EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-055
A Specialist Grocery Store
File Reference: EE/2014/344
Date of Issue: 17th July 2017
1.1 This dispute concerns complaints of discrimination, victimisation and discriminatory dismissal on the ground of race arising from the Complainant’s employment at a Specialist Grocery Store contrary to the Employment Equality Acts (hereinafter also referred to as ‘the Acts’).
1.2 The Complainant referred the aforesaid complaints under the Acts to the Director of the former Equality Tribunal (now the Workplace Relations Commission, hereinafter referred to as the ‘WRC’) and his complaint form was received on 26th June 2014. On 24th February 2017, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / 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 which date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 10th March 2017. Although the Complainant had submitted his own complaint form with the benefit of legal representation, he was not legally represented at the hearing. There was no appearance on behalf of the Respondent at the hearing or any engagement with the Equality Tribunal or WRC. Whilst all correspondence including notification of the hearing date was successfully delivered by registered post to the business address provided, it appears that no direct contact could be made with the named owner of the business. At the hearing, the Complainant indicated that the business had since been taken over by another employer and he was unaware of his former employer’s whereabouts. I indicated that I would be relying upon the relevant statutory provisions which I explained in lay terms including the requirement to establish a prima facie case of less favourable treatment on the ground of race and what that entailed.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT’S SUBMISSIONS AND EVIDENCE
2.1 The Complainant confirmed that he wished to pursue his complaints of discrimination, victimisation and discriminatory dismissal on the ground of race contrary to the Employment Equality Acts, against a former owner of a specialist grocery store business arising from his employment as a butcher there.
2.2 The Complainant confirmed that he was of Sudanese origin and had come to Ireland on a Stamp 4 visa to work and was subsequently granted Irish citizenship. He was employed by the Respondent as a butcher from 17th May 2013 until 18th February 2014 when he left his employment owing to poor working conditions. In particular, he complained that he had never been furnished with a contract of employment despite requesting same, his wages were regularly delayed and he worked up to eleven hours five days a week without breaks, holidays, bank holidays off and/or paid time off in lieu or Sunday premium. He said that his former employer had sought to declare him as a part-time worker on the basis that he could claim Social Welfare whilst offering him full-time hours, being the arrangement with other non-national employees but he had refused. Following this refusal, he received a payslip paying him in respect of 30 hours when in fact he had worked 55 hours during the week in question. Thereafter his wages were regularly underpaid and delayed causing him to fall into debt and default on his bills and rent until he was evicted. The Complainant made other allegations of serious improprieties by his former employer.
2.3 When the Complainant’s former employer ignored his complaints, he felt that his situation had become intolerable owing to the poor working conditions and left his employment on 19th February 2014. At the material time, he was owed a significant sum of wages and holiday pay and had pursued complaints to a Rights Commissioner against the same employer under the relevant statutory provisions. It appears that his former employer appeared in relation to that hearing but failed to furnish working time records. He furnished decisions dated 27th June 2014, confirming that he was successful in relation to a number of these claims but to date his former employer had not paid out and he had yet to enforce the award.
2.4 The Complainant submitted that other employees who were of various nationalities were treated more favourably and received their wages on a regular basis. When asked why he believed that he was being singled out by his former employer and treated differently, he stated that this was because he was working legally whilst the other employees were covertly working whilst in receipt of Social Welfare. He identified the nationalities of the other employees as Afghanistan, Pakistani, Thai and Sudanese. When asked how he was basing his claim on the ground of race, when on his own evidence another Sudanese employee had been treated more favourably, he confirmed that the less favorable treatment was not owing to race but was because he was working legally unlike the other employees. Overall, he felt extremely aggrieved at the poor manner in which he had been treated by his former employer.
3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE
3.1 There was no appearance on behalf of the Complainant’s former employer, he had never engaged with the former Equality Tribunal / WRC and no evidence of any nature was proffered on his behalf.
4. FINDINGS AND CONCLUSIONS
4.1 The issue for my determination is whether the Complainant was subjected to discrimination, victimisation and discriminatory dismissal on the ground of race arising from his employment, contrary to the Employment Equality Acts by applying the relevant law to the facts adduced.
4.2 Section 85A of the Acts sets out the burden of proof which applies to all claims of discrimination and victimisation and requires the Complainant to establish, in the first instance, facts from which discrimination or victimisation may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
4.3 In relation to the complaints of discrimination and discriminatory dismissal, Section 6(1) of the Employment Equality Acts provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,” In relation to discrimination on the ground of race, Section 6(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘‘the ground of race’’),” Section 2 also defines a dismissal such that it includes a constructive dismissal type situation. Section 8(6) prohibits discrimination in relation to specific areas of employment including dismissals. Finally, Section 74(2) provides that victimisation occurs for the purposes of the Acts where dismissal or other adverse treatment of an employee by an employer occurs as a reaction to particular situations set out therein.
4.4 Firstly, I find the Complainant to be very credible and have no doubt that he was subjected to the adverse working conditions as described and as found by the Rights Commissioner. However, applying the relevant law to his evidence taken at its height, I am not satisfied that he has made out a prima facie case of discrimination or discriminatory dismissal on the ground of race under the Employment Equality Acts. In particular, he was unable to demonstrate any less favourable treatment on the ground of his Sudanese origins as against any employees of a different race leading to the decision to leave his employment. On his own evidence, the adverse treatment comprising of the poor working conditions as described above arose not from race but as he was working legally whilst his comparators including an employee of Sudanese nationality were not. In relation to the complaint of victimisation, I am also satisfied that the adverse treatment complained of does not fall within the definition of Section 74(2) of the Acts.
5.1 I have concluded my investigation of these complaints. Whilst acknowledging the Complainant’s difficult working situation, unfortunately I have to find pursuant to Section 79(6) of the Act, that he has not established in the first instance, facts from which discrimination, victimisation and discriminatory dismissal on the ground of race may be inferred. As the Complainant has failed to establish a prima facie case, no onus shifts to his former employer to rebut any inference and these complaints must fail notwithstanding the absence of any evidence on his behalf. Accordingly, I dismiss these complaints.
Adjudication / Equality Officer
17th July 2017