FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : PATRICK BROCK AND SONS LTD - AND - ZINCENKO (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Complainant appealed a Decision of an Equality Officer No. DEC-2010-005 on the 1st March 2010, in accordance with Section 83 of the Employment Equality Act 1988 to 2008. A Labour Court hearing took place on the 15th October 2010. The Employer, who is in liquidation, did not attend. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Martians Zincenko (the Complainant) against the decision of the Equality Tribunal in his claim of discrimination against Patrick Brock & Sons Ltd (the Respondent). The Complainant was employed by the Respondent from 25th July 2006 until 19th January 2007 when he was dismissed. He claims to have been discriminated against in terms of his conditions of employment and to have been dismissed on grounds of his nationality, contrary to the Employment Equality Acts 1998-2008. The Complainant is of Lithuanian nationality.
Neither the Complainant nor the Respondent appeared at the hearing before the Equality Tribunal. Consequently the claim was dismissed.
At the hearing of the appeal the Respondent, which is now in liquidation, was not represented.
Conclusion
There is no evidence whatsoever to indicated that the Complainant was treated differently in terms of his conditions of employment than a person of a different nationality was or would have been treated by the Respondent in similar circumstance. Accordingly that aspect of the claim cannot succeed.
With regard to the claim of discriminatory dismissal, the Complainant asserts that following his dismissal he was replaced by a worker of Irish nationality. However, the Complainant source of knowledge on this point is tenuous and based entirely on hearsay. Moreover, the Complainant served a notice on the Respondent pursuant to s.76 of the Acts seeking information in relation to a vide range of matters relating to his employment. No question was asked relating to whether the Complainant was replaced and if so, the nationality of the person who replaced him. At all time the Complainant was legally represented. Section 81 of the Act provides that if information requested is not provided by a Respondent, or if the information provided is false or misleading, the Court may draw an appropriate inference. Given the case now being made to the Court the failure to request information on this point is extraordinary and inexplicable.
In all the circumstance of the case the Court has concluded that there is no reliable evidence upon which the Court could infer that the Complainant was dismissed for the purpose of being replaced by a person of a different nationality or that his dismissal was on grounds of his race.
Accordingly the Court affirms the decision of the Equality Tribunal and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
26th October, 2010______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.