THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 -184
Lukasz Mileszho
(represented by Richard Grogan and Associates Solicitors)
Versus
A&A Platinum Security Ltd (trading as Irish Professional Door Security Ltd)
File reference: EE/2007/269
Date of issue: 21st September 2010
Keywords: Employment Equality Act, Discrimination, Race, Conditions of Employment, No prima facie case
1. Dispute
1.1 This dispute concerns a complaint by Lukasz Mileszho, a Polish national against A & A Platinum Security Ltd trading as Irish Professional Door Security Ltd. The respondent employed the complainant as a door attendant. Mr Mileszho alleges that during his period of employment he was discriminated against on the grounds of race in relation to access to employment, training and his conditions of employment contrary to the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts']. He also claimed harassment within the meaning of Section 14A of the Acts. Equal pay was also claimed but as no comparator was named, this is not a valid equal pay claim. At the hearing, the complaints regarding harassment, access to employment and training were withdrawn.
1.2 Through his legal representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 28th May 2007. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 31st August 2010 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. A submission was received from the complainant and a hearing was held on 1st September 2010 as required by Section 79 (1) of the Act.
Summary of the complainant's case
2.1 The complainant worked as a door attendant for the respondent from October 2006 to end of December 2006. He submits that he was not paid on time and that he never received holiday pay. Mr Mileszho maintains that his breaks were much shorter than those of his Irish counterparts. He maintains that if a nightclub, to which he was assigned, was quiet on a particular night he was sent home early and only paid for the hours he worked. He submits that the respondent was not tax-compliant regarding Mr Mileszho's income as the Revenue Commissioners had no record of him working for either A&A Platinum Security Ltd or Irish Professional Door Security Ltd. This has implications for his social insurance entitlements.
Summary of the respondent's case
3.1 The respondent did not engage with the investigation
Conclusions of the Equality Officer
4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issue for me to decide is whether the respondent discriminated against Mr Mileszho in relation to his conditions of employment.
4.2 In evaluating the evidence before me, I must first consider whether the complainants have established a prima facie case pursuant to Section 85A of the Acts. The Labour Court elaborated on the interpretation of Section 85A in Melbury and Valpeters where it stated that this section: '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'. In Goode Concrete and Oksana Shaskova the Labour Court accepted, as a general proposition, that the mere coincidence of the complainant's nationality and his/her alleged discriminatory treatment is not sufficient, on its own, to shift the probative burden from the complainant to the respondent.
4.3 The complainant has adduced no evidence to support an argument that he was treated any less favourably than any other employee was or would have been treated in similar circumstances. The examples he cited of alleged discriminatory treatment by his former employer were not being paid on time, shorter restbreaks, non-payment of holiday pay after three months of employment, and failure to comply with the tax and social welfare codes. Taken at its height, I am asked to infer that the respondent's alleged failure to comply with employment legislation as well as tax and social welfare codes coupled with the complainant's nationality is sufficient to shift the evidential burden of showing absence of discrimination to the respondent. Such an approach is incorrect in law and this Tribunal and the Labour Court have reiterated this more than once.
Decision
I have concluded my investigation of Lukasz Mileszko's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant has not succeeded in establishing facts from which it may be presumed that A&A Platinum Security Ltd discriminated against him on the grounds of race within the meaning of 8(1) (b) of the Acts.
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Orlaith Mannion
Equality Officer
21st September 2010