EDA2455

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00023305 (CA-00029878-003).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 25 February 2024.  A Labour Court hearing took place on 31 October 2024.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Dainis Jirgens (“the Complainant”) against an Adjudication Officer’s Decision given under the Employment Equality Acts 1998 (the Act) in a claim that he was subject to discriminatory treatment by his former employer C&D Foods Limited (“the Respondent”) on the race ground. 

The Adjudication Officer held that the complaint was not well-founded.

This case is linked to PWD2462 and TED2427 and TED2428 AND UD2444. The Complainant was assisted by a Court appointed Interpreter.

The following is the Determination of the Court.

Preliminary matter – Application to Extend Time Limits

As the complaint under the Act was lodged with the WRC on 27 July 2019, the relevant statutory period for consideration by the Court having regard to the time limits specified at s.77(5)(a) of the Act is the period from 28 January 2019 to 27 July 2019. The Complainant’s employment with the Respondent terminated on 29 January 2019.

The Complainant’s representative made an application at the hearing to extend the statutory timeframe to include 18 January 2019 (which falls outside on the statutory time limit) on the basis that part of his complaint relates to less favourable treatment on the ground of his race in relation to a training session conducted on that date.

The Respondent’s opposed the application on the basis that no such application was made at first instance and, without prejudice to that fact, there was no reasonable explanation provided for the delay in lodging the complaint under the Act to the WRC in circumstances where the Complainant lodged other complaints to the WRC on 14 February 2019, shortly after his employment ended.

After a short adjournment to consider the matter, the application to extend the statutory timeframe in this case was refused by the Court on the basis that no exceptional circumstances arose to explain the delay in lodging the within complaint to the WRC on 27 July 2019 in circumstances where the other complaints linked to the within complaint were lodged to the WRC on 14 February 2019.

Substantive matter

Summary Position of the Complainant

The Complainant, who is a Latvian national, submits that he was subject to less favourable treatment on the race ground when the Respondent failed to conduct a fair disciplinary process on 28 January 2019 (which falls within the statutory time limit) resulting in his dismissal.

The Court heard evidence from the Complainant under oath. He said that he was called to the office for a meeting on the 28 January 2019, having received a letter which set out complaints against him. He asked for an interpreter, but none was provided. He understood the purpose of the meeting and the grounds of complaint set out in the letter. He was offered the right to have a union official at the meeting but was not a union member. He was given an opportunity to respond to the allegations made. He felt he was discriminated against on the grounds of his race because he was disciplined and ultimately dismissed for chewing gum, while other employees who made more serious mistakes were not disciplined or dismissed.

In reply to questions from the Court, the Complainant said that he had worked in the factory for two years and knew that he was treated differently to other employees of a different nationality, and particularly Irish employees. He said that he had no facts or evidence to support that assertion. He acknowledged that he was on a final written warning when subject to the disciplinary process on the 28 January 2019. He did not agree that he was dismissed because he was on a final written warning. He felt that he was dismissed because of his race.

Summary Position of the Respondent

The Respondent has a multi-cultural workplace and refutes any allegation that the Complainant was subject to discriminatory treatment in the ground of his race. The Complainant has not presented any facts from which it can be inferred that he was subject to less favourable treatment on the race ground.  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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. The complainant’s assertions are unsupported by any evidence.

The Court heard evidence from Michael Thornton, Production Manager, who conducted the disciplinary hearing on 28 January 2019. Mr Thorton stated that the Complainant was offered the right to representation at the hearing. The union has provided representation for non-members in the past. Mr Thornton refuted the Complainant’s assertions that he was refused a translator and said that such a request would be reflected in the minutes of the meeting. Mr Thornton said that he conducted the meeting slowly to ensure that the Complainant fully understood what was said. The Complainant raised no issues or concerns about his understanding of the matters discussed.

The Law

Section 85A (1) of the Act provides: -

85A.— (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Deliberations and Findings

Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed. Once these facts are proved, and if the Court regards them as being of sufficient significance to raise an inference of discrimination, then the onus of proving the contrary shifts to the Respondent.

If a Complainant does not establish primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination, then the claim cannot succeed.

It is for the Complainant in the first instant to establish the primary facts that occurred within the relevant statutory time limits specified at s.77(5)(a) of the Act, which could lead to an inference that discrimination has occurred, before the burden of proof shifts to the Respondent.

The Complainant in this case contends that he was subject to an unfair disciplinary process on 28 January 2019 because he was chewing gum on the factory floor. He submits that he was treated to less favourable treatment on the ground of his race in comparison to other (Irish) employees who were not disciplined or dismissed when they made more serious mistakes in the workplace.

It is accepted that the Complainant’s employment was terminated on 29 January 2019 for “failing to adhere to company rules on chewing gum and the factory floor and failing to be trained on a new SOP”.  In parallel proceedings heard by this Court, the Respondent accepted that the Complainant’s complaint under the Unfair Dismissals Act 1977 was well founded.

In response to questions from the Court, the Complainant in his own evidence accepted that he had no facts or evidence to support his assertion that he was treated differently to any other employee, who was subject to a disciplinary process in the company.  As a result, the Complainant has not established any facts upon which he can ground a complaint of unequal treatment on the race ground.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

As set out in the well-established case law of this Court, it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.

The Court finds that in this case, no such facts were established.

As the Complainant, has failed to establish a prima facie case of discrimination the appeal must fail.

Determination

For the reasons set out above, the Court is satisfied that the Complainant was not discriminated against on the ground of race.

The complaint is not well founded, and the Complainant’s appeal is dismissed.

The Decision of the Adjudication Officer is affirmed.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
28th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.