THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013-109
(represented by Grogan and Associates)
File reference: EE/2010/371
Date of issue: 11th September 2013
Keywords: Employment Equality Acts, Race, Conditions of Employment, Discriminatory Dismissal, No prima facie case
1.1 This dispute concerns a claim by Lech Szczecinski, who is Polish, against his former employer Aer Lingus that he was discriminated in relation to his conditions of employment on the grounds of race contrary to 8 (1)(b) of the Employment Equality Acts 1998-2011[hereinafter referred to as 'the Acts']. He also claims discriminatory dismissal on the same ground.
1.2 Through his legal representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 17th May 2010. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 10th September 2012 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. A Hearing was held on 21st September 2012 as required by Section 79(1) of the Acts.
2. Summary of the complainant's case
2.1 The complainant was employed as a baggage handling agent by the respondent. He submits that he should have been entitled to a fixed term contract being renewed. Mr Szczecinski maintains he did not get one because he was Polish. He contends that he was disadvantaged because of his poorer English.
3. Summary of the respondent's case
3.1 The respondent points out that Mr Szczecinksi was employed on a series of fixed term contracts from 26th March 2007 until 9th February 2009. He was then laid off for four weeks to avail of a special voluntary severance offer where employees of the respondent received lump sum payments in return for resigning from their contracted terms and conditions. He received a lump sum of €30,000 as a severance payment. On his first day of lay-off he was offered an other fixed term contract with different terms and conditions but continuing to work in the cargo department. This contract was extended until 31st December 2009.
3.2 Regarding his level of English the respondent submitted interview notes and results of an English reading test which he was required to pass before he was offered a position with Aer Lingus in 2007. He was rated 'B' which is the second highest grade he could have received. At no time during his employment with Aer Lingus, did he display lack of understanding or seek assistance with explanation of any terms or conditions of his employment. He has pursued complaints in relation to his employment in other fora and has never requested an interpreter at these hearings.
3.3 In the final quarter of 2009, an other carrier notified Aer Lingus that they were termination their cargo handling agreement with effect from 31st December 2009. There were 14 employees (including the complainant) out of 67 were on fixed term contracts. Following the loss of this contract, the respondent submits that only 10 of the 14 could be retained. The managers of the 14 staff were asked to conduct performance reviews of their staff under the headings -Work standards & knowledge, Efficiency, Timekeeping and Punctuality, Interpersonal skills, Teamwork and Flexibility, Motivation & Initiative, Commitment to Customer Service, Health and Safety, Uniform & Grooming. He scored 1.5 out of 5. Two Irish colleagues did not have their contracts renewed either.
4. Conclusions of the Equality Officer
4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. The issues for me to decide are:
(i) Was the complainant discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
(ii) Was the complainant discriminatorily dismissed on the ground of race in terms of 8 (6) (c) of the Acts?
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule. 1
4.3 The complainant has failed to adduce evidence of being treated less favourably in relation to his conditions of employment. At the hearing his English seemed more than adequate and he admitted it did not inhibit his day-to-day work. In common with his Irish and other colleagues, he benefitted from a windfall payment of €30,000 after only two years of employment and continued in his role albeit with poorer terms and conditions as per the agreement.
4.4 Following a need to downsize, the respondent presented clear evidence of how they selected people to be retained. Mr Szcecinski did not meet the required standard. Neither did two Irish baggage handlers. For these reasons, he has not established a prima facie case of discriminatory dismissal on the grounds of race.
I have concluded my investigation of Mr Szecinski complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) the complainant was not discriminated on the ground of race in relation to his conditions of employment in terms of 8 (1) (b) of the Acts
(ii) the complainant was not discriminatorily dismissed in terms of 8(6)(c) of the Acts
His complaint fails in its entirety.
1 Labour Court Determination No. EDA0917