Khumalo
-v-
Cleary & Doyle Ltd
(represented by the Construction Industry Federation)
1. CLAIM
1.1 The case concerns a claim by Mr. Israel Khumalo that Cleary & Doyle Contracting Ltd, Wexford, directly discriminated against him on the grounds of race in terms of section 6(2)(h) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Act in relation to his dismissal.
2. BACKGROUND
2.1 The complainant who is English submits that he was employed under false pretences as he was not told about the operation of the last in/first out policy. He submits that he was dismissed after four months so that the company could bring two longer term employees who had been working on other sites to work on the site where he was and do the work that he was doing. The respondent submits that work on the site where the complainant was employed was winding down and a reduction in the number of workers on site was necessary. It submits that as the complainant had less service than other workers, he was dismissed by reason of redundancy on 2 December 2005.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 23 January 2006. On 11 May 2007, in accordance with her powers under section 75 of the Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 7 November 2006. A submission was received from the respondent on 16 January 2007. A joint hearing of the claim was held on 6 December 2007. Material requested at the hearing was received on 31 December 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant claims that he was working for another contractor when he was approached by the respondent and asked to work for the company. He submits that he was promised €14.40 per hour on the basis of a month's trial. He submits that after he completed a month's trial and had been working on a permanent contract for four months, he approached Mr. W to ask about his wages as he was being paid €13.10 per hour.
3.2 Mr. W advised him to leave it with him and soon after, Mr. W told him that his job was finished and that he was being replaced with two longstanding employees from different areas and that it was the last in/first out policy. The complainant submits that was not the case as another person who was employed after him was still in the employment of the respondent.
3.3 He submits that the first time he heard of the last in/first out policy was in November when he was informed that was the reason why he was being sacked. He submits that he was employed under false pretences of a long term employment and was sacked after four months so that the company could bring two longer term employees who had been working on other sites to work and do the job that he had been doing.
3.4 The complainant submits that after he was sacked, he also asked at the head office of the respondent company as to why and he was told that it was because of their last in/first out policy. He submits that this was never explained to him at the time he signed the contract or when the job offer was discussed initially when he was working for another contractor.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant commenced employment with the respondent on 20 July 2005. He was employed as a general operative to work on a site in Wexford. Towards the end of 2005, work on the site was winding down and a reduction in the number of workers was necessary.
4.2 In line with custom and practise in the company, in the event of redundancies, workers are selected on the basis of last in/first out. As the complainant had less service than other workers, he was dismissed by reason of redundancy on 2 December 2005. The complainant was not discriminated against on the ground of race.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the race ground in relation to his dismissal. I will therefore consider whether the respondent directly discriminated against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Acts 1998 and 2004 in contravention of sections 8 of the Acts in relation to his dismissal. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the complainant.
Establishing a prima facie case
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.3 Subsequently, the Labour Court stated in relation to the burden of proof in a case brought on the race and religion grounds:
It is now the accepted practice of this Court that in all cases involving discrimination the probative burden will shift to the respondent in circumstances where the complainant establishes a prima facie case of discrimination.
The test normally used in determining when and in what circumstances the burden of proof shifts to the respondent is that formulated in the case of Mitchell v Southern Health Board [2001] ELR 201. This test provided that the complainant must first prove the primary facts upon which they rely in asserting discrimination. If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.
This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. These regulations provide that the probative burden shifts where the complainant establishes facts from which discrimination may be presumed. The wording used in the regulations, which is derived from Directive 97/80 EC (The Burden of Proof Directive), is now replicated in Article 8 of Council Directive 2000/43 on Equal Treatment between Persons Irrespective of Racial or Ethnic Origin.
The provisions of the Employment Equality Acts 1998 and 2004
5.4 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
..... discrimination shall be taken to occur where -
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')
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),
5.5 The complainant claims that he was approached by the respondent when he was working as a labourer for another contractor. He submits that he was promised better wages than he then had and he commenced work with the respondent on 20 July 2005. He submits that he was not told about the operation of the last in/first out policy in relation to redundancy. He submits that at the end of the month's trial, he asked the Site Manager about a salary increase and he continued to ask during the period of his employment. He submits that after four months, he was dismissed and he was informed by the respondent that his dismissal was due to the operation of the last in/first out policy. The respondent submits that at the end of 2005, work was winding down on the site that the complainant was working on and a reduction in the number of workers on that site was necessary. It submits that as the complainant had less service than other workers, he was dismissed by reason of redundancy.
5.6 The respondent provided a copy of the Starting Notice for the complainant. It states that the complainant is to be employed as a General Operative and that the rate of pay is to be at the rate of €13.15 per hour. It subsequently clarified at the hearing that the complainant was being paid the applicable Grade D General Operative rate at the time in accordance with the JLC/ REA rates of pay for the construction industry. It submitted that the Site Manager could not have promised a higher rate than the rate specified in the Registered Employment Agreement. It clarified that payment rates are based on the type of work the employee is doing, for example, basic general work, moving stuff, using light plant and tidying and carrying is paid at the Grade D rate. After one year, the employee moves from the Grade D rate to the higher Grade C rate. I note that although the correct rate is stated on the starting notice, 'B' is also recorded beside the rate and this may have led to some confusion on the complainant's behalf. I note also that the Grade D rate increased to €13.48 with effect from 1 October 2005.
5.7 In relation to the complainant's dismissal, the respondent submitted that the complainant was the only person made redundant at that time in December 2005 and that he was made redundant on the basis of the last in/first out policy which it operates in line with custom and practice and in agreement with the Unions. The respondent submitted in evidence a bar chart showing the number of General Operatives on site at Whites during the period from September 2004 to December 2006 when the site was completed. The number of General Operatives on that site peaked at 7 in July 2005, It reduced to 5 for August to October 2005 and then increased to 6 in November and December 2006. It then was reduced to 5 in January 2006 consequent on the complainant's redundancy and then reduced to 4 with effect from March 2006. It remained at 4 for a number of months and eventually decreased again in November 2006 with one general operative being employed for the final two months of operation of the site.
5.8 The respondent provided service details for all general operatives who worked on the Whites site. The details include the commencement dates of employment with the company, their deployment dates to the Whites site and the dates of the termination of their employments where applicable. The complainant was the last general operative to be employed by the company at that site. Another person (Mr. K) who was employed on 11 July 2005 and redeployed to the Whites site on 18 November 2005 continued working on that site until 15 December 2006. The data indicates that Mr. K was the last general operative to be redeployed to the Whites site. The data also shows that the three longest serving general operatives on the list of general operatives redeployed to the Whites site remain in the employment of the company. Other data provided indicates that a person in a different work category (a teleporter operator) was transferred to that site the day before the complainant was made redundant. The complainant submitted at the hearing that the respondent was operating other sites to which he could have been transferred rather than made redundant. However, the respondent disputed this and stated that one project (Mc Cauley's Chemist) ran from February 2003 to November 2003, another one (Stafford's Car Park) commenced November 2004 and was completed in October 2005 and another one (Waters Technology) commenced in February 2005 and was completed in October 2005. It further submitted that the Theatre Royal site commenced in July 2006 and is ongoing.
5.9 The respondent submitted that on 7 December 2005 there were 211 people employed by the respondent and 14 of them were non nationals. It also submitted that there are currently three British people employed by the company in addition to a number of other non nationals.
5.10 I have considered all of the evidence submitted and I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on the race ground.
6. DECISION
6.1 On the basis of the foregoing and on the balance of probabilities, I find that the complainant has failed to establish a prima facie case of discrimination on the race ground in terms of section 6(2)(h) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Act in relation to his dismissal.
__________________
Mary Rogerson
Equality Officer
31 January 2008
1 DEE011 15 February 2001