EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2012-069
(Represented by Richard Grogan & Associates)
KC Civil Engineering Ltd
File Reference: EE/2010/018
Date of Issue: 6 June, 2012
Headnotes: Employment Equality Acts, 1998 to 2011 sections 6, and 8 - ground of race - discriminatory dismissal, intention to join a trade union - prima facie case.
This dispute involves a claim by Mr Robert Janowiak (hereinafter "the complainant") who is a Polish national, that he was discriminated against by KC Civil Engineering Ltd (hereinafter "the respondent") on grounds of race, in terms of section 6 (2) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") and contrary to section 8 of the Acts by dismissing him. Claims for equal pay and of discrimination in training, provision of employment contracts and health and safety documentation and training were withdrawn at the hearing.
The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 12 January 2010. A written submission was received from the complainant on 19 May 2010. A written submission was sought from the respondent but none was received. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 25 April, 2012. The respondent did not attend the hearing of this matter. The hearing notification was sent to the respondent at its registered office by registered post and was received and signed for on 26 March 2012. No formal application was made for an adjournment. I am satisfied that the respondent received adequate notification of the hearing and the hearing proceeded in the absence of the respondent.
3. Summary of the Complainants' case
The complainant was employed by the respondent as a pipe and tube layer from 5 May 2009 to 30 October 2009, when he was dismissed. The complainant stated that about a week before he was dismissed the foreman, an Irishman, warned him that he would be fired if he joined a union. The foreman told him that there were 10 others waiting to take his place. The complainant had discussed with his Polish colleagues the option of joining a union but had not done so. The complainant stated that the foreman in firing him had complained about his speed of work. The complainant contended that if an Irish employee had told the respondent that he wanted to join a union he would not have been fired. An Irish employee would have been aware of his rights as an employee of a sub-contractor working on a publically funded project. The complainant, in answer to a question at the hearing stated that he did not know if the Irish employees were unionised.
4. Summary of the Respondent's case
The respondent did not engage with the Tribunal.
5. Conclusions of the Director
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If he or she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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, cannot be 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."
It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made to me.
5.2 Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Section 8(6) of the Acts provides that an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers,
lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
5.4 Discriminatory Dismissal
The complainant's claim concerns the allegation that he was dismissed by the respondent on the grounds of his race. However the complainant claims that he was dismissed because of his intention to join a trade union. Trade union membership is not a protected ground under the Employment Equality Act. The complainant sought to link his dismissal with the ground of race by arguing that a hypothetical Irish comparator would not have been dismissed by an employer because he wanted to join a trade union. There were actual Irish comparators employed by the same employer but the complainant did not produce any evidence as to whether or not they were permitted to join a trade union. In answer to a direct question he said he did not know if the Irish employees were unionised. Therefore I find that the complainant has not established a prima facie case of dismissal on the ground of race, even if I was to accept as fact that he was dismissed because of his intention to join a trade union.
Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that the respondent did not discriminate against the complainant on the ground of race pursuant to section 6(2) of the Acts, in respect of dismissal contrary to section 8(6) of the Acts.
Therefore the complainant's case fails.
6 June, 2012.