DEC-E2008-037 - Full Case Report

Equality Officer’s Decision No:  DEC-E/2008/037

Parties

Stratulat

(Represented by  Alan Cormack BL – Instructed by

Peter Connolly Solicitors )

And

M&J Recycling Ltd. 

(Represented by Patrick O’Neill BL – Instructed by

Dermot Mc. Namara & Co. Solicitors)

1.         DISPUTE

           This dispute involves a claim by Mr. Tudor Stratulat that he was (i) discriminated against by M&J Recycling on grounds of race, in terms of section 6(2) of the Employment Equality Act, 1998 in respect of his conditions of employment and (ii) dismissed by it in circumstances amounting to discrimination on the same ground and contrary to section 77 of that Act, when it terminated his employment in July, 2004.

2.         BACKGROUND

2.1      The complainant commenced employment with the respondent as a Heavy Goods Vehicle (HGV) driver in March, 2004. He states when he returned from annual leave in July, 2004 he was informed  that his employment was being terminated because the respondent was unable to obtain motor insurance for him. He further contends that he was treated less  favourably than Irish employees in certain aspects of his employment. The respondent rejects the assertion that it discriminated against the complainant at all.  It states that it was unable to obtain motor insurance for him because he did not hold a valid recognised driver’s licence and submits that it had no option but to terminate his employment. It further submits that this action does not constitute less favourable treatment of him contrary to the Acts.

2.2      The complainant referred a complaint under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on 14 December, 2004.  In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Submissions were received from both parties and a Hearing of the complaint took place on 17 May, 2007 and 14 December, 2007. Neither the respondent nor the complainant attended the Hearing on the second day. A small number of points arose which required further clarification. Final correspondence was received by the Tribunal in March, 2008.

3.         SUMMARY OF COMPLAINANT’S CASE

3.1      The complainant, who is a Moldovan national, commenced employment with the respondent in March, 2004 as a HGV Driver. He states that he held the appropriate Moldovan driver’s licence (and had done so for 20 years) and had furnished this to his Manager (Mr A) at the beginning of his employment. He states that he did not experience any difficulties with his employer until he returned from annual leave in July, 2004. He contends that on his return from annual leave Mr. A informed him that there was no truck available for him as it was being repaired and to return to work a few days later. The complainant further contends that Mr. A also told him at this time that there were difficulties securing motor insurance for him. The complainant states that when he subsequently returned to work as agreed he was told by Mr. A that he was “being let go” because the respondent was unable to obtain insurance cover for him. He adds that the respondent gave him a reference indicating his employment was terminated because of a downturn in business, which is contrary to the reason given to him by Mr. A and is contradicted by the fact that it recruited two Irish drivers around the same time.

3.2       The complainant states that several weeks prior to his departure from the respondent’s employment he was involved in a minor road accident in which the truck he was driving was damaged. He adds that the cost of the damage was subsequently deducted from his salary. He states that when Mr. A informed him that there were problems with obtaining motor insurance for him he assumed it was in some way connected with the motor accident and asked him to contact his previous employer – it had not experienced any difficulty in obtaining insurance for him. He states that he was never informed whether or not the respondent did this and submits that the respondent’s actions in this regard constitute less favourable treatment of him contrary to the Acts. The complainant also states that the company operated a policy of sending staff home when business was slow. He contends that it applied this policy unfairly in that non-Irish workers were sent home in preference to Irish employees and states that he was treated in this manner around half a dozen times during his employment, although he was unable to be specific of dates.

3.3      It is argued on behalf of the complainant that if the treatment of him as regards the motor insurance does not constitute direct discrimination of him, then it clearly amounts to indirect discrimination of him on grounds of race contrary to section 31 of the Acts. In this regard he seeks to rely on the judgement of the Supreme Court in Nathan v Bailey Gibson[1] the decision of the Labour Court in Inoue v NBK Designs[2] and the decision of this Tribunal in Czerski v Ice Group[3]. It is further argued that the respondent has failed to demonstrate that its actions were objectively justified.

4.         SUMMARY OF RESPONDENT’S CASE

4.1      The respondent rejects the complainant’s assertion that it discriminated against Mr. Stratulat in any manner. It accepts that his employment was terminated in July, 2004 but submits that this was not discriminatory because it was unable to obtain appropriate motor insurance for him at that time. This difficulty arose because the complainant is a non-EU national and was therefore only permitted to drive in Ireland for a period of twelve months on his original driver’s licence. It states that it only became aware of this when the complainant was involved in a road traffic accident in the course of his employment and it reported the incident to its insurance brokers. It adds that it was not aware of the barrier to the complainant’s employment when it recruited him in March, 2004 and incorrectly assumed all was in order. The complainant’s driver’s licence had been checked by the Office Manager (Mr. A) at the start of his employment with the respondent and was sent to its insurance broker in the normal course. No issue was raised by the brokers at that time and Mr. A had no reason to believe anything other than the complainant was entitled to perform the job he was recruited for. It states that when the difficulty came to light it made every effort to secure motor insurance for the complainant from its usual insurance brokers but was unsuccessful. The respondent submits that it could not permit the complainant to drive on public roads without the necessary insurance. He was therefore no longer fully competent to undertake the duties associated with the post and it had no option but to terminate his employment. It adds that there was another employee at that time who was also a non-EU national and was refused insurance cover. He left the company of his own volition.

4.2       The respondent states that the complainant caused damage to one of its trucks when he struck a bridge in the course of his duties. It states that Mr. S (the owner) was of the view that the damage was as a result of driver error and in those circumstances decided to recoup the cost of the repairs from the complainant in accordance with company policy. The respondent accepts that it operated a policy of sending employees home when business was slack. ~However, it is unable to comment on the frequency of this policy or when it was applied to the complainant. 

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1       The issues for decision by me is whether or not M&J Recycling (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Act, 1998 in respect of his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on the same ground and contrary to section 77 of that Act when it terminated his employment in July, 2004. In reaching my decision I have taken into account the oral and written evidence I feel it is appropriate to examine in the circumstances. This case was heard on two dates – 17 May, 2007 and 4 December, 2007. Prior to the first day of hearing the respondent had filed a submission comprising a single page, despite a number of requests from the Tribunal. In the course of the hearing Ms. M (who is a company director since 2001) was unable to provide definitive answers to many questions posed to her and this gave rise to a substantial amount of documentation being supplied to the Tribunal between the two hearing dates. Unusually, whilst the legal representatives of both parties attended the second hearing, neither the complainant nor the respondent did so. Consequently, certain evidence could not be tested and the probative weight I can attach to same is limited.

5.2      At the time of the alleged incidents it was the well established practice of both this Tribunal and the Labour Court to apply a procedural rule in respect of the burden of proof similar to that set out in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001[4]. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his nationality. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

5.3       I note at the outset that all of the respondent’s interaction with the complainant was handled by Mr. A and Mr. S, the bulk of same rested with the former. Neither of these gentlemen were available to the Tribunal. There is agreement between the parties that the complainant’s employment was terminated because the respondent stated it was unable to secure appropriate motor insurance cover for him at that time.  The reason advanced by the respondent for this is that the complainant did not hold a valid recognised driver’s licence at the time which would permit him to drive legally in this country. His Moldovan driver’s licence was insufficient as it was not recognised as a valid licence because he was over twelve moths in Ireland.  On the basis of the foregoing I am satisfied that this treatment of the complainant is prima facie unlawful discrimination of him on grounds of race contrary to the Act and the burden shifts to the respondent to rebut the inference raised.

5.4       On the basis of the material supplied by the respondent I am satisfied that the situation is as stated by it as regards the agreement Ireland has with certain named counties as regards mutual recognition of driver’s licences  -  that it is a requirement for persons born outside a list of recognised countries (numbering 35) and Moldova is not amongst that list, to acquire a valid Irish driver’s licence through the normal procedures if the person is resident in Ireland for a period exceeding 12 months. The insurance cover obtained by the respondent was a fleet cover – to cover all drivers and vehicles listed by the respondent. I note that the respondent states another employee (details supplied) was also refused insurance cover and left the company of his own volition at this time as a consequence. The documentation submitted by the respondent indicates that this employee was South African. I note that South Africa is amongst the list of recognised countries mentioned above – that is to say the person’s South African driver’s licence was recognised as a valid one in Ireland - yet the respondent asserts that insurance cover was also refused for this person for the same reason as the complainant. No evidence (verbal or documentary) was advanced by the respondent to corroborate this assertion. The respondent further contends that it made extensive efforts to secure insurance cover for the complainant at that time. However, no direct evidence was furnished in the course of the hearing from any person involved with this process. In addition, it appears that all of the efforts it made were conducted over the telephone and any documentation purporting to corroborate the respondent’s version of events is dated some three years after the event. I further note that the requirement imposed on persons from countries outside of the 35 agreed is to commence the process of acquiring an Irish driver’s licence where their licence is no longer considered valid. Such an option was never considered by the respondent in respect of Mr. Stratulat although one of the Irish drivers in the employment at that time only held a provisional licence and was afforded insurance cover under the fleet policy.

5.5       The respondent is required to provide a convincing non-discriminatory explanation for what occurred which must be sufficient to satisfy me, as a matter of probability, that the manner in which it treated the complainant was inno sense whatsoever connected with his nationality. Since the facts necessary to prove such an explanation can only be in the possession of the respondent, this Tribunal should expect cogent evidence to discharge the burden of proof placed on it[5].Mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”[6]The respondent has not furnished such evidence and I find on balance that it has failed to discharge the burden of proof required of it. It follow therefore that I find it discriminated against the complainant on grounds of race contrary to the Act. I should point out however, my decision on this point does not mean that any person is entitled to bend, or indeed break, road traffic legislation. Clearly, road traffic legislation must apply to all persons who drive on Irish roads and all road users must comply with it. I am satisfied that the respondent was unaware of the barrier to employing the complainant  and permitting him to drive its vehicles at the outset – at this stage (March, 2004) he was already resident in the country over 18 months. When this problem was brought to its attention (June, 2004) it took the easy option and dismissed him, instead of making any real efforts to accommodate him – an option which was undoubtedly available to it. Its actions in this regard constitute less favourable treatment of Mr. Stratulat on grounds of race.

5.6       I shallnow examine the remaining two elements of the complainant’s case – which can be defined as allegations of discriminatory treatment on grounds of race. The first relates to the application of a policy of recouping the cost of damages to the respondent’s vehicle and the second concerns the practice of sending people home when business is slack. In the course of the first hearing the complainant gave details of how this treatment was applied to him. However, he was unable to be specific about the total amount which was deducted from his salary, how many instalments were involved, when he was sent home early, when this practice first happened and whether or not this treatment also applied to other drivers. As stated above it is for the complainant to establish, in the first instance, the primary facts upon which he seeks to rely in advancing his claim of discrimination.  I am not satisfied, on balance, that he has discharged that initial burden required of him and his claim on these points must therefore fail.

6.         DECISION OF THE EQUALITY OFFICER.

6.1      I find that –

(i)                                           the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 77 of that Act, and

(ii)                                         the complainant has failed to establish a prima facie case of discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Act, 1998 in respect of his claim that he was treated less favourably as regards certain conditions of his employment.

6.2               I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2007 that the respondent pays the complainant the sum of €6,000 by way of compensation for the effects of the discriminatory treatment on him. This award contains an amount of €2,000 in respect of loss of income on the part of the complainant.

           ____________________________

            Vivian Jackson          

            Equality Officer

            3 July,  2008