The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-186
PARTIES
Ernaldas Orleckas
(Represented by Richard Grogan and Associates)
- V -
Top Security Limited
(Represented by Management Support Services Ltd)
File references: EE/2009/070
Date of issue: 5 October 2011
Keywords
Employment Equality Acts 1998-2008 - Discriminatory Treatment - Discriminatory Dismissal- Race - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Orleckas (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatory dismissal on the grounds of his race by Top Security Ltd (hereafter "the respondent") contrary to the Employment Equality Acts.
2. Background
2.1. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 13 May 2009 under the Employment Equality Acts. This claim was made on the race ground. On 24 June 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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, an oral hearing was held 6 July 2011 and both parties attended.
3. Case for the complainant
3.1 The complainant, a Lithuanian national, worked for the respondent as a Mobile Patrol Driver and Supervisor for 8 months between 2007 and 2008. The complainant stated that he had not been given a contract of employment, nor had he been given adequate Health and Safety training. He stated that the work was hard and the vans were sometimes left unclean by the previous drivers.
3.2 The complainant submitted that his first four months with the company went well, but then he was asked to do extra, harder shifts, which he complained about. He said that things went downhill after he complained. He said that these harder shifts were given to him because he was Lithuanian.
3.3 The complainant stated that he was fired as a result of complaining about the extra shifts. The complainant stated that he was dismissed on the spot without any notice period. The complainant's legal representative submitted that the respondent took disciplinary action against the complainant, without any regard to the appropriate procedures and without making an additional effort to explain the matter fully to the complainant, a non-native English speaker. The complainant relies on the Labour Court case of Campbell Catering v Aderone Rasak EDA048.
4. Case for the respondent
4.1 The respondent stated that the complainant had very good English, which had been evident throughout his employment. Part of his job had been to write up daily report sheets and he did this without any problem.
4.2 The respondent stated that the complainant had signed a contract of employment and the EAT had already found in the respondent's favour on this point. They also stated that Health and Safety training was given to all their employees and the complainant received the same training as everyone else. They submitted that the complainant had already conceded this point at the Rights' Commissioners. Regarding the complaint about the extra shifts, the respondent stated that this matter had already been heard by the Labour Court on appeal, and a decision had been made in their favour. The Labour Court had accepted that he had worked an average of 43 hours and had not done the extra shifts as claimed, because this would have brought his working time up to almost 60 hours (as the shifts are 12 hours each).
4.3 The respondent stated that at the time the complainant was employed, they had 11 employees. As a result of a downturn in business, they now have 8 employees. They submit that employees were let go on a last-in, first-out basis. On the day they let the complainant go, they submitted that there was a routine morning debriefing session and the complainant was asked to wait behind afterwards. They told him that there was a downturn in business and they had to let him go. They asked him to immediately return his uniform and remove his belongings from his van. They submitted that this is standard procedure, as they are a security firm, whose employees hold keys to a large number of premises. Therefore in such circumstances they are obliged to remove the security access immediately to protect their clients. They submit that they paid the complainant his correct notice pay and processed the appropriate paperwork on his behalf.
4.4 Overall the respondent rejected entirely all the complaints made against them. They stated that they employ people of all nationalities and treat all employees in the same way. The respondent argued that this is an entirely spurious claim, which was sent to the Tribunal using a standard boilerplate submission. They submit that this is evidenced by the fact that the claim makes reference to a REA which is entirely irrelevant, as the REA applies to the construction industry. The respondent wished to record their disapproval of this approach, which they submit shows no fair and due consideration was given to this claim.
5. Conclusions of the equality officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that 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)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 The complainant stated that he did not receive a contract of employment, but this was rebutted by the respondent who showed the document to the Tribunal. The complainant stated that he was given no Health and Safety training, but this was also rebutted by the respondent with documentary evidence. The complained stated that he had been given extra shifts by the respondent, but the timesheets submitted by the respondent under the Organisation of Working Time Act rebut this.
5.4 Regarding the complainant's termination, the complainant's claim was that he was dismissed on the grounds of his race. However at the hearing, he agreed that he had been told at the time that there was a downturn in business and there was no more work for him. The respondent gave credible evidence of the downturn in business and the method they used to select the employees to be laid off. The complainant's claim was limited to vague assertions about feeling badly treated. He did not establish any nexus whatsoever between the redundancy and his nationality. I note the comments of the Labour Court regarding such "mere assertions" in the case of Melbury v Valpeters EDA 0917:
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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. 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 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."
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts: I find that the complainant has been unable to establish a prima facie case of discrimination with respect to either his conditions of employment or his dismissal. Therefore his claim fails and I find in favour of the respondent.
__________________
Elaine Cassidy,
Equality Officer
5 October 2011