THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-009
PARTIES
Tarmo Kaar
(represented by Richard Grogan & Associates,
Solicitors)
and
Doyle Agri Services Limited
(represented by Mr. Richard Downey B.L. on the
instructions of John A. Sinnott & Co. Solicitors)
File Reference: EE/2007/604
Date of Issue: 24th January, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - training - access to employment - conditions of employment - - discriminatory dismissal - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Mr. Tarmo Kaar, who is an Estonian national, that he was discriminated against by Doyle Agri Services Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, training, conditions of employment and in relation to discriminatory dismissal.
2. Background
2.1 Mr. Kaar referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 19th November, 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 11th January, 2011 to me, Enda Murphy, 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 on 16th October, 2008 and a written submission was received from the respondent on 10th December, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 14th January, 2011.
3. Summary of the Complainant's case
3.1 Mr. Tarmo Kaar, who is an Estonian national, stated that he was employed by the respondent as a general labourer from 1st October, 2006 until June, 2007. He stated that there were a number of other employees of Estonian, Polish, Hungarian and Irish origin employed by the respondent during his period of employment. The complainant claims that he was constructively dismissed from his employment by the respondent in a discriminatory manner and without any proper procedures. The complainant stated that he was employed on a casual basis by the respondent and that the number of hours which he was required to work in any given week or month varied in accordance with the level of work that was available to the respondent.
3.2 The complainant claims that the number of hours which he worked during the period from January, 2007 to June, 2007 were significantly reduced in comparison to the number of hours he had worked during the first three months of his employment. The complainant stated that he worked for approx. three weeks during this period of time. The complainant stated that he contacted the respondent on numerous occasions during the period from January, 2007 to June, 2007 to enquire about the availability of work and was informed that he would get a call when further work became available. The complainant stated that he did not obtain any further work and he requested the respondent to issue his P45 and a letter that he could present to the Dept. of Social & Family Affairs to facilitate his claim for social welfare benefits.
3.3 The complainant denied that he left his employment with the respondent of his own volition in order to start up his own courier business. The complainant accepts that he may have mentioned to the respondent that he was considering setting up his own courier business; however, he denies that he voluntarily left his employment with the respondent for this purpose. The complainant claims that he was forced into a situation whereby he had to seek his P45 from the respondent due to a lack of work and he submitted that he was effectively constructively dismissed from his employment because he had no prospect of being offered further work. The complainant submitted that a notional Irish worker would not have been treated in such a manner by the respondent and he claimed that he was subjected to this treatment purely on the grounds of his nationality.
3.4 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032), Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001) and Wolf Gang Lang -v- Georg Schunemann Gmbh (C-350-99).
Jurisdictional Issue
3.5 The complainant disputes the respondent's contention that the present case has not been referred to the Tribunal within the six month time limit provided for in section 77(5)(a) of the Employment Equality Acts. The complainant accepts that the complaint was referred to the Tribunal on 18th November, 2007 and that the date of the alleged discriminatory dismissal was stated on the Complaint Referral Form (EE1) as May, 2007. However, the complainant submitted that he subsequently wrote to the Tribunal on 4th February, 2008 and sought to amend the date of the alleged dismissal on the basis of information which it had received from the respondent after the complaint had been referred which confirmed that his employment had terminated on 10th June, 2007. The complainant submitted that the complaint was therefore clearly within the six month time limit provided for in section 77(5)(a) of the Acts.
4. Summary of the Respondent's case
4.1 The respondent stated that its company has been in existence since 1998/1999 and that it is primarily engaged in the carrying out of general maintenance work on the railway lines. The respondent employed approx. 15 workers of Estonian, Polish, Hungarian and Irish origin in and around June, 2007. The respondent stated that the complainant and a number of its other workers were employed as labourers on a casual basis to carry out work on the railways whenever there was sufficient work available. The respondent stated that the complainant worked as a labourer on a casual basis from 1st October, 2006 until he voluntarily left his job in early June, 2007 and that it found him to be a reliable and competent worker.
4.2 The respondent accepts that there were periods of time during the course of the complainant's employment when he was not required to work because of the non-availability of work on the railways. However, it submitted that nationality or race was not a factor which was taken into consideration when deciding upon the manner in which hours of work were allocated to its workers. The respondent stated that a number of its other workers, including both Irish and non-Irish nationals, were also employed on such a basis and were offered work on the basis of availability. The respondent stated that there was also periods of time when it could not provide work to these workers due to the non-availability of work on the railways.
4.3 The respondent stated that the complainant last worked for it at the end of May, 2007 after he had departed the site where he was working on that particular date without completing the allocated task. The respondent stated that it was unable to contact the complainant over the next number of days despite several attempts to do so by telephone. The respondent stated that the complainant appeared on its premises in a white van in early June, 2007 and he informed the respondent on this occasion that he leaving his employment because he was setting up his own courier business. The respondent stated that there was a certain amount of damage to the bodywork of the complainant's white van and that it allowed one of its mechanics to carry out repair work to the van as a gesture of goodwill.
4.4 The respondent denies that the complainant was dismissed from his employment, either constructively or otherwise, and it claims that he left his employment of his own volition to start a courier business. The respondent stated that it would have been in a position to offer the complainant further work in August/September, 2007 if he had still been available for work; however, it claimed that he had voluntarily left his employment at that juncture. The respondent gave evidence in relation to an Irish worker and an Estonian worker who had been laid off in June, 2007 but were offered further work when it became available in August/September, 2007.
Jurisdictional Issue
4.5 The respondent submitted that the Tribunal does not have any jurisdiction to investigate the present complaint on the basis that it was not referred within the six month time limit provided for in section 77(5)(a) of the Employment Equality Acts. The respondent submitted that the complaint was referred to the Tribunal on 19 November, 2007 and that the date of the alleged discriminatory dismissal was stated on the Complaint Referral Form (Form EE1) as May, 2007. It submitted that given the importance of dates and periods of limitation the insertion of a month rather than a specific date is extremely unsatisfactory particularly when the complainant had the benefit of legal advice.
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.
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".
5.3 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaints in relation to access to employment, training and conditions of employment. Accordingly, the only issue for decision in this case is whether or not the respondent discriminatorily dismissed the complainant on the ground of his race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Jurisdictional Issue
5.4 The respondent has submitted that the Tribunal does not have jurisdiction to investigate the present complaint on the basis that it has not been referred within the time limits provided for in section 77(5)(a) of the Employment Equality Acts. In considering this issue, I note that the complaint was referred to the Tribunal on 19th November, 2007 and that the date of the alleged discriminatory dismissal was stated on the Complaint Referral Form as May, 2007. Having regard to the evidence adduced, I am satisfied that the complainant's employment actually terminated in June, 2007 and not in May, 2007. In coming to this conclusion, I have taken note of payslips which were adduced in evidence by the respondent at the oral hearing which confirm that the complainant's final date of pay was 15th June, 2007 (it should be noted that payslips were issued by the respondent to its workers on a weekly basis). I am also satisfied that the evidence given at the oral hearing by Mr. A, Managing Director of the respondent, confirms that the complainant's employment did not terminate until June, 2007. I am therefore satisfied that the present complaint was referred to the Tribunal within the time limits provided for in section 77(5)(a) of the Acts. Accordingly, I find that I have jurisdiction to investigate the complaint.
Discriminatory Dismissal
5.5 In a recent Determination the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"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."
5.6 I note that the actual issue of dismissal is in dispute between the parties in the present case. The complainant, on the one hand, claims that he was constructively dismissed from his employment in a discriminatory manner on the grounds of his nationality. The complainant submitted that he was subjected to a significant reduction in the number of hours work which he was allocated in the last few months of his employment. He claims that he had little prospect of being offered further work and was therefore left with no alternative but to request his P45 from the respondent in June, 2007. The respondent, on the other hand, denies that the complainant was dismissed from his employment, either constructively or otherwise. The respondent submitted that the complainant left his employment of his own volition in June, 2007 in order to set up a courier business.
5.7 In considering this issue, I note that it was accepted by both parties that the complainant was employed by the respondent on a casual basis as a labourer to carry out general maintenance work on the railways whenever sufficient work was available. It is clear from the evidence adduced that there was also a number of other workers, both Irish and non-Irish nationals, employed by the respondent on a similar basis. I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the manner in which hours of work were allocated to the complainant by the respondent was in any way influenced or determined by his nationality.
5.8 There were a number of inconsistencies in the complainant's evidence in terms of the number of hours work which he claims was allocated to him by the respondent during the period from January, 2007 to June, 2007. The complainant stated in evidence at the oral hearing that he worked for approx. 3 weeks during this period; however, the respondent submitted in evidence copies of the complainant's payslips which indicate that he was allocated hours of work during 16 weeks within this period. The complainant accepted during cross-examination that he had received these payslips during his employment and that they represented an accurate record of hours he had worked. I am satisfied that these inconsistencies in the complainants evidence raise significant questions regarding the credibility of his contention that he was effectively constructively dismissed from his employment on the basis that he was subjected to a significant reduction in the number of hours worked during the period from January, 2007 to June, 2007.
5.9 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainant must be able to demonstrate evidence of sufficient significance to raise a presumption of less favourable treatment and this treatment must be linked to his nationality. On balance, I accept the respondent's evidence that the complainant voluntarily left his employment of his own volition in June, 2007 in order to set up a courier business. In coming to this conclusion, I note that the complainant accepted that he had discussed the issue of setting up his own business with the respondent prior to the termination of his employment. In the circumstances, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that he was dismissed from his employment by the respondent in a discriminatory manner. Accordingly, I find that the complainant had failed to establish a prima facie case of discrimination on the grounds of his nationality in terms of the manner in which his employment with the respondent was terminated.
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 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.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
24th January, 2011