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/2009/425
Date of Issue: 7 March 2011
File reference: EE/2009/425 - DEC-E2011-042
Employment Equality Acts - Discriminatory treatment - Discriminatory dismissal - Race- Prima facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Bogumil Rybacki (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. He claims that he was treated less favourably because he was provided a contract of employment and health and safety documentation and training in English. The complainant submitted that he was dismissed without proper reason or procedure on 20 February 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 26 June 2009 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 Polish national who was employed as a concrete technician.
2.2. The complainant did not receive a proper contract or any contract at all. The complainant did not receive any proper health and safety documentation or training.
2.3. The complainant does not wish to pursue his discriminatory dismissal claim.
3. Case for the respondent
3.1. The respondent refuted the complainant's claims. The complainant had been provided with contracts and other documentation in the same manner as other employees regardless of nationality and had understood them.
3.2. It was submitted that as a concrete technician the complainant had to submit reports as part of his everyday work. While it was accepted that such reports are limited, the respondent stated that they demonstrate some level of literacy in 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 complainant withdrew his claim for discriminatory dismissal at the hearing. This investigation therefore is concerned with the question whether the complainant was less favourably treated because he, like all the other employees regardless of nationality, was provided a contract and health and safety documentation in English?
4.3. It is clear that the complainant did receive a contract of employment as a copy was included in his own submission. The said document is in English. The complainant stated that he could not fully understand it and the complainant stated that he wished to rely on the decision 58 complainants v Goode Concrete (DEC-2008-020). It should be noted that the onus on the respondent in the Goode Concrete case was to make reasonable efforts to ensure that the relevant employee understood their rights and certainly that it ensured that they were not treated less favourably than someone who was made aware of those rights if they did not. I am satisfied in the circumstances of this case that the complainant has provided no facts from which an inference of less favourable treatment in relation to his Irish co-workers could be drawn. The complainant was employed with the respondent for three years and the employment appears to have been uneventful. The same applies to his statement concerning his health and safety documentation. The complainant has provided no facts from which an inference of less favourable treatment can be drawn.
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