EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E/2015/137
PARTIES
Vidmantas Mankauskas
(Represented by Richard Grogan & Associates)
Vs
Baku GLS Limited
File Refs: EE/2014/068 & 153
Date of issue: 3 December 2015
1. Dispute
1.1 This dispute concerns an allegation by the Complainant that the Respondent discriminated against him on the ground of his race contrary to the Employment Equality Acts in respect of his conditions of employment in terms of his working roster. Specifically the Complainant, who is a Lithuanian national, alleges that he was required to work at weekends while other co-workers (of Irish and German nationalities) had many weekends off duty.
2. Background
2.1 Mr. Mankauskas was employed as an international truck driver with Baku GLS Limited from April 2011 until he resigned his position in July 2014. Baku GLS is a freight forwarding transport business based at Rosslare Harbour, Co. Wexford. Prior to resigning his position with the Respondent, Mr Mankauskas referred 2 complaints of alleged discrimination to the Equality Tribunal, the first on 21 February 2014 and the second on 18 March 2014.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, the Director, on 5 May 2015, delegated the complaints to me - Gary Dixon, Equality/Adjudication Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date on which I commenced my investigation.
2.3 Written submissions were received from each party. As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on 29 May 2015. The hearing was adjourned at the request of the Complainant and resumed to conclusion on 16 September 2015.
2.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
3. Summary of Complainant’s Case
3.1 The Complainant is a Lithuanian national who was employed by the Respondent from April 2011 until July 2014 as an international driver. The Complainant alleges that he was regularly required to work at weekends while 3 named drivers of German nationality were frequently facilitated in having their weekends off duty.
3.2 Mr Mankauskas further alleges, via a subsequent complaint, that another named driver of Irish nationality was not required to work regularly at weekends. The Complaint alleges, therefore, that he suffered discrimination because of his Lithuanian nationality, i.e. on the ground of hisrace.
4. Summary of Respondent’s case
4.1 The Respondent submits that it employs approximately 40 staff which includes 23 drivers of varying nationalities, comprising Irish, Lithuanian, German, Polish, Estonian, Romanian and Spanish. The Respondent submits that up to 70% of freight destined for continental Europe departs from Ireland on a Saturday night ferry crossing to France or to the UK for onward travel to mainland Europe for delivery on Monday mornings. While freight also departs by ferry each Tuesday, the Respondent submits that Sundays are essential working days for all of its drivers to support Irish export requirements.
4.2 The Respondent further submits that weekend work is an essential part of a driver’s conditions of employment. In that regard, the Respondent states that Mr Mankauskas would have received advance notification of his starting and finishing times in line with any other employees who were engaged on similar driving duties.
4.3 The Respondent operates a sophisticated GPS tracking system called Bluetree which captures and records details of its drivers’ work activity. Bluetree data were presented by the Respondent for the period 1 March 2013 to 31 March 2014. This period was considered to be appropriate as it relates approximately to 12 months work activity before the complaints were lodged and also one month thereafter. The Respondent submits that the records demonstrate that there was fair and equal treatment of all drivers regardless of race or nationality, i.e. that the named comparators, the Complainant and all other drivers had similar rostering arrangements.
5. Conclusions
5.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.
Burden of Proof
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires a Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If the Complainant succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.
5.3 In Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) the evidential burden which must be discharged by Complainants before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:
“The claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”
5.4 In evaluating the evidence, therefore, I must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts. As outlined above, the Labour Court has consistently held 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.
5.5 The Complainant has alleged that he suffered discrimination because of his Lithuanian nationality, i.e. the discriminatory ground of race under section 6(2)(h) of the Employment Equality Acts which defines the race ground as “….… (h) that they are of different race, colour, nationality or ethnic or national origins….” The Respondent’s complement of drivers includes varying nationalities, comprising Irish, Lithuanian, German, Polish, Estonian, Romanian and Spanish drivers. The Respondent’s evidence includes extracts from its payroll and Bluetree records which show that the Complainant worked fewer weekends than a number of other drivers. The evidence also shows that, in the particular reference period used (paragraph 4.3 refers), drivers of German and Irish nationalities worked at weekends more frequently than the Complainant did.
5.6 The Complainant disputes the bona fides of the evidence presented by the Respondent and essentially alleges that it had been contrived to produce a particular result. However, no evidence to the contrary was provided in that regard. I am satisfied that the Respondent’s evidence was presented in good faith, that it is genuine and that it demonstrates that there was fair and equal treatment of all drivers regardless of their race or nationality. Therefore, in my view, no prima facie case has been established in relation to alleged discrimination on the race ground as no evidence has been presented to show that the Complainant had been treated less favourably than any other comparable Baku GLS driver of a different nationality.
6. Decision
6.1 I have completed my investigation of this complaint and, in accordance with section 79(6) of the Employment Equality Acts and section 41(5)(a)(iii) of the Workplace Relations Act 2015, I hereby make the following decision:
6.2 I consider that the Complainant has not established a prima facie case of discrimination on the race ground.
___________________
Gary Dixon
Equality/Adjudication Officer
3 December 2015