EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2013 - 028
PARTIES
Mr Sven Puks
and
Mr Joseph and Ms Eileen Donoghue
File Reference: EE/2009/950
Date of Issue: 9th April, 2013
Headnotes: Employment Equality Acts, - Sectoin 6(2)(h), race ground - Section 8(1)(b), conditions of employment - Section 74(2), victimisation - failure to establish prima facie case
1. Dispute
1.1. This case concerns a complaint by Mr. Sven Puks (hereinafter referred to as "the complainant) that he was discriminated against by Mr Joseph and Ms Eileen Donoghue (hereinafter referred to as "the respondents") on the ground of race, contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to conditions of employment, contrary to Section 8(1)(b) and that he was victimised by the respondents, contrary to Section 74(2) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 21st December, 2009, alleging that the respondents had discriminated against him on the ground of race and/or victimised him.
2.2. Written submissions were received from both parties. On 28th May, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 22nd June, 2012. Further information was sought from the parties and final correspondence in this respect was received on 1st November, 2012.
2.3. It should be noted that the complainant also made a complaint of dismissal with respect to the impugned grounds. However, as this matter had been dealt with by the Rights Commissioners, I have no jurisdiction to deal with the matter, in accordance with Section 101(4)(a) of the Acts. I informed the complainant of this at the hearing.
3. Summary of the Complainant's case
3.1. The complainant, an Estonian national, stated that he was employed by the respondents from November 2005 until 17th July 2009 as a part-time care assistant. He stated that there were no difficulties with his employment until he was told by Mr Donoghue in January 2009 that he was being dismissed from his employment. He stated that, following consultation with the Citizen's Information Centre, he then told Mr Donoghue that he considered that he (Mr Donoghue) had breached employment law (including the Employment Equality Acts) with respect to his employment with him. He stated that the "terror" started after that. He said that he never received a contract of employment, payslips, a P45 and/or a P60. He stated that the respondents had also failed to provide him with his annual leave entitlements. He stated that they also reduced his hours.
3.2. The complainant stated that, on 5th February, 2009, he informed the respondent that he was travelling to Estonia for a few days and had arranged for a friend to work for him. He stated that the respondents refused to agree to this, asking whether this person was also Estonian. He stated that this indicated that the respondents did not wish to employ another Estonian to cover for him. The complainant gave a detailed description of the further deterioration in their working relationship, including that it asked him to sign an "illegal" contract of employment. He stated that he joined SIPTU and, two days after it wrote to the respondents on his behalf, he was sent a letter telling him that due to a cut in its budget it had "no other option than to give (him) redundancy". He stated that he was replaced by an Irish national. In support of his evidence, the complainant submitted to the Tribunal a copy of the Rights Commissioner decision in his favour.
3.3. The complainant stated that he was the only foreign national who worked for the respondents and he would have been treated more favourably had he been Irish. He stated that he was discriminated against and victimised in that respect. He stated that they thought they could do whatever they liked to him because he was Estonian. He added that Mr Donoghue constantly referred to him as a "stupid fucking clown".
3.4. The complainant stated that his complaint of victimisation related to "everything they did" and, in particular, that they ignored him and gave him false documentation. They also stated that they would not give him a reference. He stated that the first told them he considered they were discriminated against him in an e-mail he sent to them on 4th February, 2009.
4. Summary of the Respondents' case
4.1. The respondents stated that Mrs. Donoghue was the complainant's employer and not Mr Donoghue. They stated that the company who hired them to carry passengers provided them with €50 a day to hire a care assistant. They stated that they discontinued the complainant's employment when this funding was withdrawn. They stated that they subsequently carried out his job themselves, or got family members to do it for them. They accepted that they did not provide the complainant with the documents referred to by him but stated that they were not aware of their obligations in that respect. They said that they immediately got their accountant to rectify the situation as soon as they became aware that they were wrong to do so.
4.2. They stated that they could not accept the complainant giving one day's notice of leave before travelling to Estonia, nor that it was obliged to accept as a replacement someone who they were not familiar with. They stated that they had a good working relationship with the complainant but that this began to deteriorate following a failed business venture with the complainant. They outlined a number of situations where they provided assistance to the complainant outside the working environment and stated that they would not have done so if they were racist.
4.3. The respondents stated that the complainant was not replaced. They stated that family members helped out after he left, but did not receive any remuneration for doing so. They denied that the complainant ever told them that he considered he was being discriminated against by them.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
5.2. Section 6(1) of the Acts 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..." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer.."1
5.3. The issues for me to decide in this case, then, are whether the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the ground of with respect to conditions of employment and/or whether he was victimised by the respondents. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Conditions of Employment
5.4. In Melbury -v- Valpeters, the Labour Court stated that "Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule."
5.5. The complainant submitted that he was not provided with contracts of employment, payslips or tax details because he was Estonian. He submitted that the other treatment of him by the respondents which he described was also motivated by the fact that he was Estonian. I have carefully evaluated all of the testimony proffered in the case by all the witnesses and I have taken account of the demeanour of the witnesses in giving this evidence. In general, I prefer the evidence of the complainant with respect to the facts in dispute in this case. I am satisfied that the treatment of the complainant as described by him took place. However, this oral evidence in isolation is insufficient for the complainant to establish a prima facie case of discrimination in that respect. The facts of the case that he has established were set out in the Rights Commissioners decision referred to by the complainant. The remainder of his evidence is speculative. He suggested that the respondents would have treated an Irish person differently in the same or similar circumstances. However, there is nothing in the evidence of either party that would support such a suggestion. Indeed, it was clear from the evidence of the respondents that they would not have treated an Irish person, or any other person, in a different manner, whether more or less favourable.
5.6. Furthermore, I am not satisfied that the treatment of the complainant was related to the fact that he had indicated he considered he was being discriminated against by them. He has also failed to establish a prima facie case of victimisation in that respect.
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, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to s.8(6)(c) of the Acts.
6.3. I find that the complainant has failed to establish a prima facie case that the respondent victmised him contrary to section 74(2) of the Acts.
6.4. Consequently, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
9th April, 2013
1 EE5/1986 Gibney v Dublin Corporation