The Equality Tribunal
Employment Equality Acts
(Represented by Richard Grogan & Associates)
- V -
File reference: EE/2007/375
Date of issue: 22 December 2009
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Victimisation - Claim in relation to a collective agreement - Race - Prima facie case
1.1 This dispute concerns a claim by Mr Vladislavs Fedotovs that he was subjected to discriminatory treatment and dismissal, harassment, and victimisation by Martin Codd on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to sections 8, 14 and 74 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 23 July 2007 under the Acts. On 17 July 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 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 11 December 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 1 February 2006 until his employment ended in March 2007. The complainant is an Estonian National and it is on this basis that this complaint is being taken. The complainant further submitted that he did not receive any proper contract of employment, Health & Safety documentation or training.
2.2 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.
2.3 The complainant referred specifically to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to contract of employment and Health & Safety.
2.4 The complainant submitted a list of authorities citing 5 cases: Kumalo v Cleary & Doyle Ltd. (DEC-E2008-003); Campbell Catering Limited v Rasaq (Labour Court Determination No EED048); Ning Ning Zhang v Towner Trading (DEC-E2008-001); 58 Named complainants v Goode Concrete Ltd. (DEC-E2008-020); Golovan v Porturlin Shellfish Ltd (DEC-E2008-032).
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent made no submissions in advance of the hearing.
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. Fedetovs on grounds of race, in terms of section 6 of the Acts and contrary to sections 8, 14 and 74 of those Acts.
4.2 Section 85A of the 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 The respondent attended the hearing of this matter.
4.4 Upon seeking clarification as to the complaint being pursued, the complainant withdrew the aspects of the complaint that related to dismissal, victimisation and the claim in relation to a collective agreement. The respondent suggested that it was an unfair tactic on the part of the complainant's representative to throw a host of allegations at it and then at the last moment withdraw most of them. The hearing proceeded on the basis of the complaints of discriminatory treatment and harassment then extant.
4.5 The complainant stated that he was not provided with health & safety training. When questioned further, he confirmed that no-one was provided with health and safety training but that they were all required to have the 'Safety Pass' training to access the site..
4.6 The complainant stated that he was not provided with a P45 or P60 by the respondent. In response, the respondent submitted a copy of the P60 issued to the complainant in January 2007 and it was noted that the complainant's P45 was issued according to the Revenue Commissioners records in July 2007.
4.7 The complainant's representative noted that it had sent a Section 76 request for information to the respondent and submitted that this case differs from the Labour Court case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
Mr Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court's view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
4.8 The respondent stated that it was not correct to say that he hadn't sent the information to the complainant in response to the Sction 76 request because he had given copies of most of the documentation requested to the complainant's representative when he had been brought before other employment rights fora. This was not contested by the complainant. In the circumstances outlined, I am not going to draw any inferences from the respondent's failure to respond to the Section 76 request.
4.9 From the complainant's direct evidence presented to me, I am not satisfied that the complainant was treated in a less favourable manner than any of his colleagues. Furthermore, I am of the view that all that has been proffered in support of this complaint is mere assertion unsupported by any evidence, and I am not satisfied that the complainant has established facts from which discrimination may be inferred. Accordingly, I find that the complainant has not established a prima facie case. Therefore, this 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 or discriminatory dismissal on the basis of the race ground has not been established and this complaint fails.
22 December 2009