The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-004
PARTIES
Arturas Zujevas
(Represented by Richard Grogan & Associates)
- V -
Brandon Civil Engineering Ltd
File reference: EE/2008/154
Date of issue: 7 January 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory DismissalRace - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Arturas Zujevas that he was subjected to discriminatory treatment and discriminatory dismissal by the respondent on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 10 March 2008 under the Acts. On 22 March, 2010, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 9 December 2010. The respondent did not attend the hearing of this matter. The Tribunal sent notification of the hearing to the respondent and this was acknowledged. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he was employed by the respondent for five weeks from 21 August 2007 until 28 September 2007. The complainant is a Lithuanian national and it is on this basis that this complaint is being taken. The complainant further submitted that he did not receive any proper contract of employment or Health & Safety documentation.
2.2 The complainant submitted that he was not paid in accordance with Registered Employment Agreement for the construction and also submitted that he found it hard to believe that a number of named Irish national colleagues would had been paid less than the Agreement rates.
2.3 The complainant submitted that no procedures whatsoever were applied to his dismissal.
2.4 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.5 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to contract of employment and Health & Safety.
2.5 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 In advance of the hearing, the respondent made a submission, suggesting that these matters had all been dealt with at a hearing of the Rights Commissioner's Service of the Labour Relations Commission.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. Zujevas on grounds of race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 Notwithstanding the absence of the respondent at the hearing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 At the start of the hearing, the complainant stated that any issues in relation to equal pay or the Registered Employment Agreements and that his claim related only to discrimination in relation to his conditions of service and to his dismissal.
4.5 The complainant stated that he did not receive a contract of employment but had no evidence that anyone else had either (except for another Lithuanian who began at the same time and was treated in a similar fashion). He stated that he believed that he was discriminated against in how the work was allocated. He stated that he carried out different work to the Irish employees. In response to questioning from the Equality Officer, the complainant confirmed that the Irish employees were qualified but doesn't know what their trades were. He also stated that he didn't know what level of experience they had and that they were doing completely different jobs to him. In summary, the complainant was not able to provide any information about his co-workers, their work or their experience.
4.6 In relation to the dismissal, the complainant stated that he was told on a Thursday that Friday was to be his last day. The complainant stated that he had thought that the job would be permanent, although he confirmed that he had never been told that it would be. The complainant confirmed that he didn't know if anyone else (apart from his Lithuanian friend) was let go, or didn't know if anyone was dismissed in a different fashion.
4.7 I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
Section 85A of the Act 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.
Mr Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court's view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
4.8 Having considered the complainants evidence in this case, I am not satisfied that the complainant has shown that he was treated in a less favourable manner than others. I consider that although the complainant contends that his was treated in a discriminatory fashion and dismissed on a discriminatory basis, all that he has proffered in support of that is mere assertion, unsupported by any evidence. Accordingly I do not consider that facts from which discrimination may be inferred have been established.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
7 January 2011