THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-003
PARTIES
Slawomir Kaczmarek
v
Boxform Limited
File Reference: EE/2007/541
Date of Issue: 7 January 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal
1. Dispute
This dispute involves a claim by Mr. Kaczmarek (hereafter "the complainant"), who is a Polish national, that he was (i) discriminated against by Boxform Ltd (hereafter "the respondent") 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 (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 (iii) victimised by the respondent. At the Hearing the complainant's representative limited the claim of discriminatory treatment to training and conditions of employment only. The complainant's representative also withdrew the claim of victimisation.
2. Background
2.1 The Complainant referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 15 October 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 5th January 2011 to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant in October 2008. No submission was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 5 January 2011; The complainant attended the hearing, but the respondent did not. The respondent is in liquidation and the liquidator advised the Tribunal that they would not be attending the hearing. Documents relating to the hearing were submitted on 7 January 2011.
3. Summary of the Complainant's case
Discriminatory treatment in relation to Conditions of Employment and Training
3.1 The complainant, Mr. Kaczmarek, who is a Polish national, was employed by the respondent as a dumper truck driver from 2nd May 2005 until 24th August 2007. The respondent's workforce was comprised of about half Irish and half Polish nationals. The complainant stated that he did not receive a written contract or terms of employment. In the course of the Hearing the complainant stated that he knew his fellow Polish workers did not get contracts, but he had no knowledge as to whether or not the Irish employees received contracts of employment.
3.2 The complainant submitted that he never knew how long he would be working in any given day or week. It could have been up to 12 hours on any day or it could have been up to 7 days on any week. He submitted that it was very stressful to not know how long he would be working and that employees did not dare to ask.
3.3 The complainant said that he and some other Polish employees did not receive their Safe Pass or their ticket to drive the specialised trucks. He said that it took them a year to get the company to provide this paperwork for them and in the meantime it meant that they were in danger of getting into trouble if an inspector came on-site and discovered they were working without these documents. They eventually got their documents when the complainant enlisted the help of SIPTU to force the company to do it. He submitted that he was certain the Irish employees had the correct paperwork in place at all times.
3.4 The complainant submitted that the respondent made it very difficult for him to get holidays. He was initially advised by his boss that he could book his holiday time off about three weeks in advance and this would be fine. However just before he went on holidays, he would be told that there was no work from him when he came back. The first time this happened was over the Christmas holidays of December 2005/January 2006. When he returned they told him he had no job, but when he got SIPTU to call on his behalf, the respondent said that it was a mistake and he did still have a job. This happened regularly throughout his time working for the respondent and he thinks that he needed help from SIPTU to get his job back on 3 occasions.
Discriminatory Dismissal
3.5 The complainant claims that he was dismissed from his employment without due notice or without any procedures. In August 2007 he was told there was no more work for him and he would have to leave. However he submitted that another named new employee Mr Z, began working immediately in his place. He also submitted that his colleagues went on working there for about 18 months after he was let go. He submitted that SIPTU said they would help him get his job back, but he decided not to try, because he could not take any more of working for the respondent under the conditions described above.
4. Summary of the Respondent's case
4.1 The respondent did not make a written submission or appear at the Hearing. The liquidator appointed to the respondent did not appear at the Hearing, but made the following points in a written submission:
* The liquidator did not have the relevant records for 2005 and therefore could not comment on whether the complainant started work in that year.
* They could confirm that the complainant worked there for all of 2006 and provided details of his salary.
* They stated that in 2007 the complainant seemed to have worked for the respondent in January and August only.
* They stated that the company was experiencing financial difficulties necessitating redundancies around the time the complainant was dismissed and that the company seemed to chose the newer employees to lay off.
* They stated that because of the company's insolvency, the remaining employees were dismissed within a further 6 months.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 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)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
Discriminatory treatment in relation to Conditions of Employment and Training
5.3 The complainant has raised an issue in relation to the respondent's alleged failure to provide him with a written contract of employment Regarding the contract of employment, the complainant was unable to say whether or not the Irish and Polish employees were treated differently, as he did not know whether anyone got a contract. As there is no evidence of a difference in treatment based on nationality, this element of the complaint must fail.
5.4 The complainant has also claimed that it took the company about 12 months to provide him and some other Polish employees with their Safe Pass/driver authorisation documents, and that they only provided them in the end, because SIPTU intervened. However the complainant did not produce any evidence to support this claim, for example a dated copy of either of these documents and/or any written/oral evidence from SIPTU about what happened. The complainant was legally represented within a few weeks of being dismissed and this evidence is within his control. Therefore in the circumstances I find it unreasonable that no evidence was offered to support this assertion and as a result this element of his claim fails. 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 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."
5.4 The complainant has submitted that he was required to often work long hours without any notice; however there was no oral or written evidence offered that this situation was different for the Irish workers who were employed by the respondent; therefore this element of the claim must fail.
5.5 The complainant submitted that the way he was treated by the respondent with respect to his holidays was extremely unfair. He says that he had to get SIPTU to help him get his job back on about three occasions when he returned from his holidays (which he had pre-booked in the appropriate way). During the hearing the complainant said that he believed that the reason they kept trying to get rid of him after his holidays was because he was a member of a trade union and none of the other employees were. He said that he often represented the interests of other Polish employees and the respondent did not like that. He said he was the only union member out of all the employees - either Irish or Polish. Essentially the complainant claims that it was his trade union membership and not his nationality which caused him to have these regular stand-offs over his job. However he argues that the two are linked, because he had to stand up for himself and his fellow Poles. The complainant's evidence on this point was vague and no evidence was offered by his legal representative showing the breaks in his employment, or showing supporting evidence from the union that they did in fact have to intervene on a regular basis on the complainant's behalf. In the absence of any evidence to support the factual elements of the claim, I find it unnecessary to consider this issue further.
Discriminatory Dismissal
5.6 The next element of the complainant's claim concerns the allegations that he was subjected to a discriminatory dismissal by the respondent on the grounds of his race. The complainant claims that he dismissed without any procedures and that the unfavourable treatment was based upon his union membership which in turn was linked to his nationality. The liquidator claims that there were several redundancies at the time of the complainant's dismissal and that in any event, within 6 months everyone was let go. The liquidator also stated that it appeared the first employees to be let go were those (like the complainant) who had only been there a short time. According to the information provided by the liquidator, the complainant "seemed to" have been back working for the respondent for only a few weeks before his dismissal. However the complainant was able to show payslips demonstrating that he had worked there throughout 2007, and therefore I accept the complainant's evidence in this regard. The complainant was also able to name the new employee who was taken on in his place; he was a Polish national named Mr Z. Therefore it would seem that the complainant was not dismissed merely on the basis that the respondent was in financial difficulties and had to let go the newer employees.
The complainant believes that the real reason for his dismissal was the same as the previous occasions; ie: the respondent did not want its employees to fight for their rights or to be union members, so when the complainant came back from holidays, they told him that he was dismissed. On previous occasions, he stated that he got the union to help him get his job back, but this final time, he did not bother, because he did not want to keep fighting for his job. The complainant stated that his "final" and actual dismissal was a direct result of being a trade union member. His legal representative argued that the union membership was linked to his nationality, because it was necessary for him to join the union to protect his rights as a non-national. I have considered the matter carefully and while it might be possible in certain situations, I do not find in this case that there is a strong enough link between the two. The complainant himself stated that the respondent's workforce was comprised of approximately half Irish and half Polish employees and he was the only trade union member of either nationality. While the complainant's working conditions were not ideal, he has not demonstrated to my satisfaction that they were significantly different to that of his Irish co-workers. It appears to me that any employee who tried to challenge the respondent either independently or via a union, may well have also been dismissed. The complainant himself said that after he left, no-one dared to stand up to the employer. Therefore I find that while his dismissal might have been unfair, it was not discriminatory on the grounds of nationality within the meaning of the Employment Equality Acts.
It is clear that the termination of the complainants' employment fell short of the procedures required by the Code of Practice on Grievance and Disciplinary Procedures2. As the Labour Court commented in Muleadys Ltd v Aidotas Gedrimas3 it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland."
Therefore the complainant's claim of discriminatory dismissal on the grounds of nationality fails.
Decision
6.1 Having investigated the above complaint, 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 complainants on the race ground pursuant to section 6(2) of the Acts (in terms of his conditions of employment/training) and contrary to section 8(1) of the Acts;
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Therefore the complainant's case fails.
______________
Elaine Cassidy
Equality Officer
7 January, 2011
1 Melbury Developments v Arturs Valpeters EDA 0917
2 SI 146 of 2000
3 EDA 0922