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/2010/123
Date of Issue: 7 March 2011
File reference: EE/2010/123 - DEC-E2011-041
Employment Equality Acts - Discriminatory treatment -Discriminatory Dismissal - Race- Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Domantas Petkevicius (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 15 November 2005. He was dismissed 19 January 2010.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 24 February 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. An interpreter provided by the Tribunal was present.
2. Case for the complainant
2.1. The complainant is a Lithuanian national. The claim for discriminatory dismissal was withdrawn at the beginning of the hearing.
2.2. The complainant submitted that he was discriminatorily treated by the respondent who issued him with a contract of employment, health and safety documentation in English.
2.3. The complainant stated that while he spoke good English it would not have been as fluent in 2005. He only signed his contract of employment because he believed that he would not have otherwise been able to work.
3. Case for the respondent
3.1. The respondent submitted that the issue of the contract of employment is out of time as it was issued to the complainant in November in 2005.
3.2. The respondent refuted any claims of discrimination. The respondent accepted that the complainant received a contract of employment and all other documentation in English. This is the case with all employees, regardless of nationality.
3.2. The respondent submitted that the complainant was a good and reliable employee who spoke good English.
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 preliminary objection concerning the issue of time limits. The Acts clearly impose requirements concerning the referral of a claim for redress. Section 77 governs this area and in circumstances concerning an occurrence of discriminatory treatment requires a complainant to make a referral within 6 months from the date of occurrence of discrimination (12 months on application to the Director or the Circuit Court in cases where there is reasonable cause). The Acts do also allow for investigation extending longer periods where the complainant can establish the treatment to be on-going discrimination. Section 77(6A)(a)(ii) provides that in circumstances where discrimination arises by virtue of contract, discrimination occurs throughout the duration of the contract. I have been provided with no evidence to suggest that the terms of the contract were discriminatory. However, bearing in mind the purpose of these Acts and the language set out in section 6, I am satisfied that provided that the complainant can show facts from which an inference of discrimination can be drawn, a contract of employment issued in a language not understood by the complainant may, in certain circumstances, constitute on-going discrimination. I am therefore satisfied that I have the jurisdiction to hear the facts of this case and issue a decision accordingly.
4.2. The complainant submitted that he was treated less favourably by the respondent and the Tribunal was asked to infer such treatment merely because of the complainant's nationality. Such an approach is incorrect in law. It is clear that there is no explicit legal obligation to provide non-national employees whose native language is not English or Irish with terms of employment in their native language. The complainant's employment, which lasted over 4 years, was entirely uneventful in that the complainant could not provide any evidence of facts from which adverse treatment could be inferred. The Tribunal was invited to merely draw an inference of discrimination without credible evidence on the race ground from the mere assertion that a foreign worker was treated badly. Such an approach is insufficient to raise a prima facie case.
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 failed to establish a prima facie case of discrimination on the race ground. Therefore, the case fails.
7 March 2011