FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : DARRAGH KANE T/A DK WINDOW SYSTEMS REPRESENTED BY DIARM�ID FAWCITT B.L. INSTRUCTED BY BOWMAN MC CABE SOLICITORS) - AND - MARIS GARAIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. This is an appeal under Section 83 of the Employment Equality Acts, 1998 to 2008. A Labour Court hearing took place on 28th October, 2011. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr. Maris Garais of an Equality Officer’s Decision dated 3rd May 2011, in a claim which he brought against his former employer Darragh Kane t/a DK Window Systems.
In this Determination the parties will be referred to by the designations given to them at the original hearing i.e. Mr. Maris Garais“the Complainant” and Darragh Kane t/a DK Window Systems “the Respondent”.
The Complainant referred a claim to the Equality Tribunal on 14th March 2008 claiming he was victimised contrary to Section 74(2) of the Employment Equality Acts 1998-2008 (the Acts) when he was dismissed in retaliation for instituting proceedings under the Acts against the Respondent. The Equality Officer found that the Complainant had not been dismissed in a victimisory manner and dismissed the claim.
At the hearing before the Equality Tribunal the Complainant’s legal representative withdrew claims of discrimination in relation to training and conditions of employment, discriminatory dismissal and harassment which had been referred to the Equality Tribunal on 19th November 2007. He pursued his claim alleging victimisation and withdrew the other claims accepting that there was no basis for them.
The Complainant is a Latvian national who was employed by the Respondent from 15th January 2007 until 18th January 2008.
The Complainant’s case
The substance of the Complainant’s case is that following the issuing of proceedings under the Acts to the Equality Tribunal on 19th November 2007, the Respondent subsequently dismissed him. In advancing his claim the Complainant relied upon the following particulars:
�After issuing the proceedings on 19th November 2007 under the Acts, the Complainant requested annual leave on 10th January 2008 to take effect from 21st to 25th January 2008, this leave was consented to and he proceeded to make all the necessary arrangements for his holidays.
�On 18th January 2008, the Friday prior to going on leave, the Complainant made enquiries about his wages and was told that if he took a week off he would be fired.
�The Complainant proceeded to take his holidays as planned.
Mr. Richard Grogan, Richard Grogan & Associates, Solicitors on behalf of the Complainant submitted that the Respondent orchestrated matters to put him in a position where he would be fired because of the proceedings he issued against the Respondent under the Acts.
The Respondent’s case
Mr. Diarm�id Fawcitt B.L. instructed by Bowman McCabe Solicitors, representative for the Respondent denied that the Respondent dismissed the Complainant, rather Mr. Fawcitt contended that the Complainant took it upon himself to unilaterally and without notice withdraw his labour and/or abandon his employment on January 18th 2008. Furthermore, Mr. Fawcitt submitted that the Complainant had decided to terminate his own employment as far back as 12th November 2007 when he instituted proceeding under the Acts. This can be deduced from the questions his legal representative put to the Respondent in the Notice for Particulars sent on that date. They include the following questions:
�Please specify the date that you say my employment ceased.�Please furnish particulars as to the grounds on which you say I was dismissed.�Please furnish particulars of all company procedures relating to dismissal.�Please furnish copies of any P60’s and/or P45’s which you say were furnished to me along with copy P35 return relating to my employment.
�Please furnish a copy of your dismissal Procedure
Both the Complainant and the owner of the Company (Mr. Darragh Kane) gave evidence to the Court.
Evidence of Mr. Maris Garais, the Complainant
Mr. Maris Garais gave evidence that on 11th January 2008 he asked his employer, Mr. Kane, if he could take a week’s leave commencing on 21st January 2008, as he wished to go on holiday. He said that Mr. Kane told him it was not the best time to go. However, the Complainant stated that he understood that he had been granted permission to go on leave. He then proceeded to book airline tickets and make the necessary arrangements. The following week when he checked his bank account and discovered that his wages had not been lodged he telephoned Mr. Kane and was told that his wages were being lodged that afternoon. He stated that Mr. Kane also told him that, if he proceeded to go on annuul leave there would be no job for him on his return. He proceeded to go on leave and did not return to the employment. In March 2008 he sought a copy of his P45.
Evidence of Mr. Darragh Kane, the owner/employer
Mr. Darragh Kane gave evidence that the Company had closed for the Christmas period and had recommenced on 7th January 2008. Two days later the Complainant asked him if he could take a week’s leave on 21st January 2008 and he refused him permission. He warned the Complainant that if he proceeded to take the leave that there would be no job available for him when he got back.
Mr. Kane gave evidence that it did not suit his business to allow the Complainant take leave at that time as he was commencing a new major project in Booterstown which required four workers to do the job; two to install window frames and two to install the glass. There were only four workers in the Company at the time, including himself, and therefore it did not suit him to allow the Complainant time off at that time and in particular so shortly after he had leave during the Christmas period.
Mr. Kane told the Court that as the Complainant went on leave he had to replace him with someone else which caused a delay in the progress of the work. Mr. Kane said that he did not contact the Complainant on his return from leave as in his view the relationship at that stage had broken down; the Complainant had taken it upon himself to go on leave rather than fulfil his employment duties and he was no longer reliable.
Conclusions of the Court
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.
Essentially three elements are required: -
�The Complainant must have taken action of a type referred to at Section 74(2) of the Acts (a protected act),�The Complainant must have been subjected to adverse treatment by the Respondent, and,�The adverse treatment was in reaction to the protected action having been taken by the Complainant.
It is for the Complainant to prove, as a matter of probability, the primary facts upon which he relies in pursing his claim of victimisation under Section 74(2) of the Acts. In identifying a protected act for the purpose of advancing his claim of victimisation the Complainant states that he referred complaints of discrimination on the ground of race to the Equality Tribunal dated 19th November 2007, (all of which were subsequently withdrawn), he contended that his dismissal on 18th January 2008 was in retaliation for the making of those complaints.
The Court notes the following:
�There was a dispute between the parties as to whether the Complainant had been granted permission to go on leave or not.
�There was also a dispute between the parties as to whether the Complainant had been dismissed or had abandoned his employment with the Respondent.
�On 15th February 2008 the Respondent’s Solicitors wrote to the Complainant’s Solicitors alleging that the Complainant had taken it upon himself to avail of a week’s leave without giving due notice and had failed to return to work since then. The letter sought the Complainant’s attendance at a disciplinary hearing to explain his long absence from work.
�This was responded to by letter dated 26th March 2008 where the Complainant’s Solicitors outlined their understanding that their client had been fired.
�On 10th April 2008 the Respondent’s Solicitors again wrote to organise a disciplinary hearing in order“to iron out these issues”.
�The Complainant’s Solicitors responded on 24th April 2008 stating that their client was happy to attend a hearing and sought copies of the relevant disciplinary policy and procedures.
�By letter dated 29th July 2008 the Respondent’s Solicitors referred to the pending proceedings under the Acts indicating that they would be fully defended. This letter enclosed a response to the request for a Notice of Particulars and at point 3, referred to the dismissal of the Complainant for his failure to give sufficient notice of his request for annual leave. Its states that“the Complainant was informed by his employer that if he took annual leave that he would not have a job to return to”.
The Court is satisfied based on the submission made and the evidence given that the Complainant’s employment was terminated on 18th January 2008 by the actions/inactions of the Respondent.
The only issue for consideration by the Court therefore is whether or not the Respondent’s decision to terminate the Complainant’s employment was influenced by the proceedings he referred under the Equality Acts in November 2007. The Court is not required to decide if the Complainant was unfairly dismissed. If the Court was concerned with this question, by the application of normal standards of reasonableness, the Respondent might have some difficulty in justifying the manner in which the Complainant’s employment was terminated.
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. The dismissal occurred some nine weeks after the referral, there was no incident in the meantime to suggest any negative attitude towards the Complainant following the referral, which was in the hand’s of the Respondent’s legal representatives. Mr. Kane outlined the reasons for the Complainant’s dismissal which the Court is satisfied were related to genuine business reasons at the time.
Accordingly, the Court finds that sufficient evidence has not been adduced to establish aprima faciecase of victimisatory dismissal of the Complainant by the Respondent. Therefore, the Court concurs with the findings of the Equality Officer in his Decision that the Complainant’s dismissal was unrelated to the Complainant’s claim before the Equality Tribunal and he was not victimised within the meaning of the Act.
Determination
The Decision of the Equality Officer that the Respondent did not victimise Complainant 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
21st November 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.