Complainant

Respondent

Parties

Dainis Jirgens

C&D Foods Ltd.

Complainant

Respondent

Anonymised Parties

Representatives

Ms. Ekaterina Koneva

Ms. Judy McNamara, IBEC and then Mr. Alastair Purdy, Alastair Purdy & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029878-001

24/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029878-002

24/07/2019

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

CA-00029878-003

24/07/2019

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

CA-00029878-004

24/07/2019

The Complainant commenced employment with the Respondent on 30th January 2017. At all relevant times the Complainant was engaged as an “ALU Service Operator”. The Complainant was a full-time, permanent employee, in receipt of an average weekly payment of €542.97. The Complainant’s contract of employment was terminated by the Respondent on 29th January 2019.

On 27th July 2019, the Complainant referred the present complaints to the Commission. Herein, he alleged that he had not received a contract in contravention of the relevant legislation and that he had suffered an illegal deduction from pay. The Complainant further raised numerous allegations of discriminatory treatment on the grounds of race and nationality. 

A hearing was initially convened in relation to this matter on 6th January 2020. Given the extent of evidence called by both parties, the matter did finalise on this date and was adjourned thereafter.  A further hearing date was convened in relation to the same for 30th March 2020. Unfortunately, this hearing fell foul of the restrictions arising from the Covid-19 pandemic and was subsequently adjourned. By subsequent correspondence, the Complainant submitted that they did not believe that the present matter was hearing by way of the remote platform and requested a face-to-face meeting to resolve the matter. A case management conference was convened in relation to the same on 6th May 2021, by way of the remote platform. Herein, the Complainant confirmed that he wished for the matter to be heard by way of a face-to-face hearing. During this hearing it was agreed that the present Adjudicator would retain charge of the proceedings. It was further agreed that the matter would commence anew, to allow all relevant evidence to be given under oath or affirmation and be opened to cross examination. The Complainant also undertook to clarify some of the issue arising in the submissions thereafter. Following a series of adjournments, and a change in representation on the part of the Respondent, the matter was relisted for substantive hearing on 28th February 2023. Again, the matter did not finalise on this date and was adjourned for completion. In an effort to finalise these long running proceedings, the matter was listed for two consecutive days of hearing, falling on 12th & 13th June 2023, and was completed in this session.

While the Complainant raised numerous allegations in his submission, the nature of the same were clarified and narrowed in the various case management hearings. Following the same, during the substantive hearing, the Complainant refined his complaint to two distinct allegations of discrimination- that he was not provided with an interpreter for a training session and that he was not permitted to avail of a statutory redundancy scheme.  The Complainant gave evidence in support of his own complainants. The Complainant’s evidence was given with the assistance of an interpreter appointed by the Commission. This translator was herself sworn in prior to the delivery of the evidence. In addition to the same, the Complainant called a former colleague to give evidence in support of part of his complaint. In defense, the Respondent called a production manager, a line manager and an operations manager to give evidence. All evidence was given under oath or affirmation, and was opened to cross examination by the opposing side. Both parties also issued extensive written submissions in advance of the hearing.

This matter was heard in parallel to that bearing file reference ADJ-00019843, and this decision should be read in conjunction with the same.

At the outset, the Complainant submitted that he did not receive a statement of terms of employment at or near the commencement of his employment, in contravention of the Act.

In addition to the same, the Complainant stated that he engaged with routine on-site training on 18th January 2019. While the Complainant enjoyed a conversational level of English he found technical language such as that employed in the training difficult to understand. Following the training, the attendees were presented with a questionnaire in respect of the session. Given the Complainant’s standard of written English he felt that he was unable to complete the same and, as a consequence, left the same blank. Approximately ten days later the Complainant was invited to a investigation meeting in respect to his failure to complete the training. Herein, the Complainant explained his position regarding his difficulties in comprehending technical language. Notwithstanding the same, the Respondent commenced a disciplinary process that ultimately led to his dismissal on the grounds of misconduct.

In addition to the foregoing, the Complainant submitted that during the disciplinary process, he stated that he understood that the Respondent was to commence a round of redundancies in the near future. During the process, the Complainant requested that he be laid off with an option to apply for redundancy once he reached two years of service. The Respondent refused this reasonable request and instead dismissed the Complainant just prior to his accruing the requisite two years of service.

By submission, the Complainant stated that as a foreign national and non-native English speaker, he required certain technical language to be translated. He submitted that this was implicitly accepted by the Respondent by the fact that they provided an interpreter for the various internal meetings he attended and that he used the services of a translator for the proceedings themselves.

In answer to a question posed in cross examination, the Complainant accepted that he engaged in multiple similar training sessions in the past. In this regard, he stated that a colleague would be present to assist with the translation. In answer to a further question, the Complainant accepted that a colleague was present to assist with the questionnaire on the date in question, but refused to assist on that occasion. The Complainant accepted that he raised no issue in respect to the same on the date in question.

Finally, the Complainant submitted that he did not receive an adequate notice payment following his dismissal on the grounds of alleged gross misconduct.

At the outset, the Respondent submitted that the Complainant received a comprehensive suite of documentation in the course of his employment. The same was opened and discussed as part of the wider proceedings.

Regarding the Complainant’s position regarding translation, the Respondent stated that as multi-cultural employer, they took such responsibilities seriously. They submitted that they provided translations of the their handbook and safety statements for the Complainant, and anyone else that was not a native English speaker. In evidence management stated that the Complainant seemed able to converse and take instruction in English without any apparent difficulty on his part. They submitted that the Complainant engaged in multiple training sessions during his employment without raising any issue regarding his comprehension of the same. They submitted that during these sessions, if the Complainant had any difficulty with a word or phrase, he could simply ask a colleague in relation to the same. If the Complainant remained in difficulty, he could come to management and raise the issue directly. In this regard, the Respondent submitted that the Complainant took none of these steps, but simply refused to complete routine training.

Regarding the complaint in respect of the offer of lay-off, the Respondent submitted that the redundancy of the Complainant was not in contemplation at the relevant time. Notwithstanding the same, they submitted that the purpose of the procedure adopted was to investigate the allegations raised by the Complainant.

Regarding the initial complaint, the Complainant alleged that he did not receive a statement of employment. In denying this allegation, the Respondent submitted that the Complainant was provided with a contract shortly following the commencement of his employment.

In support of the Respondent’s position, they opened a document entitled “acceptance of conditions of employment” and submitted that the same contained the Complainant’s signature. In addition to the same, they submitted that this document was referenced numerous times during an internal investigation without any issue being raised by the Complainant in this respect.

In this regard, Section 3(1) of the Act (as amended) provides that,

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

In circumstances whereby it is common case that the Complainant’s employment commenced on 30th January 2017, and documentary evidence was provided to demonstrate that he received statement of terms of Employment on 2nd February 2017, I find that the complaint is not well-founded.

Regarding the complaint under the Employment Equality Act, it is noted that the Complainant has alleged that the Respondent discriminated against him by failing to provide a translator for a training session. While the Complainant also submitted that the disciplinary sanction arising from the same was also unfair, it was agreed that this was covered by the complaint under the Unfair Dismissals Acts and does not form part of this particular complaint. In addition to the foregoing, the Complainant further alleged that the Respondent’s failure to allow him to avail of a statutory redundancy payment occurred on the grounds of racial discrimination.

In this regard, Section 6 of the Employment Equality Act prohibits discrimination on any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(h) provides that race, colour, nationality or ethnic or national origins are included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides 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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“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”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.   If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Cork City Council v McCarthy EDA 0821 the Labour Court held as follows:

“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.”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act 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.”

The first portion of the allegations raised by the Complainant related to the Respondent’s apparent failure to provide adequate translation during a training session. In denying this allegation, the Respondent submitted that it prided itself on being a multi-cultural workplace, with all important documentation, including the safety statement and employee handbook being translated into multiple languages. In order to demonstrate the same, an excerpt of the employee handbook in the Complainant’s native language was opened as part of the proceedings.

In this regard, it is well established that non-English speaking employees are entitled to have certain important employment meetings and documentation translated into their native language. In the matter of Campbell Catering v Rasaq [2004] 15 ELR 310, the Court held that,

“It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defense. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”

While the above-mentioned authority is easily distinguishable from the present case in that it relates to disciplinary proceedings, and it is common case that a translator was provided for all formal meetings between the parties, the Complainant has essentially submitted that this requirement extends to the provision of training and other more routine workplace events.

In the matter of Clare Civil Engineering Limited -v- Igor Ostojic EDA101, the Court considered an allegation of discrimination arsing from a failure to translate certain health and safety documentation. Following a consideration of the Judgment in Rasaq (quoted above), the Court held that,

“The situation in relation to health and safety instructions is somewhat different. While health and safety instruction is obviously important, the Court is satisfied that such instruction was generally imparted to all workers for their well-being on site and that the Complainants would have reasonable experience from previous work practice whether in Ireland or elsewhere. No complaints were made to the Respondent at any time about the manner of the instruction or a failure to fully understand its nature or content. Therefore, the Court concludes that no discriminatory case has been made out under this complaint.”

Regarding the present matter, it apparent that the relevant factual matrix is more analogous to that quoted above, then to that outlined in Rasaq. The training attended by the Complainant was in the manner of a routine procedural update,as opposed to a serious disciplinary meeting that could potentially result in this dismissal. I further note that the Complainant attended many such training sessions prior to the same without raising any form of issue regarding his comprehension. In that vein, it is further noted that the Complainant raised no issue with the training in question, rather the matter was considered when it became apparent that the Complainant failed to complete a questionnaire delivered following the training. Finally, on a purely practical level, it is noted that a person was present that could translate any difficult words or phrases for the Complainant’s benefit. While the Complainant’s evidence was that this person refused to help him on the date in question, this can hardly be considered the fault of the Respondent, particularly when the Complainant did not bring the issue to the Respondent’s attention at the relevant time.

The second allegation raised by the Complainant was that the Respondent refused to place him on lay-off during the disciplinary process. This failure resulted in the Complainant being unable to receive a statutory redundancy payment, with his dismissal taking effect one day prior to his accruing the two years of service required for the same.

Having considered this agreement, I cannot find that the same constitute either direct or indirect discrimination on any grounds. At the relevant time, the Complainant was engaged in a disciplinary procedure. While the dismissal arsing from this procedure has been found to unfair in the parallel proceedings, there is no reality to the Complainant’s assertion that he was at risk of redundancy at the relevant time, and no evidence of any description that the failure to place the Complainant on lay-off was motivated by discriminatory grounds.

Having regard to the foregoing, I find that the Respondent did not discriminate against the Complainant.

Finally, in his complaint form, the Complainant alleged that the Respondent made certain illegal deductions from his wages. While this complaint was not particularised or pursued at the hearing, the Complainant did allege that he did not receive his statutory notice payment.

In contesting this allegaiton, the Respondent submitted that the Complainant was not paid notice as he was dismissed on the grounds of gross misconduct.

It is common case that the Complainant was employed by the Respondent for almost two years. Section 4(1)(a) of the Minimum Notice and Terms of Employment Act provides that an employee with less than two year’s continuous service is entitled to one week of notice or payment in lieu of the same. 

Notwithstanding the same, the Respondent sought to rely on the wording of Section 8 of the Minimum Notice and Terms of Employment Act, which provides that,

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

In the matter of J&D O’Brien -v- Raymond Morrin MND 194 the Labour Court stated that,

“…the dismissal of the Complainant has been determined to have been unfair and the Court cannot allow the (Respondent), by operation of the Act at Section 8, to avoid its obligations under the Act arising from the unfair termination of the Complainant’s employment.”

As the dismissal of the Complainant was deemed to be unfair by virtue of the parallel proceedings, I find that the Respondent cannot rely of the provision of Section 8 quoted above.

Regarding the impleaded Act, Section 1(1)(b) of the same defines “wages” as,

“…any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

In circumstances whereby the Respondent failed to pay the Complainant statutory notice on the termination of his employment, I find that the complaint is well-founded.

CA-00029878-001 Complaint under the Terms of Employment (Information) Act

I find that this complaint is not well-founded.

CA-00029878-002 Complaint under the Terms of Employment (Information) Act

I find that this complaint is not well-founded.

CA-00029878-003 Complaint under the Employment Equality Act

I find that the Respondent did not discriminate against the Complainant. Having regard to the same, I find that the complaint is not well-founded.

CA-00029878-004 Complaint under the Payment of Wages Act

I find that the complaint is well founded and consequently I find in favour of the Complainant.

In relation to redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

Having regard to the totality of evidence presented, I award the Complainant the sum of €542.97.

Discrimination, Translation, Notice, Contract