THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011- 203
PARTIES
Stephen Koomson
-V-
Martin Doherty & Claire Gavigan
Letterkenny 4 x 4 Ltd (in Receivership)
File Reference: EE/2008/476
Date of Issue: 2nd November 2011
Decision DEC - E2011 - 203
Stephen Koomson
-V-
Martin Doherty & Claire Gavigan
Letterkenny 4 x 4 Ltd (In Receivership)
Keywords
Employment Equality Acts 1998-2004 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(h) race ground, Section 8(1)(b) - conditions of employment, Section 14A - harassment, Section 74(2) - victimisation, prima facie case.
1. Dispute
This dispute involves a claim by the above named complainant that he was discriminated against by the above named respondents on the race ground, in terms of section 6(1) & 6(2)(h) and contrary to section 8(b) of the Employment Equality Acts, 1998 and 2008 in relation to his conditions of employment. The complainant also claims that he was harassed contrary to section 14A of the above Act and victimised in terms of section 74(2) of that Act.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 15th July 2008 alleging that the respondent discriminated against him relation to his conditions of employment and he also claimed that he was subjected to harassment in the course of his employment.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008, the Director delegated the case on the 17th August, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant. A hearing on the complaint was held on the 31st August 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is a Ghanaian national, submits that he was employed by the respondent as a service assistant on the 22nd of May 2008 and his employment was terminated on the 20th June 2008. The respondent operated a service station for trucks and the complainant did general office duties including booking in vehicles to the workshop for service, liaising with mechanics and customers in relation to repairs, taking phone calls in relation to breakdowns, ordering replacement parts and issuing invoices to customers. There were seven employees in the office and they were all Irish except the complainant and another person from Poland. The complainant was the only black employee. He reported to an Irish manager.
3.2 The complainant stated that he was treated differently to other employees and he believed that this occurred because of his colour. He said that he never received a contract of employment even though he constantly asked for one. He said that he was promised, by one of the Directors of the company, an increase in wages if he did training courses but he was not allowed to go on them. He said the some of the employees made remarks about his colour in front of management and they did nothing about it. He said that he was frequently called a "black *******" by the owner of the company. He said that he was racially abused by some customers both over the telephone and in the office and even though this abuse was overheard by management nothing was done about it and they just laughed at him along with the customers. On one occasion a manager in the parts department called him racially offensive names in front of the owner. He complained to his manager and nothing was done about it. He believes that he was picked on and treated differently because of his colour. On the 20th June 2008 he was dismissed without any reason. He said that he pursued a complaint about his dismissal to the Labour Relations Commission.
4. Respondent's Case
4.1 The respondent did not respond to the complainant's submission. The company is now in receivership and the Receiver informed the Tribunal that they would not be attending the hearing but that he had forwarded the hearing notification to the last known address of the Directors.
5. Conclusions of the Equality Officer
5.1 In this case, I must consider the complainant's claim that the respondent directly discriminated against him on the race ground in terms of section 6(1)(a) and 6(2)(h) of the Employment Equality Acts 1998-2008, in contravention of sections 8 of the Acts in relation to his conditions of employment. I must also consider whether the complainant was harassed within the meaning of section 14A of the Acts and victimised contrary to section 74(2). In making my decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. I note that Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides;
"Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the race ground in relation to his conditions of employment. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (DEE011 15th February 2001considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.3 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
"..... 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) (in this Act referred to as the 'discriminatory grounds')"
Section 6(2)(h) provides that as between any two persons, the discriminatory grounds are, inter alia:
"(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),",
5.4 First, I will consider the issues that have been raised by the complainant in relation to his conditions of employment and training which he contends constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. He submits that it was discriminatory not to give him a contract of employment or to provide the training promised to him. He states that the only reason he was treated in such a manner was due to his colour and race. The complainant was unable to provide any evidence in relation to whether any other employee got a contract of employment or whether they were provided with training. The respondent did not attend or give evidence at the hearing or provide a written statement in response to the complaint.
5.5 In considering this case I have taken cognisance of the Labour Court decision in the case of Melbury Developments Limited v Arthurs Valpeters (Determination No. EDA0917) where the Court stated:
"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 Having regard to the above mentioned jurisprudence and the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality to the complainant would have been treated, in comparable circumstances, in relation to the aforementioned aspects of his conditions of employment and training. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of his complaint.
5.7 The next matter I must consider is the complainant's claim that he was harassed contrary to Section 14A of the Acts. Section 14A of the Acts defines harassment as:
"any form of unwanted conduct related to any of the discriminatory grounds, and........ being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
The Act goes on to give examples of unwanted conduct and states:
"(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
5.8 The complainant submits that he was called racially offensive names on a regular basis and when he complained to his direct manager no action was taken to prevent it happening again. I note that the complainant claims that he was frequently called names which referred to his colour. While he did not adduce any corroborative evidence in relation to his treatment, I found the complainant a very credible witness. For this reason I am satisfied that he was subjected to offensive name calling and to a working environment which was hostile and intimidating. I find therefore, that the complainant has established that he was treated less favourably on the race ground than another person of a different nationality was treated or would have been treated in comparable circumstances. Accordingly, I find that the complainant has established a prima facie case of harassment on the race ground within the meaning of the Acts. The respondent did not attend the hearing. I find therefore that the respondent has failed to rebut the prima facie case of harassment on the race ground established by the complainant.
5.9 The next matter for consideration is victimisation. Section 74(2) provides that:
(2) For the purposes of this Part 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 by a complainant,
(c) an employee having represented or otherwise supported a
complainant,
(d) the work of an employee having been compared with that
of another employee for any of the purposes of this Act
or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under
this Act or the Equal Status Act 2000 or any such repealed
enactment,
(f) an employee having opposed by lawful means an act which
is unlawful under this Act or the said Act of 2000 or
which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any
of the actions mentioned in the preceding paragraphs.
5.10 In order to establish victimisation for the purpose of the Act the treatment complained about must be causally connected to one or more of the matters referred to at paragraphs (a) to (g) above. The complainant did not adduce any evidence to support his claim of victimisation. He stated that he was dismissed from his employment without good reason. In evidence he made no claim that his dismissal was in any way connected with his complaints to management about the way he was being treated. I note that the complainant was dismissed on the 20th of June 2008 and he referred the complaint to the Tribunal on the 15th July 2008 and in that referral he did not make any claim in relation to his dismissal while he did make a claim of victimisation. In his submission to the Tribunal dated 16th March 2009 he stated inter alia that he was dismissed without any reason. If the complainant considered that his dismissal was victimisation and arose as a result of his complaint about his treatment, I am satisfied that he would have made such a complaint at the time he referred his complaint to the Tribunal. The issue which he raised about his dismissal in his statement of the 16th March 2009 is outside the statutory time limit of six months for referring a complaint as set out in section 77(5)(a). In any event he stated that his complaint about his dismissal was dealt with by the LRC and consequently I am precluded under Section 101 of the Acts herein from awarding redress in respect of any complaint he may have in respect of his dismissal I therefore find that his complaint of victimisation cannot succeed.
Decision
6.1 Having investigated the above complaints, 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) of the Acts in terms of his conditions of employment and training contrary to section 8(1) of the Acts;
(ii) the respondent did not victimise the complainant on the race ground pursuant to section 74(2) of the Acts;
(ii) the respondent subjected the complainant to harassment contrary to section 14A of the Acts.
6.2 In accordance with section 82 of the Employment Equality Acts 1998-2007, I hereby order that the respondent:
(i) to pay the complainant the sum of €5,000 compensation for the effects of the acts of harassment. This figure represents compensation for infringement of his rights under equality legislation in relation to harassment. It does not include any element of remuneration and is not therefore subject to tax.
____________________
Marian Duffy
Equality Officer
2nd November 2011