The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-113
PARTIES
Julius Maciukas
(Represented by Richard Grogan & Associates)
- V -
AK Restaurants Ltd
File reference: EE/2008/087
Date of issue: 28 June 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Race - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Julius Maciukas that he was subjected to discriminatory treatment by the respondent on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 8 February 2008 under the Acts. On 29 August, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 May 2010. The respondent did not attend the hearing of this matter. The Tribunal sent notification of the hearing to the registered office. This notification was sent by registered post and was signed for. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he was employed by the respondent from 31 April 2005. The complainant submitted that his salary was unilaterally reduced in September 2007. The complainant is a Lithuanian national and it is on this basis that this complaint is being taken. The complainant further submitted that he did not receive any proper contract of employment, Health & Safety documentation or training.
2.2 The complainant submitted a form EE2 completed by the respondent, which it had received in the course of the preparation of its case.
2.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to contract of employment and Health & Safety.
2.5 The complainant submitted a list of authorities citing 5 cases.
2.6 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 In advance of the hearing, the respondent made a submission, suggesting that the complainant refused to sign his contract of employment and enclosed a brief summary of the complainants employment period with the respondent
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. Maciukas on grounds of race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 Notwithstanding the absence of the respondent at the hearing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 The complainant stated that his claim is based upon his nationality and that he was subjected to discriminatory treatment in that he did not receive a contract of employment, health & safety training or documentation. The complainant also stated that his salary was unilaterally varied and that the respondent withheld his wages.
4.5 The complainant stated that he did not believe that the respondent would have treated an Irish person in a similar manner. The complainant confirmed that there were a number of nationalities employed by the respondent, including Irish nationals.
4.6 The complainant gave evidence that he was employed as an assistant manager on a salaried basis. The complainant also stated that a number of other employees of different nationalities were paid on a salary basis whilst others were paid on an hourly basis. He stated that the people on an hourly basis had a much more flexible system of work and that accordingly he was treated less favourably.
4.7 The complainant gave evidence that the less experienced staff were sent on training but couldn't recall if his contemporaries were sent on training courses. The complainant conceded that he prepared the service training manual but stated that he did not get the health & safety manual.
4.8 The complainant stated that all staff were required to sign their contracts of employment. They were given an ultimatum, that if they didn't sign their contracts, their wages would be stopped. The complainant confirmed that the wages of all staff (regardless of race) were stopped. When the complainant rang on behalf of the staff to enquire why their wages were stopped, he claims that he was called stupid and that this amounted to less favourable treatment on the basis of his race.
4.9 The complainant stated that his salary was reduced when he was moved from one restaurant to another. However, when asked, the complainant was unable to give convincing evidence to the Tribunal that he was the only person who was treated in this manner, that this treatment was less favourable than that handed out to others, or that this treatment was based upon his race.
4.10 I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
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 Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court's view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
4.11 Having considered the complainants evidence, I am not satisfied that the complainant has shown that he was treated in a less favourable manner than others. Rather, I consider that the complainant has established that, in general terms, he was treated in a similar manner to other employees regardless of race. Accordingly I do not consider that facts from which discrimination may be inferred have been established.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
28 June 2010