The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-080
PARTIES
Jurij Larigin
(Represented by Richard Grogan & Associates)
- V -
William Conway
File reference: EE/2007/447
Date of issue: 24 May 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Race - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Jurij Larigin that he was subjected to discriminatory treatment, discriminatory dismissal and harassment 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 27 August 2007 under the Acts. On 28 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 4 March 2010. 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 CASE
2.1 The complainant submitted that he was employed by the respondent from 23 January 2007 until he was dismissed on 5 June 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 payslips.
2.2 The complainant submitted in advance of the hearing that he was dismissed without any proper procedure and that when he called to collect money that was owed to him, the Gardai were called and he was taken away for trespass. The complainant submitted that an Irish employee would not have been treated in the same manner.
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 dismissal, 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 rather than reinstatement.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 In advance of the hearing, the respondent made a submission, suggesting that the complainant was only a sub-contractor and that he was not owed wages. The respondent submitted that when the complainant turned up demanding monies, he became abusive and that the Gardai had to be called.
3.2 The respondent's submissions included a statement allegedly from a witness to the incidents mentioned above.
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. Larigin 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 The respondent did not attend the hearing of this matter. The Tribunal sent notification of the hearing to the listed address. 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. Notwithstanding the foregoing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 The complainant stated he his claim is based upon his nationality and that he was subjected to discriminatory dismissal without any documentation, that he did not receive a contract of employment, health & safety training or documentation. He stated that the respondent closed his business and took holidays on two occasions but gave the complainant no warning that this would happen. On the first occasion, the respondent re-employed the complainant, following the second, he did not. The complainant stated that on 5 June 2007 he went to his employer looking for his back-week in wages. He was not provided with this and was told to come back at the end of the day to collect them. The complainant stated that when he returned as arranged, the respondent would not meet with him and the respondent's wife told him that he was not owed any money and to go away. He stated that the respondent's wife went into the office and closed the door and then called the Gardai. The complainant stated that the Gardai seemed to respond very promptly and arrived about two minutes later. The complainant stated that he was taken away by the Gardai, and only found out some hours later out (with the assistance of an interpreter) that this detention related to trespass. The complainant stated that he after spending few hours in detention, he was released without charge.
4.5 The complainant stated that he did not believe that the respondent would have treated an Irish person in a similar manner, but would have paid the back-money that was due.
4.6 The complainant presented as a credible witness who gave his evidence in a clear manner, providing additional detail where he thought necessary and in response to the Tribunal's direct enquiries. The complainant's evidence was consistent with the information provided by him prior to the hearing. The complainant's evidence contradicted the respondents written submissions. I note that although the respondent alleged that the complainant's car was blocking access to its premises, and that was why it called the Gardai, the complainant gave evidence to the contrary. As the respondent was not at the hearing, this evidence went unrebutted.
4.7 The complainant submitted a Rights Commissioner's Decision outlining his rate of pay and his employment status. That decision, based once again on uncontested evidence, awarded the complainant a weeks pay, a weeks notice and holiday pay. Accordingly I am satisfied that the complainant has established that he was employed by the respondent and was paid €400 on a weekly basis.
4.8 The Right's Commissioners Decision also supports the complainant's version of events in that it shows that he was owed back-money.
4.9 The complainant was not in a position to confirm that he was treated less favourably than any other employee would have been in relation to his contract of service, health & safety training, conditions of employment or relating to the provision of work-related documentation.
4.10 However, I am satisfied that the complainant has established facts from which it may be inferred that the manner in which he was dismissed and the events surrounding his dismissal amount to discrimination on the basis of his race. (In particular I note that the Gardai were called in circumstances where the complainant was seeking money that were lawfully due to him) The complainant has established a prima facie case and, accordingly, the onus shifts onto the respondent to rebut the inference of discrimination raised.
4.11 As the respondent did not attend the hearing, the inference of discrimination raised by the complainant has not been rebutted and the complainant succeeds in his complaint.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has been established and this complaint succeeds.
5.2 In accordance with section 82 of the Acts I award the complainant €10,000 in compensation for the discrimination suffered in relation to his dismissal. As this does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
24 May 2010