The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
(Represented by Grogan and Associates Solicitors)
Goode Concrete Limited
(Represented by Reidy Stafford Solicitors)
File No. EE/2010/019
Date of Issue: 11 March 2011
File reference: EE/2010/019 - DEC-E2011-040
Employment Equality Acts - Discriminatory treatment - Discriminatory dismissal - Race- Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Alexandr Bobuh (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatory dismissal by Goode Concrete Limited (hereafter "the respondent") on the grounds of his race. The complainant submitted that the first date of discriminatory act was on 8 March 2003. The date of dismissal was 7 August 2009
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 12 January 2010 under the Employment Equality Acts. On 16 July 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case 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 20 December 2010.
2. Case for the complainant
2.1. The complainant is a Moldovan national of Ukrainian ethnicity who worked as a lorry driver with the respondent. The complainant submitted that he was discriminatorily dismissed when the respondent ceased his contract of employment in August 2009. The complainant was told that he had to obtain an Irish drivers licence and was dismissed subsequently. It was submitted that the respondent was very aware of the need not to discriminate in relation the dismissal of a non-Irish national but that they failed to apply any proper procedure.
2.2. The complainant withdrew his arguments concerning the language of his contract of employment and health and safety documentation in the circumstances of this case.
2.3. The complainant admitted that he had initially lied about his nationality and had been driving for the respondent using a false driving license.
2.4. The complainant has not obtained an Irish or EU drivers licence to date.
3. Case for the respondent
3.1. The complainant commenced his employment with the respondent in his true identity on 8 March 2007. Prior to this, he had been employed under the name Jose Damas and identified himself as a Portuguese national. Subsequently, the complainant had admitted that he was not Portuguese but Lithuanian and produced a Lithuanian driver's licence held in the name of Jose Damas. Subsequently, the complainant admitted that he was not Lithuanian nor indeed Jose Damas, but a Moldovan national called Alexandr Bobuh. He then produced a Moldovan driving licence.
3.2. In January 2010 the respondent sought to renew its insurance with their named insurance company. The insurers made an enquiry with the Road Safety Authority (RSA) as to the validity of a Moldovan driving licence. The RSA confirmed in an email that Ireland did not have an exchange agreement with Moldova. This meant that a person with such a licence can only drive in this jurisdiction for 1 year period during which, should they wish to stay longer, they ought to start the procedure of getting a recognised drivers licence. The insurers subsequently wrote to the respondent informing it that the complainant would not be covered under an insurance policy and that he would be breaking the law should he continue to drive.
3.3. The respondent explained to the applicant that because he only held a Moldovan driving licence, he was no longer insured to drive the vehicle and that he ought to apply for an Irish licence should he wish to remain working. It was submitted that the complainant was put on temporary lay off and that he could return to work as soon as he had a valid licence.
3.4. It was submitted that it is disingenuous of the complainant to produce forged documentation and hold a false identity and then to claim that he was discriminated against on the basis of his nationality given that he himself has misrepresented same.
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".
4.2. The facts in this case are somewhat in dispute. The complainant submitted that he was dismissed on 7 August 2009. He provided the investigation with a Certificate on Cessation of Employment dated 13 August 2009. The complainant stated that around this date he had made an appointment to take his driving test but due to ill health he was unable to do so. He had returned to his native country to seek medical attention. He had received a P45 and understood that his employment had come to an end. He denied contacting the respondent to ask for his P45. The complainant stated that there was no need for a P45 in order for him to receive social welfare.
4.3. The respondent submitted that the complainant had been temporarily laid off because he could not carry out his duties and that the complainant had himself requested a P45. The driving license initially became an issue when the respondent sought a card for a digital tachograph for the complainant in April 2009. A named manager at the time spoke to the complainant about the issue and advised the complainant to take a driving test. I note that the complainant categorically denied that he had been told this by the named manager. However, during the hearing the complainant admitted that he was aware of the fact that he required an Irish driver's license before he could return to work.
4.4. The respondent submitted that the complainant had been let go with the understanding that as soon as the complainant had a valid driving license he could return to employment. The respondent's HR manager had written to the complainant on 4 February 2010 stating, in response to the complaint lodged under these Acts:
"There seems to be some confusion regarding the circumstances of your departure from Goode Concrete. Whilst carrying out a check of all driving licenses, [a named manager] realised you were still driving on a Moldovan driving license....
We explained to you that you needed to obtain an Irish License, and, that you would return to work when the License was obtained".
4.5. It is clear that the contract of employment had come to an end. I do not however find that the complainant was dismissed without proper reason. He was well aware that he required a recognised driver's license to continue legally driving in Ireland. It is also clear that in the circumstances of this case he could not lawfully carry out his duties. Nothing in these Acts imposes an obligation on an employer to maintain a person who no longer is able to do the work that they are employed to do. I have been presented with no facts to support an argument that the respondent would have treated an Irish person differently in similar circumstances.
5.1. Having investigated the above complaints, 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 not established a prima facie case of discriminatory dismissal on the race ground. Therefore, the case fails.
11 March 2011