EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-148
PARTIES
Svitlana Demenko
(Represented by Richard Grogan & Associates)
-AND-
Dilion & Company Limited
File Reference: et-151347-ee-14
Date of Issue: 7th November 2016
1. DISPUTE
1.1 This dispute concerns a complaint of discriminatory dismissal on the grounds of gender and race contrary to Sections 6(1), 6(2)(a), 6(2)(h) and 8 of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), arising from the termination of the Complainant’s employment.
1.2 The Complainant referred the aforesaid complaint under the Acts to the Director of the Equality Tribunal and it was received on 4th December 2014. On 1st April 2016, in accordance with his powers under Section 16 of the Workplace Relations Act 2015, the Director of the Workplace Relations Commission (hereinafter ‘WRC’) delegated the case to me, Aideen Collard, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 14th April 2016. Written submissions had been submitted on behalf of the Complainant who was legally represented. There was no appearance on behalf of the Respondent notwithstanding that documentation in support of its position had been received by the WRC on 1st March 2016. No explanation for the Respondent’s non-appearance was proffered and no application was made for an adjournment on its behalf. Before proceeding to hearing, I satisfied myself that that notification of the hearing date had been sent to the correct Respondent by way of registered post at the most recent registered address provided by the Respondent and had not been returned undelivered. I concluded that there was no reasonable excuse for the Respondent’s non-appearance at the hearing. A reasonable period has also been allowed to elapse for the Respondent to contact the WRC with an explanation for its non-appearance but none has been received to date. All oral and written evidence presented has been taken into consideration in my decision. I also indicated that I would be relying upon the key statutory provisions and relevant case law on the area.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant outlined the background to this complaint and confirmed that she is of Ukrainian nationality. She has resided in Ireland for approximately eight years, has Stamp 4 visa status and is also married to an EU national. She commenced employment with the Respondent as a Hairdresser/Barber on 14th January 2013. She worked a three-day week earning €10 per hour or approximately €240 per week. The Respondent ran two Barber Shops, one located in Swords and the other in the City Centre. The Respondent’s Director, Mr Dilion ran the Shops in question. At the time of negotiating her contract, it was agreed that the Complainant’s employment would be based in the Swords branch as she lived there and availed of childcare nearby and therefore was unable to travel to the City Centre. A basic contract signed by the Parties on 4th June 2014 confirmed the Swords branch as her place of work. Her employment with the Respondent was uneventful until her dismissal on 17th October 2014.
2.2 On 3rd October 2014, Mr Dilion’s wife handed the Complainant a letter headed ‘Two Weeks Notice of Termination’ dated 3rd October 2014 signed by Mr Dilion, terminating her employment. The letter stated: “We regret to inform you that your employment with Dilion & Co. LTD is hereby terminated in two weeks time from today 03.10.2014. Your last day of employment is 17.10.2016.” The letter did not provide any reason for the Complainant’s dismissal. Shortly after her dismissal effective from 17th October 2014, the Complainant was passing by the Swords branch and through the window, she saw an unknown man working there who had not been working there prior to her dismissal. It was at this stage that she felt that there was something amiss with her dismissal and sought legal advice. Her Solicitors wrote to the Respondent seeking various information and documentation by letter dated 3rd December 2014 and at the same time submitted this complaint and other statutory complaints to the WRC.
2.3 On 1st March 2016, the Respondent submitted a handwritten submission to the WRC stating that the Complainant was dismissed based on redundancy as the Respondent had been experiencing a downturn in business and financial difficulties. In response to this, the Complainant said she was never made aware of the Respondent’s financial difficulties and was never consulted in relation to any redundancy. She believes that she was the only employee dismissed at that stage. It seems that the question of a statutory redundancy payment never arose as she would not have had the requisite two years’ service.
2.4 Before the Complainant’s employment was terminated, she confirmed that there had been four other employees in the Swords branch, comprising of three women (including the Complainant), one Polish man and occasionally, Mr Dilion worked there. One of the women, Ms X went on maternity leave on 3rd October 2014, being the date of notification of the Complainant’s dismissal. After her dismissal, she could see that the Polish man was still working there along with the new man and Mr Dilion. She felt that that her position had not genuinely been made redundant as she had been replaced with a new man and also the Polish man was still working there. She also confirmed that apart from one Irish man, the Respondent’s other employees were of various Eastern European nationalities and agreed that Mr Dilion himself was also of Ukrainian nationality. Fortunately, she was able to secure alternative employment in the Swords area immediately after her dismissal and as such suffered no financial loss.
2.5 It was submitted on behalf of the Complainant that firstly, she had been discriminatorily dismissed by the Respondent on the ground of gender contrary to Sections 6(1), 6(2)(a) and 8 of the Acts owing to the surrounding circumstances as outlined above. It was further submitted that she had been dismissed on the ground of race contrary to Sections 6(1), 6(2)(h) and 8 of the Acts owing to her Ukrainian nationality in that the man who replaced her was of non-Ukrainian nationality and/or the other employees kept on were of different nationalities. Overall, it was submitted that the Complainant had raised a prima facie case of discriminatory dismissal on both grounds and that the Respondent had failed to rebut same.
3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE
3.1 In response to requests for a written statement from the WRC, a handwritten submission and supporting documentation was received from the Respondent on 1st March 2016, setting out its position as follows:
“TO WHOM IT MAY CONCERN: On the end of summer 2014 Dilion & Co LTD start to have financials problems. We had, unfortunately, to cut off our staff, to save our company from bankruptcy. On the 1st of May 2014 the company had 19 employees – on the 1st of May 2015, 10 employees only.
We confirm all written with:
(1) Accountants Report as at 30th of November 2014
One of the employee who was dismissed was Ms Svitlana Demenko. At that time she was the last employed employee in Swords Dillons Barbers Shop (except ‘Ms X’, which was at that time pregnant). Ms Svitlana Demenko received in writing Two Weeks Notice of Termination on the 3rd of October 2014.
We confirm all written with original and copies of:
(2) Contract
(3) Two Weeks Notice of Termination
(4) Commencement date of the employees who were employed by Dilion & Co. Ltd as barbers.
On the 4th of December 2014 we had been notified by a letter from Richard Grogan & Associates about Ms Svitlana Demenko complains, race & gender discrimination. Ms Svitlana Demenko believes that she have been treated because she is an Ukrainian… I’m an Ukrainian too.
(5) Originals and copies of Ukraina Birth Certificate are attached.
About gender discrimination… Ms Svitlana Demenko believe that she was dismissed because she is a female, and she was replaced with a male worker – ‘Mr Y’.
We can explain the situation. Ms Svitlana Demenko received a Two Weeks Notice of Termination on 3rd of October 2014. After one week on the 10th of October 2014 we received a letter from ‘Ms Z’(other our employee), were ‘Ms Z’asked us for 4 weeks (maybe more) of unplanned holiday in connection with bad health of her father. ‘Ms Z’asked to keep her workplace and allow it to her friend ‘Mr Y’(with which she already agreed) during her absence. ‘Mr Y’replaced ‘Ms Z’ from 20th of October 2014 to 19th of November 2014 when ‘Ms Z’came back to work.
We ask very much, to pay you attention, that ‘Mr Y’ worked last day on the 19th of November 2014, that is two weeks before we received first letter from Richard Grogan & Associates. We confirm all written with original and copies of:
(6) The written statement from ‘Ms Z’
(7) Explanatory letter from ‘Mr Y’
(8) ‘Ms Z’s’flights details
(9) ‘Ms Z’s’payslips with holiday for this period.
(10) ‘Mr Y’s’ P-45 with start and end day of his employment with Dilion & Co LTD
(11) Copy of first letter from Richard Grogan & Association
Why we didn’t replaced ‘Ms Z’with Ms Svitlana Demenko???
We are running our hair dressing business in two shops: Dillons Barbers, 64 Main Street, Swords and Dillons Barbers, 36 Wellington Quay, Dublin 2
‘Ms Z’was working 3-5 days in Dublin 2 and sometime in Swords. Ms Svitlana Demenko categorially refused to work in Dublin 2. Ms Svitlana Demenko asked us for three fixed days only (Wed, Th, Fr) and in Swords only. (Irrelevant paragraph omitted)
(12) Copy of SMS with weekly three fixed days roster attached.”
3.2 Included within the documentation submitted on behalf of the Respondent and of relevance to this complaint is an Accountants’ Trading Update Report as at 30th November 2014 confirming a reduction in staff from 19 to 10 between 1st June 2014 and 1st May 2015 stating that as at 1st October 2014, there were 17 employees. The Accountant’s Report also confirms a general downturn in business and income although the net loss suffered in September 2014 was significantly down from August 2014 before increasing again in November 2014. A document on Chartered Accountants’ headed paper dated 13th October 2015, confirmed that they act as payroll administrators to the Respondent and stated: “This is to confirm the following employees who were employed by Dilion & Company as barbers:” It included a list of nine names including the Complainant and their length of service and location of work respectively. According to this list, all of the employees save the Complainant had their location of work listed as both the City Centre and Swords. Included amongst these employees who worked between the City Centre and Swords including the remaining Polish man. There was also correspondence and supporting documentation confirming the arrangement for Mr Y to fill in for Ms Z during her absence from 20th October 2014 until 19th November 2014 and an identity document confirming his Venezuelan nationality. Unfortunately, as there was no appearance or oral evidence proffered on behalf of the Respondent at the hearing, the veracity of the submission and documentation could not be tested.
4. FINDINGS AND CONCLUSIONS
4.1 The fact of dismissal is clearly not in issue in this case. From the documentation provided, it is the Respondent’s position that the Complainant was dismissed on the grounds of redundancy whilst the Complainant contends that she was discriminatorily dismissed on the grounds of gender and race. The issue for my decision herein is therefore whether the Complainant was dismissed on the discriminatory grounds of gender and race within the meaning of the Employment Equality Acts as contended. The facts adduced must be assessed in relation to the relevant legal provisions. Section 6(1) of the Acts provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) 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) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,” In relation to discrimination on the grounds of gender and race, respectively, Section 6(1)(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),” and “(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),” Section 8(1) of the Acts defines discrimination in specific areas including redundancy and/or dismissal which forms the basis of this claim. Section 85A of the Employment Equality Acts sets out the burden of proof which applies to all claims of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference raised. In this respect, the leading decision of the Labour Court in Mitchell -v- Southern Health Board (2001) ELR 201, emphasised that, in the first instance, the complainant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued: “It is only if these primary facts are established to the satisfaction of the Court, and they 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.”
4.2 Firstly, I find the Complainant to be a credible witness and accept her unrefuted evidence that before her employment was terminated by the Respondent, there had been four other employees in the Swords branch, comprising of three women and one man and occasionally, the Director, Mr Dilion worked there. I also accept her evidence that one of the women, Ms X went on maternity leave on 3rd October 2014, being the date of notification of her dismissal and that after her dismissal, she could see that the Polish man who worked there before was still working there along with the new man and Mr Dilion. I further accept that she was not consulted in relation to any redundancy process. This is supported by the letter of dismissal which makes no mention of redundancy along with the fact that redundancy was first proffered as the reason for her dismissal in the submission to the WRC some eighteen months later.
4.3 Taking its submission and documentation at face value, the Respondent has provided an explanation for the employment of the new man, Mr Y, being that he was a short-term replacement for another employee, Ms Z, in a somewhat unorthodox arrangement between themselves. However, no explanation has been provided for the Complainant’s unrefuted evidence (also contained in her submission so the Respondent was on notice of same) that another Polish man remained working in the Swords branch after her dismissal. Even if I am to accept that a genuine redundancy situation arose, I am not satisfied that there was any or any proper selection process for redundancy. In particular, I have received no documentation setting out any redundancy selection process or direct evidence confirming why the Complainant was selected. In the absence of any clear explanation as to why the Polish man remained working in the Swords branch, I cannot accept the Respondent’s contention that the Complainant was made redundant as she was the only remaining employee based in Swords. It may well have been the case that that the Complainant was dismissed owing to her inflexibility in that she could only work in the Swords branch but there was no evidence before me to that effect. Had such evidence been presented, I may well have exercised my discretion under Section 101(2)(b) of the Acts to permit the Complainant to proceed with her claim under the Unfair Dismissals Acts. I am therefore satisfied on the balance of probabilities that the Complainant has met the requisite threshold as set out in Mitchell above and has made out the requisite prima facie case of discriminatory dismissal on the ground of gender and in the absence of any direct evidence on behalf of the Respondent, find that same has not been rebutted.
4.4 Taking the Complainant’s evidence at its height, I am not satisfied that she had made out a prima facie case of discriminatory dismissal on the grounds of race. I note that the Director of the Respondent, Mr Dilion was also of Ukrainian nationality, most of the employees were of various Eastern European nationalities and the new apparently temporary employee was of Venezuelan nationality. The Complainant has not proffered any evidence as to why her dismissal would have been motivated by race and in the absence of any other evidence which would tend to support such a contention, cannot conclude that merely because she was of a different nationality, that she was dismissed on this basis.
5. DECISION
5.1 I have concluded my investigation of the complaint herein and based on the aforementioned, I find pursuant to Section 79(6) of the Act, that the Complainant has made out a prima facie case of discriminatory dismissal on the ground of gender contrary to Sections 6(1), 6(2)(a) and 8 of the Employment Equality Acts and the Respondent has failed to rebut same. For the avoidance of doubt, I am not satisfied that the Complainant has made out a prima facie case of discriminatory dismissal on the ground of race against the Respondent, contrary to Sections 6(1), 6(2)(h) and 8 of the Acts.
5.2 In accordance with Section 82 of the Act, I order the Respondent to:
Within 42 days of the date herein, pay the Complainant €6,500 in compensation for the finding of discriminatory dismissal on the ground of gender. The award equates to approximately six months’ salary and is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.
(b) I further order, as per Section 82(1)(e) of the Acts, that the Respondent conduct a review of its policies and procedures in relation to its employment policies to ensure that they are in compliance with the Employment Equality Acts with particular reference to the gender ground.
___________________
Aideen Collard
Adjudication Officer
7th November 2016