FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : ELEPHANT HAULAGE LIMITED (REPRESENTED BY ESA CONSULTANTS) - AND - GUNTARS GARBACEVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker appealed the Equality Officer's decision to the Labour Court on the 15th April, 2010. The following is the Court's determination:
DETERMINATION:
Background:
Elephant Haulage Ltd (the Respondent) employed Mr Guntars Garbacevs (the Complainant) as a driver from 29th May 2006 until his dismissal on 28th June 2007. The Complainant submitted a complaint to the Equality Tribunal on October 1st 2007 to the effect that he was subjected to discriminatory treatment and discriminatory dismissal contrary to the provisions of the Act.
The Equality Officer conducted an investigation into the complaint and decided as follows: -
- 'Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts I find that the respondent did not discriminate against the complainant on the race ground. Therefore, the complaint of less favourable treatment fails.
I find that the respondent did not discriminatorily dismiss the complainant. Therefore, the complaint of discriminatory dismissal fails'.
The Complainant appealed this decision to the Labour Court.
The Complainant’s Position:
Mr Grogan, on behalf of the Complainant, said that the Respondent employed him as a driver on 26th May 2006. He performed his work without incident or complaint until 15th May 2007. At that time he took ill and needed medical attention. He asked a colleague of his to notify his employer of his illness and to say that he intended returning to work the following Monday. His medical condition deteriorated and he returned to his native Latvia for further treatment. He asked his colleague to so advise the Respondent but he had no direct contact with his employer at this time. His recovery took longer than expected and he returned to Ireland at the end of June 2007. In the meantime he had received his P45 in the post and considered himself dismissed. He then submitted a complaint pursuant to the Act.
In the course of the hearing of the case before the Court Mr Grogan confined the appeal to the complaint of “discriminatory dismissal”. He withdrew all other complaints.
In support of the complaint he said that:
•The Complainant had not received a contract in a language he could understand. He said that this was not the case with Irish workers who had been supplied with contracts that were written in English, a language they could read and understand.
•The Complainant was never advised that his employment was governed by the terms of a Registered Employment Agreement. Neither did they bring the terms of the REA to his attention. It was unlikely that an Irish worker would have been unaware of the Registered Agreement or its terms.
•The Complainant submitted a sick cert to his employer in respect of the first four days of his sick leave. He subsequently returned to Latvia and supplied a further sick certificate from his doctor there setting out the nature of his illness.
•The Complainant was dismissed without recourse to any procedures. The Respondent failed to notify the Complainant of the terms of the procedures it was applying in this case and no opportunity to appeal was afforded to him. Mr Grogan referred the Court to its decision in the case of Campbell Catering v Rasaq which he said provided that some additional procedures may be necessary where a foreign national who does not have a working knowledge of English is the subject of disciplinary procedures leading to dismissal.
On these grounds he said that the dismissal was discriminatory.
Position of the Respondent:
Ms Kennedy, on behalf of the respondent said that the complainant failed to turn up for work over a prolonged period and made no contact with the Company to explain his absence. The Respondent made several phone calls to the Complainant seeking to establish his condition and fix a date for his return to work but none of these calls were taken or voice messages responded to.
The Complainant failed, at the time of his illness, to submit a “sick cert” to the Respondent. The Respondent did receive a sick cert in September 2007 several months after his employment had ceased. That certificate referred to the period May 14th 2007 to May 19th 2007. No other certificates were provided to the Respondent.
The Respondent could not conduct any disciplinary investigation as the Respondent refused or failed to reply to all attempts at contacting him that were made by the Company. The Respondent sent a letter to the Complainant advising him that his employment was at risk if he did not make contact with it. The letter was not made available to the Court.
The Respondent submitted that it treated the Complainant in the same manner in which it had treated a named Irish employee who had behaved similarly. The details of this matter had been provided to the Complainant in the course of the hearing of the matter before the Equality Officer.
The Respondent submitted that when the Complainant finally made contact in September 2007 he was offered his job back but he declined to accept it on legal advice.
Findings of the Court:
In evaluating the evidence before it the Court must first, pursuant to Section 85A of the Act, consider whether the complainant has established facts from which discrimination can be inferred.
The Court has set out the requirements in this regard as follows
MELBURY DEVELOPMENTS LIMITED v ARTURS VALPETERS DETERMINATION NO. EDA0917
- 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.
From the information that was submitted the Court finds that:
1. The complainant represented to his employer that he could speak and read English and that he could understand the nature and the terms and conditions of his employment.
2. No evidence was presented to the Court from which it may be inferred that the employer discriminated against the complainant on the race ground by not bringing the existence of a Registered Employment Agreement to his attention.
3. No evidence was presented to the Court from which it may be inferred that the employer discriminated against the Complainant on the race ground by terminating his employment after he failed to contact the company or respond to numerous attempts to contact him over a prolonged period of time.
4. The Complainant told the Court that he was offered re-employment on the first occasion on which he did contact the Respondent after his dismissal and that he refused the offer.
The Court finds that the Complainant has failed to establish any facts from which discrimination may be inferred.
The Court considered the case ofCampbell Catering v Rasaq[2004] 15 ELR 310 relied on by the Complainant.
In that case the Court was dealing with an individual who was accused of serious misconduct and who was subject to a disciplinary process. The Court held that in such circumstances the Employer must take steps to ensure that the employee understands the nature of the charges, the seriousness of the proceedings and of their right to mount a full defence including the right of representation. It went on to say that special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled.
- It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defense. 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.
Decision:
The Court, upholds the Decision of the Equality Officer, and determines that the Respondent did not discriminatorily dismiss the Complainant.
Signed on behalf of the Labour Court
Brendan Hayes
16th December, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.