The Equality Tribunal
Employment Equality Acts
EQUALITY OFFICER'S DECISION NO: DEC-E/2011/249
PARTIES
BACAK
(REPRESENTED BY TRIANA)
AND
OFFICE AND INDUSTRIAL CLEANERS LTD.
(REPRESENTED BY IBEC)
File No: EE/2008/662
Date of issue: 20 December, 2011
Headnotes: Employment Equality Acts 1http://admin-wpr.ptools.net/Documents.aspx 998- 2008 - sections 6, 8, 77 & 101 -race - discriminatory treatment -dismissal - general nature of complaint - linked events
1. DISPUTE
1.1 This dispute involves a claim by Mr. Jan Bacak, who is a Slovakian national, that he was (i) discriminated against by the respondent (Office and Industrial Cleaners Ltd.) in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts and (iii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998 - 2008. The respondent rejects the complainant's assertions in their entirety and notwithstanding this position it submits that (i) the alleged dismissal of the complainant is statute barred in terms of section 101(2) of the Acts, (ii) the victimisation element of the complaint is not properly before the Tribunal as it was not referred within the timelimits prescribed at section 77(5) of the Acts and (iii) the discriminatory treatment aspect of the complaint should be restricted to those issues set out on the original referral form (Form EE1).
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent as a Driver/Supervisor Cleaner between July, 2004 and August, 2008 when he asserts that he was dismissed in circumstances amounting to discrimination on grounds of race (Slovakian nationality) contrary to the Acts. He further contends that during his period of employment he was treated less favourably on the basis of his Slovakian nationality as regards his conditions of employment. Finally, he contends that he was victimised by the respondent in terms of section 74(2) of the Acts. The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 26 September, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 1 July, 2011 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 30 August, 2011. A number of points which emerged at the Hearing required further clarification and gave rise to correspondence between the Equality Officer and the parties subsequent to the Hearing. This process concluded late October, 2011.
2.2 At the outset of the Hearing the complainant confirmed that he had referred a complaint of unfair dismissal to the Employment Appeals Tribunal under the Unfair Dismissal Acts, 1977 - 2007 and that Tribunal had issued its determination in the matter on 27 June, 2011. Consequently, it was clear that this element of his complaint was statute barred in accordance with section 101(2) of the Employment Equality Acts, 1998-2008 and it did not form part of my investigation.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Slovakian national, commenced employment with the respondent as a Cleaning Operative on 12 July, 2004. He states that all was going reasonably well with his employment until the appointment of a new Supervisor (Ms. I) in March, 2008. He adds that following her appointment Ms. I began to use abusive and vulgar language to the complainant and a number of his colleagues and threatened them with dismissal. The complainant states that he composed a letter of complaint to the respondent about the alleged behaviour of Ms. I and sent it to the respondent' Managing Director (Ms. S) on 13 May, 2008 on his own behalf and that of fifteen of his colleagues. The complainant states that when he subsequently spoke with Ms. S she brushed him off. He was unable to say why this matter was not subsequently raised on his and his colleague's behalf when SIPTU e-mailed the respondent on 29 May, 2008 in connection with other grievances he had with the respondent. The complainant was also unable to offer any explanation as to why his original referral form to this Tribunal (Form EE1 referred on 26 September, 2008) made no reference to victimisation - the complainant asserts that the application of the respondent's disciplinary procedure to him in June/July, 2008 amounts to victimisation of him in addition to alleged discriminatory treatment of him on grounds of race contrary to the Acts. The complainant offered no legal argument at the Hearing on (i) the timelimit issue raised by the respondent in respect of certain aspects of his complaint or (ii) the contention that my investigation should be restricted to those issues identified on the Form EE1.
3.2 The complainant states that he commenced employment with the respondent a General Cleaning Operative in July, 2004. He adds that he was assigned to the position of Driver/Window Cleaner in December, 2005 and was promoted to the position of Driver/Supervisor/Window Cleaner in March, 2007. He adds that during this period he was working 40-50 hours per week and this continued until late March, 2008 when Ms. I (who is a Lithuanian national) became Industrial Manager. The complainant states that as part of his role from September, 2007 he had been dealing with the rosters - assigning a particular employee to a particular job each day (or for a number of days). He adds that this task was given to him by Ms. S and he was told by her to assign the work on the basis of seniority and suitability/performance given the nature of the work. The complainant states that Ms. I took over this task in late March, 2008 and from then on the number of hours he was assigned decreased significantly and he received no hours at all from 11 July, 2008. He adds that during this period Ms. I recruited several new employees, all of whom were Lithuanian and she assigned these new staff hours instead of him and other non-Lithuanian employees. He adds that he raised this matter on his behalf and on behalf of fifteen of his colleagues with Ms. S (by letter dated 13 May, 2008) and she "brushed him off". In the course of the Hearing the complainant accepted that the respondent wrote to him on a couple of occasions in late May/early June, 2008 seeking clarification/further details of the alleged treatment of him by Ms. I and he did not reply to same, adding that in his opinion Ms. S had sufficient details of his allegations. The complainant asserts that Ms. S conspired with Ms. I to treat him in this manner - which he submits amounts to discrimination of him on grounds of race contrary to the Acts.
3.3 The complainant states that in June, 2006 he was informed by Ms. S that the respondent's vehicle insurance costs had increased and that he would have to pay €20 per week towards the cost of this as the increase was directly attributable to the fact that he was under the age of 25 years. He adds that this amount was deducted from his salary for a year. The complainant states that he had been driving a van from December, 2005 and had not been required to pay a contribution towards the insurance. The complainant adds that this arrangement was not applied to any other worker, although he was unable to say if any of the other drivers at the time were under the age of 25 years. He adds that on 20 June, 2008 the respondent removed the company van from him and he no longer had driving duties. This in turn reduced the option on the work assignments he could avail of. The complainant states that another employee (details supplied) who was Lithuanian continued to have driving duties and he submits that the respondent's treatment of him on this matter constitutes discrimination of him on grounds of race contrary to the Acts.
3.4 The complainant states that he received a letter dated 12 June, 2008 from the respondent's Business Development Manager (Mr. T) requesting him to attend a meeting on 16 June, 2008 to discuss issues connected with his work/performance. The complainant adds that he received a phone call from Mr. T advising that the meeting had been postponed until 19 June, 2008 and he did not therefore attend the meeting. He adds that Mr. T wrote to him on 16 June, 2008 expressing disappointment that he (the complainant) did not attend the meeting and advised that the meeting was rescheduled for 18 June, 2008 at a hotel in Bray. The complainant states that shortly before this meeting was due to commence he received a text advising that the venue had been changed. He adds that he attended the meeting and that Mr. T and Ms. I attended on behalf of the respondent. The complainant states that during this meeting he was presented with a complaint about his performance at a particular site (where he had performed cleaning work almost four months earlier) which arose after it had been inspected by Ms. I and when he raised the fact that the work related dockets had been signed off as "satisfactory" by foremen at that site, he was informed that this was not sufficient. The complainant states that he had always followed this practice during his employment and it had never been queried previously. He adds that he was given a verbal warning in this instance and submits that this constitutes less favourable treatment of him contrary to the Acts.
3.5 The complainant states that Ms. S wrote to him on 15 July, 2008 requesting that he attend another disciplinary meeting on 25 July, 2008. The complainant states that he was on holiday abroad at the time and did not receive the letter. He adds that when he became aware of the letter he phoned the Office (on 23 July, 2008) but was unable to speak with Ms. S so he left a message that he was abroad and would be unable to attend. The complainant states that he subsequently received two letters from Ms. I dated 28 July, 2008 - one advising that due to his failure to attend the meeting the respondent had decided to issue him with a verbal warning and due to unauthorized use of the company mobile phone the respondent had decided to withdraw it. The second one advised that Ms. I had been unable to contact him on his personal mobile and asked that he contact her to confirm his future availability for work. The complainant states that he never received any verbal or written warnings about personal use of the company mobile phone and was not aware of any formal policy in that regard. He adds that he is not aware of any other employees who were disciplined or had their company mobiles removed for personal use. The complainant states that he attempted to contact Ms. I on 5/6 August, 2008 but was unable to do so and made no further attempts to contact her before he tendered his resignation on 9 August, 2008. The complainant submits that the respondent's treatment of him in this regard amounts to less favourable treatment of him on grounds of race contrary to the Acts
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that significant elements of the complainant's claim are not validly before the Tribunal because they were not referred to the Tribunal within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2008. It states that the complainant's original referral form made reference to only two aspects of complaint- the alleged less favourable treatment of him on grounds of race and the alleged discriminatory dismissal of him on the same ground and submits that these are the only two elements of the complaint properly before the Tribunal for investigation. The respondent contends that the alleged dismissal is statute barred by virtue of section 101 of the Employment Equality Acts, 1998-2008. It adds that the first time the complainant made reference to victimisation was in his submission filed with the Tribunal on 27 June, 2011 - almost three years after the complainant referred his complaint. It submits therefore that this element of his complaint was not referred within the timelimit prescribed at section 77(5) of the Acts and is not therefore validly before the Tribunal for investigation. Moreover, it submits that the treatment aspect of his complaint is restricted to those issues specifically mentioned in his EE1 Form - hours of work, removal of the company van and removal of a company mobile phone - and accordingly the allegations in respect of the application of the Disciplinary Policy to him should not form part of my investigation.
4.2 The respondent accepts the complainant's details of employment as outlined by him and states that when it received his letter of complaint about the alleged treatment of him and his colleagues by Ms. I on 13 May, 2008 it responded on 22 May, 2008 seeking clarification from him as regards his personal experience/fuller details of the points listed in the letter. It adds that it wrote to him again on 30 May, 2008, in which it made reference to the grievance procedure and issued a further reminder on 5 June, 2008. The respondent states that the complainant did not reply to any of this correspondence before his employment ceased on 24 September, 2008. The respondent states that in May, 2008, when the complainant wrote to Ms. S, it employed 126 staff across fifteen different nationalities - three of whom were Slovakian. It adds that at the end of 2008 it employed 120 staff across sixteen different nationalities - three of whom were Slovakian. The respondent adds that the volume of industrial cleaning reduced from 45,000 hours in 2007 to just less than 27,000 hours in 2008 and states that this had a bearing on the number of hours any individual employee might be assigned.
4.3 The respondent states that during the period in question Ms. I assigned work to staff who were Irish, Polish, Lithuanian, Estonian, Latvian and Slovakian. It notes in particular that the complainant's cousin - who is also Slovakian - continued to get almost forty hours per week up to December, 2008 when the amount of hours available reduced significantly. The respondent states that the complainant received hours when he was available during the period late March, 2008 until mid-July of that year. It notes in particular two dates submitted by the complainant when he contends he was available for work and was not assigned any shifts. The first of these is 12 May, 2008 - the respondent states that the complainant was asked by Ms. I to collect equipment at a particular site but replied that he was unable to do so because there was no room in his van. The second of these is 2 July, 2008 - when he was abroad in Slovakia. The respondent furnished e-mails and mobile phone bills in support of it assertions on these two matters. The respondent adds that once the complainant was unable to drive the company van the nature of the work available to him was limited - as the most cost effective way of organising the work was to have a person who could drive and perform the necessary cleaning duties - and accepts that from 11 July, 2008 he did not receive any shifts. It states that this arose because (a) the complainant was on sick leave in mid-July, 2008 for a few days, (b) it was unable to contact him on his personal mobile and wrote to him on 28 July, 2008 asking that he contact the Industrial Supervisor to discuss his availability and he did not do so and (iii) he tendered his resignation on 9 August, 2008. It submits that in the circumstances the complainant has failed to discharge the initial burden of proof required of him and this element of his complaint must fail.
4.4 The respondent states that in June, 2006 it changed the company providing its commercial fleet insurance cover. It adds that the new insurance company required an additional premium of just over €2,000 to provide cover for the complainant, who was the only employee under twenty-five years of age. It adds that it decided that the complainant should bear half of this additional cost and deducted this amount from his salary at the rate of €20 per week. The respondent further states that in June, 2008 its insurance company advised that it was not prepared to provide insurance cover to drivers under the age of twenty-five years and the complainant was specifically mentioned in the documentation from the company. The respondent states that in the circumstances it had no other option but to withdraw the company van from the complainant. It adds that there were four other employees over the age of twenty-five years who continued to drive a company van - two Polish, one Lithuanian and one Latvian. The respondent submits that its actions cannot be regarded as discrimination in the circumstances.
4.5 The respondent states that the complainant had been spoken to in 2006 for using the company mobile phone for personal reasons and had the costs of the associated calls deducted from his salary in November and December of that year. It adds that in April, 2008 both the complainant and an Irish colleague had been cautioned by Ms. S for personal use of the company mobile and again had the costs deducted from their salary. The respondent adds that when it came to the attention of Ms. S in July, 2008 that the complainant had again used the company mobile for personal use when he was in Slovakia on holiday, she decided to withdraw the mobile from him. The respondent (Ms. S) states that her decision on this matter was informed by the fact that the complainant was no longer driving a company van and was not therefore required to be contactable for official purposes. It is submitted on behalf of the respondent that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint and cannot therefore succeed.
4.6 The respondent states that Mr. T wrote to the complainant on 12 June, 2008 asking him to attend a meeting on 16 June, 2008 to discuss his work and issues arising in the past. It adds that the complainant did not attend this meeting and rejects the complainant's assertion that he spoke with Mr. T or any other employee about his attendance or postponement of the meeting. The respondent adds that the meeting was rescheduled for 18 June, 2008 at a hotel in Bray and accepts that the venue was changed shortly before it was due to commence but was unable to say how this change arose. The respondent states that the meeting came about because Ms. I had inspected the complainant's work at a particular site (details provided) and had found it unsatisfactory. It adds that the work in question was not completed to both the respondent's and client's satisfaction - which was required - and it advised the complainant that he must ensure compliance with this in future. In the course of the Hearing Ms. S stated that it was standard practice for a Cleaning Operative to have the Site Foreman sign the worksheet/docket certifying that the work was carried out satisfactorily. She added that Ms. I had inspected the site which was the subject of the complainant's involvement with the Disciplinary Procedure - which is part of Ms. I's role as Industrial Supervisor - and confirmed that there was no documents in existence which confirmed this inspection had occurred or that Ms. I considered the work was sub-standard. She was unable to take issue with the complainant's assertion that the work involved had been completed in February, 2008 and could offer no explanation why the matter was not raised with the complainant until June, 2008. The respondent states that Ms. I and Mr. T, who conducted the disciplinary meeting, concluded that the complainant's behaviour warranted a verbal warning in accordance with the company Disciplinary Procedure and issued him with such a warning. It adds that the Disciplinary Procedure was regularly applied to other employees for breaches of the procedure and furnished the Tribunal with examples of same. It submits therefore that the complainant was not discriminated against in terms of this aspect of his complaint. Without prejudice to this argument the respondent submits that the application of its Disciplinary Procedure to the complainant has already been dealt with by the Rights Commissioner and Employment Appeals Tribunal under the unfair dismissals legislation and cannot therefore form part of his claim under the employment equality legislation.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the victimisation element of the complaint is validly before the Tribunal for investigation, (ii) if so whether or not the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008, (iii) whether or not the complainant's allegations of less favourable treatment as regards the operations of the respondent's Disciplinary Policy to him is properly before the Tribunal for investigation and (iv) whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts as regards his conditions of employment. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.2 The first matter I must address is whether or not the victimisation element of the complainant's case is validly before the Tribunal for investigation. I am satisfied that the first occasion on which the complainant made reference to this matter was in his submission filed with the Tribunal on 27 June, 2011 - almost three years after he referred his original complaint. This Tribunal has held on many previous occasions that the referral form (EE1) is not a statutory form and cannot therefore be regarded as a rigid document which is not capable of expansion and the Tribunal's approach in this regard has been approved by the High Court in County Louth VEC v Equality Tribunal . This case is authority for the proposition that it is permissible to amend a complaint before this Tribunal so long as the general nature of the complaint remains the same and the respondent is not prejudiced by the change. Applying this test to the instant case I am satisfied that the allegation of victimisation does not fall within the general nature of the complaint - the original complaint being one of discriminatory treatment - and that victimisation amounts to a separate and distinct cause of action under the Acts. Consequently, that element of the complaint is not properly before the Tribunal for investigation as it was referred out of the timelimits prescribed at section 77 of the Acts.
5.3 The respondent also submits that certain aspects of the complainant's equal treatment claim are not before the Tribunal for investigation. It states that the original EE1 Form listed hours of work, removal of the company van and removal of a company mobile phone as the basis for his complaint. The respondent adds that the first occasion the complainant referred to the application of the respondent's Disciplinary Procedure to him as a component of his equal treatment complaint was in his submission filed with the Tribunal on 27 June, 2011 - almost three years after the complaint was originally referred to the Tribunal - and it is therefore out of time in terms of section 77 of the Acts. I have set out in the previous paragraph the approach adopted by the Tribunal in these circumstances and the High Court authority which approves that approach. The three issues covered by the original EE1 can clearly be categorised as matters connected with alleged discriminatory treatment in respect of the complainant's conditions of employment. I am satisfied that element of the complaint in respect of the application of the respondent's Disciplinary Policy to the complainant is also one that can be categorised as pertaining to the complainant's conditions of employment - indeed I note that section 8(6) of the Acts clearly envisages such a categorisation. All four elements of the complaint are advanced on the ground of race - i.e. that the complainant was a Slovakian national. I find therefore that the general nature of this aspect of the complaint remained the same. In addition, the respondent was forwarded a copy of the submission on the day it was received by the Tribunal (27 June, 2011) and it therefore had adequate notice of the allegations and ample opportunity to file a defence. In light of the foregoing I find that the element of the complaint in respect of the application of the respondent's Disciplinary Procedure to the complainant is properly before the Tribunal for investigation.
5.4 Section 6(1) of the Employment Equality Acts, 1998-2008 provides that discrimination shall be taken to occur where "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)....."
Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.."
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Slovakian.
5.5 Section 85A of the Employment Equality Acts 1998 - 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.6 The complainant states that following the appointment of Ms. I in March, 2008 he was assigned less and less shifts each week until he decided to resign on 9 August, 2008. In particular he states that he received no shifts at all after 11 July, 2008 - a point that is not disputed by the respondent. The complainant contends that this constitutes less favourable treatment of him because of his nationality - Slovakian - and presented two witnesses at the Hearing to support this assertion. The first of these witnesses (Mr. X) is the complainant's cousin and is also Slovakian. His evidence to the Tribunal was that he continued to be assigned shifts, averaging around 40 hours per week until December, 2008 when they started to reduce. The second witness (Mr. Y) is a Polish national. His evidence was that he was working on a particular site on 6 May, 2008 - a day on which the complainant asserts he was available for work and was not given shifts - and that a number of new employees commenced work that day. The respondent produced worksheets to the Tribunal which show quite clearly that the witness was not employed at the location he contended on that date. Consequently, I do not consider him to be a credible witness and have disregarded the remaining evidence he gave as wholly unreliable. The respondent also provided the Tribunal with documentary evidence which shows that two other Slovakian employees were assigned shifts by Ms. I during the period at issue. Moreover, it is accepted by the complainant that employees who were Irish, Polish, Latvian and Lithuanian nationals were also assigned shifts during this period.
5.7 The complainant furnished details of around twenty dates between 1 April, 2008 and 11 July, 2008 during which he asserts he was available for work and was not assigned any shifts. The respondent states that on one of these dates (12 May, 2008) the complainant was offered work and refused it and on another date (2 July, 2008) the complainant was abroad. It produced documentary evidence in support of its contention in this regard. I have examined the documentary evidence and I am satisfied that respondent is correct. Moreover, it is accepted by the complainant that he was assigned shifts- although admittedly not full days - on three other dates between 1 April - 11 July, 2008. The actual situation is that during this period the complainant was not assigned shifts on fifteen dates and these were interspersed with days and longer periods - sometimes of four weeks' duration - when he was assigned shifts. The respondent produced data showing a reduction in the overall annual number of industrial cleaning hours from just over 45,000 in 2007 to almost 27,000 in 2008. In addition, this data shows significant reductions in these hours in 2008 from April onwards. In terms of the period after 11 July, 2008 I am satisfied that the complainant was absent on sick leave from 14 - 17 July, 2008 inclusive. It is common case that the respondent cancelled the complainant's company mobile telephone with effect from 17 July, 2008. I am satisfied that the respondent made a number of attempts to contact the complainant on his personal mobile and was unable to do so. I am also satisfied that it wrote to him on 28 July, 2008 asking that he contact it and that he made one such attempt on 5/6 August before tendering his resignation on 9 August, 2008. In light of my comments in this and the preceding paragraph I find, on balance, that the complainant has failed to establish facts from which it could be inferred that he was treated less favourably on the basis of his Slovakian nationality and this element of his complaint cannot succeed.
5.8 It is common case that the complainant's duties involved driving a company van and that duty was removed from him in June, 2008. The complainant contends that this treatment amounts to discrimination of him on grounds of race contrary to the Acts. The respondent states that its insurance company refused to provide cover for the complainant to drive as he was under twenty-five years old and that it had no other option but to remove the complainant from driving duties. The respondent furnished me with a copy letter dated 18 June, 2008 from its insurance broker which confirms that the insurance company was unwilling to provide cover for the complainant. In the circumstances, I accept that the respondent had to relieve the complainant from his driving duties and find that its actions in this regard do not constitute discrimination of the complainant on grounds of race contrary to the Acts. The respondent was faced with a somewhat similar situation in June, 2006 when the same broker was able to secure insurance cover for the complainant but at an additional cost of just over €2,000. The respondent decided to recoup half of this additional premium from the complainant and deducted €20 per week from his salary in this regard. The complainant was unable to point to another employee who had been treated in the same manner by the respondent in similar circumstances. Section 6(1) of the Acts (as set out at paragraph 5.4 above) clearly permits the use of a hypothetical comparator. It is acknowledged by the Labour Court that such a hypothetical comparator can be used in certain circumstances . I am satisfied that circumstances of the instant case are such so as to permit the use of a hypothetical comparator and I am further satisfied that the respondent would not have treated a hypothetical Irish comparator in a similar fashion to the manner in which it treated the complainant. The respondent offered no explanation to the Tribunal as to why it sought to fix liability with the complainant for half of this additional cost from the complainant and it follows therefore that he is entitled to succeed in this element of his complaint.
5.9 It is also common case that the respondent removed the facility of the company mobile phone from the complainant with effect from 17 July, 2008. The complainant contends that this treatment amounts to discrimination of him on grounds of race contrary to the Acts. The respondent states that the complainant had previously been warned about unauthorised use of the company mobile phone and had been required to refund the costs of those calls etc. to the respondent. It produced documentary evidence to this effect and the complainant did not take issue with same. It also furnished details of an Irish employee who was subject to the same treatment in similar circumstances. The respondent adds that when the complainant re-offended in June/July, 2008 it decided to remove the mobile from him. The respondent furnished me with the appropriate mobile phone bills and I am satisfied that the complainant used it whilst abroad. The behaviour of the complainant on this occasion was identical to that on the previous occasions in 2006 and April, 2008 when the respondent had spoken with him about personal use of the company mobile phone. Moreover, the complainant was no longer a Driver/Supervisor at this time and therefore he had no need for a company mobile phone. I note that in the course of the Hearing the complainant accepted only Supervisors had company mobile phones. I have carefully considered all of the evidence adduced by the parties on this issue and I find that the complainant has failed to discharge the initial probative burden required of him and this element of his complaint fails.
5.10 The final element of the complainant's claim relates to the manner in which the respondent applied its Disciplinary Procedure to him. The respondent submits, in the first instance, that this element of the complaint was addressed by the Rights Commissioner and the Employment Appeals Tribunal and this Tribunal cannot therefore deal with the matter. I do not accept this argument. What the Rights Commissioner and the Employment Appeals Tribunal were dealing with was whether or not the application of the Procedure to the complainant contributed to the termination of his employment as being unfair in terms of the Unfair Dismissals Acts, 1997-2007. What this Tribunal is examining is whether or not the respondent treated him less favourably on grounds of race under the Employment Equality Acts, 1998-2008 in applying the Procedure to him. These are separate and distinct issues under two different statutes and whilst the employment equality legislation prohibits dual avenues of redress in certain circumstances, the instant case is not encompassed in those. Consequently, the complainant is entitled to rely on the same set of circumstances to ground both complaints.
5.11 As stated above it is a matter for the complainant, in the first instance, to establish facts from which an inference of discrimination can be raised. The type or range of facts which a complainant can rely upon in this regard can vary significantly from case to case. However, it remains for this Tribunal to decide, where the primary facts as alleged are proven, if the inference or presumption contended can be properly drawn from them. I have carefully considered the written and oral evidence of both parties advanced on this matter and I am satisfied, on balance, that whilst the manner in which the complainant was treated is unfair, the complainant has failed to establish that this treatment was influenced by his nationality. Indeed, it seems clear to me that shortly after Ms. I's appointment as Supervisor the working relationship between her and the complainant was constantly strained- giving rise to several incidents of personal animosity between them - although I am not satisfied that this animosity was related to the fact that the complainant was Slovakian. Consequently, he has failed to establish a prima facie case of discrimination in respect of this element of his complaint and it fails.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that -
(i) the complainant's allegation of victimisation is not properly before the Tribunal for investigation.
(ii) the element of the complainant's claim in respect of the application of the respondent's Disciplinary Procedure to him is properly before the Tribunal for investigation.
(iii) the respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary section 8 of those Acts in respect of his conditions of employment when it deducted from his salary half the cost of the additional insurance premium applied to it by its insurance company in 2006 to provide the necessary cover to enable the complainant to drive the company van.
(iv) the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts in respect of his conditions of employment related to the number of shifts he was assigned, the removal of the company van and mobile telephone and the application of the respondent's Disciplinary Procedure to him.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I order that the respondent pay the complainant the sum of €3,000 by way of compensation for the distress suffered by him as a result of this discrimination. This award does not include any element of remuneration and is not therefore subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Equality Officer
20 December, 2011