FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : MARTIN MCNALLY - AND - THOMAS RATKEVICIUS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. An appeal was submitted to the Labour Court in accordance with Section 83 of the Employment Equality Acts, 1998 to 2008. A Labour Court hearing took place on the 1st September, 2010. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Thomas Ratkevicius (the Complainant) against a decision of the Equality Tribunal dismissing his claim of discrimination on race grounds, and victimisation, against his former employer, Martin McNally (the Respondent). The claim was taken under the Employment Equality Acts 1998-2008 (the Act).
The original claim before the Equality Tribunal related to alleged acts of discrimination involving the conditions of employment afforded to the Complainant. He also alleged victimisation arising from a text message which the Respondent sent to him following the initiation of his complaint of discrimination. The Equality Officer found against the Complainant on all aspects of his complaint.
At the appeal the Complainant only pursued his complaint of victimisation.
The Respondent was informed of the time date and place of the hearing of this appeal. The Respondent failed to attend and was not represented.
The Facts
The Court was told by the Complainant’s Solicitor that the Complainant made a complaint against the Respondent alleging discrimination under the Act. The substance of these complaints was that the Complainant was treated less favourably that an Irish person would have been treated in respect to his conditions of employment. He also alleged discrimination in relation to the way in which the Respondent handled his tax affairs.
The Court was told that on or about 25th May 2007 the Solicitor for the Complainant initiated this claim by sending a completed claim form to the Equality Tribunal. A copy of this form was also sent to the Respondent on the same date. The Court was told that on or about 29th May 2007 the Complainant received a text message from the Respondent in which he threatened to report the Complainant to the Garda� for alleged drug dealing. The Complainant’s Solicitor told the Court that his notes indicated that the Complainant telephoned him on 29th May 2007 and reported having received a text from the Respondent, the content of which he subsequently furnished.
The text was in the following terms: -
- “Wat is it ur lukn 4 Tomas ur tax is bein paid I took u tat nd wat else u lukin 4 ur P60? Ansr ur phone nd tell me wat ur lukn 4
Tomas ansr ur phone nd tel me wat ur going on nd wat u want?
Ok Tomas if u want 2 go down tir road, u wil receive a bill from me nd my sillistor 4 damage nd y u were let go nd 4 damage done 2 my van b4 u dumped it at my gate nd guards will b notified about u r a drug dein nd u r going on, lukn forward 2 cn u in court ……..im still owed a lot of money of u”
Conclusions of the Court
On the uncontested evidence tendered by the Complainant and on his behalf the Court is satisfied that his account of the content of the text and its timing is substantially correct. It seems to the Court that the content of the text relates to matters raised by the Complainant in his complaint of discrimination. Having regard to the timing involved the Court is satisfied, as a matter of probability, that the text was sent by the Respondent after he received notification of the proceedings initiated by the Complainant. The Court was told that the Complainant was not involved in any criminal activity. The Court accepts that evidence.
Section 74(2) of the Act defines victimisation as follows: -
- “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
- (a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,- (c) an employee having represented or otherwise supported a complainant,
- (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
- (e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,
- (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
- (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
The Court is further satisfied that the threat contained in the offending text was made as a reaction to the Complainant’s complaint of discrimination under the Act. Consequently it is victimisation for the purposes of the Act.
Determination
The Court is satisfied that the Complainant was victimised contrary to s. 77(2) of the Act. The Court is further satisfied that the appropriate redress is an award of compensation. The Court measures the amount of compensation which is fair and equitable at €5,000 and directs the Respondent to pay the Complainant compensation in that amount. No part of this award is in respect of pecuniary loss.
The appeal is allowed and the decision of the Equality Officer is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
16th September 2010______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.