Decision DEC - E2010-181
Ravsman Artikbaeu
(Represented by Peter Leonard BL
instructed by Richard Grogan & Associates, Solicitors)
-V-
Elephant Haulage Limited
(represented by ESA Consultants)
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8(6)(c) discriminatory dismissal, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), 6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8(6)(2) in that he alleges that his dismissal was discriminatory. At the commencement of the hearing complaints about conditions of employment, failure to provide a contract of employment and health and safety documentation were withdrawn.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 1st September 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 7th July, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 18th March 2009 and from the respondent on the 5th May 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 27th August, 2010.
3. Summary of the Complainant's Case
3.1 The complainant is a Uzbekistan national and was employed as a truck driver by the respondent from the 5th of May 2008 until the 13th May 2008. He worked for the respondent on the M50 construction works. The complainant's case is that the respondent dismissed him without proper procedures and for no good reason. The complainant said that he was working for the respondent on the M 50 and in or about the 13th of May 2008 he got a telephone call after he had finished work looking for the keys of the truck. He thought this was unusual. Subsequently he got a call from his supervisor to say that he had been dismissed because he had been seen using his mobile phone while he was working on the M50 and also because he drove the truck too slowly. The complainant said that he was parked on the building site on the M50 when he telephoned his wife. He denied that he was driving while using it. The complainant also submitted that his lorry was very old and when it was fully laden it was very slow. In his opinion the clutch was in bad condition and consequently it was difficult to change gear. He said that he had complained about the lorry to his supervisor but the problem was not fixed. The complainant said that he was an experience driver and had worked driving trucks in Ireland for a number of years before getting this job and the only reason for the problem was that the truck was old and in bad condition.
3.2 The complainant's solicitor, in legal submission to the Tribunal, referred me to a number of cases in support of her case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001), Council Directive 91-533-EEC of 14 October1991, Judgement of the ECJ in the case of Wolf Gang & Georg Schunemann Gmbh Case C-350-99.
Counsel for the complainant submitted at the hearing that the evidence supported the contention that he was a good driver and that the respondent was satisfied with his driving capabilities when he interviewed him for the job and tested his driving skills. He submitted that he would not have been dismissed and treated in such a manner if he was an Irish worker and for this reason the dismissal was discriminatory.
4. Summary of the Respondent's case
4.1 The respondent denies that the complainant was discriminated against in relation the dismissal. They stated that the complainant was dismissed because he had difficulty driving the truck and changing gears which caused damage to the clutch and had no connection to his nationality. The complainant's supervisor said that he hired him following an interview and a driving test. He then got reports from the site foreman on the M50 that the complainant had trouble in getting the gears. The truck was checked out by both his supervisor and a fitter and there was no problem with the clutch. A few days later the supervisor noticed a burning smell from the truck and he had the fitter check it out and the clutch was burned out. He said that incorrect gear changing would have caused the clutch to burn out. In making the decision to dismiss the complainant for his poor driving skills, the respondent stated that they also took into account the complainant's breaches of safety rules operating on the M50. In particular they took into consideration the fact that the complainant on his mobile phone while driving on the M50. The respondent denied that the dismissal of the complainant was in any way connected to his nationality and submitted the names of two Irish employees who were dismissed for similar reasons, one for breaches of safety rules and the other for his lack of driving skills.
4.2 The respondent representative referred me to the decision in the case of Kunar Trel v A.I.B.P. Cahir DEC-E2007-001 in which the equality officer found against the complainant on similar facts to this case. I was also referred to the decision in the case of Melbury Developments and Valpeters (Det. No. EDA O917) and I was asked to apply the reasoning set out in that case in relation to establishing a prima facie case of discrimination.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(1) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards discriminatory dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
......
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 I will first consider the issues that have been raised by the complainant in relation to his dismissal which he contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. The complainant submitted that he was dismissed without any proper procedures He further submitted that the would not be treated like that if he was an Irish worker and the fact that he was a foreign national influenced the way he was treated and for this reason asked me to infer from the evidence that the complainants dismissal was for discriminatory reasons. The respondent's representative submitted that the complainant failed to establish facts from which discrimination could be inferred
5.4 In order to raise an inference of discrimination on the grounds of nationality, the complainants must produce some evidence of less favourable treatment. I find that the complainant has not produced such evidence. In relation to this point, I have considered the reasoning in the case Melbury Developments -v- Valpeters (Det. No. EDA 0917) where the Labour Court stated:
"Section 85A of the Act 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 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discriminatory dismissal unsupported by any cogent evidence. Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances, in relation to his dismissal. I am satisfied that the reasons put forward by the respondent for the dismissal of the complainant were in no way connected to his nationality and that Irish employees were dismissed in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his dismissal.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1)and 6(2)(h) of the Acts and contrary to section 8(6) of the Acts in respect of his dismissal
________________________________
Marian Duffy
Equality Officer
21st September 2010