THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 074
Mr. Igor Ostojic
(represented by Richard Grogan and Associates, Solicitors)
DSM Civil Engineering Ltd
File Reference: EE/2006/459
Date of Issue: 12th May 2010
Employment Equality Acts 1998-2008 - Section 6 and 8 - Race - Discriminatory Dismissal
1.1 This case concerns a complaint by Mr. Igor Ostojic (hereafter "the complainant"), who is a Croatian national, that he was subjected to discriminatory dismissal in terms of section 6(2)(h) of the Employment Equality Acts by DSM Civil Engineering Limited (hereafter "the respondent") on the grounds of his race and contrary to section 8 of those Acts.
2. Delegation of the complaint
2.1 The complaint was referred under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on the 27th November 2006. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to me, James Kelly, an Equality Officer on the 21st July 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from the complainant on the 14th August 2008. No submission was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 30th March 2010.
3. Summary of the Complainant's case
3.1 The complainant submits that he is Croatian and that he worked for the respondent between the 4th September 2006 and the 18th October 2006. He claims that he worked in various jobs, including as a ground worker, a signaller and a side dumper driver. He claims that at the time the respondent had "a sizeable operation" and he claims that the majority of its employees were Irish. He said he knew of one other Scottish national working with the respondent and he said that there may have been other non-nationals but he was not sure.
3.2 The complainant maintains that while he was working on a site in Malahide, Dublin, he met with his Irish foreman and asked permission to take two days holidays at a future date. He claims that permission was given by the foreman. He claims that the Site Manager and the owner of the company were also in attendance when he made his request on the day. He claims that in advance of taking that leave he was moved to a site in Clarehall, Dublin, where he was informed that his skills as a dumper driver were required. He claims that there was no foreman on site when he arrived there, the foreman only arrived two days after the complainant took up his position there. He claims that he took the following Thursday and Friday off on leave as previously sanctioned by the site foreman on the Malahide site. He claims that when he returned to work the following Monday he was met by the foreman of the Clarehall site who told him that as he had not reported into work, he no longer worked with them. The complainant claims that he rang the owner of the company and left a phone message. He claims that the owner rang him back and said that he had spoken with the foreman and informed him that he had told him that the leave was previously sanctioned from the complainant's time on the Malahide site. However, he claims that the foreman had said that Mr. Ostojic was "worthless to him and he did not want him back".
3.3 The complainant claims that he was dismissed without any proper procedure in place. He claims that he was not given an opportunity to have a hearing and he believes that he was dismissed so as not to undermine the foreman on the Clarehall site. He maintains that this treatment constitutes discriminatory dismissal on the grounds of his race. He further contends that he knew of an (unnamed) Irish worker that was made redundant, while he was working there. He claims that this worker was called into the respondents office and was told of the redundancy. Therefore, he claims that there was a procedure in place in relation to redundancy for the Irish workers however, he claims that the same procedure was not afforded to him on his dismissal.
3.4 The complainant also contends that this treatment arose because he is a foreign worker and that special measures should be applied to ensure that he was aware of his entitlements and of the relevant procedures. He relied on the Campbell Catering -v- Rasaq and 58 Named Complainants -v- Goode Concrete cases.
4. Summary of the Respondent's case
4.1 The respondent neither attended the Hearing nor was it represented at same.
4.2 I note that the respondent replied to the original request for information by the complainant by way of returning the official Form EE.2, where it states that the complainant's employment was terminated due to his failure to report to work from the 19th - 23rd October 2006, and for failing to notify or consult his site foreman about taking leave. It also stated that the complainant was not treated less favourably than any other employee of the respondent's company on the race ground.
5. Conclusions of the Equality Officer
5.1 The issue for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards discriminatory dismissal.
5.2 Section 85A of the Employment Equality Acts, 1998 to 2008 provides as follows: "(1) 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". This requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him the case cannot succeed. In reaching my decision, I have taken into consideration all of the submissions, written and oral, made by the parties.
5.3 I note that the complainant stated in evidence that he was generally unaware of the nationalities of the various workers employed by the respondent at that time, although he was aware that the work force was primarily made up of Irish workers and at least one other nationality was working there. I have noted the complainant's evidence where he claims that he was dismissed without proper procedures and he believes the reason for this was so the respondent would not be seen to undermine one of it's foremen. I also note the oral evidence where the complainant states that "he knew of an Irish worker who was called into the office before he was let go" and that this amounts to a procedure in relation to redundancy. It was submitted that the Tribunal should infer that the complainant was subjected to less favourable treatment on the grounds of his race and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.4 In the present case, I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the dismissal. I also accept the complainant's evidence that he was dismissed without proper procedure on the date in question. However, I do not have any jurisdiction to decide upon the fairness or otherwise of the complainant's dismissal under the relevant employment legislation. As mentioned previously the only issue for consideration is whether or not the respondent discriminated against the complainant on the grounds of race in terms of the Employment Equality Acts.
5.5 In considering this issue, I have taken cognisance of the recent determination of the Labour Court in the case of Melbury Developments Limited and Valpeters . 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, can 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."
5.6 Having regard to the determination of the Labour Court, I am satisfied from the evidence adduced that there is insufficient evidence to link the dismissal of the complainant to the discriminatory ground for which discriminatory dismissal may be inferred. I note where the complainant states that he assumed the reason he was dismissed was so as not to undermine the foreman on the Clarehall site. However, I am not satisfied that he has presented any evidence to substantiate the claims that he was dismissed because of his race.
5.7 I am also satisfied that there is no corroborative evidence provided by the complainant in relation to the Irish worker whom he claims that "he knew of" that was made redundant by the respondent. A mere statement by the complainant that he was aware that a fellow Irish worker was called into the Office to be told of his redundancy is insufficient in my mind to establish any facts that he can rely upon to raise an inference of discrimination. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of race, the complainant must be able to demonstrate significant evidence in relation to an Irish comparator. I am satisfied that he has not done this. I am also satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that the termination of employment was in any way influenced by his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race.
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
I find that the respondent did not discriminatorily dismiss the complainant. Therefore, the complaint of discriminatory dismissal fails.
12th May, 2010