EQUALITY OFFICER'S DECISION NO: DEC-E/2010/197
PARTIES
SKEIVERYS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
FRANK FLAHERTY
File No: EE/2008/455
Date of issue:13 October, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6,8 & 77 - race- discriminatory treatment - conditions of employment - dismissal - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Vilius Skeiverys, 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 and (ii) dismissed by the respondent 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 was employed by the respondent as a truck driver from July, 2005 until February, 2008. He contends that during his period of employment he was treated less favourably as regards his conditions of employment on grounds of race (Lithuanian nationality). He further contends that he was dismissed by the respondent in circumstances amounting to discrimination on the same basis (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 4 July, 2008. In accordance with his 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 28 September, 2010, the date it was delegated to me. In accordance with the normal procedures of this Tribunal the parties' representatives were notified in writing on 14 July, 2010 that the Hearing on the complaint would take place in Chapter House, Dublin on Wednesday 29 September, 2010 commencing at 2.20pm. This notification was sent by recorded delivery. On 28 September, 2010 the representative on record for the respondent advised the Tribunal (in writing) that it had no instructions from the respondent in the matter and it would not be in attendance at the Hearing. It added that it was not seeking an adjournment of the arrangements. The respondent neither attended nor was it represented at the Hearing. At the outset of the Hearing the complainant's representative withdrew those elements of the complaint in respect of health and safety training and the provision of tax documentation.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, states that he was employed by the respondent as a truck driver between July, 2005 until 8 February, 2008, when he alleges he was dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts. He adds that during his period of employment he did not receive a written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He makes a similar assertion in respect of the respondent's failure to provide him with health and safety documentation. He submits that following the Decision of this Tribunal in 58 Complainants v Goode Concrete there is an obligation on an employer to provide employees with a contract of employment and health and safety documentation in a language which they understand. In the course of the Hearing the complainant stated that during his period of employment the respondent engaged four other employees as drivers - two Lithuanians, a Slovakian and an Irish national. In the course of the Hearing the complainant was unable to say if any of these other employees received contracts of employment, written terms of employment or health and safety documentation.
3.2 The complainant states that he finished work on the evening of 8 February, 2008 as normal. He adds that the Dispatcher (Richy) brought him his wages and asked him (the complainant) for the keys of his truck adding that the respondent had no work for him and he was not to come in the following Monday. The complainant further states that he was not the employee with the least amount of service - the Slovakian and Irish employees both only had around eighteen months service as compared to his two and a half years - and these were retained in employment by the respondent. In the course of the Hearing the complainant stated that the respondent never raised any issues about his performance with him. It is submitted on the complainant's behalf that this constitutes discriminatory dismissal of him on grounds of race (Lithuanian nationality) contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
The respondent neither attended nor was represented at the Hearing.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant 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 as regards his conditions of employment and (ii) dismissed the complainant 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. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....."
Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... " It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.4 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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.".
5.5 That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. It also affirmed the Equality Officer's approach that it was not sufficient to ignore the existence of actual comparators and apply the concept of a notional Irish comparator in evaluating whether or not discrimination had occurred - whilst acknowledging that circumstances might exist where such an approach might be appropriate. In the instant case I am satisfied that (i) there were four other employees engaged by the respondent at the relevant time - one of whom was Slovakian and another was Irish - and the remaining two were the same nationality as the complainant - Lithuanian. The complainant has failed to adduce any evidence that he was treated any differently to these employees as regards the provision of a contract of employment and health and safety documentation. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination in respect of these elements of his complaint and consequently they cannot succeed.
5.6 The complainant asserts that the termination of his employment constitutes discriminatory dismissal of him contrary to the Acts. At the outset I must say that I found the complainant to be a very credible witness who gave his evidence at the Hearing in a forthright manner. His recollection of the circumstances surrounding his dismissal was clear and consistent and I accept his version of events. I also accept his assertion that the respondent never raised any performance related issues with him and that there were employees of a different nationality to him with less service than him who were retained in employment by the respondent - employees which one might expect to have had their employment terminated before the complainant, all other matters being equal. In the circumstances I am satisfied that the uncontroverted evidence of the complainant is sufficient to discharge the initial probative burden required of him. As the respondent did not attend the Hearing it has failed to rebut the inference of discrimination raised. Accordingly, the complainant is entitled to succeed as regards this element of his complaint.
6. DECISION OF THE EQUALITY OFFICER
6.1 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 -
(i) 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 in respect of his conditions of employment and
(ii) the respondent dismissed the complainant 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.
6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2008 that the respondent pay to the complainant the sum of €15,000 by way of compensation for the distress suffered and the effects of the discrimination on him. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
_______________________________________
Vivian Jackson
Equality Officer
13 October, 2010