Complainant

Respondent

Parties

Snjezana Zgela

Carton Bros Unlimited Company trading as Manor Farm

Representatives

Stephen Moran B.L. instructed by Anthony Collier Solicitor, Collier Law

Ellen Walsh Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00046607-003

09/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046607-005

09/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046607-006

09/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046607-007

09/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046607-008

09/10/2021

The following complaints:

CA-00046607-005

CA-00046607-006

CA-00046607-007

CA-00046607-008 were each withdrawn by the Complainant at the Adjudication hearing on 16.1.23.

CA-00046607-003 – an equality complaint, was pursued.

Two other related complaints - CA-00046607-001 and CA-00046607-002 are trade disputes brought under the Industrial Relations Acts and separate Recommendations have issued in respect of same.

The Respondent denies all complaints.

The Complainant gave evidence under Affirmation as follows:

The Complainant is from Croatia and her first language is Croatian.

The Complainant commenced work as a general operative for the Respondent, a poultry meat processing business, in January 2019.

In March 2019 the Complainant got into a dispute with a fellow worker. She was bullied and harassed by this person. She brought her concerns to the attention of her manager and thereafter to other managers and to HR. She was bullied and this impacted other relationships she had with other colleagues. The workplace became a place of dread for the Complainant. She raised a grievance. The problems were not addressed and continued. She raised a formal grievance in August 2019, which was not upheld.

Arising out of another incident on 8 November 2019 (which had been a continuation of bullying and harassment from March) the Complainant complained against a colleague, and, at the same time, her colleague complained against her. No investigation of her grievance took place but instead the situation morphed into a disciplinary process.  Following this the Complainant was disciplined and ultimately received a Final Written Warning. Given the abuse and bullying treatment that the Complainant received, to end up with a warning against herself without her grievance ever being properly heard or investigated, was intolerable to the Complainant.

This is the context that her equality complaint has been brought.

Her complaint of discrimination is that the Complainant was never provided with Company policies, procedures or employment contract in her first language of Croatian. She contends that, as a result of this she was unable to understand the Company processes or policies to enable her to properly utilise the Respondent’s grievance procedures or to properly engage with the Respondent’s disciplinary procedures.

As she did not have the policies and procedures in a format that she could understand, she was treated adversely and unequally to those employees whose first language was English.

Response to application that the complaint is time barred

As the complaint issued to the WRC on 9 October 2021 the Complainant contends (in response to the Respondent’s preliminary application that the equality complaint as it pertains to grievances raised in 2019  is out of time) that another incident also occurred on 19 April 2021 following which she again complained to management and submitted another grievance dated 26 April 2021, which was not followed up on. When this incident occurred and when she spoke to her manager (as had occurred in her previous attempts to utilise the Company grievance process) she did not have the benefit of the Company policies being in her own language. As a result, she was unable to truly understand or access the Company grievance procedure. 

The Complainant relies on the Equality Tribunal case of 58 Named Complainants v. Goode Concrete Ltd DEC – E2008-020.

The Complainant was cross examined as follows:

She accepted that she issued her WRC complaint on 9 October 2021 and alleged breaches in 2019 were out of time. However she contends that within the period of 6 months prior to the issue of her WRC complaint, other acts of discrimination occurred (as it had from the start of her employment) because the last incident occurred on 19 April 2021 and she still did not have copies of the Company policies in Croatian.

She accepted that she had never asked any Respondent manager or HR, for a Croatian language version of her contract, employee handbook or the Respondent’s grievance or disciplinary procedures.

She accepted that within the CV, which accompanied her job application, she stated that her English was “fluent.”  She said under cross examination that while her English was sufficiently fluent to understand the basics for the purpose of work instructions and day to day communication, the procedural steps of raising a grievance or participating in a disciplinary process were more complicated and to effectively engage in these processes she needed these documents to be in her own language, like the Latvian and Polish workers had been provided with.

She accepted that she declined an interpreter at the grievance and disciplinary meetings when she was asked.

She accepted that she had a trade union representative at the meetings who never suggested that she could not understand the process. Neither did he ask Respondent management for an interpreter or translated documents on her behalf.

She accepted that she had never raised this language issue with Respondent management at any point in the process.

She accepted that the first time that the matter was raised was during the WRC Adjudication process.

On behalf of the Respondent it was contended that the Equality Complaint was out of time insofar as alleged breaches occurring in 2019 were concerned and the WRC complaint having issued on 9 October 2021. The Respondent submitted that the WRC is precluded from considering alleged breaches other than those within 6 months of the WRC complaint being brought.

The Respondent contended that the sole period of time within which any alleged breaches could be considered by the WRC was between 9 April 2021 (6 months prior to 9 October 2021) and 21 April 2021, the date that the Complainant went on sick leave and from which she has not returned.

In respect of the period 9-21 April 2021 the Respondent contends that the Complainant issued a grievance on 26 April 2021 in respect of what occurred on 19 April 2021. Not only does this evidence the fact that she understood the grievance process and participated in it (which she had done so since March 2019) but also that the lack of translated policies did not prevent her from raising a grievance even if the Company were on notice of her need to have translated documents, which they were not.The reason that no action has been taken since in respect of grievance raised on 26 April 2021 is because the Complainant has been on sick leave since.

In a preliminary application the Respondent contends that the WRC is confined to considering allegations of discrimination/ adverse treatment within the period 9-21 April 2021 and whether the Respondent – during that confined period – discriminated against the Complainant.

The head of Human Resources for the Respondent gave evidence under Affirmation as follows:

The Complainant started work for the Respondent in January 2019 and on commencement she did not ask for a Croatian language version of her contract, employee handbook or the Respondent’s grievance or disciplinary procedures.

Her CV that accompanied her job application described her English as being “fluent.”

The HR manager at all times found the Complainant’s English to be fluent.

The Complainant declined the standard offer of an interpreter at the grievance and disciplinary meetings when asked.

The Complainant had at all meetings, a trade union representative who never requested either an interpreter or translated company documents on her behalf.

The Complainant never raised any issue of not understanding the company policies/ employment documentation with Respondent management at any point in her employment.

The first time that discrimination or unequal treatment on grounds of race was raised by the Complainant was at the WRC Adjudication hearing.

This is a Discrimination case in which the Complainant contends that she was treated adversely on grounds of race because she was not provided with a Croatian language version of the Respondent’s policies and procedures (on bullying and harassment, grievance process or disciplinary process) and this meant that she was less able to engage with these processes and comply with the policies (once these processes were utilised.)  As such she was indirectly treated less favourably than her colleagues who either spoke English as a first language or other nationalities who were provided with documentation which was translated into their first language.

Time bar

As much of the evidence of the Complainant pertains to alleged equality breaches in 2019, I am satisfied that I have jurisdiction to consider only those alleged breaches that occurred within 6 months of the WRC complaint being brought, which means between 19-21 April 2021, and not before then.

The Respondent accepts that the Complainant was not provided with a Croatian version of the Company policies or procedures.

Finding

I am satisfied that the Complainant has not discharged the onus of establishing facts from which a finding of either direct or indirect discrimination can be drawn by the Respondent’ failure to provide her with translated documents during the material time frame.

The following concessions were made by the Complainant in evidence and cross examination

-        That prior to being employed she presented herself to the Respondent (when she applied for the job) as a person whose English was fluent;

-        That she never told the Respondent she did not understand the Company documents in the English version;

-        That she did not request that a Croatian version of the documentation be provided to her by the Respondent;

-        That this allegation - of not understanding the company policies - was first raised during the WRC adjudication process and not before;

In light of these concessions, I find that the Respondent was not have aware of the Complainant’s desire or need for a Croatian language version of the Company policies and procedures within the period 19-21 April 2021. As she had made previous grievances and had gone through a disciplinary process in 2019, if she felt then that she couldn’t understand the company documentation, she should have raised this language concern with her employer in the period 9-21 April 2021, but she did not.

Alternatively, she could have requested her trade union representative to ask for translated copies, but she did not.

In the case of 58 Named Complainants v. Goode Concrete Limited DEC-E2008-020 the Equality Tribunal held that there is an obligation on employers to ensure that non-national employees understand the terms and conditions of employment. However, where an employee presents as a person who is fluent in English and where no request is made for translated policies, the Respondent cannot accurately be described as being on notice of the Complainant’s need for translated policies and therefore cannot be blamed for failing to provide them.

The Complainant has suggested that this was direct discrimination, it appears to me that it is closer to a complaint of indirect discrimination (where a neutral provision (English language documentation) disadvantages a person with a protected characteristic (eg race/non-English speaking) as compared with a person without a protected characteristic (English-speaking Irish.) However, the Complainant has not addressed the proof requirements of indirect discrimination complaints in any detail.

For the sake of clarity therefore, and on the basis of the evidence that was before me, I find that the Complainant has not discharged the obligation of proving that the Respondent directly discriminated against her by failing to provide her with Croatian language version of the Company policies and procedures.  As she utilised the Company grievance process prior to April 2021 and utilised it again in April 2021 I find that the assertion that she suffered a detriment by not having translated documents to be an assertion of detrimental treatment as opposed to being proof of detrimental treatment.   The Respondent was not of her need for the documentation to be in Croatian, believing as they did that her English was fluent as she had described it on her application form.

And if, the Complainant contends that she was indirectly discriminated against – because the provision of the documentation in English disadvantaged her more than the English-speaking employees, an essential proof in indirect discrimination complaints is that she was disadvantaged personally by this failure and this disadvantage must be proven, not merely be asserted. No assumption can be made that an employee from a non-English speaking country is not competent in English (which itself would be discriminatory) and particularly when the employee presents as being fluent in English.

As the Complainant accepted that she declined an interpreter when offered and never asked for the translated documentation either directly or through her trade union representative at any stage of her employment I am satisfied that the Complainant has not discharged the onus of proving that she was personally disadvantaged by not being provided with a Croatian version of the Respondent’s policies and procedures. As I say, such disadvantage is required to be proven, mere assertion or assumption is insufficient and inappropriate.

I am satisfied that the Complainant has not discharged the obligation to prove facts from which a finding of discrimination within the material time, may be made.

I find that the Complainant has not proven that she was discriminated against.

In respect of complaint CA-00046607-003 I find that the Complainant was not discriminated against.

Discrimination - Company policies and procedures were not translated into employee’s own language