Employment Equality Acts 1998 to 2011
(Represented by Joanna Kwiatkowska)
- V -
Noxtad Limited t/a Carlton Abbey Hotel
A.K.A Carlton Abbey Hotel and C.Spa
File references: EE/2010/158
Date of issue: 23 October 2012
Keywords - Employment Equality Acts 1998 to 2011 - Discriminatory Treatment - Discriminatory Dismissal - Victimisation - Race - Prima Facie case
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment, discriminatory dismissal and victimisation by the respondent on grounds of race, in terms of Section 6 and contrary to Sections 8 and 74 of the Employment Equality Acts.
1.2 The complainant referred his claims of discrimination to the Director of the Equality Tribunal on 24 February 2010 respectively under the Employment Equality Acts. On 10 September 2012 in accordance with his powers under section 75 of the Acts, the Director delegated the case to Conor Stokes - 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 a hearing on 26 September 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. PRELIMINARY ISSUES:
2.1 The complainant originally named the respondent as Carlton Abbey Hotel & C. Spa. In response to the receipt of the complainant's submissions, the solicitors formerly acting for the respondent wrote to indicate that the respondent company "Noxtad Limited" trading as the Carlton Abbey Hotel was in liquidation and that any further queries should be directed to the liquidator. The liquidator wrote to the Tribunal indicating that they had no knowledge of the incident in question but confirmed that they would not be defending the claim. No one attended the hearing on behalf of the respondent.
Scope of the complaint
2.2 At the start of the hearing the complainant confirmed that he would not be pursuing the victimisation element of the complaint.
2.3 During the course of the hearing, it transpired that the complainant had taken a complaint regarding his dismissal to the Rights Commissioner Service of the Labour Relations Commission. The complainant confirmed that a Rights Commissioner held a hearing on this matter in May 2011 and issued a recommendation in august 2011.
2.4 Section 101 (4) of the Acts states that
An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if --
(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,
(b) in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
2.5 Accordingly, the Tribunal is precluded from dealing with the dismissal aspect of this complaint.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submitted that he was employed by the respondent from 14 April 2007 until he was dismissed in January 2010. The complainant is a Polish national it is on this basis that this complaint is being taken.
3.2 The complainant submitted that he was not given access to employment, that he was discriminated against in relation to the conditions of his employment and that he was dismissed on the basis of his race.
3.3 The complainant submitted that he was put on short-time from January to April 2009 and that he had no welfare assistance because his employer did not issue him with any letter or certificate. The complainant submitted that in October he was not working at all and that it seemed to him to be a lay-off rather than short time. The complainant submitted that such conduct was unfair and was against his terms and conditions of work.
3.4 The complainant submitted that he complained many times to his employer in relation to their discrimination and bullying conduct.
3.5 The complainant is seeking compensation.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent did not make any submissions in advance of the hearing.
4.2 The respondent did not attend the hearing of this case.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was treated in a discriminatory fashion by the respondent on grounds of race, in terms of sections 6 of the Acts and contrary to section 8 of those Acts.
5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 The complainant (who was represented at the hearing) did not give any evidence relating to victimisation at the hearing. Furthermore the evidence detailed to the Equality Officer all related to either the dismissal in October 2009 or to the period when the complainant was on short-time between January and April 2009.
5.4 The dismissal element of this complaint has been dealt by the Rights Commissioner and is therefore not appropriate for this decision to consider this aspect of the complaint.
5.5 In relation to less favourable treatment the complainant gave evidence that as the economic circumstances dictated, a large number of workers were place on short time hours for the period in question. In evidence the complainant stated "I'm not saying that I was treated worse than the other workers but I didn't get the hours that were in my contract". When asked what other treatment he was subjected to, the complainant stated that there was a delay in issuing his P45 to him and he confirmed that he wasn't aware of how long it took for others to get their P45's.
5.6 No evidence of bullying or of making complaints to the employer was brought before the Tribunal.
5.7 On the basis of the foregoing, I am not satisfied that the complainant has established, in the first instance, facts from which discrimination may be inferred. Accordingly no prima facie case has been established.
6.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of less favourable treatment on the race ground and therefore this complaint must fail.
23 October 2011