EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2012-114
(Represented by Richard Grogan & Associates, Solicitors)
Michael McKeown T/A M & A Couriers
(Represented by Shane Kelly BL instructed by John J. Quinn & Co., Solicitors)
File Reference: EE/2009/805
Date of Issue: 3 September 2012
Headnotes: Employment Equality Acts, 1998 to 2008 sections 6, 8, 14A - discriminatory treatment and harassment - race - conditions of employment - discriminatory dismissal - prima facie case.
This dispute involves a claim by Mr Aivars Gargurnis of Latvian nationality (hereinafter "the Complainant") that he was
(i) discriminated against by Michael McKeown t/a M & A Couriers (hereinafter "the Respondent") in relation to conditions of employment 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 not offering him the same treatment in relation to training, contract of employment, tax documentation, dismissal and otherwise as the Respondent afforded or would have afforded to other persons ("the comparators") where the employment circumstances of the Complainant and the comparators were not materially different; and
(ii) harassed at his place of work by the Respondent on the ground of race, which constitutes discrimination by the Respondent in relation to the Complainant's conditions of employment under section 14A of the Acts.
The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 5 November 2008. A written submission was received from the Complainant on 24 March 2010. A written submission was received from the Respondent on 5 October 2011. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 26 October 2011. At the request if the Respondent I required the attendance of a particular member of An Garda Siochana. Both parties attended the hearing. Further written documentation was received on 17 November 2011.
3. Summary of Complainant's case
The Complainant is a Latvian national. He started to work for the Respondent in 2006. He finished working there in June 2009. He was employed as a lorry driver, driving to and from ferry terminals. He worked 15-18 hours a day, generally from 4am to 10pm. He was paid €650 per week. He states that did not receive any contract of employment. He did not receive any proper Health and Safety documentation or training. He was not paid what he was entitled to. He did not receive proper tax documentation. He was subjected to harassment. When he stopped for a break he would be asked to get going by his employer. His poor English meant he didn't know when he was allowed breaks. He claimed that as the only non-Irish driver he was given the oldest trucks to drive. He claimed he was dismissed for no reason.
The Complainant gave the following account of his dismissal. On the June bank holiday weekend of 2009 he was told by text message to drive to the ferry terminal to catch a ferry to the UK or else he would be fired. He was very tired but he went in on Sunday evening to the depot in Longford between 3 and 4pm to collect the truck. He had a friend who spoke good English with him. He took the truck and realised he had forgotten his passport. He went home to collect it. He had a problem with the fuel tank caused by it being punctured by a piece of iron on the road and which he unsuccessfully tried to fix. On the telephone instruction of his employer he went back to the depot and took a replacement tractor unit. He travelled to Woodies in Santry, Dublin and couldn't disconnect the tractor unit from the trailer. He spoke to the employer by phone who told him to stay there and somebody would come. In 2 hours his employer came accompanied by his wife. He did not see anyone else in his employer's car. His employer told him he was fired. He thought his employer believed he didn't want to go to England. This was between 9 and 10 pm on Sunday. The Gardai were called. He was told he was trespassing and taken to Santry Garda Station. He denied he had alcohol with him in the truck. He wasn't arrested for drink driving. He bought alcohol in Santry after he was fired. He wasn't offered a lift home by his employer.
4. Summary of Respondent's case.
The Respondent admits that the Complainant did not receive a contract of employment, a health and safety statement or any proper tax documentation or regular pay slips. The Respondent denies that this amounted to discrimination because none of the other employees at that time were furnished with these documents either. An Irish truck driver who was employed at the same time as the Complainant gave evidence at the hearing that he also did not receive the documents referred to. He also contradicted the Complainant's claim that he was given inferior trucks to drive and given more onerous duties.
The Respondent stated that he had a very good relationship with the Complainant. He lent him a vehicle to get to and from work. He transported him to shopping and picked him up and dropped him home for parties. He denies that the Complainant was fired.
On the weekend in question he was on holiday with his wife and family in Strandhill, Co. Sligo. When he received the report from the Complainant of the damage to the fuel tank, he asked his brother-in-law to look into it. His brother-in-law gave oral evidence that he followed the trail of spilled fuel and it appeared that the Complainant's truck had been driven over a pole on a roundabout ripping into the fuel tank.. (The Respondent presented an invoice dated 2 June 2009 stating that damage was caused to the tank leading to the loss of 1400 litres of fuel valued at €1438.21 and requiring welded repair costing €369). The witness proceeded to the depot where he saw that the Complainant had taken another tractor unit from underneath a trailer without uncoupling it properly causing damage to the trailer and cargo. The trailer was dropped by the nose and resulting damage to the trailer's legs cost €568.20 to repair. The witness saw the Complainant driving erratically and at excessive speed. Witness called the Respondent who in turn called the Complainant who was laughing. The Respondent said he knew something was wrong. He drove directly to Dublin with his wife, niece and a replacement driver. He knew that the Complainant would have difficulty uncoupling the truck in Dublin. He arrived in Dublin. He found the Complainant and another man in the truck. Both were asleep. The cab had empty beer cans scattered about. There was a spray of beer on the inside of the windscreen. The Complainant was drunk. The Respondent took the keys of the truck. The replacement driver took the load with a different truck. The Complainant asked him was he going to be sacked. He produced a piece of paper demanding that if he was sacked he wanted it in writing, insisting that the Respondent sign it. The Respondent claims that he did not tell the Complainant that he was fired. The Respondent asked the Complainant to get into his car so that he could be carried home. The Complainant and his friend refused to leave the cab. The Complainant refused to come home. The Complainant and his friend used abusive language. The Complainant and his friend refused to leave the premises when asked to do so by security. The Gardai were notified.
A member of An Garda Siochana gave evidence that he arrived at the premises at 2.30am on Monday 1 June. He found the Complainant and another man and a security guard. The Complainant was highly intoxicated and aggressive. The Garda formed the view that he was drunk and a danger to himself and others. He was arrested under section 4 of the Public Order Act 1994 and received a fixed charge penalty notice. There were no keys in the truck. The Garda did not have sufficient evidence that he was drunk when he was driving the truck since it was possible he got drunk after he stopped driving the truck.
The Respondent denies that the Complainant was fired. He said that on the following Tuesday the Complainant failed to come into work. In the evening the Complainant telephoned him wanting money. The Respondent asked him to call around so that they could discuss the situation. The Complainant did not call.
I have considered all the evidence both written and oral presented to me.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court1 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 Court1, 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.
I shall now consider in turn each of the complaints of discrimination made by the Complainant.
5.1 Claim of discrimination in relation to conditions of employment.
The Complainant claims that the Respondent discriminated against him in relation to conditions of employment on grounds of race by not offering him the same treatment in relation to training, contract of employment, tax documentation and otherwise as the Respondent afforded or would have afforded to other persons ("the comparators") where the employment circumstances of the Complainant and the comparators were not materially different. The Respondent frankly admits that no employee at the time in question was provided with a written contract of employment, training, proper tax documentation or regular pay slips. An Irish employee gave oral evidence to this effect. I conclude that the Complainant has not established a prima facie case of discrimination in regard to these issues. The Complainant has also failed to establish sufficient facts supporting his allegations of discriminatory treatment in the allocation of work and vehicles.
5.2 Claim of discriminatory dismissal.
There is a clear conflict of evidence between the Complainant and Respondent on the basic fact of whether or not the Complainant was sacked. The Complainant claims he was and the Respondent denies this. The Complainant's representative at the hearing stated that due to his poor command of English he may have misunderstood what was said and assumed he was fired. The Complainant's representative argued that the lack of a translator meant that the Complainant was disadvantaged compared to a hypothetical Irish employee.
In my view a more likely explanation of the misunderstanding is that the Complainant was so drunk he does not recall properly what transpired that day. Certainly his behaviour was outrageous and he might reasonably have expected to have been sacked. Any employee irrespective of nationality who behaved in the same way would have a reasonable expectation of being sacked. I conclude that the Complainant has failed to establish a prima facie case of discriminatory dismissal.
The Complainant claims he was subjected to harassment in that when he stopped for a break he would be asked to get going by his employer. Even if this was true, it would not constitute harassment on the ground of race within the meaning of section 14A of the Acts. I conclude that the Complainant has failed to establish a prima facie case of harassment on the ground of race.
In reaching my decision I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the Complainant
1. was not discriminated against by the Respondent in relation to conditions of employment on grounds of race, in terms of section 6 (2) the Acts and contrary to section 8 of the Acts by not offering him the same treatment in relation to training, contract of employment, tax documentation, dismissal and otherwise as the Respondent afforded or would have afforded to other persons ("the comparators") where the employment circumstances of the Complainant and the comparators were not materially different; and
2. was not harassed at his place of work by the Respondent on the ground of race, within the meaning of section 14A of the Acts.
3 September 2012.
1 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.