THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-142
Romas Kemzura
(represented by Grogan and Associates Solicitors)
versus
Red Civil Engineering Ltd.
File reference: EE/2007/680
Date of issue: 22nd July 2010
Keywords: Employment Equality Acts, Race, Discriminatory dismissal, No prima facie case
Dispute
1.1. The case concerns a claim by Mr Romas Kemzura, a Lithuanian National, against Red Civil Engineering Ltd. On his complaint form he claimed that he was discriminated against regarding conditions of employment and training and that he was discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. He also claimed discriminatory pay but as no comparator is named this is not a valid equal pay claim. At the hearing, he withdrew his complaints regarding conditions of employment and training.
1.2. Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 19th December 2007. On 16th April 2010, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both sides. A Hearing was held on 15th July 2010 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant was employed from 5th September 2007 until 22nd November 2007 as a general operative.
2.2 Mr Kemzura submits that his foreman told one day that there was no work for him, to stay at home and that they would ring him when there was more jobs available. He maintains that Romanian and Moldovan workers were kept on. He submits that he kept waiting for the respondent to ring to offer him more work and, for that reason, turned down other work.
2.3 Other cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd
Summary of the respondent's case
3.1 The respondent denies the complainant was treated less favourably than their other employees were.
3.2 Red Civil Engineering Ltd state that nationality of employees is not considered when recruiting. At the time of the complainant's employment, there were approximately 75 people working for the company. About 50 of these were general operatives. 40 of these (80%) were Non-Irish nationals. They submit that they had Irish, French, Lithuanian, English, Polish, Latvian, Russian and Scottish employees at that time.
3.3 According to Red Civil Engineering Ltd, Mr Kemzura never approached them to complain of any less favourable treatment either during or after his employment with them.
3.4 Red Civil Engineering Ltd is a registered employment agency under the Employment Agency Act 1971. The complainant was advised that there was no work available for him that week. The respondent submits that Mr Kemzura was given a week's notice that work was 'drying up'. Red Civil Engineering Ltd admits that they said to him if work became available, they may contact the complainant but pointed out to him at that time this was an unlikely scenario. The respondent maintains that the nature of working for an employment agency is that there are periods of no gainful employment. At no point during or after that week did the complainant contact Red Civil Engineering Ltd to see if more work was available. When it became clear that no new contracts were emerging, Mr Kemzura was sent his P45. Both a French general operative and an Irish general operative were given the same news in late 2007. The respondent does not deny that a Romanian worker and a Moldovan worker were kept on but submits that selection for lay-off was done fairly based on competencies and Last-In-First-Out principles.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issue for me to decide is did the respondent discriminatorily dismiss him on the ground of race contrary to Section 8(6)(c) of the Act?
4.2 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
4.3 The respondent accepts that Mr Kemzura is an employee of Red Civil Engineering Ltd within the meaning of Section 2(3)(c) of the Act in that they paid his wages.
4.4 I am satisfied that the complainant was not discriminatorily dismissed. By his own admission, 'people come and go in that job'. The nature of agency work is that it is piecemeal. I accept the respondent's contention that their lack of contracts for service from builders meant that they could not continue to provide employment for the same number of employees. I find that it was for this reason rather than a discriminatory one that Mr Kemzura ceased employment with the respondent.
Decision
I have concluded my investigation of Romas Kemzura's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that he was not discriminatorily dismissed on the ground of race.
Therefore, his complaint fails.
________________
Orlaith Mannion
Equality Officer
22nd July 2010