FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : BREFFNI DESIGN LTD TRADING AS NEM ENGINEERING LTD (REPRESENTED BY KEN STAFFORD) - AND - KARLIS KRAULIS, TOMASS PENKUSS, ANDRIS ELVIGS, ALIJAGA KAZIMOVAS, JURIJS NALIVAIKO, KASPARS ORINSKIS, ANTANAS PENKUSS, INTARS VILUMS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2007
BACKGROUND:
2. The workers referred their case to the Labour Court on the 24th August, 2009, in accordance with Section 83 of the Employment Equality Act, 1998 to 2007. A Labour Court hearing took place on the 15th October, 2010. The following is the Court's determination:
DETERMINATION:
- The case comes before the Court pursuant to Section 83(1) of the Employment Equality Acts 1998 – 2004 (the Act).
The appellants, Karlis Kraulis, Tomass Penkuss, Andris Elvigs, Alijaga Kazimovas, Jurijs Nalivaiko, Kaspars Orinskis, Antanas Penkuss, Intars Vilums were appealing an aspect of a Decision of the Equality Officer DEC – E2009 – 61. The Equality Officer Decided as follows: -- I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) Tomass Penkuss, Alijaga Kiazmovas, Antanas Penkus, Intars Vilums and Andris Elvigs were not discriminated against in relation to their conditions of employment contrary to Section 8(1)(b) on the ground of race in relation to their pay and safety in the workplace
(ii) Tomass Penkuss, Alijaga Kiazmovas, Antanas Penkus, Intars Vilums and Andris Elvigs were not discriminated on the ground of race regarding access to training contrary to 8 (1)(c)of the Act
(iii) Tomass Penkuss, Alijaga Kiazmovas, Antanas, Penkus, and Andris Elvigs werenot victimised within the meaning of 74(2) of the Act
(iv) As Jurijs Nalivaiko, Kaspars Orinskis and Karlis Kraulis did not attend the hearing, no evidence of their discrimination was presented so their complaint must fail.
In the course of the hearing Mr Grogan, (Richard Grogan and Associates Solicitors) representing the Complainants, advised the Court that the appeal was confined to the decision of the Equality Officer not to uphold the complaint of victimisation that had been made pursuant to Section 74(2) of the Act. He further advised the Court that he was prosecuting the appeal on behalf ofTomass Penkuss, Alijaga Kiazmovas, Antanas, Penkus andKaspars Orinskis.
No appearance was made on behalf of the other appellants and the Court struck out their appeals for want of prosecution.
The Law:
Section 74(2) of the Act defines “victimisation” in the following terms; -
“victimisation” shall be construed in accordance with subsection (2).Subsection (2) states: -
2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith
sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
given notice of an intention to do anything within paragraphs (a) to (c).
Mr Grogan submitted that after the Complainants gave notice of their intention to seek redress under the Act the employer victimised them contrary to the provisions of Section 74(2). He submitted that a letter issued by the Company on 3/10/2006 to all staff including the Complainants, amounted to a threat to their employment and resulted solely or mainly from their having notified it of their intentions to bring proceedings under the Act.
Mr Ken Stafford, Consultant, on behalf of the Respondent denied that that the letter amounted to a threat as defined in the legislation and noted that none of the complainants were either dismissed by the company nor had suffered any other penalisation arising out their decision to bring a complaint under the Act.
In answer to a question from the Court Mr Grogan agreed that all of the Complainants had terminated their own employment at a time of their own choosing and that none of them has suffered any other acts that amounted to penalisation within the meaning of the Act. He agreed that it was the contents of the letter alone that amounted to the complained of penalisation.
Findings of the Court:
The Court treats complaints of victimisation under the Act very seriously. The Court has no hesitation in acting to protect workers against such victimisation where it can be shown to have been threatened or to have taken place.
In this case the Court has examined the evidence presented to it in great detail. The Court is satisfied that the letter issued by the Company on 3rd October 2006 falls far short of victimisation as outlined in the Act. Furthermore the Court notes that both sides agreed that the Complainants suffered no other acts that amounted to victimisation within the meaning of the Act.
Determination:
Accordingly the Court rejects the appeal and upholds the Decision of the Equality Officer. - I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
Signed on behalf of the Labour Court
Brendan Hayes
19th October 2010______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.