The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
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Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-167
Vidmantas Stoskus
(Represented by Grogan and Associates Solicitors)
V
Goode Concrete Limited
File No. EE/2008/136
Date of Issue: 9 September 2011
File reference: EE/2008/136 - DEC-E2011-167
Keywords:
Employment Equality Acts - Discriminatory/Victimisatory dismissal - Race- Prima facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Vidmantas Stoskus (hereafter "the complainant") that he was subjected to discriminatory and/or victimisatory dismissal by Goode Concrete Limited (hereafter "the respondent") on the grounds of his race. The complainant submitted that he was dismissed without proper reason or procedure on 11 September 2007. The complainant had previously issued equality proceedings against the respondent and maintains that this was the real reason behind the dismissal.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 6 March 2008 under the Employment Equality Acts. On 16 July 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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, I proceeded to hearing on 1 September 2011. An interpreter provided by the Tribunal was present.
2. Case for the complainant
2.1. The complainant is a Lithuanian national who worked as a lorry driver with the respondent company. He entered into a contract of employment on or about 31 January 2004 and stated that initially the relationship with the respondent was a good one. The complainant even lived in accommodation owned by the respondent. However, in or about January 2007 the complainant initiated equality proceedings against the respondent along with twelve other complainants. Subsequently, the complainant was dismissed by reason of getting a notification on the 11th October, 2007 advising him that he was dismissed. Proceedings in relation to the dismissal were brought before the High Court in relation to an interlocutory injunction.
2.2. The complainant submitted that because he had sought redress under these Acts he was dismissed in circumstances where he was denied natural justice and fair procedures. The complainant maintains that this denial of fair procedures was as a result of him being one of the first persons to initiate employment claims against the respondent and because he subsequently got a number of his colleagues to initiate proceedings. He believes that he was viewed as a 'ringleader' by the respondent. The complainant submitted that a further reason for his dismissal was because he had refused an offer from the respondent to settle a case pending before the Equality Tribunal.
2.3. The complainant's argument about the respondent's failure to provide him with fair procedures relates to the fact that he was refused the right to have his solicitor present at a disciplinary hearing that resulted in the complainant being dismissed.
2.4. The complainant stated that he was denied fair disciplinary proceedings in accordance with natural justice and that claims against him were made up by senior employees of the respondent (who are related to the Goode family) so that the respondent could get rid of him. The complainant maintained that two allegations were made against him in close proximity of one another (one in or about 9 August 2007 and the other in or about 14 September 2007). The complainant stated that because the respondent could not prove the other complaint due to a lack of witnesses (this incident allegedly took place on third party premises and involved a client of the respondent) the first complaint was dropped and the respondent initiated disciplinary proceedings in relation to second alleged incident.
2.4. The complainant could not recall exact details of who attended and/or what occurred at the disciplinary hearing on 3 October 2007. This, he says, is because it took place over three years ago. He stated that he was not provided with an interpreter and that he was not sure what was said. The complainant maintained that during this process he was asked why he did not accept the money offered to him in relation to his outstanding claims before employment bodies. The complainant also stated that during his suspension period, his named supervisor called to his home with papers that he asked the complainant to sign. The complainant stated that he did not know what was in these papers and that he refused to sign most of them. He signed one paper but did not know what it related to.
3. Case for the Respondent
3.1. The respondent did not appear at the hearing. In a written submission the respondent contends that the Equality Tribunal has no jurisdiction to deal with this claim as the complainant has pursued an alternative remedy in the High Court. According to the respondent, the complainant was dismissed because he verbally and physically abused another member of staff and refused to obey legitimate instructions on 14th September, 2007. The respondent claims that the complainant brought injunction proceedings before the High Court alleging that his solicitor should be entitled to legally represent him at the disciplinary hearing. The injunction application was dismissed by the High Court and the respondent noted in their submission that the learned Ms. Justice Irvine had no criticisms whatsoever of the procedural fairness of the respondent or the manner in which the investigation was conducted.
3.2. The respondent referred to the fact that other persons who were also involved in the very same equality claim as the complainant continued to work with the respondent until recently. The respondent company, with dramatically reduced staff numbers, has recently gone into receivership.
3.3. The complainant was called to a disciplinary meeting on 3 October, 2007. A letter dated 19 September, 2007 was sent to the complainant that broadly sets out the claims made against him and clarifying that the investigation would only examine the incident that took place in September, 2007. It also informed the complainant that he was entitled to have a colleague attend and represent him. Finally, the letter stated that the outcome of this disciplinary meeting could result in the complainant's dismissal. A similar letter was sent to the complainant on 28 September, 2007.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. Firstly, the issue of jurisdiction. Section 101 governs alternative avenues of redress. Section 101(4)(a) prohibits a complainant from seeking redress for dismissal if the complainant has instituted proceedings for damages at common law for wrongful dismissal and the hearing of that case has begun. The respondent stated in a written submission that due to the complainant having initiated proceedings in the High Court this Tribunal, in reliance of section 101(4)(a), has no jurisdiction to investigate this complaint. The complainant submitted that the proceedings before the High Court relate to an application for an interlocutory injunction prohibiting the respondent from ceasing to pay the complainant's salary. It is clear that the hearing before the High Court did not address the issue of wrongful dismissal and that no body has examined the issue of the complainant's dismissal. I am therefore satisfied that section 101(4)(a) does not apply in this case.
4.3. Discriminatory dismissal
4.3.1. There is no evidence to support an argument of a discriminatory dismissal. While I am satisfied that the complainant was dismissed following a disciplinary procedure, there is no evidence to support an argument that a person with a different nationality would have been differently treated in similar circumstances. The fact that the complainant was not entitled to bring his legal representative to a disciplinary meeting is not in itself sufficient to establish a prima facie case of less favourable treatment. It appears that the complainant had signed a contract of employment which contains a disciplinary process and the facts support a finding that this process was at least broadly adhered to. While I note that the complainant's representative submits that the complainant has a 'constitutional right to legal representation', presumably at workplace disciplinary hearings, I am not aware of such absolute right. In any case, this investigation was presented with no fact from which an inference could be drawn supporting an argument that another person with who is not Lithuanian is, was or would have been more favourably treated in similar circumstances.
4.3.2. Furthermore, while the issue of a translator was raised at the Tribunal hearing, I was presented with no evidence to suggest that the complainant, who was receiving legal advice throughout the disciplinary process, had sought for an interpreter to be present at his disciplinary meeting. I note that the complainant submitted that he had often been asked to act as an interpreter for the respondent, despite his English not being fluent enough to equip him for such activity. While I appreciate that the complainant brought this matter to my attention to highlight the fact that the respondent did not provide competent interpreters for disciplinary matters, I also have to glean the fact that meetings had successfully taken place where the complainant had acted as an interpreter. Much documentation exists supporting the fact that the complainant had insisted that he was entitled to have his solicitor accompany him. No evidence of a request for an interpreter has been forthcoming. This refusal to allow the complainant's solicitor to attend cannot be linked with the complainant's race.
4.4. Victimisatory dismissal.
4.4.1. I am satisfied that the complainant had initiated proceedings under these Acts in or about 12 January 2007. His claim was lodged in conjunction with 12 other complainants. The question therefore is whether there are sufficient facts from which I can infer adverse treatment arising because the complainant had sought to rely on the protection provided by these Acts.
4.4.2. The definition of victimisation within the meaning of the Acts was clarified by the Labour Court in their Recommendation Watters Garden World Limited v. Iurie Panuta ADE/08/27. According to this authority, the proposition is that the concept of victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act. It is also clear that the provision evinces a situation in which an employer reacts in a certain way for an employee having committed a protected act. I am therefore satisfied that disciplinary proceedings can be construed as adverse treatment provided that there is evidence to support an argument that such proceedings were initiated without just cause.
4.4.3. The complainant's submission is that he was called to a called to a disciplinary hearing and subsequently dismissed because of his role as a 'ringleader' among the staff who subsequently lodged multiple complaints against the respondent before this Tribunal and other employment bodies. It was submitted in relation to a disciplinary process that two complaints of misconduct were lodged against the complainant but that only one was investigated as the respondent could not secure any evidence pertaining to the other complaint. Having heard the complainant's own evidence, it is clear that he accepts that an incident did occur involving a supervisor. While I note that the complainant's asserts that he was merely refusing to carry out the instructions of his supervisor because he was entitled to a statutory break; it was he rather than the named supervisor who was physically attacked during this incident; member of the Gardai attended the scene; and a fair hearing into the matter would have exonerated him,
I am satisfied that there was an incident that would have given the respondent just cause to initiate disciplinary proceedings.
4.4.4. Having considered the facts of this case I do not accept that the evidence provided is sufficiently compelling to establish on the balance of probability that the complainant was adversely treated because he had lodged a complaint under these Acts. While I accept that the complainant had lodged claims under these acts, I was provided with no compelling evidence that linked the lodgement of the claim in January and the initiation of disciplinary proceedings some 8 months later. Nor was any evidence put forward suggesting that any of the other twelve complainants who had taken a claim against the respondent had been adversely treated. While I note that the complainant submitted that if his solicitor had been allowed to attend the meeting it would have ensured a different outcome, I simply have not been provided with sufficient facts to support such an assertion or opinion.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discriminatory and or victimisatory dismissal on the race ground. Therefore, the case fails.
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Tara Coogan
Equality Officer
9 September 2011