INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
J.V. C. RECYCLING LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS)
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 29th July, 2011. A Labour Court hearing took place on the 9th December, 2011. The following is the Court's Determination:
The case comes before the Court by way of an appeal by Mr Ivanovs, hereinafter “the Complainant” against Decision DEC-E2011-123 of the Equality Officer in which it was held that he had failed to establish a prima facie case of discriminatory treatment or dismissal on the race ground against J.V.C. Recycling Ltd, hereinafter “the Respondent” or “the Employer”.
Mr. Ivanovs worked for the Respondent in the recycling business in the Dublin City area. He complained to the Equality Authority that he was subjected to discriminatory treatment and discriminatory dismissal by his Employer on the grounds of his race. The Complainant submitted that the first date of discriminatory act was on 10th April, 2008 and that he was discriminatorily dismissed on 6th February, 2009.
The Complainant is a Latvian national. He submitted that he did not receive a contract of employment but that other persons, from Poland and Ireland, did receive contracts of employment.
The Complainant submitted that he did receive health and safety training.
The Complainant did not provide any examples of less favourable conditions of employment to the Court in the Course of the Hearing of the Complaint. He stated that he enjoyed working for the Respondent but was disappointed to lose his job.
The Complainant submitted that he received a letter on 24th December, 2008 saying he would only have work for one more week. He accepted that other persons, of various nationalities including Irish, received such letters.
The Complainant stated that he was only given short term contracts after 31st December, 2008. He stated that he was simply told that he would be kept for one more week and then he would have no more work. He claimed that other persons continued working, including persons who he said had started working with the Respondent after he had. The Complainant could not name any such person.
The Respondent denied any discriminatory treatment of the Complainant or any other employee. It submitted that the Complainant had been a good employee. The Respondent said it has had no employees since March 2009 and the Company has been dormant since.
It submitted that the matter of the Complainant's contract has been addressed before a Rights Commissioner who had awarded the Complainant some redress for a technical breach of the Act. The Respondent Company submitted that it had been unable to locate a copy of said contract. It was submitted that all staff, regardless of nationality, were routinely provided with a contract of employment and any person starting to work with the Respondent company in 2008 would have only been given a fixed term contract with a termination date of 31st December, 2008. This was due to the fact that the public procurement process was up for renewal and the company could not guarantee work after that date. It submitted that the Complainant was provided with a temporary week to week contract on 10th January, 2009. The Complainant had signed that contract. The Complainant was given a week's notice in accordance with the terms of that contract.
It submitted that the Complainant was not dismissed. His employment had come to an end at the end of the fixed term contract of employment in accordance with the contractual notice period. The Complainant was among 71 persons whose fixed term contracts came to an end. These persons included various nationalities, including Latvian and Irish. Longer serving employees, who were employed under different contractual terms were included in a transfer of undertaking and continued to work with a new Employer. The Respondent was not in a position to comment on the Complainant's claim that persons who had started work in the Respondent company after him were now employed with the new company. It was submitted that all persons on fixed term contracts were regrettably let go.
Findings of the Court
The Court must first consider whether the Complainant has established facts from which an inference of discrimination can be drawn. This Court has held consistently that such facts must be of 'sufficient significance' before 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. This 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".
On the issue of the Complainant's contract of employment the Court finds the Complainant did not receive his fixed term contract for the period of 10th April, 2008 and 31st December, 2008. Such a breach is not a matter for this Court and has already been addressed by the relevant tribunal. However, the Complainant submitted that someone had told him, approximately 6 weeks after he started his employment, that his contract was in the office. He submitted that he did not collect it as he believed it was his Employer's duty to hand it to him. The Court also finds that he was aware that his contract was a fixed-term one.
No facts were adduced at the hearing from which an inference of discrimination on the race ground could be drawn from this behaviour by the Respondent towards the Complainant.
The Court notes that the Respondent has translated its grievance procedures into a number of languages including Latvian and Russian.
The Court finds that the Complainant was afforded his contractual notice of termination of his employment and that the termination of his contract of employment was not related to his nationality.
The Court finds that the Respondent's permanent employees (of various nationalities) continued their employment with a new employer. The reason why the Complainant was not in this cohort is due to the nature of his contract which in turn was determined with the timing of him joining the Respondent Company. The Court examined documents that showed that no person with lesser service than the Complainant was transferred to the new employer. Accordingly the Court concludes that the Complainant was not transferred to the new Employer because of the length of his service with the Respondent and not because of his nationality.
Having investigated the above complaints the Court finds that they are not well-founded and upholds the Decision of the Equality Officer.
The appeal is not allowed.
The Court so determines.
Signed on behalf of the Labour Court
5th September 2012______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.