The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
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Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-123
Ivanovs
(Represented by Richard Grogan and Associates)
V
JVC Recycling Ltd
(Represented by IBEC)
File No. EE/2009/182
Date of Issue: 22 June 2011
File reference: EE/2009/182 - DEC-E2011-123
Keywords:
Employment Equality Acts -Discriminatory treatment - Conditions of employment - Training Discriminatory Dismissal - Race - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Andrejs Ivanovs (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatory dismissal by JVC Recycling Limited (hereafter "the respondent") on the grounds of his race. The complainant submitted that the first date of discriminatory act was on 10 April 2008 and that he was discriminatorily dismissed on 6 February 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 8 April 2009 under the Employment Equality Acts. On 2 June 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 10 June 2011.
2. Case for the complainant
2.1. Discriminatory treatment
2.1.1. The complainant, a Latvian national, submitted that he did not receive a contract of employment but that other persons, from Poland and Ireland, did receive contracts of employment.
2.1.2. The complainant submitted that he did receive health and safety training.
2.1.3. The complainant was unable to provide any examples of less favourable conditions of employment during his direct evidence. He stated that he enjoyed working with the respondent company but was disappointed to lose his job.
2.2. Discriminatory dismissal
2.2.1. The complainant stated that he received a letter on 24.12.2008 saying he would only have work for one more week. He accepted that other persons, of various nationalities including Irish, received such letters.
2.2.2. The complainant stated that he was only given short term contracts after 31 December 2008. He stated that he was simply told that he would be kept for one more week and then he would have no more work. He claimed that other persons continued working, including persons who he said had started working with the respondent after he had. The complainant could not name any such person.
3. Case for the respondent
3.1. The respondent denied any discriminatory treatment of the complainant or any other employee. It was submitted that the complainant had been a good employee. The respondent company has had no employees since March 2009 and the company has been dormant since.
3.2. It was submitted that the matter of the complainant's contract has been addressed before a Right's Commissioner who had awarded the complainant some redress for a technical breach. The respondent company submitted that it had been unable to locate a copy of said contract. It was submitted that all staff, regardless of nationality, were routinely provided with a contract of employment and any person starting to work with the respondent company in 2008 would have only been given a fixed term contract with a termination date of 31 December 2008. This was due to the fact that the public procurement process was up for renewal and the company could not guarantee work after the expiration of the existing agreement. It was submitted that the complainant was provided with a temporary contract on 10 January 2009 on a strictly weekly basis. The complainant had signed this contract. The complainant was given a week's notice in accordance with the terms of this contract.
3.3. The complainant was not dismissed but it was accepted that his contract had been terminated in accordance with the contractual notice period. The complainant was among 71 persons whose fixed term contracts came to an end. These persons included various nationalities, including Latvian and Irish. Longer serving employees, who were on employed under different contractual terms were included in a transfer of undertaking and continued to work with a new employer. The respondent was not in a position to comment on the complainant's claim that persons who had started work ing in the respondent company after him were now employed with the new company. It was submitted that all person on fixed term contracts were regrettably let go.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. First, the issue of the complainant's contract of employment. I am satisfied that the complainant did not receive his fixed term contract for the period of 10 April 2008 and 31.12.2008. Such a breach is not a matter for this Tribunal and I note that the matter has been already been addressed by the relevant body. However, I note that the complainant stated in direct evidence that someone had told him, approximately 6 weeks after he started his employment that his contract was in the office. The complainant submitted that he did not collect it as he believed it was his employer's duty to hand it to him. I also note that he was aware that his contract was a fixed term one. I have found no evidence to suggest that this failure to hand over his contract was in any way influenced by his nationality. This inference is further supported by the fact that I am satisfied that the complainant was duly offered a temporary contract in January 2009. I also note that the respondent has translated its grievance procedures into a number of languages including Latvian and Russian. I have been presented with no evidence to support an argument that this failure resulted in less favourable treatment linked with the complainant's nationality.
4.3. I am satisfied that the complainant was afforded appropriate notice and that the termination of his contract of employment had no nexus with his nationality. It ought to be noted that under common law a person's contract of employment can be terminated with or without reason provided that a notice period has been complied with. I am satisfied that no grievance procedure had been evoked. It is clear that the respondent's permanent employees (of various nationalities) continued their employment with a new employer. The reason why the complainant was not in this cohort is due to the nature of his contract which in turn was determined with the timing of him joining the respondent company.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discriminatory treatment or dismissal on the race ground. Therefore, the case fails.
_______________
Tara Coogan
Equality Officer
22 June 2011