EQUALITY OFFICER'S DECISION NO: DEC-E/2010/099
PARTIES
GORYS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
OLHAUSENS LTD.
(REPRESENTED BY IBEC)
File No: EE/2007/516
Date of issue 17 June, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 14A -race - - discriminatory treatment - harassment -conditions of employment - burden of proof- prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Vytas Gorys, who is a Lithuanian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts, (ii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 14A of those Acts and (iii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 1 October, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 19 March, 2010 - the date the complaint was delegated to me. In accordance with the normal procedures of the Tribunal the Equality Officer furnished written notice of the Hearing arrangements (scheduled for 2 June, 2010) to the representatives for both parties (by recorded delivery) on 23 March, 2010. This letter also requested both representatives to advise the Tribunal at an early date, if any of those persons who either intended to have participate at the Hearing required any special facilitates to do so. It should be noted that the Tribunal arranges interpretation for any party who requires same at a Hearing provided the Tribunal is satisfied the facility is necessary for the progress of the investigation and it receives adequate notice. This facility is generally averted to in the letters to the parties advising them of the arrangements for the Hearing and parties are requested to advise of any such needs as soon as possible to enable the Tribunal make the necessary arrangements. In the case of the complainant's representative the Equality Officer's letter of 23 March, 2010 also requested other information required for the investigation and when the deadline for receipt of this information passed he issued a reminder on 20 April, 2010. The complainant's representative replied on 29 April, 2010 stating that it had not received the Tribunal's letter of 23 March and a copy of same was posted to it by return. The complainant's representative replied to the Tribunal on 24 May, 2010 but this correspondence did not include any request for interpretation facilities for the complainant.
2.2 Both parties and their respective representatives attended at the Hearing on 2 June, 2010. In the course of the Equality Officer's opening remarks at the beginning of the Hearing - which includes clarifying the parameters of the complaint for investigation - the complainant's representative stated that its client was withdrawing the harassment element of his complaint. The respondent's representative submitted that the Tribunal was restricted in its investigation to those issues identified on the complainant's original referral form and argued that the submission subsequently filed on the complainant's behalf extended beyond those matters. A short break followed during which the complainant's representative consulted with its client. On resumption of the Hearing the complainant's representative informed the Equality Officer that its client withdrew further significant elements his complaint - the alleged discriminatory dismissal and all aspects of his discriminatory treatment complaint except those connected with the alleged failure of the respondent to furnish him with a written contract of employment and health and safety documentation in a language he could understand. Consequently, these two matters remained the only issues for investigation by the Tribunal.
2.3 When the Equality Officer commenced questioning of the complainant about those elements of his complaint which remained before the Tribunal for investigation, the complainant was unable to communicate with him. His representative advised the Equality Officer that it had overlooked requesting the Tribunal to provide an Interpreter to enable the complainant participate fully at the Hearing. However, it was evident to me that the representative had been able to communicate with the complainant during the short break. Section 85A of the Employment Equality Acts, 1998 - 2007 requires the complainant, in the first instance, to establish facts from which discrimination can be inferred. If the complainant fails to satisfy this initial probative burden his complaint must fail. In the instant case I find that the complainant has failed to establish the necessary prima facie case of discrimination and his complaint therefore fails.
3. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and his complaint therefore fails.
_______________________________________
Vivian Jackson
Equality Officer
17 June, 2010