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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Palaszewski v Galgorm Meats [2014] NIIT 01701_13IT (16 April 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1701_13IT.html
Cite as: [2014] NIIT 1701_13IT, [2014] NIIT 01701_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1701/13
CLAIMANT: Przemyslaw Palaszewski
RESPONDENT: Galgorm Meats
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of unfair dismissal and unlawful discrimination on racial grounds are dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Professor Boyd
Mr J Law
Appearances:
The claimant appeared in person and represented himself, assisted by an interpreter.
The respondent was represented by Mr K Smith.
THE CLAIM
1. The claimant claimed that he had been unfairly dismissed and had been subjected to unlawful discrimination on racial grounds by the respondent. The respondent denied his allegations in their entirety and also contended that he had not been dismissed. Although not part of the claim before the tribunal, the respondent’s representative indicated that the respondent would pay any unpaid holiday leave to the claimant up to 18 June 2013.
THE ISSUES
2. The issues before the tribunal, duly amended to take into account the respondent’s denial of dismissal, were set out in the record of a Case Management Discussion dated 5 December 2013 as follows:-
(i) Was the claimant dismissed by the respondent, and if so, was he unfairly dismissed for the purposes of the Employment Rights (Northern Ireland) 1996?
(ii) Was the claimant unlawfully discriminated against on the grounds of his race or nationality in the manner in which the respondent treated his sick leave on or about 18 and 19 June 2014 and on or about 16 July 2014?
(iii) Was the claimant unlawfully discriminated against on the grounds of his race or nationality in the manner in which the respondent dealt with the claimant’s letter of 3 August 2013?
(iv) Was the claimant subjected to unlawful discrimination on the grounds of his race or nationality by being subjected to abusive language throughout the period of his employment?
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant. The claimant also furnished statements from Mateusz Majczyk and Zbigniew Sadzynski on his behalf. The tribunal, in the absence of the witnesses to provide oral evidence and to be cross-examined, can afford only limited weight to the statements. Steven McCurdy, one of the partners with the respondent, also gave evidence. The tribunal was presented with documentation and took into account only the documentation referred to in the course of the hearing.
FINDINGS OF FACT
4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i) The claimant commenced employment with the respondent on 1 April 2012. He initially claimed that he had been dismissed by the respondent on 18 June 2013. However, later in his evidence, he changed this date to 16 July 2013 when he returned from four weeks’ sick leave.
(ii) The claimant summarises his position in correspondence to the respondent dated 3 August 2013 as follows:-
“August 03, 2013
24 Galgorm Industrial Estate
Fenaghy Road
Ballymena
Country Antrim
BT42 1AQ
Dear Manager
On the 17th June 2013 when returning back to work from my sick leave you accused me of taking statutory sick leave without actually being sick. You even transferred me from my usual work station, saying it’s a punishment for taking sick leave. You claimed my sick leave was aimed at taking advantage of the good weather.
However your decision to transfer me to one of the most difficult stations in the workplace adversely impacted on my already ailing health. I was forced to go back to the doctor, who issued me a 28 days sick leave, starting on the 18th June 2013. I gave my friend the sick leave to submit it [for] me and however I was told you tore it and told him that I have been fired from my employment. I did not receive any statutory sick leave for the period and I sent two text messages [to] Steven McCurdy to ask why I have not been paid. I never got any response from my employer.
Your decision to terminate my employment was unfair. You also victimised me for being sick, which is a violation of my rights as your employee. The continued use of slur words in addressing me was also very discriminatory.
I have therefore decided to take this case to the tribunal for the unfair dismissal, discrimination and victimisation. I am writing this letter to you because it is a requirement to seek redress with the former employer before the case can be registered with the tribunal.
Sincerely yours
Przemyslaw Palaszewski”
(iii) The claimant alleged that Zbigniew Sadzynski had submitted his sick line to the respondent on 19 June 2013 and afterwards reported to the claimant that his sick line had been torn up and, according to his claim form, that “I was fired”.
(iv) At all times material to this case the respondent maintained that the claimant had not been dismissed. The tribunal carefully examined the correspondence placed before it. In a letter to the claimant dated 20 August 2013, issued in response to correspondence from the claimant’s Solicitor, the respondent through Steven McCurdy, clearly sets out its position as follows:-
“20 August 2013
Dear Przemyslaw,
Further to your letter dated 3 August 2013, I am writing to clarify the position of Galgorm Meats in relation to your unfounded claims against us.
Neither of the two partners in this business claim to be medically trained and therefore we do not make assessments on the fitness for work of our employees. We rely on the professionalism and integrity of our staff and their medical practitioners to advise us of the status of their health.
You have claimed that we transferred you to an alternative work station following a period of sickness absence; this was not a punishment but merely a decision taken to ensure we have continuity of productivity across all areas of the business. This was purely a business decision and not a personal one as you have suggested.
When you reported sick again for a further 28 days from 18 June 2013, your friend was not advised of any decision the business had taken in relation to your employment, it is company policy to consult with our HR adviser in all aspects of employment law. On this occasion I can vividly recall advising your colleague that we wished you a speedy recovery. You have suggested you sent text messages to Stephen McCurdy and got no reply. You will be very aware that it is company policy that we do not respond to text messages; therefore you should not have been surprised by our actions on these occasions.
For the avoidance of doubt your employment has never been terminated from the business, you will be very aware that you were not issued with your P45 which would clearly indicate we had ended [your] employment, the fact you have not received this confirms your position remains open.
I refute any allegations that I have ever used any slur words when conversing with you and the fact that you are suggesting that [your] next course of action is to proceed to tribunal suggests that your primary objective in this matter is to make a claim against our business. We will resist any such claim and believe you have breached your employment contract by failing to keep your employer informed of your progress and your likely availability during your absence.
I also note that on 20 August 2013 when you would have been aware that the two partners of this business were absent you sent your wife or partner to request your P45, this would suggest you have decided to resign your position. If indeed this is the case, can you contact the business in person, provide us with a written request for your P45 and state in writing that you wish to resign your position. I am concerned that you are striving to create a situation which misrepresents our position for your own personal financial gain.
I hereby wish to advise you that your position within this business remains open, you are welcome to return to work when your GP advises you that you are fit to return.
Yours sincerely”
(v) The tribunal considers it appropriate to set out the claimant’s further correspondence of 22 August 2013 as follows:-
“August 22, 2013
24 Galgorm Industrial Estate
Fenaghy Road
Ballymena
County Antrim
BT42 1AQ
Re; 20th August 2013
Dear Manager
On the 17 June 2013 I reported to work after my statutory sick leave and my employer Mr Steven McCurdy transferred me to another station which is more strenuous than my normal station. I protested but the manager made it clear that it was punishment for missing work. I did not understand why I should be punished for missing work, with a valid legitimate reason and I don’t understand why you my former employer has written to me insisting the claims are unfounded.
How so convenient that I was transferred to an area well known to be very strenuous immediately from my statutory sick leave. It is very evident that I was victimised for taking time off sick. I find it wrong to be punished for exercising my rights as an employee. The employer dismissed my medical practitioner’s professional advice and insinuated that my sickness was intended to take advantage of the good weather the previous day. You were least concerned with my health.
You claim to have wished me a speedy recovery when you were informed by a friend and a colleague about my worsened condition; you however are refuting to have ended my employment on that day. I was told you tore my sick leave, I hope you will be in a position to provide that particular sick leave when the need arises in order to validate your rebuttals as you have acknowledged receipt of the sick leave certificate on your response to me. I also wonder why you failed to pay my Statutory Sick Leave as it is procedure for the period if you indeed have not terminated my contract.
I will appreciate if you provided me with a P45 since you have terminated my employment, I cannot resign under the given circumstances. How can I resign from what I already don’t have? It is also a grave accusation you have made towards me, that my formal grievances are for financial gains. I found such accusations very defaming, not once in my letter did I mention any “financial gains”. I will appreciate you refrain from such use of words when addressing my person in the future.
I am still considering taking this issue with the tribunal and the equality commission. It’s very evident that I have discriminated against and victimised in the workplace. The language you have used in your response actually elucidate my claims.
Thank you.
Przemyslaw Palaszewski”
(vi) It was clear to the tribunal throughout the hearing, that the respondent was disposed towards resolving the matter amicably with the claimant, if possible. The tribunal afforded the parties time to discuss the issues further under the auspices of the Labour Relations Agency. In the course of his evidence the claimant indicated that he ‘maybe’ would consider returning to the respondent’s employment but maintained that he would not consider any offer unless he went back to a butcher’s position. Towards the end of his evidence, Steven McCurdy stated that he would offer the claimant a position within the factory but not as a butcher, as all 8 such positions were currently occupied. However, he did clearly indicate that in the event of such a position becoming available, the claimant would be offered that position. However the claimant again confirmed that unless he was offered a butcher’s position, he would not return to the respondent.
(vii) The respondent’s position was that it had never received the sick note which was allegedly torn up. Furthermore, under cross-examination, the claimant claimed that it was the other partner in the business, Paul McCurdy, who had torn up the sick line, whereas the statement provided by Zbigniew Sadzynski clearly indicates that it was Steven McCurdy who tore it up. The tribunal is satisfied that this allegation is unsubstantiated and that the claimant was moved to lighter duties when he returned from sick leave on 17 June 2013. The tribunal carefully considered the photographs furnished by the respondent concerning the product handled by the claimant and the nature of the work involved before and after his return to work on 17 June 2013 for one day. The tribunal is also satisfied that the respondent did not receive an original sick line for the period commencing 18 June 2013 and that the first it knew about this sick line was when it received a duplicate copy on 20 August 2013. Steven McCurdy explained that it was not unusual for some workers to disappear from work without explanation.
(viii) Steven McCurdy was as a credible witness who was prepared to continue the claimant’s employment within the factory. He described the insurance concerns in relation to allowing the claimant, with a back problem, to continue in the work in which he was previously engaged, which required lifting shoulder pieces of meat. Steven McCurdy was clearly fearful of the claimant sustaining further injury. The medical evidence furnished to the tribunal specified a back pain problem. In the position to which he was transferred the lighter “picnic” pieces of meat ultimately emerged from the process at shoulder level, and were then placed on a table. The tribunal was satisfied that the claimant’s claims that he had to bend every three seconds are not substantiated. Furthermore, he complained that he lost out financially when being moved to the other duties (which he termed heavier duties). However, this has to be viewed in context. These were in fact lighter duties for which he was paid on an hourly basis. In his previous duties he was paid on a “piece” basis depending on the number of shoulder pieces of meat he was able to handle. The more he moved the more he was paid. However, with a back pain problem his ability to do this would be limited and would expose him to further injury.
(ix) The claimant, who is Polish, had introduced his father to the respondent’s business. At the date of hearing his father was still employed by the respondent. The longest serving employee of the 24 engaged in the respondent’s business is Polish, having been employed from the inception of the business, some six years ago. 56% of the employees are Polish.
(x) In seeking to establish a case of unlawful discrimination on racial grounds, the claimant sought to compare himself with a fellow employee, Alan Reid, whom he claimed had returned from sick leave and was still working at the same workplace at which the claimant had been working and had not had his wages changed. However, Alan Reid had three days’ sick leave in total during a period of some three years employment. The claimant had been on sick leave from 11 June 2013 until his return on 17 June 2013. This was followed by a further four weeks’ sick leave commencing on 18 June 2013. Furthermore there is no evidence that Alan Reid was suffering from the same physical ailment as the claimant, ie, back pain. The tribunal therefore cannot be satisfied that Alan Reid is an appropriate comparator in the context of the claimant’s claim of discrimination on racial grounds.
(xi) There is no evidence before the tribunal to satisfy it that the claimant was dismissed by the respondent, either on 18 June 2013, or 16 July 2013 when he returned to work after sick leave. The tribunal having carefully considered all the relevant evidence is satisfied that the position is correctly reflected in the respondent’s correspondence to the claimant dated 20 August 2013, set out in paragraph (iv) above.
(xii) The claimant presented his claim to the tribunal on 23 September 2013.
THE LAW
5. (1) The law on unfair dismissal is set out in Articles 126-130, and 130A of the Employment Rights (Northern Ireland) Order 1996. Article 127 provides that an employee is dismissed by his employer if ...
“(a) The contract under which he is employed is terminated by the employer (whether with or without notice),”
(2) In relation to the claim of direct discrimination on racial grounds, Article 3(1) of the Race Relations (Northern Ireland) Order 1997 (“the Order”), provides as follows:-
“(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; …
(3) a comparison of the case of a person of a particular racial group with that of a person not of that group under Paragraph (1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.
(ii) “Racial Grounds” is defined in Article 5(1) of the Order as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins;”
(iii) Article 6(2) of the Order states that it is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee “by dismissing him, or subjecting him to any other detriment.”
Burden of Proof Regulations
7. (i) Article 52A of the Order provides as follows:-
“52A. – (1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent –
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B)(a), (e) or (f), or Part IV in its application to those provisions, or
(b) has committed an act of harassment.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –
(a) has committed such an act of discrimination or harassment against the complainant,
(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,
The tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”
(ii) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out in the Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.
(iii) The tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-
“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage…, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”
(iv) The tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs are set out in full to give the full context of this part of his judgement.
“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:
(1) In every case the Tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.
(2) If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.
(3) As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-
‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’
If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the Tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)
(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-
‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’
Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.
(5) It is not necessary in every case for a Tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(6) It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.”
(v) The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.
SUBMISSIONS
8. The claimant did not wish to make any submissions to the tribunal. The respondent’s representative made brief submissions, which the tribunal has considered.
CONCLUSIONS
9. The tribunal, having carefully considered the evidence together with the submissions from the respondent’s representative, and having applied the principles of law to the facts as found, concludes as follows:-
(i) There is no evidence that the respondent terminated the claimant’s contract with or without notice. His claim of unfair dismissal must therefore be dismissed.
(ii) The tribunal is also satisfied that the claimant has not proved facts from which the tribunal could conclude, in the absence of an adequate explanation that unlawful racial discrimination has occurred in any of the following forms:-
(a) in the manner in which the respondent treated the claimant’s sick leave on or about 18 and 19 June 2013 and on or about 16 July 2013;
(b) in the manner in which the respondent dealt with the claimant’s letter of 3 August 2013; or
(c) by being subjected to abusive language throughout the period of his employment with the respondent.
(iii) The tribunal, in arriving at its conclusions considered all of the evidence relevant to the discrimination complaint, including evidence as to whether the act complained of occurred at all, evidence as to the comparator relied by the claimant to prove less favourable treatment and evidence as to the comparisons being made by the claimant were of like with like together with available evidence of the reasons for the differential treatment. In relation to the comparator issue, the tribunal has clearly articulated the position in paragraph 4 (x) of this decision. The claimant’s claim of unlawful discrimination on racial grounds must therefore also be dismissed.
Employment Judge:
Date and place of hearing: 18-19 March 2014, Belfast.
Date decision recorded in register and issued to parties: