THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013 - 074
Ms Yuangfang Zhang (represented by PC Moore, Solicitors)
Peter Farrelly, t/a Funland Amusements
File References: EE/2010/873
Date of Issue: 23rd July 2013
Keywords: Race - discriminatory treatment - training - harassment - discriminatory dismissal - victimisatory dismissal
1.1. The case concerns a claim by Ms Yuangfang Zhang that Mr Peter Farrelly, t/a Funland Amusements discriminated against her on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment, harassment and discriminatory dismissal or in the alternative, victimisatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 18 November 2010. A submission was received from the complainant on 25 May 2011. No submission was received from the respondent. On 31 January 2013, the respondent's former solicitors wrote to the Tribunal to advise that they were unable to obtain instructions from the respondent, and that to the best of their knowledge, the respondent was no longer resident in the jurisdiction. On 8 February 2013, the Tribunal Secretariat wrote to the representatives of the complainant to advise them of this and to obtain an up-to-date address to serve notice of the hearing of the complaint on the respondent. On 21 February 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, and after the respondent was successfully notified of the hearing of the case, I proceeded to hold a joint hearing of the case on 11 July 2013. Both parties appeared.
2. Summary of the Complainant's Written Submission
2.1. The complainant states that she commenced work for the respondent in the summer of 2006. She was originally employed by Funland Online Ltd., of which the respondent was a director. This company went into liquidation in April 2010, and the complainant received her P45 in respect of this employment in August 2010, but received no redundancy payment.
2.2. In May 2010, the respondent asked the complainant to commence work in his casino business Funland Amusements as a cashier. The complainant worked there for approximately 30 hours per week, earning € 189 per week.
2.3. On 13 September 2010, the contents of the complainant's purse was stolen from the staff room at work. Unfortunately for the complainant, it had valuables of about €2000 in it on that particular day. The respondent assured the complainant he would follow up on the matter, but did not do so. The respondent also asked the complainant not to involve the Gardaí, which she nevertheless did when the respondent had failed in his promises to her.
2.4. The complainant felt very distressed about the whole matter and took a couple of days of certified sick leave on the ground of stress. On 20 September 2010, the matter of the stolen valuables had still not been resolved, and the complainant attended her solicitor about this. The following day, 21 September 2010, she was dismissed from her employment, as were her two Chinese colleagues. The complainant states that she is aware that the respondent hired at least one cashier subsequently. She is of the opinion that she would not have been dismissed if she and her colleagues had not been Chinese, but that the respondent did not want the hassle of following up on the theft, and did not want her colleagues to support her.
3. Summary of the Respondent's Written Submission
3.1. The respondent did not make a written submission to the Tribunal.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts and whether she was victimised.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. At the beginning of the hearing, the complainant's solicitor withdrew her complaints with regard to training, conditions of employment, and harassment.
4.5. With regard to the complainant's complaint of discriminatory dismissal, the respondent stated that he sold his business to a Cork-based group in September 2010, and that all staff had their employment terminated in the course of that transaction, although some of his former staff were subsequently re-hired by the new owners. He further stated that the fact this happened after the day he received correspondence from the complainant's solicitor in relation to the handbag theft was coincidental. The complainant confirmed all of this in her own evidence. Accordingly, the complainant's complaint of discriminatory dismissal on the ground of race can not succeed.
4.6. With regard to the complainant's complaint of victimisation, it was her solicitor's case that the letter he wrote to the respondent on 20 September 2010 on the matter of the handbag theft, wherein he reserves the right to issue proceedings on behalf of his client, is comprehended within S. 74(2)(g) of the Acts, which defines "an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs" as one of the pre-conditions that have to be met if adverse treatment by an employer in response to same constitutes victimisation within the meaning of the Acts.
4.7. However, it is clear from the remainder of S. 74(2) of the Acts that this only refers to action which resist discrimination as defined by the Acts. The letter which the complainant's solicitor wrote to the respondent, on the other hand, which was submitted in evidence, makes no mention whatsoever of a complaint of discrimination, and deals solely with the matter of the theft of the complainant's personal property from the respondent's premises. Accordingly, the complainant's complaint of victimisation within the meaning of the Acts must also fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Mr Peter Farrelly did not discriminatorily dismiss, or victimise, Ms Yuanfang Zhang, on the ground of race contrary to S. 6(2)(h) of the Acts.
23 July 2013