FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : FLYNN CONCRETE PRODUCTS LTD (REPRESENTED BY FLYNN CONCRETE PRODUCTS LTD) - AND - TIMMA, NAZAROVS, GRASIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal under Section 83 Of The Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. This case concerns an appeal referred under Section 83 of The Employment Equality Acts, 1998 to 2008. A Labour Court hearing took place on the 13th May, 2011. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr. Gundars Timma, Mr. Romans Nazarovs and Mr. Robert Grasis of an Equality Officer’s Decision dated 9th December 2010, in claims which they brought against Flynn Concrete Products Limited.
In this Determination Mr. Gundars Timma will be referred to as Complainant A, Mr. Romans Nazarovs as Complainant B and Mr. Robert Grasis as Complainant C and Flynn Concrete Products Limited will be referred to as the Respondent.
Complainant A referred a claim of discrimination to the Equality Tribunal on 25th November 2007 and a claim of victimisation on 6th December 2007, Complainant B referred a claim of discrimination to on 23rd July 2007 and Complainant C referred a claim of discrimination on 21st September 2007. The complaints of discrimination made by all three Complainants alleged that they were discriminated against on the race grounds contrary to Sections 6(2)(h) of the Employment Equality Acts 1998-2008 (the Acts) in terms of their conditions of employment when the details of their employment conditions were not supplied in a language which they could understand. Furthermore, Complainant A submitted a claim to the Equality Tribunal alleging that the Respondent had also victimised him contrary to the provisions of section 74 (2) of the Acts.
Based on the evidence adduced, the Equality Officer held that the Complainants’ complainants of discrimination were not well founded and she did not uphold Complainant A’s complaint of victimisation made pursuant to Section 74(2) of the Acts.
The Complainants appealed the Decisions of the Equality Officer.
The Respondent (In Receivership) did not attend before the Equality Officer for reasons which were explained to the Court.
Summary of the Complainant’s Case – Discrimination Claim
Mr. Peter Leonard B. L. instructed by Richard Grogan and Associates, Solicitors, submitted that the Complainants’ were treated less favourably because they were Latvian. He submitted that details of their conditions of employment were not translated into Latvian.
At the hearing of the appeal documentation was submitted to the Court which showed that the Complainants were supplied with documentation on their conditions of employment. This document was divided in two with English on the left and Latvian on the right. It outlined terms and conditions of employment and stated that the Complainants were being supplied with copies of their “Contract of Employment and Personnel Handbook” full details of the rules and regulations on matters of safety, etc. in both languages. Furthermore, the Court was supplied with numerous other examples of correspondence to the Complainants, outlining details of promotion, communication of changes to work arrangements and training, all were supplied in both languages.
Findings of the Court - Discrimination Claim
On the basis of the evidence produced the Court finds that the Complainants were not discriminated against on the race ground contrary to section 6(2)(h) of the Acts.
Summary of the Complainant A’s Case – Victimisation Claim
Complainant A, Mr. Gundars Timma, claimed that he was victimised by the Respondent when he was dismissed on 6th December 2007 having referred a claim of discrimination under the Acts to the Equality Tribunal on 25th October 2007. Form EE1 to the Tribunal outlined the details of his complaint, and stated that he was called foul and abusive names; he did not receive meal or rest breaks; he was required to work excessive hours in breach of the Organisation of Working Time Act, 1997; he did not receive documentation on training he was entitled to; when he made a complaint under the Safety Health and Welfare at Work Act, 2005, he was threatened with dismissal and his trade union official was denied access to the site.
Mr. Leonard told the Court that the Complainant had also submitted a complainant alleging the same complaints to his employer on 2nd December 2007 under the Safety Health and Welfare at Work Act, 2005 and he was dismissed on 6th December 2007. He alleged that by dismissing him immediately following the making of these complaints he had been penalised within the terms of Section 27(3) (c) of Safety Health and Welfare at Work Act, 2005. The Labour Court in Determination No: HSD096 upheld this complaint and awarded him €10,000.
Findings of the Court - Victimisation Claim
Section 74 (2) of the Act states that victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer; any proceedings by a complainant; an employee having represented or otherwise supported a complainant; the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimisation within the statutory meaning.
In identifying a protected act for the purpose of advancing his claim of victimisation the Complainant states that he referred a complaint of discrimination on the ground of race to the Equality Tribunal dated 25th October 2007, he contended that his dismissal on 6th December 2007 was in retaliation for the making of that complaint.
While this complaint does not disclose the alleged acts of discrimination or less favourable treatment, the Court is however, satisfied that that does not of itself constitute a barrier to a claim of victimisation under the Act. Once the originating complaint, however tenuous, is brought in good faith, any subsequent treatment which is to the detriment of the Complainant could potentially be the subject of a subsequent claim of victimisation. (Only one of the complaints was pursued at the appeal before the Court, i.e. the allegation of non provision of documentation as he alleged that it was not provided in a language which could he could understand).
In the letter of dismissal to the Complainant A dated 6th December 2007, the Respondent outlined the reasons for the termination:
-“Failure, on your part, to cooperate fully with an internal investigation of a complaint made by yourself against your supervisor.
-Failure to make full use of the "chain of command" to have your complaint investigated and addressed internally.
- Your misguided efforts to organise a company wide campaign against your supervisor.
-We feel very strongly that the above has irreparably damaged the relationship between employer and employee.”
The Court notes that both Complainant B and Complainant C also submitted proceedings under the Equality Acts they were not dismissed. Whereas, Complainant A submitted complaints under both the Equality legislation and the Safety legislation. The Complainant did not adduce any further evidence to connect his dismissal with the initiation of his claim under the Equality Acts.
On the basis of the facts as found, the Court cannot find evidence to suggest that the Complainant’s dismissal was a reaction to the referral of a complaint under the Equality Acts. Accordingly, the Court concurs with the findings of the Equality Officer in her Decision that sufficient evidence has not been adduced to establish aprima faciecase of victimisatory dismissal of Complainant A by the Respondent. Therefore, the Court cannot find that the Complainant A was victimised within the meaning of the Act.
Determination
The Decision of the Equality Officer that the Respondent did not discriminate against the Complainant A, Complainant B or Complainant C on the race ground pursuant to section 6 (2)(h) of the Acts is upheld and the appeal fails.
The Decision of the Equality Officer that the Respondent did not victimise Complainant A within the meaning of Section 74 (2) of the Acts is upheld and the appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th June 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.