EDA2326

1. Appeal of Adjudication Officer Decision No(S) ADJ-00026583 CA-00034130-005

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 31 August 2022. Labour Court hearings took place on 14 and 15 February 2023 and on 21 June 2023. The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

This is an appeal on behalf of SEDA (Skills & Enterprise Development Academy) Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00026853/ CA-00034130-005, dated 2 August 2022) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received on 31 August 2022. The Court heard the appeal along with five other related appeals over three days: 14 and 15 February 2023 and on 21 June 2023.

The originating complaint under the Act was received by the Workplace Relations Commission on 2 February 2020. It follows that the period comprehended by the complaint is 3 August 2019 to 2 February 2020.

Factual Matrix

The Complainant is a Colombian national. In 2016 she came to study English at the Respondent language school. On completion of her course, she undertook an internship with the Respondent and commenced employment there on a part-time basis in October 2016. The Complainant’s initial appointment was in the marketing and sales department. She was paid an hourly rate of €9.15 plus commission on sales. The commission element only became payable when a student had paid in full for their course.

The Complainant assumed a full-time role with the Respondent as a Receptionist in September 2018. She continued to perform sales for a number of months thereafter also. The marketing element of her role was discontinued in September 2019 when the Respondent hired a full-time employee to assist Mr Ricardo Tello Gomes. The new employee is of Venezualan and Colombian nationality.

Submissions

The Complainant submits that the new employee appointed on full-time basis to the Marketing Department in September 2019 had no prior sales or marketing experience whereas she (the Complainant) had accrued some three years’ experience by that time. She also submits that the only difference between her and the new employee is their respective nationalities.

It is submitted on behalf of the Respondent that it needed a full-time person in the Latin-American Sales and Marketing Department as the Head of that Department, was required to spend long periods out of the country travelling across South and Central America generating business for the Respondent. It was also submitted on behalf of the Respondent that it had been agreed with the Complainant when she requested to be moved to Reception that her additional sales and marketing role would only be temporary and until a full-time employee had been recruited to replace her in the Marketing Department. Mr Ricardo Tello Gomes gave sworn evidence in this regard to the Court.

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “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.”

• “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.”

• “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 or 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.”

Decision

Having regard to the submissions of the Parties in this case, and the oral evidence adduced, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. Contrary to the Complainant’s assertion that the only difference between her and the person appointed on a full-time basis to the Marketing Department in September 2018 is their respective nationalities, it transpires that the new marketing executive is of dual Venezualan-Colombian nationality. Furthermore, Mr Tello Gomes’s sworn evidence in relation to the agreement he entered into with the Complainant whereby she would continue to perform sales on a part-time basis when she transferred to Reception in a full-time capacity until he had secured the appointment of a full-time replacement for her in the Marketing Department was cogent and compelling and fully explains the developments in September 2019 the Complainant alleges discriminated against her on the grounds of her race.

For the foregoing reasons, the appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CO'R	______________________
19 July 2023	Deputy Chairman