Employment Equality Acts 2000 to 2011
DECISION NO: DEC-2013-019
PARTIES
Sebastian Szmidt and Robert Siwczak
(Represented by Cathy Hamilton BL, instructed by Blazej Nowak)
v
Allied Mechanical Engineering Services Ltd.
(In Liquidation)
Date of Issue: 7 March 2013
File No. EE/2010/715 & EE/2010/717
Keywords
Employment Equality Acts - discriminatory treatment - race - conditions of employment - dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Sebastian Szmidt and Mr. Robert Siwczak (hereafter "the complainants") that they were subjected to discriminatory treatment in their working conditions on grounds of race by Allied Mechanical Engineering services Ltd. (hereafter "the respondent") and discriminatorily dismissed on the grounds of their race. The complainants state that they were not given contracts of employment and were discriminatorily dismissed on the grounds of their race.
1.2 The complainants referred a claim of discrimination to the Director of the Equality Tribunal on 28 September, 2010 under the Employment Equality Acts. On 28 November 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- 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 19 December 2012.
2. Summary of Complainant's case
2.1 The complainants are Polish nationals and were employed as general operatives on building sites. Mr. Siwczak was employed by the respondent in September 2009 until September 2010. Mr. Szmidt was employed from July 2009 until September 2010. The complainants allege that they were discriminated against as they did not receive contracts of employment. The complainants allege that they were treated less favourably than their Romanian co-workers who were retained in employment. The complainants allege that the Polish workers were being let go but the respondent took on more Romanian workers. Their supervisor who was a Romanian national communicated to them in English and advised them that they were being laid off as there was no work available. However, they became aware that some of their former co-workers were working on another building site. They were aware of another Polish national who was also retained on the new building site together with Irish and Romanian nationals.
3. Summary of Respondent's case
3.1 The respondent company is in liquidation and did not attend the hearing.
4. Conclusions of Equality Officer
4.1. I have considered all the evidence both written and oral presented to me. 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. In a recent Determination the Labour Court1 , whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"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."
4.2 The complainants have received recompense from the Rights Commissioner for breaches of the legislation relating to the Organisation of Working Time Act and the Terms of Employment (Information) Act. Having examined all the evidence relating to this complaint under the Employment Equality Acts, I am satisfied that there is no prima facie evidence to substantiate a complaint of discriminatory working conditions or discriminatory dismissal on behalf of the complainants. Based on the evidence, the respondent did not provide contracts of employment to its general operatives either to Irish employees or non-national employees. At the hearing, the complainants gave testimony stating that while they were let go when the building they were working on reached completion; they were aware of Polish workers who were retained on the new building site including a Polish co-worker who was employed with them on the previous building site. Therefore, I find that the complainants have not provided any substantiating evidence to demonstrate a nexus between their dismissal and their race. Overall, taking all the evidence into account, I am satisfied that the complainants employment with the respondent was not terminated on the grounds of their race and I, therefore, find against the complainants in this case.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. 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. I find that the complainants were not discriminated against by the respondent in relation to their conditions of employment on grounds of race, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts. I find that the complainants were not discriminatorily dismissed on grounds of their race. Therefore, the case fails.
____________
Valerie Murtagh
Equality Officer
7 March, 2013
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.