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/2009/385
Date of Issue: 7 March 2011
File reference: EE/2009/385 - DEC-E2011-043
Employment Equality Acts - Discriminatory/Victimisatory dismissal - Race- Prima facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Vygintas Stoskus (hereafter "the complainant") that he was subjected to discriminatory/victimisatory dismissal by Goode Concrete Limited (hereafter "the respondent") on the grounds of his race. The complainant submitted that he was dismissed without proper reason or procedure on 28 January 2009. The complainant submitted that he had previous issued equality proceedings against the respondent and that this was the reason for the dismissal.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 4 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 Lithuanian national. He had previously issued equality proceedings (58 named Complainants v Goode Concrete Limited DEC-E2008-020) against the respondent. The complainant submitted that because he had sought redress under these Acts he was dismissed without proper reason or procedure on 28 January 2009. The complainant withdrew his claim for discriminatory dismissal at the hearing.
2.2. The complainant stated at the hearing that he had been frequently been approached by the respondent after the decision in his previous case had been issued. He stated that the respondent had told him that the award was excessive. The complainant submitted that all of the 58 named complainants who took their claim against the respondent had since been dismissed. It is his belief that he was dismissed because of his involvement in the previous claim.
2.3. The complainant's submission also referred to the fact that the complainant had been issued with a contract of employment in English. The complainant referred to the Labour Court decision in Campbell Catering and Aderonke Rasaq EED048 as an authority.
3. Case for the respondent
3.1. The respondent refuted the complainant's claim. It was submitted that the complainant was dismissed in accordance with the respondent's disciplinary procedure. The complainant was called to a disciplinary meeting by a written letter dated 21 January 2009. He was invited to bring a representative from within the company to the meeting as per his contract of employment. The complainant was informed that the meeting would be addressing his failure to attend work and record his break times. It was submitted that the complainant attended the meeting with a colleague who also provided translation assistance on 26 January 2009. At the end of this meeting the complainant was sent home to consider the issues and welcomed back for a second meeting so that he could reply to the issues raised.
3.2. A second meeting was arranged for 28 January 2009. A bi-lingual colleague attended with the complainant. The respondent submitted that the complainant did not accept that he did anything wrong. The respondent dismissed him citing his poor disciplinary record and informed the complainant that he had seven days to appeal the decision in writing. The complainant made no appeal. A letter informing the complainant of his dismissal was sent on 3 March 2009.
3.3. The respondent submitted that this was not the first disciplinary action taken against the complainant. The complainant had been given formal and written warnings about his attendance record, failure to return from annual leave, rude behaviour with respondent's clients, etc.
3.4. The respondent submitted that while it employed close to 200 persons in 2008, it now only employs less than 8 full time posts. One of the persons still remaining with the respondent is a named party who also took a claim under 58 named complainants.
3.3. The respondent submitted that the complainant has already received redress from this Tribunal on the issue of his contract of employment.
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. I am satisfied that the complaint concerning the complainant's facts surrounding the issue of the contract of employment is res judicata. The matter before this Tribunal is whether the complainant has been able to raise sufficient facts from which an inference of victimisation can be drawn.
4.3. The complainant has provided no facts to link his dismissal with victimisation. I am satisfied that the complainant had a poor disciplinary record. The respondent submitted copies of written warnings issued to the complainant on 11 January 2007, 24 September 2008 and 18 December 2008. Further evidence of formal warnings, dated 23 August 2007 and 13 August 2008 was also provided. While the complainant did not necessarily agree that he had done anything wrong, he admitted that he had received these warnings.
4.4. I note that the complainant submitted that a number of agents or servants of the respondent had called him to meetings about his previous claim and had pressured him to drop his appeal. He was unable to provide any names or dates of such meetings and his written submission made no reference to such meetings. Nor could he respond to the respondent's submission that one of the other persons involved in the previous claim was still employed by the respondent. Having considered the facts presented to me I cannot find any evidence to support the complainant's claim that he was dismissed because he had exercised his right to seek redress under these Acts.
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 victimisatory dismissal on the race ground. Therefore, the case fails.
7 March 2011