SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
(REPRESENTED BY WILLIAM FRY SOLICITORS)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Application for redress under Section 77(2) of The Employment Equality Act, 1998
2. The Labour Court investigated the above matter on the 7th October, 2005. The Court's determination is as follows:
Olalekan Adekunle (the complainant) was employed by PFPC International Ltd, in his capacity as a financial administrator between 14th May 2001 and 25th April 2003, when he was dismissed. The complainant, who is of Nigerian nationality, claims that his dismissal was on grounds of his race, contrary to Section 8 of the Employment Equality Acts 1998 and 2004 (the Act)
The complainant told the Court that in the initial stages of his employment he had a good relationship with his supervisors and managers and did not experience any problems in relation to his work. He claims to have encountered a number of difficulties with a new manager who was appointed on or about November 2001. Specifically, he contends that he was given more work to perform than was assigned to his colleagues and that he was expected to perform to a higher standard than that expected of others. The complainant was given a number of warnings in relation to his work performance, which he claims were not warranted. He also contends that he was denied the opportunity to undergo training and that the respondent failed to provide him with assistance to overcome any shortcomings which it had identified in the quality of his work. He was finally dismissed for alleged under performance.
The complainant submitted that in respect of these matters he was treated less favourably than his work colleagues, all of whom were of Irish nationality.
The respondent’s case is, essentially, a traverse of the complainant’s complaints. It contended that the complainant consistently under performed in terms of the accuracy of his work and its timing. The respondent told the Court that the complainant was given every opportunity and facility to address a series of shortcomings, which had been brought to his attention. The respondent further contended that having received verbal warnings the complainant’s performance did improve temporarily but he later deteriorated. The respondent denied that the complainant was subjected to adverse special treatment. It submitted that the decision to terminate the complainant’s employment was only taken after he had received full and adequate warnings and when it became obvious to the respondent that his performance would not be maintained at an acceptable standard. The respondent denied that its decision to dismiss the complainant was in any way influenced by the complainant’s race or nationality.
Burden of Proof
The essential fact at issue in this case is whether the respondent’s decision to dismiss the complainant was motivated, either consciously or subconsciously, by considerations related to his race or nationality. Normally the rules of evidence require that a person who asserts must prove. It would, however, be extremely difficult if not practically impossible for a complainant, in a case such as the instant case, to establish as an objective fact the motives or reasons for the impugned acts of the respondent. Hence the law recognises that in cases involving complaints of discrimination the rules of evidence must be adapted so as to relieve a complainant from the burden of having to prove something, which is beyond his or her reach and which may be exclusively within the respondent’s capacity of proof (seeMassinde Ntoko v. Citibank 15 E.L.R. 116). The procedural rule by which effect is given to this principle is now contained in Section 85A of the Act which provides:
- “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 application of this rule, which was formally contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001, was considered by this Court in Southern Health Board v Mitchell  ELR 201. Here a test was formulated as follows;
- 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 was no infringement of the principle of equal treatment.
In the instant case the application of this test means that the complainant must first prove as a fact one or more of the assertions on which his complaint of discrimination is based. A prima facie case of discrimination can only arise if the complainant succeeds in discharging that burden. If he does, the respondent must prove that the complainant was not discriminated against on grounds of his race or nationality. If he does not, his case cannot succeed.
Facts in Dispute
The primary facts for which the complainant contends and upon which he seeks to rely are:
1. That he was continually assigned more work than other financial administrators with whom he worked, and
2. Different standards of scrutiny and supervision were applied to the work of the complainant relative to that of others.
The complainant gave evidence of incidents which he regarded as constituting unequal treatment. Corroborative evidence was also proffered by a former colleague of the complainant who worked with him during the time material to this complaint. However it is clear to the Court that this witness’s means of knowledge was largely based on conversations which he had with the complainant and others relating to the events on which he gave evidence. It is consequently of little probative value.
Witnesses on behalf of the respondent gave evidence of the methods by which work was allocated within the employment and as to the supervisory structures and practices. They told the Court that the manner in which the complainant was treated in respect of those matters was identical to that afforded to all other employees with whom he worked.
The Court accepts that the complainant genuinely believes that he was treated differently in the matters complained of and that he is aggrieved at the manner of his dismissal. However, having evaluated the evidence as a whole the Court is satisfied, as a matter of probability, that the complainant was not singled out for special treatment in the manner alleged or at all. Consequently the Court must hold that the complainant has failed to prove facts from which discrimination may be presumed. In these circumstances the complainant cannot succeed.
The complaint herein is not well founded and it is dismissed.
Signed on behalf of the Labour Court
21st October, 2005______________________
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.