FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : HOWLEY CIVIL ENGINEERING LIMITED - AND - MINDAUSKAS BAKSATIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. The Worker referred his case to the Labour Court on the 23rd April,2010 in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2007. A Labour Court hearing took place on the 12th November, 2010. The following is the Determination of the Court:-
DETERMINATION:
The Decision of the Equality Officer in DEC-E2010-032 decided the case of three complainants, Mr. Ramunas Gailius, Mr. Mindauskas Baksatis and Mr. Valdas Pavilonis. Mr. Mindauskas Baksatis appealed the Decision in relation to his claims before the Equality Tribunal. Mr. Patrick Leonard, B.L. instructed by Richard Grogan and Associates, Solicitors, on behalf of the Appellant confirmed for the Court that the remaining two Complainants did not appeal the Equality Officer’s Decision. There was no appeal before the Court on behalf of the Respondent.
Accordingly, the only appeal before the Court is Mr. Mindauskas Baksatis’ appeal (herein-after called “the Appellant ”) against the Decision of an Equality Officer in a claim alleging discrimination on the race ground by Howley Civil Engineering Limited (herein after called “the Respondent”).
The Complainant complained that he was discriminated against on the race grounds contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 (“the Acts”) in terms of access to employment, conditions of employment, training, harassment and discriminatory dismissal.
The Equality Officer found that the Respondent did not discriminate against the Complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment and training; did not subject him to harassment contrary to section 14A of the Acts; did not discriminate against him on the race ground pursuant to section 6(2)(h) of the Acts, did not dismiss him on discriminatory grounds contrary to section 8(6) of the Acts and did not discriminate him on race grounds in respect to access to employment contrary to section 8(i) of the Acts.
The Respondent is now in liquidation. A statement from Mason Hayes & Curran, Solicitors, as representatives of the Official Liquidator, informed the Court that its Client was not in a position to defend the proceedings on behalf of the Respondent as the Liquidator has received no Company files nor information in relation to the matter.
Summary of the Complainant's case
The Complainant is a Lithuanian national and was employed by the Respondent as a rigid truck driver from August 2005 until 11th May 2007.
In his submission to the Equality Tribunal the Complainant submitted that his dismissal from the Respondent’s employment on 11th May 2007 was discriminatory on race grounds. He was informed that he was being let go as there was no further work available on the site. He stated that all other drivers on the site (approximately 20), including drivers of both Lithuanian and Irish origin, were also dismissed on that date. Following his dismissal he contacted the Respondent to enquire about further work possibilities and was informed that there was no further work available for him and that the Respondent was only re-employing drivers who held a licence to drive an articulated truck. He stated that he informed the Respondent that he would be able to acquire such a licence within a couple of weeks. However, he was not offered any further work.
The Complainant stated that a number of the other drivers, including at least one other driver of Lithuanian origin, who had also been dismissed on 11th May 2007 were subsequently re-employed by the Respondent on a different site. The Complainant stated that a number of the drivers who were re-employed did not have a licence to drive an articulated truck. He submitted that the Respondent's refusal to subsequently re-employ him following his dismissal amounted to discrimination in terms of access to employment on the grounds of his nationality.
He also claimed that he was constantly subjected to pressure from his manager, Mr. Y, to try and achieve a higher work output. He claims that he was prohibited from taking breaks during his working day as a result of the pressure that was constantly being applied to increase his work output. He submitted that his treatment by the Respondent in this regard constituted harassment on the grounds of his nationality contrary to the Acts.
The Equality Officer recorded that the Complainant alleged that theRespondent's failure to provide him with a written contract of employment and a health and safety statement/training in a language, which he could understand, constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The Complainant stated in evidence at the Equality Officer’s hearing that there were workers of various nationalities employed by the Respondent during his period of employment, including those of Lithuanian, Latvian, Romanian and Irish origin, and he told the Equality Officer that he was not aware if the Respondent had issued any of the other employees, including those of Irish origin, engaged at the same time as him with a written contract of employment or a health and safety statement/training.
Mr. Leonard informed the Court that the Rights Commissioner had heard complainants against the Respondent under relevant legislation enacted to deal with alleged breaches of an employer's obligations in relation to employment rights which upheld the Complainant’s allegation that he had not received a contract of employment and that the Respondent had breached certain employment rights in respect of the Complainant.He also referred the Court to the Decision of the Equality Officer in the case of another Lithuanian Complainant where the Equality Officer awarded substantial compensation for the effects of harassment and victimisatory dismissal by the Respondent.
It was therefore submitted that the Court should similarly infer that the Complainant had also been subjected to less favourable treatment on the grounds of his nationality and accordingly that the burden of proof should shift to the Respondent to rebut the inference of discrimination.
Conclusions of the Court
InGoode Concrete and Oksana ShaskovaDetermination EDA0919 this Court, in reliance on the Judgment of the High Court inMulcahy v Waterford Leadership Limited and the Minister for Justice, Equality and Law Reform[2002] 13 ELR 12, accepted as correct a submission that the mere coincidence of the Complainant’s nationality and his or her dismissal is not sufficient to shift the probative burden from the Complainant to the Respondent.
InArturas Valpeters v Melbury Development LimitedEDA0917 this Court held as follows in relation to the application of section 85A dealing with the standard of proof necessary to discharge the probative burden which a Complainant bears under the Act:
- "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. Leonard informed the Court that the Complainant had no difficulty with the English language; he had made no complaint of racial harassment or victimisation to the Respondent and he had no new evidence to put before the Court.
The Rights Commissioner’s Decisions under the various employment rights statutes were not submitted to the Court.
The Court notes from the details contained in the Equality Officer’s decision that he found Mr. G. to be a credible witness and found in favour of his claim that the Respondent had subjected him to harassment and victimisatory dismissal on the grounds of his race. Mr. G. gave evidence to the Equality Officer of the harassment he was subjected to which he said took the form of ongoing verbal abuse by his Supervisor, Mr. X directly relating to his nationality.
Mr. G. gave evidence to the Equality Officer that as the racial abuse became so intolerable in the latter stages of his employment that he was left with no option but to make a formal complaint about this treatment to the Respondent's Health and Safety Officer. Mr. G. had submitted in evidence a copy of the written statement, which was signed by both Mr. G., and a member of the Respondent's HR staff. The Equality Officer accepted Mr. G's evidence coupled with documentary evidence supporting his contention that Mr. X dismissed him from his employment within a matter of days of Mr. G making the formal complaint to the Respondent.
In the instant case no evidence whatsoever was submitted to support the Complainant’s contentions. He said that he was harassed by the Respondent on the basis that he was constantly subjected to pressure from his Manager, Mr. Y, to try and achieve a higher work output. However, the Complainant adduced no evidence from which it could be assumed that the reason why he was being pressurised was in any way attributable to his nationality. The Complainant made no allegation of racial abuse against Mr. Y or any other manager. His complaints under the Acts were of a general nature regarding the Respondent’s breach of employment rights. The Court is of the view that it is not reasonable to draw an inference of discrimination motivated by his nationality in such circumstances.
At best the Court was invited to infer that unfair treatment of the Complainant by the Respondent coupled with his nationality are sufficient to shift the probative burden of showing the absence of discrimination. The Court has previously held that such a proposition is not sustainable in law.
Determination
The Court is satisfied that the Complainant has failed to establish any facts from which discrimination may be inferred. Accordingly, he cannot succeed.
Accordingly, it is the Determination of the Court that the within appeal is disallowed and the Decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th December, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.