The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-012
Parties
Marcin Roszkiewicz
(Represented by Grogan and Associates Solicitors)
V
Walkinstown Auto Services Limited
File Reference No. EE/2009/938
Date of Issue: 3 February 2012
Keywords
Employment Equality Acts -Discriminatory treatment - Conditions of employment - Training - Discriminatory dismissal - Race- Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Marcin Roszkiewicz (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatorily dismissed by Walkinstown Auto Services Limited (hereafter "the respondent") on the grounds of his race. The complainant submitted that the dismissal occurred on 27 September 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 18 December 2009 under the Employment Equality Acts. On 6 December 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 16 December 2011. Additional documents, as agreed at the hearing, were received on 10 January 2012. Final comments were received on 25 January 2012.
2. Preliminary issue
2.1. The complainant relied on a letter on the respondent company letterhead that stated that the complainant was an employee. He stated that he had received the letter from the respondent's named partner as he needed it for his landlord. The complainant submitted that he only discovered after his dismissal upon enquiring with the Revenue Commissioners that he had not been legally employed by the respondent.
2.2. The complainant recognised the respondent at the hearing and claimed that he had been employed by him. The complainant provided his diary to the investigation that showed that he had worked both nights and days. The complainant correctly named the respondent's manager and other staff. He was also able to provide texts messages linked to employment matters that the respondent acknowledged where sent from his partner's phone. The respondent stated that his partner had sent these text messages as a favour to the person who had hired the garage.
2.3. The respondent vehemently denied that it had ever employed the complainant. The respondent submitted that he had been absent for most of the material time working elsewhere and that he had sub-contracted the garage to a named Polish individual who operated from there between 22.00 - 06.00 hours. A copy of agreement concerning an arrangement - including a responsibility concerning staffing - between the respondent and a named individual was forwarded to the investigation
2.4. The respondent submitted that there had been a break in the respondent's office and, among other things the company letterheads had been stolen. He submitted that the letter layout was incorrect and that it was not his signature on it. The respondent referred to letter with his signature and noted that they were rather different. The complainant's representative did not accept this and noted that while his signature was a little different in the correspondence submitted to the investigation, some of the other documents he relied upon at the hearing contained a similar, more hurried, signature.
2.5. Having considered the facts before me, on the balance of probabilities, I am satisfied that the complainant worked in the respondent's garage at least on occasion. I do not accept that the two operations were clearly separate from one another. It is clear that some staff fluctuated between the two operations and as a consequence it is impossible to determine who the actual employer was. It is clear that the complainant did occasionally work days and it is clear that the texts that were shown to the investigation were sent by the respondent's partner. The manager named in one of the texts was the respondent's manager. I find that the respondent is an employer within the meaning of these Acts.
3. Case for the complainant
3.1. The complainant is a Polish national. He was told of the vacancy in the respondent garage by a named friend and was paid cash in hand. The complainant submitted that he worked with the respondent between 1 November 2008 and 27 September 2009. He submitted that his working week would fluctuate as he was called in when needed by the respondent manager. In the written submissions the complainant asserts that he did not:
- receive a proper contract or a contract at all;
- receive proper health and safety training or documentation;
- receive tax documentation;
- receive no holiday pay; and
- receive Sunday premiums.
Furthermore, the complainant submitted that he was dismissed without proper procedure. The complainant received a text message on 27 September 2009.
3.2. The complainant submitted that he was treated less favourably than other Polish workers in the garage because he, as a Polish national, was more vulnerable because he did not know his rights. Therefore the complainant asked the Tribunal to consider a notional Irish comparator.
3.3. The complainant submitted that his employment came to an end when he received a text message from the respondent's partner which said (translated from Polish): "Alan's decision is that you are not working nights anymore as before but we can eventually come to terms that if weekends are busy I can call you for a few hours all because you did not do your work properly and there has been complaints." The complainant did not reply to this message and has not worked in the garage since.
4. Case for the respondent
4.1. The respondent operates a carwash. He denied ever employing the complainant and submitted that it would make no sense for him to employ people illegally. He submitted that there is hardly any financial benefit to such conduct.
4.2. The respondent submitted that his premises have recently been inspected by NERA inspectors. While he has not received any results in relation to this inspection, he showed the Tribunal paperwork supporting his assertion that his employees, all of whom are Polish, had received contracts of employment, paid tax and received health and safety documentation. The complainant recognised a number of the names and confirmed that they had been employed at the same time as he had been.
4.3. The respondent could not comment on the texts. He acknowledged that the number from which they were sent from is that of his partner's.
5. Conclusion of the equality officer
5.1. 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".
5.2. This Tribunal was asked to infer that the complainant was less favourably treated by the respondent in circumstances where all the respondent staff are Polish. It is clear to me that some of his comparators, other Polish persons, had received contracts of employment and were/are PAYE employees. I do not find in such circumstances that I can infer that the complainant was treated in the manner in which he was treated because of his nationality. While it is clear that the complainant was treated less favourably than other Polish persons working with the respondent were/are treated it is equally obvious that the reason for this treatment is not because of his nationality.
5.3. Following the above argument, I do not find that the complainant was discriminatorily dismissed. There is no evidence to support an inference that the termination of the employment was in anyway influenced by the complainant's nationality. While there is an arguable case for unfair dismissal, I note that the complainant is not protected under the relevant legislation due to the fact that he has been employed for a period less than 12 months.
6. 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:
6.2. I find that the complainant has not established a prima facie case of discrimination on the race ground. Therefore, the case fails.
6.3. I find that the complainant has not established a prima facie case of discriminatory dismissal on the race ground. Therefore, the case fails.
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Tara Coogan
Equality Officer
3 February 2012