordingly the adjudication is satisfied the parties were provided with a fair hearing, and facilitated the Respondent to make any relevant submission following the hearing if it felt the hearing disadvantaged the Respondent. At the end of the hearing the Respondent did not indicate an intention to make any further submissions, notwithstanding a submission was subsequently made on the 9^th February 2016 which was subject to objection from the claimant. In light of the initial objections raised by the Respondent the Adjudication deemed it reasonable to consider the Respondents subsequent submission as appropriate.

Complainant’s Submission and Presentation:

This claim refers to an allegation by the Claimant, who is an Assistant Charge Hand at a food production facility, being dismissed with immediate effect on 9^th October 2015 without being the subject of fair procedures. As the Respondent contended there was no prima facia case the Claimant agreed to provide his evidence on the matter.

The Claimant alleged his dismissal occurred soon after his employer and colleagues becoming aware of his sexual orientation. The claimant alleged that he posted a picture with his partner on Facebook before departing on annual leave on 14^th September 2015, and following this posting his employer would have become aware for the first time of his sexual orientation and as a consequence he was dismissed with immediate effect on 9^th October 2015.

In setting out his complaint the Claimant advised that he started working as an Assistant Charge Hand on 12^th January 2015. The Claimant said that after a three month review he would have received an increase in salary from €9.52 to €11.50 per hour. He also successfully completed a six month probation period in June 2015 where he would have received performance rating of 37 out of a possible score of 40. At this time he also received a €125 voucher and a €100 cash bonus. He therefore contended that the were no issues regarding his performance prior to being dismissed on 9^th October 2015, and to the contrary his performance had been rated highly.

The Claimant explained that he returned from annual leave on 17^th August, and he worked until 6^th September when he again went on annual leave until 14^th September 2015. Before departing on leave he explained to his parents that he was gay, and pictures of his holiday with his partner would have been posted on Facebook. Prior to this he would not have disclosed his sexual orientation, and it would not have been known to the Respondent. However shortly after coming back from annual leave his employer’s attitude changed where on 7^th October 2015 he was accused of leaving his wellies on the floor and he was told by his manager to hang his wellies up. He was called to the office where he was met by two managers and spoken to about the wellies, and about chewing gum on the factory floor. At this meeting he was told that the Respondent was considering a review of the contract of employment and he would receive a letter about the meeting. He contended that the never received a letter, but on 9^th October 2015 he was asked to attend another meeting. At this meeting he was again being accused by the same managers of not hanging up his wellies, for chewing gum, and for repeatedly failing to comply with the Company hygiene procedures.

The Claimant denied that he had been spoken to repeatedly about hygiene issues, and contended that he had only spoken to once before regarding chewing gum. He said that he was advised during the meeting of 9^th October 2015 that his manager had decided to dismiss him with immediate effect and having heard that he left the meeting on the basis he had been told that he had been dismissed.

The Claimant argued that he has not been subject to any previous warnings or disciplinary issues in relation to the food hygiene matters, nor had it been explained to him previously that the occurrence of the alleged events would lead to his dismissal. He acknowledged that he had been spoken to once before in relation to chewing gum but that was the extent of any comments in relation to these matters he would have received from his manager. He advised that there was nothing on his disciplinary record that would indicate any action had been considered or taken against him for chewing gum at that time. He also indicated others would have left their personal equipment on the floor but were not subject to dismissal.

The Claimant contended that having received a wage increase after three months, and a very high performance score on completion of his probation period there was no reason for his dismissal based on any performance issues. He argued therefore that the only basis for his dismissal was the fact that only a few weeks earlier he had come out in relation to sexual orientation. The fact his manager told him at the meeting of 9^th October that she had decided to dismiss him, despite his protests that he had not been spoken to before about the issues at the frequency contended by his manager further confirmed his belief that his dismissal could only be due to his sexual orientation.

Having been spoken to once before about chewing gum, and only about the wellies on 7^th October 2015 he questioned why all of a sudden the matter had become a summary dismissal issue. The Claimant further contended that these matters were not identified in the Disciplinary rules and procedures as being matters of gross misconduct. In reality he was accused of the issues on 7^th October 2015, and summarily dismissed on 9^th October 2015 where the decision was made without proper consideration of his response. He contended the action of the Respondent was wholly disproportionate and occurred solely as a result of his manager only recently becoming aware of his sexual orientation.

The Claimant’s solicitor called in aid what he describes as “the principles in Von Colson and Karmann” and for the Adjudication to consider this precedent in awarding any compensation to the Claimant.

Respondent’s Submission and Presentation:

The Respondent denied dismissing the complainant unfairly, or on the basis of his sexual orientation. The Respondent further contended that the manager who dismissed the Claimant was not a user of Facebook and therefore would not have become aware the Claimant’s sexual orientation before making her decision to dismiss.

The Respondent contended that there had been ongoing difficulties with the Claimant relating to his adherence to health and safety matters on the factory floor where, as an Assistant Charge Hand, he was expected to maintain and practice the highest possible standards of their health and safety requirements. In this regard the Respondent contended that the Claimant on numerous occasions failed to properly store away his wellies in the designated area, failed to properly clean the work area of giblets and associated waste, failed to tidy up discarded gloves, and continued to eat chewing gum while on the shop floor. The Respondent argued that the Claimant failed to respond reasonably to his manager’s requests to address these matters, and indicated there was a pattern of such behaviour experienced with the Claimant where the Claimant failed to address these concerns.

The Respondent explained that as it operates to a very high quality of food hygiene its health and safety standards must be strictly adhered to. It further contended that the maintenance of its food hygiene standards was paramount where it is subject to constant Department of Agriculture inspections, and were its reputation for maintenance of high standards cannot be underestimated. Violations to safety issues could destroy the reputation of the business and ultimately cause the closure of the plant and loss of jobs. On that basis the Respondent argued that it could not tolerate poor standards in the practice of its hygiene requirements. It argued that these issues were identified as gross misconduct in it disciplinary rules and procedures, referring specifically to the gross misconduct including serious breaches of health and safety rules that endanger the lives of employees or any other person, to include HACCP Regulations; and any action, inaction or wrongdoing committed by you during the course of your employment that would result in a financial loss to the company. The Respondent argued that the chewing of gum, and the leaving of wellies, gloves and giblets on the floor amounted to a breach of these requirements and as such was gross misconduct which in accordance with its procedures would lead to dismissal.

The Respondent explained that it outlined concerns a number of times to the Claimant where he had been previously warned about leaving wellies on the floor instead of in the correct rack, repeated offences of chewing gum in the production area, leaving giblets in a through and giblet packs on the floor, and leaving discarded gloves on the floor. The Respondent provided photographs of the alleged offences which it said it had also shown to the Claimant at the time of the offences. The Respondent contended that despite warning the Claimant on a number of occasions of his non adherence to these standards, and in particular over a number of days in early October 2015 where he was spoken to, he did not improve. The respondent further contended that during a disciplinary hearing it held on 9^th October 2015 the Claimant left the hearing when they were addressing these matters with him.

The Respondent denied it knew about the Claimant’s sexual orientation, denied that the manager would have been aware of any posting on Facebook, argued that nobody would have spoken to her about the claimants sexuality; and contended that the first they became aware of his sexuality was in his claim form to the WRC. Furthermore the Respondent said it had employed people of different sexual orientation before, that the manager would socialise with people of different sexual orientation, and that the Claimant’s sexual orientation would not make a difference. The Respondent contended matter related to the continued attitude of the Claimant towards health and safety matters which amounted to gross misconduct and warranted his dismissal.

Findings and Conclusions:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. In that regard the Claimant has alleged his dismissal was a discriminatory act in relation to his sexual orientation and as such was a breach of the Employment Equality Acts under which he was seeing redress and punitive action to be taken against his employer for the serious breach he alleged occurred.

The decision that rests before the Adjudication is whether in the Claimant was dismissed as a result of his sexual orientation. In cross examination it is clear that:

-          The Claimant had received an increase in wages and bonus payments after his first three months; and furthermore on completion of his probation period he received a high performance rating of 37 out of 40 marks.

-          The Claimant had not be subject to any previous disciplinary issues

-          The Claimant had acknowledged that he had been spoken to once before regarding the chewing of gum, but it was not deemed to be a serious issue at that time as no disciplinary action was considered against him

-          Where the Respondent had previous concerns of a similar nature with the Claimant they did not deem them to be an issue worthy of consideration under gross misconduct, nor did the take any disciplinary action against the Claimant or record the incidents. It is therefore probable, if they did happen, that the Respondent did not view them as being of a serious nature prior to 7^th October 2015.

-          On 7^th October 2015 the Respondent contends it had concerns with the Claimant regarding safety issues similar to issues it raised with him before and at this time it escalated to a summary dismissal decision within two days

-          The Respondent did tell the Claimant during the meeting on 9^th October 2015 and before the disciplinary hearing had concluded that it had decided to dismiss him; and this is recorded in its contemporaneous notes of that meeting..

There was also some conflict of evidence presented during the course of the adjudication hearing relating to photographs submitted that were allegedly shown to the Claimant as evidence of his wrongdoing. The Claimant denied ever receiving photographs stating that they were standard photographs that were used for general awareness of the standards required rather than specific incidents related to the Claimant. It is further noted that there is no reference to these photographs being presented or relied upon in the contemporaneous notes submitted by the Respondent of the disciplinary meeting held with the Claimant on the 9th October 2015.

In relation to the respondent becoming aware of the Claimant’s sexual orientation, the Claimant also contended that his sexual orientation would have become knowledge in or around the time of his departure on annual leave in September 2015 because it was a small community and people would have heard that he came out at that time. Indicating how small a community it is and how news can travel the Claimant stated that on 9^th October 2015 he was advised by his father that he had been dismissed before he had told father of this, indicating that matters are discussed and known within the workplace and wider community. Therefore he did not accept that the Respondent would not have known about his sexual orientation before he was dismissed.

Notwithstanding the conflict of evidence, the Adjudication is satisfied that the Respondent was inconsistent with how it decided to deal with its alleged concerns, in that on the one hand no disciplinary action had been taken against the claimant for a previous identical issues yet on the other hand the Respondent progressed at an accelerated pace between 7^th and 9^th October 2015 to dismiss the Claimant for an identical issue. Indeed the Respondent acknowledged it had its decision to dismiss the Claimant made before it concluded the disciplinary hearing. These factors contribute to an unfair process and therefore an unfair dismissal of the Claimant.

Based on the evidence presented the Respondent has failed to satisfy the Adjudication that the matters it was considering on the 7^th to 9^th October 2015 were significantly different to the earlier occurrence of these matters. The only difference to the circumstances was that some weeks earlier the Claimant had disclosed his sexual orientation.

Decision:

Having found that the decision to dismiss was unfair, I must now decide under section 85A.—(1) of the Employment Equality Act that where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The defence proffered by the Respondent is that it dismissed the Claimant solely as a consequence of breaches to its food hygiene standards. Such a response would be plausible if it took that action in the first instance of the wrongdoing. However it did not, and instead at that time and through its own admission in evidence it tolerated what it considered breaches of gross misconduct without any disciplinary action or sanction earlier in the year. Indeed the Claimant had also received a pay increase, bonuses, and a high performance rating indicating there was nothing of a serious consequence to be noted in his conduct or behaviour. It was only when a similar incident, albeit the nature of the incident is contested by the Claimant, occurred in October 2015 that the Respondent decided to summarily dismiss the Claimant. This action occurred shortly after the Claimant disclosed his sexual orientation.  

Therefore, and based upon the aforesaid findings of fact, I consider the Respondent’s explanation for the Claimant’s dismissal to be inadequate. I have to infer that the Claimant’s managers either consciously or subconsciously formed a view as to the Claimant’s suitability for the position arising from his sexual orientation which had only become known a matter of weeks before the disciplinary action taken by the Respondent. Even if the Respondent had concerns about the Claimant’s performance and lack of adherence to food safety and hygiene standards, I do not believe that it would have dismissed him if he was not gay so swiftly and without affording him a fairer disciplinary process, particularly as through her its own admission his manager had tolerated similar breaches a few weeks earlier. For the aforesaid reasons, I find that the Complainant has established a prima facie case of discriminatory dismissal on the grounds of sexual orientation and the Respondent has not satisfactorily rebutted the inference of discrimination raised.

I have concluded my investigation of the complaint herein and based on all of the aforementioned, I find pursuant to Section 79(6) of the Act, that the Respondent discriminated against the Complainant on the grounds of sexual orientation contrary to Sections 6 (1)(a)(iv), 6(2)(d) and Section 8 of the Employment Equality Acts in relation to his dismissal on 9^th October 2015.

In accordance with Section 82 of the Act, I order the Respondent within 42 days of the date herein to pay the claimant €7,000 in compensation for breaches of the Employment Equality Acts. The Complainant suffered humiliation owing to the circumstances of his dismissal but has been fortunate in obtaining alternative employment without much financial loss. However this award is arrived at having regard to the seriousness of the discrimination and requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” and equates to approximately four months of basic pay.

As this redress is for the infringement of the Complainant’s statutory rights, it is therefore not subject to income tax as per Section 192(A) of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

Dated:   7 June, 2016