Complainant

Respondent

Anonymised Parties

claimant

respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Acts, 1998 – 2015

CA-00010983-002

26/04/2017

The complainant claims that he was discriminated against for being Irish and working in a polish speaking workplace and ultimately was let go because of this situation. The respondent refutes the claim raised and said that the complainant failed to pass his probation because of his poor performance, attendance and time keeping and this decision had nothing to do with his race.

The complainant commenced working with the respondent on 12 December 2016 as a warehouse operative and van driver.

He claims that he worked directly in the warehouse with two other individuals on the morning shift, Mr. A and Mr. B, who spoke in polish between themselves all the time at work and he did not understand what was going on. He claims that when Mr. A, who he referred to as the supervisor, gave Mr. B instructions of what needed to be done for the day the complainant had to try to find out what needed to be done from Mr. B and this led to severe frustration as he was relying on Mr. B to teach him the ropes and for his own daily instructions. The complainant said that he “was trying to pick up a few words of the language” so that he could try to determine what his daily chores were. He claims that he would spend most of his day looking after goods deliveries and dealing with the kitchen staff, which were mainly Irish and Spanish nationals.

The complainant claims that he could never do anything right in the eyes of Mr. B and he decided to approach the HR manager and ask for a meeting to express his many concerns. He said that he told HR that Mr. B was aggressive towards him and he felt that it was because he was new and was upsetting the status quo. The complainant also said that Polish was the predominant language spoken in the warehouse and this posed a risk to health and safety, he said that he felt unsafe in the workplace and he felt that everyone should have to speak English.

The complainant said that he was having difficulty with his car at the time and had informed the respondent of these issues. He admitted that he was late for work a few times because of this, but he claims that he had gotten permission and had a genuine excuse. He said that he got on well with the other staff working with the respondent except for Mr. A and in particular Mr. B. He claimed that he asked for a meeting with HR to raise his concerns and to his surprise Mr. A was present at the meeting and he felt that he could not openly discuss all his concerns in front of one of the people he had a difficulty with. Accordingly, nothing was done and nothing changed.

The complainant said that he was never told that he was on a 13- week trial nor that his work was not up to the required standard. He said that on the contrary he got complimentary remarks about his work and pictures were even taken of his work in the warehouse. The complainant said he was very surprised to be let go on 20 January 2017 and believes it is because he was Irish, working in a polish speaking environment, and that he was discriminated against because of this and ultimately this was the reason he lost his job.

The respondent refutes the claims made by the complainant. It claims that the reasons behind the complainant’s dismissal were in no way connected to the issues he has raised. The respondent claims that the complainant was dismissed due to his poor timekeeping, high rate of absenteeism and unsatisfactory work output for the trial period that he was employed with it. The respondent said that it is proud of the level of diversity it has in its work force and employs a number of different nationalities including Irish and Polish. The respondent claims that the complainant’s line manager, Mr. A, was polish however he worked directly with another named Irish national at the time and Mr. B who was not polish. The respondent said the second manager in command in that area was neither polish nor a polish speaker. The respondent claims that of the 40 or so production staff that would have worked at that time only one was polish and not many would have the language skills to suggest that the polish language dominated in the workplace when it clearly did not. The respondent said that the complainant’s co-workers in his direct contact had excellent English and that is how work instructions were delivered each and every day. However, translations were provided when and where necessary.

The HR Manager said that Mr. A had reported issues in relation to the complainant’s work-rate, time keeping and absenteeism in December 2016 and again in January 2017. Mr. A was advised to spend more time working closely with the complainant to assist his settling in. It said that staff working with him were becoming increasingly frustrated in relation to his work-rate, time-keeping and absenteeism. The respondent submitted the complainant’s time sheets for the period in question to support this latter claim.

The respondent’s HR Manager and Mr. A met with the complainant on 10 January 2017, the meeting that they claim they called, contrary to the complainant’s claim above, was to address these issues. The respondent claims that the issues were put to the complainant at the meeting, where the complainant committed to improve on his timekeeping and work output. The respondent claims that he was told at this point that this will remain under review. The respondent said that at the end of the meeting the complainant raised that polish was spoken on the warehouse floor by the polish speakers. However, the complainant agreed that all work instructions were delivered through English and the conversations in polish were of a personal or private matter. The respondent claims that no issue was ever raised about Mr. B or his behaviour towards him at this meeting or during his time working at the respondent until the day of the hearing.

The respondent claims that the complainant’s work output, time keeping and absenteeism did not improve and he was invited to a meeting on 20 January 2017 with the HR Manager and Mr. A, where it was pointed out that since there was no improvement the respondent had decided to terminate his contract on the basis that he had failed to pass his probation. The complainant was given the opportunity to appeal the decision, which he did. The respondent claims that there was a full appeal of the decision, however, after a considered review the decision to dismiss him was upheld on appeal.

The respondent said that the complainant was not treated unfairly and was never discriminated against while working with it because of his race nor was he discriminatorily dismissed because of his race.

Preliminary issue

Referral of Complaint under the incorrect legislation

A jurisdictional issue was raised at the outset of the hearing as to the scope of the claim. The complainant said that this claim was in relation to discriminatory treatment he alleges that occurred while he was working with the respondent, which lead to dismissal. He said that this was because he was Irish and the other workers employed there were polish and polish speakers. He had indicated that the scope of the complaint on the complaint referral form suggested that he was seeking adjudication by the Workplace Relations Commission under Section 81(e) of the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. He said that he made a mistake filling out the form but his complaint was contained in the narrative of the complaint form sent to the Workplace Relations Commission.

The respondent stated that it had prepared for a case under Section 81(e) of the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. However, in its submission it had addressed the other elements raised by the complainant on his referral to the Workplace Relations Commission and it was ready to defend its position.

I must now address whether the present complaint is inadmissible under the Employment Equality Acts 1998 – 2015 on the basis that it has been referred to the Director General of the Workplace Relations Commission under the wrong legislation by using the incorrect Complaint Referral Form.

The Complainant referred the present complaint to the Director General indicating that his complaint fell under Section 81(e) of the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. However, the narrative provided in support of his case reads as follows;

“I feel i was discriminated against for being irish in a polish speaking dominant workplace. from the very start of my employment i was put in a situation in which i did not understand any of the finer instructions of any job, which lead to being verbally punished when tasks were not to company specifcation. this matter was addressed with HR and my warehouse manager, they said they would try and accomadate me and speak more english in my presence but nothing changed. i was made to feel like i did not belong and was then let go, i feel as a result of this complaint (sic)”

At the start of the hearing I noted that from an initial examination of the documentation it appeared to me that the complaint related to an allegation of discriminatory treatment concerning his conditions of employment and alleged discriminatorily dismissal. Accordingly, it appeared to me that the matter may be more appropriate to the Employment Equality Acts rather than section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. The complainant was asked to confirm the relevant statute under which he had intended to pursue the complaint and in this regard, he confirmed that he wished to pursue the matter under the Employment Equality Acts, 1998 – 2015. The respondent was afforded an opportunity to comment on the issue prior to opening up the hearing of the complaint. The respondent agreed to proceed under the terms of the clarified scope of the complaint.

In considering this matter, I have noted the judgement of McKechnie J. in the Supreme Court case involving County Louth VEC –v- The Equality Tribunal [2016] IESC 40 where it was held that: “As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant “… seeks redress by referring the case to the Director” (Section 77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

Having regard to the foregoing, it is clear that the EE.1 Form is not a statutory form and therefore, the complainant is not legally obliged to use this form when referring a complaint to the Workplace Relations Commission. In the present case, I am satisfied that it was perfectly clear from the information included in the Complaint Referral Form, which the complainant had submitted to the Workplace Relations Commission, albeit that this indicated the wrong legislative reference, that the alleged discrimination related to his employment with the respondent. Furthermore, I am satisfied that this matter was brought to the respondent’s attention at an early juncture in these proceedings and as a result the respondent’s defence of the claim has not been prejudiced as it was fully aware of the general nature of the claim and the legislative basis underpinning the proceedings well in advance of the hearing and this was demonstrated by its full response of its position in its submission to the Workplace Relations Commission prior to the hearing. In the circumstances, I am satisfied that the present complaint is admissible in accordance with the provisions of Section 77 of the Employment Equality Acts.

Findings and Conclusions on the substantive issues

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established   that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.  The Labour Court elaborated on the interpretation of Section 85A in   the case of Melbury v. Valpeters EDA0917 where it held that Section 85A: "…. 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.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) …”. Section 6(2)(h) of the Acts defines the discriminatory ground of different race, colour, nationality or ethnic or national origins as follows – “as between any 2 persons, ... that one   has a different race, colour, nationality or ethnic or national origins from the other, or that one has a race and the other has not" and Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

The issues for decision by me in this case are (i) was the complainant discriminated against on the race ground in relation to his conditions of employment and following from that (ii) was the complainant discriminatorily dismissed from his employment on the grounds of Race.

I note the recent decision of the Labour Court in Queally Pig Slaughtering Limited T/A Dawn Pork & Bacon v Robert TKAC [EDA1618] in relation to meeting the Burden of Proof for the complainant, namely where the court said,

·        “Section 85A(1) of the Act provides as follows in relation to the burden of proof which a Complainant under the Act must establish: “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.”

·         

·        This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

·         

·        “The first requirement is that 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 in seeking to raise a presumption of unlawful discrimination.

·         

·        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 is no infringement of the principle of equal treatment.”

It follows that a Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.””

Having taken testimony from both parties at the hearing, I find the testimony given by the respondent to be much more cogent and convincing.

Having examined all the submissions and the documentary evidence, it is clear to me that the respondent has a diverse mix of employees from various backgrounds and nationalities and it has established an inclusive environment to cater for that multi-cultural workplace. The evidence is that different languages were spoken in the workplace in a private capacity between co-workers and the complainant felt that to be a Health and Safety issue. It is not apparent nor has it been explained to me the logic behind this position. I am satisfied that work-related instructions were relayed in English and the complainant’s supervisor had the linguistic language skill to adequately communicate with the complainant and his co-workers. This has been demonstrated in the evidence adduced in relation to the complainant’s personal interactions with his manager and vice versa. I note that there were many different nationalities working with the respondent in and around the time including other Irish workers and they worked in the adjacent work space to the complainant and there was regular interaction between all the staff without any apparent difficulty. Nothing has been presented to me in evidence to suggest that anything covert or devious was at play here.

The respondent provided work attendance record sheets to demonstrate that the complainant was often late for work and absent during the course of his probation. I note that the probation period was only a 13-week period and there were substantial absences and ‘lates’ in that short time. I have heard from the complainant that he felt there was good reason for this and that he believed that the respondent was aware of the factors pertaining. I have also heard from the respondent that there were performance issues and even though these issues were raised with the complainant, and additional supports were afforded to help him, and that there were reassurances given by the complainant that they would be dealt with, these issues continued. I am satisfied that these reasons are at the root of the complainant’s dismissal.

In summary, the complainant has provided no evidence to substantiate the allegations raised about his conditions of employment and I am fully satisfied that the complainant’s employment was subsequently terminated due to poor performance, poor attendance and lengthy absences from work.

Having adduced all the evidence in the instant case, I find that the complainant has not demonstrated a nexus in relation to his treatment in employment and his race and therefore I find that he has not established a prima facie case of discrimination in his working conditions on grounds of his race. Likewise, I am satisfied that the termination of his employment was essentially as a direct consequence to his poor performance, poor attendance and lengthy absenteeism from work and I am satisfied that it was unrelated to his race.

Other issues were raised on the day of the hearing which I am satisfied are not before me as an Adjudicator.

In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.

I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relations to his conditions of employment.

I find that the complainant has not established a prima facie case of discriminatory dismissal on grounds of his race.

Accordingly, I find in favour of the respondent in this case.

Employment Equality Acts – grounds of race – poor performance - time-keeping and absenteeism - prima facie case not established.