The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-028
PARTIES
Azuolas Balsys
(Represented by Richard Grogan & Associates)
AND
Ray Hilliard
File reference: EE/2007/679
Date of issue: 16 February 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 14A & 74 - Race - Discriminatory Dismissal
1. DISPUTE
1.1. This dispute concerns a claim by Mr Azuolas Balsys that he was discriminated against by Ray Hilliard on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to training, conditions of employment, other and dismissal in a discriminatory manner contrary to section 8 of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 19 December 2007 under the Employment Equality Acts. On 13 October 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. A submission was received from the complainant. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 5 November 2010.
2. COMPLAINANT'S SUBMISSION
2.1. At the start of the hearing the complainant withdrew his claim in relation to training, conditions of employment and other. He confirmed the only part of the claim he was pursuing was in relation to discriminatory dismissal.
2.2. The complainant is Lithuanian and started working for the respondent on 12 May 2006. He submits that in September 2007 he noticed that the work was slowing down and in November he was working around 3-4 days each week. Then on a Thursday in November a colleague brought him an envelope with his P45. No one from the respondent spoke to him so he took it that he had been dismissed. He was aware that the job was still going on.
2.3. The complainant submits that he was treated very poorly because of the lack of contact surrounding his dismissal. The workforce was a mixture of Irish and non Irish. The complainant was not aware of any Irish workers being dismissed at this time. The complainant submits that an Irish worker would not have been treated in the same way and this amounts to discrimination on the grounds of race.
3. RESPONDENT'S SUBMISSION
The respondent was aware of the hearing but did not attend, nor did they make a written submission. The complainant submitted a copy of a letter from the respondent's representative in which it was denied that the complainant was dismissed. The explanation given was that all employees submitted timesheets and that timesheets relating to the complainant went missing and the respondent's 'Office Clerk' noted a lack of timesheets in relation to the complainant. This was taken to mean that he had left their employment so a P45 was issued. When the mistake came to light the respondent's owner requested the complainant return to work, this request was also made through the Foreman who was Lithuanian but the complainant refused to return to work. The respondent stated that the complainant's non attendance for work in the period leading up to the issuing of the P45 was without prior arrangement of notice.
4. FINDINGS & CONCLUSION OF THE EQUALITY OFFICER
4.1. I have to decide if the complainant was dismissed in a discriminatory manner on the grounds of race. 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 presented at the hearing.
4.2. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Further, in a recent Determination the Labour Court¹, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
4.3. In this case the complainant has asserted that he was treated differently from Irish employees when he was dismissed for no good reason in a way that an Irish worker would not have been. At the hearing the complainant responded to the letter from the respondent's representative. He contended there he did not have an unauthorised absence in the period leading up to his dismissal. Also that there was no reason for the timesheets to go missing and did not accept the explanation given to him that it was an office error. Furthermore, he said that it was 3-4 weeks later before he was asked to return, even though the Foreman was living next door, and by that time he was looking for something else and thinking of moving town.
4.4. The circumstances in this case are a little unusual but the complainant was issued with a P45. He did not know why but contends he was dismissed in a discriminatory manner because of his race. The explanation given by the respondent is that they considered the complainant had left the company because timesheets were not submitted for him. The complainant does not accept this explanation. However, he did confirm that he was asked to return to the respondent's employment. He chose not to return because he was making plans for the future.
4.5. There is a conflict of evidence in this case but the complainant did confirm that he was offered the opportunity to return to work with the respondent. I find that the complainant has given insufficient evidence to substantiate his claim of discrimination on the ground of race and has therefore failed to demonstrate a prima facie case of discrimination.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the complainant was not dismissed in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
16 February 2011
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R