The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts
EQUALITY OFFICER'S DECISION
(Represented by Richard Grogan and Associates)
- V -
DLC Joinery Limited
File references: EE/2007/481
Date of issue: 8 November 2010
EE/2007/481 - DEC-E2010-211
Employment Equality Acts 1998 to 2008 - Discriminatory Treatment - Race - Conditions of employment - Discriminatory dismissal - Prima facie case
1.1. This dispute concerns claim by Mr. Igor Burzacouschii (hereafter "the complainant") that he received discriminatory treatment contrary to the Employment Equality Acts by DLC Joinery Ltd (hereafter "the respondent") on the ground of his race. The complainant maintains that the respondent treated him less favourably than an Irish comparator would have been treated in similar circumstances and that he was dismissed without proper procedure on 15 August 2007.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 8 October 2007 under the Employment Equality Acts. The claim was made on the race ground. On 27 May 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 28 September 2010.
2. Case for the complainant
2.1. The complainant, a Moldavian national, worked with the respondent between 18 January 2007 and 15 August 2007. The complainant worked as a spray painter.
2.2. The complainant submitted that he received no contract of employment or particulars in accordance with section 3 of the Employment Information Act, 1994. He submitted that he and other foreign nationals worked longer hours than Irish workers and took shorter breaks than Irish workers did. The respondent also failed to pay his taxes.
2.3. The complainant contends that the manner in which his employment came to an end constitutes discriminatory dismissal. He was summarily dismissed after he did not attend work on a Friday. The complainant submitted that he was aware that, at the time he failed to attend work, the company was under pressure to complete an order and that after this order there would be little work. The complainant submitted that he informed his employer of his absence by text message. He submitted that the respondent spoke to him in a disrespectful manner.
2.4. It was submitted that the respondent had undertaken to pay the complainant a sum of money in a settlement agreement. This agreement has not been honoured.
3. Case for the respondent
3.1. The respondent company did not attend the hearing. The Tribunal was informed by letter dated 29 July 2010 that the company had ceased trading in 2008. This letter was a reply to a letter notifying parties of the hearing.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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 Goode Concrete v Oksana Shaskova EDA/0919 the Labour Court, in reliance of Mulcahy v Waterford Leadership Limited  13 ELR 12, accepted that the mere coincidence of the complainant's nationality and his/her alleged discriminatory treatment is not sufficient, on its own, to shift the probative burden from, the complainant to the respondent.
4.2. The complainant has shown no evidence of less favourable treatment in relation to his claim concerning documentation under section 3 of the 1994 Act. No case for special action was made in accordance with 58 Named Complainants and/or Campbell Catering. In such circumstances, the Tribunal cannot consider notional comparators. I did not find the complainant's direct evidence in relation to his claim concerning his pay conditions compelling as his salary claims varied extensively from those made in his written submission. Furthermore, the complainant submitted that he and other foreign workers worked longer hours than Irish workers and that he took shorter breaks. He also claimed that Irish workers could chose whether they worked longer hours while the complainant could not. No evidence was presented to support these claims and the complainant could not name any potential comparators, except that he thought that a person called 'Niall' worked there.
4.3. The complainants had no documentary evidence to support his claim that his employer failed to pay his taxes. No comparator was offered for the purposes of this aspect of his claim.
4.4. The complainant claimed that he was dismissed after he failed to attend work while the respondent was completing a big order for a client. The complainant was aware that there was no work after this order had been completed. He submitted that he did not like the manner in which the respondent spoke to him. I do not find that these facts, without any supporting evidence, are sufficient to establish a case of discriminatory dismissal.
4.5. The agreement entered into by the parties is not a matter for this Tribunal as no facts supporting a claim of discriminatory treatment can be linked with it.
5.1. Having investigated the above complaint, I hereby make the following decision in
accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has been unable to establish a prima facie case of discrimination. Therefore, this complaint fails.
8 November 2010