The Equality Tribunal
Employment Equality Acts 1998 to 2008
Decision DEC-E2009-037
PARTIES
Aleks Stepanovs
(Represented by Penelope McGrath, B.L.
instructed by Richard Grogan & Associates)
- V -
Ruscon Engineering Work Ltd.
File reference: EE/2008/760
Date of issue: 18 May 2009
Keywords - Employment Equality Acts 1998 to 2008 – Discriminatory Treatment - Discriminatory Dismissal – Race – Redundancy – Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Aleks Stepanovs that he was subjected to discriminatory treatment and dismissal by Ruscon Engineering Work Ltd. on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 November 2008 under the Employment Equality Acts 1998 to 2008. On 16 March, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts 1998 to 2008 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 5 May 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent from 13 February 2003 until he was dismissed on 17 September 2008. The complainant is a Latvian National and it is on this basis that this complaint is being taken. The complainant further submitted that he did not receive any proper contract, Health & Safety documentation or training.
2.2 The complainant submitted in advance of the hearing that he was dismissed and received no redundancy payment.
2.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety.
2.5 The complainant submitted a listed of authorities citing 8 cases.
2.6 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent made no submissions in advance of the hearing.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. Stepanovs on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The respondent did not attend the hearing of this matter, nonetheless it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 The complainant stated in evidence that he was laid off on 17 September 2008 along with 10 colleagues of various nationalities. The complainant confirmed that they were provided with a P45 and told to sign on at a Social Welfare Office for Jobseekers Allowance. It was also confirmed that the Receiver is in the process of arranging for payments in regard to minimum notice and redundancy.
4.5 The complainant stated that he was not provided with a contract of employment, appropriate training or Health & Safety instruction in his language. The complainant was unable to state that other employees of similar or different nationality were provided with the foregoing. It was however submitted that Irish national co-workers were not disadvantaged by this treatment.
4.6 It was stated that according to the Rasaq case (Campbell Catering Ltd and Rasaq, Labour Court Determination EED/048), the same procedures were used in relation to a different situation, i.e. the claimant was a non-Irish national. It was submitted that this established prima facie that the complainant was at significant disadvantage. Having considered the Labour Court’s decision in Rasaq, I note the following:
· the Labour Court stated that “before the complainant can succeed in her claim, the Court must be satisfied that she was treated less favourably that a comparator of a different racial origin is, was or would be treated in similar circumstances...”.
· The Court went on to say that “in the case of disciplinary proceedings ... In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination”.
4.7 This complaint does not relate to disciplinary proceedings but to a redundancy situation where the complainant and 10 colleagues of various nationalities were laid off at the same time, in the same fashion. I am not satisfied that the complainant was treated in a less favourable manner than any of his co-workers, regardless of their nationality. Therefore, I do not consider the Rasaq case applies in the manner put forward by the complainant.
4.8 I find that the complainant has not established facts from which discrimination may be inferred. Therefore, this complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment or dismissal on the basis of the race ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
18 May 2009