The Equality Tribunal
Employment Equality Acts
(Represented by Richard Grogan & Associates)
- V -
Realtime Technologies Ltd.
(Represented by O Scannaill & Co., Solicitors )
File reference: EE/2007/270
Date of issue: 18 December 2009
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Sexual Harassment - Gender - Race - Prima Facie case
1.1 This dispute concerns a claim by Mr Dmitrijs Monajenkovs that he was subjected to discriminatory treatment, harassment, sexual harassment, and discriminatory dismissal by Realtime Technologies Ltd. on the grounds of his gender and race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 18 May 2007 under the Employment Equality Acts. On 31 March, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts 1998 to 2008 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 23 September 2009. Post-hearing submissions were received on 14 & 27 October 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent from 15 October 2004 until he was dismissed on 23 February 2007. The complainant is a Latvian National and it is on this basis and on his gender that this complaint is being taken. The complainant further submitted that he did not receive a contract or Health & Safety documentation in his own language.
2.2 The complainant submitted in advance of the hearing that he was discriminatorily dismissed and suffered discriminatory treatment.
2.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety.
2.5 The complainant submitted a list of authorities citing 6 cases.
2.6 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that it employed the complainant from 15 October 2004 as an assembler, a position that required no special skills. The respondent submitted that the complainant was employed until February 2007 when he was made redundant following the loss of a large contract.
3.2 The respondent submitted that throughout his employment, the complainant was found to be proficient in English and all instruction was given to him in English. It also submitted that no language difficulties were ever reported by the complainant to the respondent. The respondent further submitted that it engages a Supervisor who is conversant in a number of languages, including Latvian, to deal with any queries raised by prospective or current employees. This facility was afforded to the complainant who was satisfied to sign a contract on that basis. The respondent submitted that given the language capabilities of the complainant, together with the support of his employer, the complainant was in no less favourable a position that any of his fellow employees.
3.3 In it's submissions, the respondent denied that it had failed to meet their obligations as regards Health and Safety information and further that the complainant was involved in delivering health & safety briefings to colleagues on at least one occasion.
3.4 The respondent submitted that due to the downturn, and in particular, the loss of a contract with the company's oldest customer, it had to reduce the workforce from 70 to 28 in February 2007. At that time, all assemblers, including the complainant, were made redundant. The respondent submitted that any employees retained by it had specialist soldering skills, being required to solder very fine electronic components. The respondent submitted that the assemblers were not qualified to carry out such work, and as no vacancies existed in the area, the decision to make all assemblers redundant was taken.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. Monajenkovs on grounds of gender and race, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 At the outset of the hearing, those elements of the complaint relating to harassment and sexual harassment were withdrawn by the complainant.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...". In considering evidence submitted by both the complainant and the respondent, a number of points emerge:
- the complainant was provided with a copy of his contract of employment in English
- the complainant was provided with a copy of health & safety information in English
- the working language of the office was English
- the employer provided a facility for staff members with more fluent levels of English to assist those who were less fluent in their own language
- the elements of the contract of employment and health & safety information were explained to the complaint in a language he understood
- the respondent paid a teacher to provide English language classes to staff
- the complainant raised no issues with the respondent regarding his lack of language comprehension with the respondent
4.5 On the basis of the foregoing I find that the complainant has not established facts from which discriminatory treatment may be inferred. As no prima facie case has been established, this element of the complaint fails.
4.6 During the course of the hearing, the issue of whether the complainant was paid redundancy money was raised. The complainant submitted that he was not paid any redundancy in circumstances where Irish national colleagues were paid redundancy. The respondent stated that there was no selection process to determine who was being made redundant but rather, as they had lost a particular contract, all employees of the assembly team who worked on that contract with the complainant were made redundant. The respondent also stated at the hearing that all employees connected with that contract were paid the redundancy monies owed to them. It further stated that although the complaints file was missing, it was certain that the complainant had been paid redundancy monies, even though it had no documentary evidence to support this contention.
4.7 The respondent was requested to provide documentary evidence of the redundancy payments given to all the employees working on this contract or in the alternative to provide documentary evidence that no payments were made such as correspondence from the Departments of Social Welfare, or the Revenue Commissioners. As part of their post hearing submissions, the respondent stated that no redundancy payment was made to any member of the complainant's team, but I note that this statement was not supported by documentary evidence and contradicted their assertion at the hearing. I do not find it credible that a significant number of employees within an extended team, including a number of Irish national members, were made redundant without receiving redundancy payments, in circumstances where it appears that they would have qualified for such payments. Having heard the evidence and considered the submissions of both sides, on the balance of probabilities, I am persuaded by the complainant's account that he alone was not paid a redundancy payment rather than the respondents post-hearing submission that it had not paid anyone on the assembly team a redundancy amount. Therefore, I find that, in circumstances where the complainant was not paid redundancy monies while Irish national counterparts were so paid, discrimination on the race ground has occurred. On this basis, the complainant is entitled to succeed.
4.8 The complainant submitted that he was made redundant in circumstances where two named female employees were retained and that this amounted to discrimination on the gender ground. The complainant submitted that these two employees were recruited after him and remained in employment after he was made redundant. In response, the respondent stated that the two employees had a different set of skills and were employed pursuant to a different contract than the one lost by the respondent. No additional supporting evidence was forthcoming from either party and accordingly, I do not consider that the presented arguments amount to facts from which discrimination may be inferred. I consider that no prima facie claim of discrimination on the gender ground has been established and, therefore, this element of the complaint fails.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the gender ground has not been established and this element of the complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that a complainant has established that discrimination on the race ground occurred in connection with the redundancy element of this complaint.
5.4 In accordance with section 82 of the Acts I award the complainant €2,500 in compensation for the discrimination suffered. This award does not relate to any redundancy payment that may be owing to the complainant as this is not within the Tribunal's remit but refers to the discriminatory treatment only. As it does not include any element of remuneration, it is not subject to income tax.
18 December 2009