FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : VALEN CONSTRUCTION LTD (REPRESENTED BY OWEN O'MAHONY & CO. SOLICITORS) - AND - JOHN O' LEARY (REPRESENTED BY CONOR POWER B.L. AND THE EQUALITY AUTHORITY) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998.
BACKGROUND:
2. The claimant is a member of the travelling community and was employed as a labourer by the respondent. He commenced employment on the 6th November, 2000 and was dismissed on the 4th April, 2001. It is alleged that he was dismissed contrary to Sections 8 and 29(4) of the Employment Equality Act, 1998 in that he is a member of the travelling community.
The Company rejects the claim and states that the claimant was let go because of a downturn in the construction industry.
The worker referred a complaint to the Court pursuant to Section 77 of the Act. A Labour Court hearing took place in Portlaoise on the 22nd November, 2002.
DETERMINATION:
The claimant was employed in a labouring capacity on the 6th November 2000 and was dismissed on the 4th April 2001.
The claimant’s case is that he was discriminated against contrary to Section 8 and 29(4) of the Employment Equality Act 1998, on the grounds that he was less favourably treated than another is, has been or would be treated, by reason of his membership of the Traveller Community and of his race. The discrimination took the form of dismissal and discriminatory selection for redundancy.
The claimant alleges that as a result of a fire in his mobile home on the 17th March 2001 and the considerable media coverage that followed the Managing Director of the Company became aware that he was a member of the Traveller Community. This coupled with comments made by the Managing Director resulted in him being discriminated against by the Company.
He claimed that the Managing Director of the Company when dismissing him stated that the Company had money problems and he would therefore have to let the claimant go. He stated that other workers who had been hired after he began his employment continued to be retained after his dismissal. Indeed one person was taken back on the books after the claimant was dismissed.
He argues that his dismissal was summary in nature and could not be justified by objective factors unrelated to race. There were no complaints concerning his work and the alleged redundancy was not operated on the basis of fair procedures.
The Managing Director it was claimed did not know that the claimant was a member of the Travelling Community until he discovered this through press coverage in March.
Company Arguments:
The Company case is that no discrimination occurred in relation to the termination of this man’s employment. The Company initially argued that it was not legally obliged to furnish him with detailed reasons for his dismissal and that he was “dismissed during his statutory probationary period”.
The Company also argued that it did not directly replace the claimant who did labouring work, as the person who was taken on was a qualified plasterer and bricklayer and was employed to do a range of work. This it was claimed enabled the Company to reduce the number of subcontractors that it was employing at that time, and enabled it to become more competitive.
The Company also claimed that the claimant had taken Company property i.e. two toilet seat covers from the site and as a result of this they had made a decision to dismiss him.
The Management were fully aware when employing the claimant that he was a member of the Travelling Community as he had been employed by another Company on the same site. They claimed he was dealt with at all times fairly and without discrimination.
Findings
The case presented by the employer was inconsistent and changed a number of times.
Originally the employer informed the claimant that his dismissal was because the Company had money problems. In its written submissions to the Court the employer claimed that he had dismissed the claimant because he stole Company property.
However, at the hearing the employer stated that because of commercial pressures he took the opportunity to employ someone who had a wider range of skills than the claimant. This was done to save money by using a more skilled worker to reduce the number of subcontractors on site.
The performance of the Management in this particular case falls significantly short of what would be expected in normal industrial relations, under the Code of Practice on Grievance and Disciplinary Procedures.
On the evidence before the Court there is a prima facie case that the claimant was unfairly dismissed. However, the claim before the Court is not under the Industrial Relations Acts and therefore the Court can make no Recommendation on this aspect of the case.
The claimant’s case is based on the contention that he was discriminated against when the Managing Director of the Company became aware that the claimant was a member of the Travelling Community after the fire in his home. The Court is not satisfied that this was the case. Indeed, evidence was given by employees of the Company, one of them a witness called by the claimant, that would seem to indicate that this was generally known on site.
The claim before the Court is under the Employment Equality Act, 1998. Having considered all of the information before it the Court is not satisfied that the claimant has established a prima facie case of discrimination. He did not establish facts which would indicate that the employer’s actions were motivated by the claimant’s status as a member of the Travelling Community.
The Court therefore finds, that the employer did not discriminate against the claimant contrary to Section 8 and 29(4) of the Employment Equality Act 1998.
Signed on behalf of the Labour Court
Finbarr Flood
_13th January, 2003______________________
LW/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.