EDA109

Appearances

Mr Peter Leonard BL instructed by Richard Grogan and Associates, Solicitors, represented the Complainant. Ms Edel Kennedy of ESA Consultants represented the Respondent.

The facts

The material facts of the case are fully recited in the decision of the Equality Officer and need only be summarised for the purpose of this Determination. The essence of the Complainant’s case, as advanced before the Court, is that he was involved in a road traffic accident while employed by the Respondent in his capacity as a truck driver. He was subsequently dismissed from his employment in consequence of this accident. The Respondent failed to conduct any proper investigation of the circumstances surrounding the accident before deciding to dismiss the Complainant.

The Respondent did not have any disciplinary procedures in place at the material time. Evidence was given that previously a driver of Irish nationality was similarly dismissed in consequence of having caused an accident involving a truck for which he was responsible.

The evidence adduced before the Court indicates that in cases involving disciplinary matter arising from alleged unsafe practices involving the Respondent’s trucks an assessment of the situation is made by the manager responsible who decides, on his conclusion as to the gravity of the case, whether or not dismissal is warranted. This process applies regardless of the nationality of the driver involved.

The issue for consideration by the Court

The essence of the Complainant's case is that he was treated unfairly and that a driver of Irish nationality would not have been treated with the same degree of unfairness. The net issue for consideration is whether the confluence of those facts constitutes a basis upon which discrimination can properly be inferred.

The law

InGood Concrete and Oksana Shaskova( Determination EDA0919) this Court, in reliance on the Judgement of the High Courtin Mulcahy 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 Limited(EDA0917) this Court held as follows in relation to the application of s.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.

Conclusion

There is no evidential basis upon which the Court could properly infer that the Complainant was treated differently than another driver employed by the Respondent was or would have been treated in similar circumstances. At best the Court was invited to infer that unfair treatment of the Complainant by the Respondent coupled with his nationality is 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. The Court so held on its understanding of the dictum of O’Sullivan J inMulcahy v Waterford Leadership Limited and the Minister for Justice, Equality and Law Reform.A principle to like effect was also enunciated by the Court of Appeal for England and Wales inMadarassy v Nomura International plc,[2007] IRLR 246.

The evidence before the Court is to the effect that on one previous occasion a driver of Irish nationality was similarly dismissed by the Respondent without recourse to procedural fairness.

Determination

The Court is satisfied that the Complainant has failed to establish any facts from which discrimination in the manner of his dismissal (as opposed to unfair treatment) could be inferred. Accordingly, he cannot succeed.

The question of discriminatory treatment in the Respondent’s failure to provide the Complainant with written particulars of his conditions of employment was not pursued. There was no appeal against the finding of discriminatory treatment in furnishing the Complainant with a safety statement in a language in which he was not competent.

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



Kevin Duffy
22nd July, 2010______________________
DNChairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.