The Equality Tribunal
Employment Equality Acts
Decision DEC-E2009-097
PARTIES
Jurkevics
(Represented by Richard Grogan & Associates)
- V -
Limestone Construction Ltd.
File reference: EE/2008/879
Date of issue: 27 October 2009
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Race - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Viktors Jurkevics that he was subjected to discriminatory treatment and dismissal by Limestone Construction Ltd. 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 17 December 2008 under the Acts. On 7 September, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to 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 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 15 October 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 15 September 2004 until he was dismissed on 15 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 of employment, 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 7 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. Jurkevics on grounds of race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts 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, a company in liquidation, did not attend the hearing of this matter. The Tribunal sent notification of the hearing to both the listed address for the company at the date of the complaint and to the liquidator. Notwithstanding the foregoing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 The complainant stated he his claim is based upon his nationality and that he was subjected to discriminatory dismissal without any documentation, and discriminatory treatment in relation to his conditions of employment: (i) deductions were made from his wages in relation to accommodation, (ii) that he was required to work outside the jurisdiction without his consent, and (iii) that he did not receive a contract of employment. In evidence the complainant stated that he worked with colleagues from Poland, Slovakia, Romania and Ireland. He stated that "everybody was treated the same way". In response to further enquiries, the complainant stated that deductions in respect of accommodation were taken from everybody. Furthermore, he confirmed that he was asked if he wanted to work in Northern Ireland. Everybody was as there was no further work in this jurisdiction.
4.5 The complainant confirmed that no-one was provided with health and safety training and that he could not say whether any of his colleagues were provided with redundancy payments.
4.6 The complainant's representative noted that it had sent a Section 76 request for information to the respondent and submitted that this case differs from the Labour Court case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
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.
Mr Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court's view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
4.7 From the complainant's direct evidence presented to me, I am not satisfied that the complainant was treated in a less favourable manner than any of his colleagues. Furthermore, I am of the view that all that has been proffered in support of this complaint is mere assertion unsupported by any evidence, and I am not satisfied that the complainant has established facts from which discrimination may be inferred. Accordingly, I find that the complainant has not established a prima facie case. 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 discriminatory dismissal on the basis of the race ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
27 October 2009