FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : PEK FLOORING LIMITED (IN LIQUIDATION) (REPRESENTED BY BUTLER AND COMPANY, INSOLVENCY PRACTITIONERS) - AND - JANUSZ TWAROG, GRZEGORZ OCHALA AND DARIUSZ BUBA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Workers appealed the Decision of the Equality Officer to the Labour Court on the 13th April, 2012. A Labour Court hearing took place on the 30th January, 2013.
The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr. Janusz Twarog, Mr, Grzegorz Ochala and Mr. Dariusz Buba of the Director of the Equality Tribunal’s Decision dated 28thMarch 2012 in a claim which they brought against their former employer, PEK Flooring Limited.
In this Determination the parties will be referred to by the designations given to them at the original hearing, hence Mr. Janusz Twarog, Mr. Grzegorz Ochala and Mr. Dariusz Bubawill be referred to as“the Complainants” and PEK Flooring Limited (In Liquidation) as “the Respondent”.
The Complainant referred a claim to the Equality Tribunal on 18thDecember 2009 claiming that they were discriminated against on the race ground contrary to Sections 6(2)(h) of the Employment Equality Acts 1998-2011 (the Acts) as a discriminatory remark was made to them which led to their dismissal on that discriminatory ground.
The complaints were investigated by the Director of the Equality Tribunal pursuant to Section 79 of the Act. The Director of the Equality Tribunal found that the Respondent did not discriminate against the Complainants on the ground of race pursuant to Section 6(2) of the Acts, in respect of dismissal contrary to Section 8(6) of the Acts and that the Respondent did not harass the Complainants within the meaning of Section 14(A) of the Acts. Therefore, he held that the Complainants' case failed.The Complainants are Polish. Both the first-named and second-named Complainants were employed by the Respondent from 7thJuly 2004 and the third-named Complainant from 25thJune 2007. All three Complainants were employed as floor-layers (tilers).
The substance of the Complainants’ case is that while employed by the Respondent they were treated less favourably than an Irish worker would have been treated when a Manager, Mr. P. told them that if they did not accept reduced pay arrangements they would be reported to the Garda� and deported back to Poland. This they contended was aseriousthreat, which they contended was effectively a dismissal, which occurred on 4thDecember 2009.
The Respondent in response denied the allegations made and stated that the only person authorised to dismiss an employee was the Managing Director. At all times the Complainants were accompanied by a fellow colleague who was employed to act as an interpreter/labourer. The Respondent informed the Court that the Complainants never turned up for work following a disciplinary hearing held on 2ndDecember 2009. A letter was sent to each of the Complainants on 10thMarch 2010 formally advising them that they were not dismissed, their positions were still open and inviting them to return to work.
The Court heard evidence under oath from all three Complainants.
Mr. Twarog told the Court that the meeting at which the alleged discriminatory remark made by the Manager, Mr. P took place at the end of December 2009 yet he accepted that he never attended work after the disciplinary meeting which took place on 2ndDecember 2009.
Mr. Ochala told the Court that the meeting at which the alleged discriminatory remark made by the Manager, Mr. P took place at the end of the year 2009 and that he considered himself still employed following that meeting at which the alleged discriminatory remark was made.
Mr. Buba told the Court that he had no recollection of when the meeting with Mr. P took place. He also said that he never attended work after the disciplinary meeting which took place on 2ndDecember 2009.
In all the circumstances of this case the Court has concluded that the evidence given by the Complainants is wholly inconsistent, unsatisfactory and does not accord with the complaints made.
Determination
The Court concurs with the findings of the Director of the Equality Tribunal and upholds his Decision that the complaints made by the three Complainants are not upheld.
The Decision of the Equality Tribunal is affirmed and the Complainants’ appeals are disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th February 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.