FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : BARNMAC CONTRACTING LIMITED (REPRESENTED BY BARNMAC CONTRACTING LIMITED) - AND - ZILYS AND VOLKOVAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal Under Section 83 of The Employment Equality Acts, 1998 to 2007
BACKGROUND:
2. The workers appealed the Equality Officer's decision to the Labour Court on the 9th July, 2009. The following is the Court's determination:
DETERMINATION:
The is an appeal by Mr Arvydas Zilys and Mr Mindaugas Volkovas (Complainants) against the decision of the Equality Tribunal in their claim of discrimination against their former employer Barnmac Contracting Ltd (the Respondent). The claim is of discrimination on grounds of race contrary to the terms of the Employment Equality Acts 1998-2008. The Complainant are of Lithuanian nationality.
The Complainants particularised their claims as follows: -
(1) The Respondent failed to provide them with a statement particularising their terms and conditions of employment as required by s.3 of the Terms of Employment (Information) Act 1994,(2) The Respondent failed to provide them with a health and safety statement(3) The Respondent failed to provide them with health and safety training
The Respondent failed to appear before the Equality Officer. Having heard the Complainant’s case the Equality Officer decided that they had failed to establish a prima facie case of discrimination and dismissed their claims. The Complainants appealed to this Court.
The Fact
The background and facts of the case are fully recited in the decision of the Equality Officer and need not be repeated in this determination.
Conclusions of the Court
The Complainants’ case is that they were treated badly by the Respondent in respect to the matters particularised in their claim. They contend that this adverse treatment was on grounds of their nationality.
Section 85A of the Acts provides, in effect, that a Complainant must prove facts from which discrimination can be inferred before the onus of proving the absence of discrimination shifts to the Respondent. It is well settled that the practical application of this principle requires the Complainant to first prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. The Complainant must then satisfy the Court that the facts so proved are of sufficient significance to raise an inference of discrimination. If the Complainant fails to prove the primary facts relied upon or to satisfy the Court that they are sufficiently significant to establish a prima facie case of discrimination his or her case cannot succeed.
The Complainant have not pointed to any other worker of a different nationality who was treated differently by the Respondent in respect to the matters complained of. In these circumstances the it was submitted on their behalf that their case should be considered by reference to how a hypothetical comparator of Irish nationality would have been treated by the Respondent.
It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced and it would clearly be impermissible for the Court reach conclusions of fact based upon mere supposition or speculation. Moreover, the Court is aware from its own knowledge and experience of many cases in which workers in the construction industry of Irish nationality have brought similar complaints to those advanced by the Complainants under the appropriate legislation. There is no reliable basis upon which the Court could assume, without evidence, that the type of default relied upon by the Complainants in this case would not have occurred if they were of a different nationality.
Taking the Complainants case at its height, there is nothing on which the Court could draw an inference that the Complainants were subjected to discrimination on grounds of their nationality. Accordingly they cannot succeed.
Determination
The appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
10th November______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.