The Equality Tribunal
3 Clonmel Street
Dublin 2.
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Website: www.equalitytribunal.ie
Employment Equality Acts
EQUALITY OFFICER'S DECISION
NO: DEC-E2009-107
Parties
Drzymont
(Represented by Richard Grogan & Associates)
- V -
Donavans Londis Store
(Represented by Tom Smyth and Associates)
Date of issue: 18 November 2009
Keywords
Employment Equality Acts - Discriminatory Treatment - Pay - Training - Race - Prima facie case
1. Dispute
1.1 This dispute concerns a claim by Ms. Agnieszka Drzymont that she was subjected to discriminatory treatment by Donavans Londis Store on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), 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 03 September 2007 under the Employment Equality Acts. On 22 July 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 on which date my investigation commenced. Submissions were sought from both parties but were received from the complainant only. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 10 November 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. Case for the complainant
2.1. The complainant is a Polish national who worked with the respondent between 5th March 2007 and 27 April 2007. It was submitted that the complainant received no contract of employment. It was submitted that a contract of employment that was forwarded subsequently had an incorrect start date (6 March) and refers to the company's legal name. It is was further submitted that the fact that the contract of employment has the complainant's new address on it indicates that the contract was not given to the complainant until after her employment had ceased.
2.2. It was submitted that the complainant had an accident at work. She slipped on a wet floor. She stated that she hurt her head and wrist. She did not report the accident but stated that a named co-worker helped her up. This co-worker could not be located for the hearing. The complainant stated that as she did not wish to miss work she attended a pharmacy where she obtained creams and a support for her wrist. She stated that she had told the respondent about the accident the next day and that the respondent had given her the name of a doctor that she should go to see. The complainant submitted that she felt she could not go to see a doctor during working hours as she was afraid that she would be docked pay.
2.3. It was submitted that she subsequently went on holidays and saw a doctor in Poland about her injured hand. It was submitted that the complainant contacted a named employee of the respondent and informed him that she would not know when she would return to Ireland. It was submitted that the complainant asked for her P45. It was submitted that this P45 does not have a start or finish date on it.
2.4. It was further submitted that the complainant was not paid the national minimum wage. And that the complainant had an accident in work because she did not receive health and safety training. The complainant submitted that she had heard about the induction training but that she was not asked to come to it. It was submitted that the complainant worked afternoon shifts as this suited her commutes to and from work.
2.5. The complainant's representative stated that her client would like to rely on Goode.
3. Case for the Respondent
3.1. The respondent denies all claims of discrimination.
3.2. It is accepted that the respondent had made a mistake in relation to allowing the complainant to work 8 days in a row. It was submitted that this was because the complainant - who was going on her holidays - had requested additional shifts. The respondent submitted that she had not known that such a request was contrary to the Organisation of Working Time Act. It was submitted that the respondent had paid the complainant redress in accordance with the Rights Commissioner's findings in this regard.
3.3. It was submitted that the respondent held regular induction training sessions. It was submitted that these included a comprehensive module on health and safety. It was submitted that due to the short time that the complainant had worked with the respondent, they had not had an opportunity to organise another training session for the one the complainant had missed. It was submitted that the complainant would have been asked to participate.
3.4. The respondent denies any knowledge of an accident. The respondent stated that the complainant had started wearing a wrist support to work and that some of her colleagues had complained that the complainant was avoiding certain tasks because of it. The respondent submitted that she had asked the complainant about the support and that the complainant had told her that she had an accident in Poland previously and that the wrist still sometimes hurt. The respondent submitted an incident report book to indicate that no accident around the time was recorded in it.
4. Conclusion of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred. '
4.2. The facts of the case are very much in dispute by the parties. In the current case I do not find that the alleged non-issuing of a contract to an employer or violation of working time regulations on its own in the present case is enough to establish a prima facie case of less favourable treatment on the race ground. As a Tribunal with jurisdiction to investigate discrimination in the employment context, I find that such matters are for an entirely separate employment rights body to investigate and that such a body has dealt with these matters.
4.3. Nor I am satisfied that an employee, who cannot show any evidence that she was excluded because she is a Polish national from organised induction training or that she had an accident in work can establish less favourable treatment on the race ground. These statements are mere assertion. I note that the complainant's colleagues and immediate supervisor were the same nationality as the complainant. I have been presented with no evidence to support an argument that no Polish person received induction training which included health and safety training. I was presented with no evidence to support the complainant's claim that she had an accident around the alleged time and that she was treated differently than an Irish person would have been in similar circumstances.
4.4. I note that an accident book was submitted in evidence. It contains one incident from 2000 and is therefore not evidence of any probative value. I note that the complainant's representative submitted that any Irish person would have sued the respondent in similar circumstances but due to the fact that the complainant did not know her rights as a Polish national she was less favourably treated that an Irish person would have been in similar circumstances. I do not accept the circumstances surrounding the complainant are similar to those set out in Campbell, Goode, Golovan or Khumalo.
4.5. While I appreciate that an employer who only employs non-Irish nationals cannot presume to defend themselves from discrimination by simply claiming that they treated everyone less favourably, the issue of a notional comparator can only become an issue when evidence to support such an approach has been presented to this Tribunal. This approach is supported by the recent Labour Court Recommendation ADE 0917, Melbury Developments Ltd v. Arturs Valpeters:
"In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
The Court went on to say "... the Court cannot accept that the peculiar knowledge principle can avail the Complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act." In this case, no such evidence has been presented.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the respondent did not discriminate against the complainant on the race. Therefore, the complaint fails.
_______________
Tara Coogan
Equality Officer
18 November 2009