Complainant

Respondent

Parties

Anton  Salva

Silent-Aire Europe Ltd.

Representatives

Self-Represented

Ms Katherine McVeigh BL instructed by  Eversheds Sutherland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00072278-001

10/06/2025

The issues concern an Equality/Discrimination complaint by a General Operative against a major Air Conditioning/Engineering Specialist Company.

The employment began on the 11th April 2019 and ended on the 4th July 2025.

The rate of pay was stated by the Complainant to have been €1,900 per fortnight for a 39-hour week.

The Complainant was self-represented. He gave an Oral Testimony supported by some copy correspondence and his initial Complaint form.

In essence his complaint was that he was of Hungarian Nationality and had been bullied and Harassed by Supervisor, Mr JC and Manager, Mr RK, since Year 2022. They had arrived in the Organisation that year and things had gone downhill since then. An incident involving a Tool Chest on the Intel Site in Summer 2022 which was later investigated in August 2023 was cited as basic Victimisation.  A completely unwarranted Warning was issued by the Company. The allegation of Theft, while never formally proven in the case, was spread widely among the Workforce and damaged his relations with colleagues.

Various other complaints were also cited including the non-selection of the Complainant for Foreign work Assignments, non-selection for Training Courses and the non-renewal of his work Authorisation Card. The verbal manner of Mr JC was repeatedly cited as being one of completely unwarranted, almost daily, public “Roaring and Shouting” against the Complainant. He had become afraid to go to Work for fear of Md JC repeated verbal attacks. Things got so bad that the Complainant had to attend Counselling for Stress in early 2025.  

The time off work required for the Counselling was questioned by Mr JC and by Mr RK.

Eventually the Complainant had to resign to preserve his mental health.

The Complainant was cross examined by Ms McVeigh for the Respondent.

The Respondent was represented by Ms McVeigh supported by a number of Managers.  A detailed Written Submission was presented.

In essence, the Respondent argued that in any Equality/Discrimination/Harassment complaint the Burden of Proof  as set out in Section 85 A (1) of the Employment Equality Act,1998 rests with the Complainant to establish a reasonable Prima Facie case – to establish a strong inference of Discriminatory / Harassment events such as  to require the Respondent employer to rebut the allegations. 

Established case law precedent was cited -principally Mitchell v Southern Health Board [021] 12 ELR 201 and Valpeters v Melbury Developments Ltd [2012] ELR 64to support this argument. The Valpeters caution against “Mere Speculation or assertions unsupported by evidence” was cited as a key factor.

The Respondent argued that the complaints lacked evidential substance, made no reference to any Comparators and were in addition well out of time. Incidents such as the Intel Toolbox case which took place in 2022/2023 could not be cited. Most of the other instances cited were also from the 2022 to 2024 period - again out of time.

Evidence was presented on the subject of Foreign Travel assignments which were not in any way related to Racial origin or Nationality. Foreign assignments were dictated by Customers and the technical nature of the job required, which was completely variable from site to site. The Complainant was open to apply and had applied. There was no suggestion that being a Hungarian had anything to do with Travel/Non travel.  

The issue of the alleged abusive Verbal manner of Mr JC, the Supervisor, was not supported by any independent witness evidence and had never been the subject of a Formal Grievance. The Organisation had a very well documented set of procedures  (submitted in evidence) which the Complainant was well aware of.

Furthermore, on a Technical but important point as regards Equality & Discrimination cases, the Complainant had never identified any Comparator of Non-Hungarian Nationality against which his complaints could be evaluated.

In summary Ms McVeigh for the Respondent argued that the Legal Standards of Proof as set out in Legal Precents such as Mitchell v Southern Health Board [2021] 12 ELR 201 had not been achieved even in so far as an initial Prima Facie case. The case lacked evidential substance and had to be dismissed.

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being

1.       Are the initial procedural requirements such as time Limits satisfied?

2.       Is the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act - in other words, is he eligible to being a claim?

3.       Was he discriminated against?

4.       Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

5.       Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that 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 in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they 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 is no infringement of the principle of equal treatment.”

Notwithstanding legal precedents,  all cases rests on their own particular facts and evidence. The Adjudication  will, using the points above, now consider the case.

The above questions can be used as a Template.

3:1      Procedural requirements – especially Time Limits.

Arising from amendments to the Employment Equality Act,1998 the provisions of Section 41 of the Workplace Relations Act 2015 apply. Specifically, the requirement in Section 41 (6) that complaints are lodged withing six months of the date of any “contraventions” although the possibility via Section 41(8) of a further extension for an additional six months applies.

Accordingly, the “Cognisable Period” for the Complaint is from six months prior to lodging the complaint on the 10th June 2025 (i.e. 11th December 2024 to 10th June 2025). Even allowing for an Extension of a further six months, only brings the dates back to the 10th June 2024. This extension was not applied for by the Complainant.

The essence of the Complainant argument (who was unrepresented) as it appeared to the Adjudication Officer, is that he was suffering from an ongoing pattern of Harassment and Discrimination since a date in 2022 -what is usually called a “Continuum” which continued to the date of his Resignation.

The Legal requirements of Proof, of raising a “sustainable Inference “, have to apply here.

 Having listened to the sworn Oral Testimony and read the Written evidence the Adjudicator could not support this contention of a Continuum back to 2022. The Cognisable Period has to be the first six months - i.e. 11th December 2024 to 10th June 2025.

3:2       Is the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act - in other words, is he eligible to being a claim?

Technically Yes .

3:3        Was he discriminated against ?

In the “cognisable” period (11th December 2024 to 10th June 2025) there are allegations made but hard evidence of a required Legal standard to at minimum “raise an Inference” , to base a Discrimination or Harassment claim was lacking.

Allegations regarding his Work Pass Ticket and comments regarding his stress alleviation course were made. However, cases of this nature require some basic Medical evidence to base a sustainable claim where illness issues are raised.

. The Adjudicator failed to see anything of substance. In addition, while there was some e mail correspondence between the Parties there was no formal use of the Company  procedures. The most comprehensive Procedures were presented in evidence and there was no doubt that the Complainant was at least basically familiar with them.

3:4         Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

There was no reference to a formal “Comparator “ by the Complainant. Nevertheless the sworn Oral Testimony and the Written materials submitted demonstrated a multi ethnic/nationality Organisation. The Adjudicator could not see any specific evidence of a pattern of Victimisation/discrimination or less favourable treatment against people of Hungarian nationality as opposed to Irish or other Nationalities.

3:5        Depending on these answers the Provisions of Section 85 A (a) The Burden of Proof then apply.

Relevant Section is quoted below.

Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Having considered all the evidence presented both Oral Testimony and Written materials the Adjudication view has to be that, even allowing for a very relaxed view of the Time Limits arguments, no Prima Facie  case was established to support the Complaints.

The Complaints have to be deemed Unsuccessful.

Equality, Racial & Nationality Discrimination