FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : SECURAZONE MANHOUR LIMITED (IN LIQUIDATION) - AND - PUSKORIUS AND SOLDATJONOKS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The worker appealed the decision of the Equality Officer to the Labour Court on the 1st April, 2010. A Labour Court hearing took place on the 19th November, 2010. The following is the Court's determination:
DETERMINATION:
Two cases came before the Court by way of an appeal by the Complainants, Mr Jevgenijs Soldatjonoks and Mr Tautvydas Puskorius against a decision of the Equality Officer issued on 23rd March 2010. Mr Puskorius did not attend the Court hearing to prosecute his appeal. Accordingly the Court struck out that appeal for want of prosecution. The Court proceeded to hear the Mr Soldatjonoks’s appeal.
Background:
The Complainant worked as a security guard for Secruazone Manhour Limited (the Respondent), between March 2005 and January 2007. On 15th January 2007, after he had finished his shift, the Complainant received a telephone call from his supervisor instructing him to attend a meeting that morning at the Company Head Office at 10:00a.m. He attended as instructed. He told the Court that there were 5 or 6 other employees, of various nationalities in attendance at the Office. He said the owner of the Company told them that they were not needed any more. Their employment was terminated with immediate effect.
The Complainant lodged an complaint with the Equality Tribunal pursuant to Section 6(2) of the Employment Equality Acts, 1998 – 2007 to the effect that he was discriminated against by the respondent in respect of his conditions of employment on the grounds of race. In addition he submitted a further complaint to the Equality Tribunal to the effect that he was, contrary to Section 8 of those Acts, dismissed by the respondent in circumstances amounting to discrimination on the grounds of race, in terms of Section 6(2) of the Employment Equality Acts, 19998 – 2007 and contrary to Section 77 of those Acts.
The Complainant alleges that he was discriminated against by his employer contrary to the provisions of Section 6(1) of the Employment Equality Acts 1998 – 2007 (the Act).
Section 6(1) of the Act 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…”
The ground relied on in this case referred to in subsection 2 is the “race” ground.
The complainant contends that, as a Lithuanian national, he was treated less favourably than an Irish employee is, has been, or would be treated in a comparable situation.
The Complainants Case:
The Complainant contends that
Despite the fact that he had a poor command of the English language that should have been obvious to his employer, he received a contract of employment in English that was not translated for him before he was required to sign it. In this regard he referred the Court to a decision of the Equality Tribunal in the case of58 Complainants v Goode Concrete DEC E2008/20
The Respondent did not advise the Complainant of his entitlements under the terms of the Employment Regulation Order (ERO) for the Security Industry. He told the Court that it was unlikely that an Irish employee would have been unaware of the existence of that Order.
He told the Court that while he was required to work night shifts Irish workers were allocated day shifts on a priority basis.
He told the Court that he did not receive premium payments contrary to the provisions of the ERO for the industry. He said that it was most unlikely that an Irish employee would have been so treated.
He said he was dismissed without any procedures being applied and that it was most unlikely that an Irish employee would have been so treated.
Respondent’s Case
The respondent company is in liquidation and made no appearance before the Court.
Findings of the Court:
The Court has carefully considered the evidence presented to it in this case.
In the Course of the hearing the complainant told the Court that a fellow worker explained the contract of employment to him and that he understood what he was signing at the relevant time. Furthermore he told the Court that he had a working knowledge of the English language and understood the instructions that were issued to him and that he could read the relevant documentation he was required to complete in the discharge of his duties. Finally he told the Court that he had represented to the Respondent that he could speak and read English at the time of his interview, which was conducted in English.
This Court has held inMelbury Developments v Arturs Valpetters EDA 0917as follows
“Knowledge of how the complainant’s fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of the Respondent’s capacity of proof. It is also plainly within the knowledge of those other workers. The Complainant could have sought to ascertain from those workers if they were treated as sub-contractors or employees.”
In addition the Court went on to observe“ there is a provision for the obtaining of information from a Respondent under Section 76 of the Acts which intended to be in ease of a Complainant under the Acts …This procedure was utilised in this case but the questions were not put concerning the employment status ascribed to others employed by the Respondent”
Applying this to the instant case the Court notes that the Complainant made submissions to the Court to the effect that the information regarding the treatment of Irish workers by the Respondent was peculiarly within its knowledge. The Court notes that the Complainant’s solicitor utilised the procedure set out in Section 76 in this case. However he sought no information from the Respondent that would support the points set out in the Complainants case that Irish workers were being treated in a more favourable manner than Non-Irish workers. Had the Complainant raised these questions pursuant to the procedure set out in Section 76 and failed to elicit a response from the Respondent, the Court would be entitled to draw an inference from such an occurrence. However as the questions were not put to the Respondent the Court cannot draw any such inference in this case.
The Complainant himself presented no evidence to the Court to the effect that the Respondent distinguished Irish and Non-Irish workers in any employment related matters.
Instead the Court was invited to draw an inference of discrimination on the race ground from the mere assertion that a foreign worker was being treated badly.
This Court has held inMelbury Developments v Arturs Valpetters EDA 0917that mere assertion in the absence of credible evidence is not sufficient to establish a prima facie case of discrimination
"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."
Accordingly the Court finds that the Complainant has not made out a prima facie case of discrimination, within the statutory meaning of that term, on the race ground.
Determination:
The Court affirms the Equality Officer’s Decision and rejects the appeal.
Signed on behalf of the Labour Court
Brendan Hayes
27th January, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.