The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-089
PARTIES
Maris Garais
(Represented by Richard Grogan & Associates)
AND
Darragh Kane t/a DK Windows and Doors
(Represented by Willie Fawsitt B.L. instructed by
Bowman McCabe Solicitors)
File reference: EE/2007/597 and EE/2008/163
Date of issue: 3 May 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 & 74 - Race - Victimisatory Dismissal
1. DISPUTE
1.1. This dispute concerns claims by Mr Maris Garais that he was discriminated against by Darragh Kane t/a DK Windows and Doors on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to training, conditions of employment, other and dismissal in a discriminatory manner contrary to section 8 of the Acts and victimsatory dismissal in contrary to section 74 of the Acts.
1.2. The complainant referred claims to the Director of the Equality Tribunal on 19 November 2007 and 14 March 2008 under the Employment Equality Acts. On 25 June 2010, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 13 April 2011.
2. COMPLAINANT'S SUBMISSION
2.1. At the start of the hearing the complainant withdrew his claim in relation to training, conditions of employment, other and discriminatory dismissal. He confirmed the only part of the claim he was pursuing was in relation to victimisatory dismissal.
2.2. The complainant is Latvian and he started working for the respondent on 17 January 2007. On 19 November 2007 he submitted a claim to the Equality Tribunal that he had been discriminated against in relation to training, conditions of employment and other on the grounds of his race. He submits that on Thursday, 10 January 2008 he went to the respondent and asked for a week's leave from 21 - 25 January 2008 and the respondent said it was not the best time to take leave but he would not hold him back. The complainant submits that he understood he had been given permission to take the leave and booked his holiday the following Monday. On the next Friday, 18 January, he rang the respondent as his money was not in his bank account and reminded him that he was going on leave on the following Monday. The complainant submits that the respondent told him that if he went on leave he would not have a job when he got back. The complainant submits that he went on holiday and did not contact the respondent when he returned as he presumed that he was dismissed.
2.3. He submits that the withdrawal of permission to take leave and consequent dismissal arose because of the claim he submitted to the Equality Tribunal on 19 November 2007.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that the company had only returned to work after the Christmas and New Year break on Tuesday, 8 January 2008 when the complainant approached him on the Thursday looking for a week's leave from 21 January 2008. He submits that he told the complainant that those dates did not suit for the complainant to take leave and he thought the matter was settled.
3.2. The respondent submits that when the complainant phoned him the following Friday saying that his wages were not in the bank he told him that the wages were done and would be in his bank account that day. When the complainant then told him that he was going on leave that Monday he told him that if he went there would not be a job for him when he got back.
3.3. The respondent submits that his refusal to grant the leave request had nothing to do with the complaint submitted to the Equality Tribunal. He did not dismiss the complainant but by going on leave the complainant "took it upon himself to get fired".
4. FINDINGS & CONCLUSION OF THE EQUALITY OFFICER
4.1. I have to decide if the complainant was dismissed in a victimisatory manner. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. The complainant submitted a claim to the Equality Tribunal on 19 November 2007 alleging discriminatory treatment in relation to training, conditions of employment and other. The respondent was informed of this complaint by the Equality Tribunal in a letter dated 23 November 2007. At the hearing the respondent gave evidence that he did not consider the claim to be serious and was something that would sort itself out, and he forwarded it to his solicitor. The respondent was involved in no further correspondence with either the Equality Tribunal or, from evidence provided, the complainant's representative until after the complainant had ceased working for him. Also, from the evidence provided, the complainant worked for the respondent with no mention of the claim between them and there was no inference that any other action by the respondent was victimisatory.
4.3. Mr Kane, the owner of the respondent company, and the complainant gave contradictory evidence of the conversation they had on Thursday, 10 January 2008 when the complainant requested a week's leave. Both agreed that Mr Kane said it was not a good time to take leave. The complainant contends he then went on to give implied permission whereas Mr Kane says he did not give permission. When the complainant told him the following Friday that he was taking the leave the following week Mr Kane did tell the complainant he would not have a job when he came back. Mr Kane gave evidence that the company had a three to four week contract which had started when they returned from the Christmas/New Year break and for which he needed the complainant.
4.4. Mr Kane also gave evidence that the complainant had previously requested time off, outside the usual construction industry breaks, and sometimes he gave it and sometimes he didn't, depending on the level of work at the time. These were usually single days and, like the week in question, would have been unpaid.
4.5. The complainant's representative also submitted copies of payslips which showed that for a number of weeks in October, November and December 2007 the complainant had received less than a full week's pay. It was agreed that this because the complainant took days off and also because there was not always a full week's work available for him. I note that these payslips related to weeks before and after the complainant submitted his first claim to the Equality Tribunal.
4.6. Section 74 (2) of the Acts states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings [under this Act] by a complainant, ......."
4.7. The complainant contends that this disagreement over leave was the perfect opportunity for the respondent to victimise the complainant because he had made his claim of discrimination. However, having considered all the evidence, particularly the oral evidence given by the complainant and Mr Kane at the hearing, I find the evidence of the respondent to be more credible. I therefore accept his version of events and find that his dismissal of the complainant was related to the running of his business and was unrelated to the complainant's claim before the Equality Tribunal.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the complainant was not dismissed in a victimisatory manner.
____________________
Hugh Lonsdale
Equality Officer
3 May 2011