Non- National Dismissed because of Alleged Theft of Bananas – Labour Court Points to Positive Duties on Employers
The Equality Authority has welcomed the recent decision of the Labour Court which found that Aderonke Rasaq had been discriminated against in her dismissal by Campbell Catering. The Labour Court finding identified a positive duty on employers to take account of the practical implications of the cultural and linguistic diversity of their workforce in the case of disciplinary procedures.
Aderonke Rasaq was dismissed after being wrongfully accused of stealing bananas from the work place. In the early stages of pregnancy she took three bananas from the kitchen which she intended to eat before she left. She believed she had a right to take food for consumption at work and this wasn’t disputed by the company.
The Labour Court found as a fact that the claimant did not steel the bananas and could not reasonably have been accused of stealing the bananas. The Labour Court found that the company’s decision to dismiss Aderonke Rassaq from her job at a hostel for refugees and asylum seekers in Dublin was discriminatory on the race ground. The Labour Court stated that she was not offered fair procedures in that she was not told that her dismissal was in contemplation before the decision was taken, she was not informed of her right to be represented at any disciplinary hearing, and there was no investigation in any meaningful sense into the allegation made against the complainant. The Labour Court found that she had been treated less favourably than other employees facing allegations of serious misconduct had been or would be treated in similar circumstances. The claimant was awarded €15,000.
The Labour Court in its decision made it 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. It stated that in the case of ‘disciplinary procedures 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 appreciated the gravity of the situation and is given appropriate facilities and guidance in making a defence’.
“This is an important and ground breaking decision by the Labour Court. It acknowledges that cultural and linguistic diversity has practical implications for employment practices and procedures. It establishes a requirement on employers to take action to accommodate this diversity. It is important that employers are aware of this requirement – a requirement that will not only improve the situation and experience of migrant workers but will also enhance the contribution of those workers to business success. The Labour Court has based this important requirement on the fact that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations.” states Niall Crowley CEO of the Equality Authority.
The claimant was represented by the Equality Authority. The case highlights the very difficult experience of discrimination being brought forward by migrant workers. Currently the Equality Authority are working on 90 (42% of all casefiles under the Employment Equality Act) casefiles on the race ground. The majority of these deal with migrant workers. They cover issues that include working conditions, dismissal, equal pay, access to employment and harassment.
“Migrant workers are key to continuing growth in the Irish economy. The Equality Authority casefiles indicate that migrant workers are experiencing high levels of discrimination. This is bad for the economy, for business success and for migrant workers. We need to invest more in ensuring migrant workers know their rights and have access to adequate supports if they are to continue to make their contribution to the Irish economy.” concludes Mr. Crowley.
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