FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : WILLIAM CONWAY (REPRESENTED BY BOWLER GERAGHTY AND COMPANY SOLICITORS) - AND - JURIJ LARIGIN (REPRESENTED BY D'ARCY HORAN AND COMPANY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 - 2008.
BACKGROUND:
2. The Employer appealed the Decision of the Equality Officer to the Labour Court on the 24th June, 2010. A Labour Court hearing took place on the 25th February, 2013. The following is the Court's Determination:
DETERMINATION:
Mr Jurij Larigin (the Complainant) made a complaint under the Employment Equality Acts to the Equality Tribunal that he was, contrary to section 8 of the Act, dismissed from his employment on the grounds of race. The Tribunal decided, DEC/E2010/080, that the complaint was well founded and awarded the Complainant compensation in the sum of €10,000.
Section 83 of the Act provides that a party to a complaint may appeal to the Court against the decision of the Equality Authority. Mr William Conway (the Respondent) appealed against the Decision in accordance with the provisions of Section 83.
When the case came on for hearing on 28 November 2012 the matter was adjourned to allow the Court appoint an interpreter to assist the Court. The Complainant is a Lithuanian national with an inadequate command of the English language.
The matter came on for hearing again on 25 January 2013.
The Respondent’s Case
The Respondent operates a motor repair garage. His son, who normally assists his father in the garage, was in January 2007, away undergoing training associated with the completion of his final year of apprenticeship. The Respondent decided he needed help in the garage and on the 24thJanuary 2007 he contracted the Complainant to work as a motor mechanic. He submits that he engaged the Complainant as a sub -contractor and not as an employee. He further submits that the Complainant carried out work on his own account in the garage when business was slow.
The Complainant submits that he was taken on as an employee by the Respondent. The terms and conditions of the engagement were not reduced to writing.
He submits that he told the Complainant when he was first engaged that there was sufficient work for him until the 13thApril 2007 at which point the garage would be closed for two weeks. The Respondent duly closed the garage on that day for a period of two weeks.
When the garage reopened the Complainant contacted the Respondent on or about 29 April 2007 enquiring if there was any further work available. He submits that he advised the Complainant that there was work available until the 18thMay 2007 when the garage was due to close again as the Respondent was going overseas for a period of time. The Complainant resumed work until the garage closed on the 18thMay 2007.
The Respondent returned to the garage on the 5thJune 2007. The Complainant presented himself for work. He was told that there was no work available at that time at which point he sought arrears of wages that were due to him. He was told to return later that week. He returned on the 8thJune seeking his outstanding wages. The Respondent advised him that no monies were due to him. He requested the Complainant to leave the premises.
The Complainant refused to do so. The Respondent submits that he asked the Complainant to move his car as he was blocking the garage. He says the Complainant refused to co-operate with this request and instead became aggressive insisting that he be paid the monies he said were owed to him.
The Respondent submits that his son attempted to move the car so as to facilitate the normal operation of the Garage. He submits that the Complainant at that point became more aggressive and prevented him from doing so. The Respondent arranged to have the Gardai called. They attended at the premises and, following an engagement with the Complainant, arrested him and drove him away. Later that day the Gardai collected the Complainant’s car and released him from custody without charge.
Without prejudice to his contention that the Complainant was engaged as a sub- contractor, the Respondent submits that the complainant’s engagement came to an end when his son returned to work after his “Block Release” in FAS came to an end. He submits that the Complainant’s nationality was not a factor in the decision to terminate his employment.
The Complainant’s Case
The Complainant submits that he was employed by the Respondent and carried out his work between 9 am and 6 pm each day for which he was paid a weekly wage. He submits that he operated under the direction and control of the Respondent and took all of his instructions from him. He submits that the Respondent’s decision to call the Gardai and have him arrested was taken had he been an Irish national. He submits that he would have been paid all of the monies due to him and the situation that arose on the 5thand 8thJune 2007 would not have arisen had he been an Irish national. He submits that he would have been supplied with copies of his contract of employment, payslips etc had he been an Irish national. Accordingly he submits that his treatment and dismissal was in part related to his nationality and accordingly infringed his entitlement to equal treatment under the Act.
Findings of the Court
The Court finds that the Complainant was employed under a contract of employment. The Respondent in answer to questions from the Court said that he determined the Complainant’s hours of work, the sequencing of his work, the times at which he performed the work assigned to him and otherwise controlled his activities at work. The Court is satisfied therefore that the Respondent exercised a level of control over the Complainant at work as is consistent with a contract of service. The Court notes that the Respondent treated the Complainant as a contractor in his books of account. However, the Court takes the view that the employment relationship is determined by the substantive nature of the relationship between the Complainant and the Respondent and not by the manner in which it is recorded in the books of account. Finally, the Court notes that the Complainant was required to provide his own tools and advertised himself as being in a position to do so when seeking work. However the Court finds that there is nothing unusual in this and that it is not determinative of the employment relationship in this case.
The Court further finds that the Complainant’s employment was timed to cover the Respondent’s son’s absence whilst training at FAS. When the Respondent’s son became available for work the Complainant’s employment was terminated. This occurred on or about May 18th2007 to coincide with the Respondent’s decision to close the garage to enable him to travel overseas. The Complainant did not dispute that fact. Indeed he submitted that he was hoping to resume work on June 5thwhen the garage reopened. When he was told there was no work available for him he did not raise any objection at that point. In his own submission he states that he sought monies he says were due to him. He also told the Court that he subsequently secured payment of the claimed amounts following a successful complaint to the Rights Commissioner Service under the relevant labour legislation.
The Complainant told the Court that the only complaint before the Court was one of discriminatory dismissal. He does not dispute that the work for which he was employed was no longer available. He simply asserts that the Respondent would not have called the Gardai had he been an Irish national and his complaint hinges on this point.
The Court finds that it is common case the Complainant parked his car on private property and was refusing to remove it or to leave the premises until he was paid. The Complainant submits that he was aggressive and that his car was blocking the garage and that he refused to move it or leave the premises when asked to do so.
The Court finds that the Respondent’s actions are consistent with those that would be taken by an employer should any person refuse to remove his person or his car from private property and particularly so where he formed the opinion that the position of the car was interfering with the conduct of normal business or the person concerned was becoming aggressive. The Court notes that it is common case that the Complainant refused to move the car when requested to do so by the Gardai and that this led to his arrest. Moreover the Court notes that these events occurred after the Complainant’s employment had been terminated on the basis that there was no work available a fact that the Complainant did not dispute. Accordingly the Court finds that the Complainant’s nationality was not a factor in the decision to terminate his employment. The events that occurred subsequent to the termination of his employment could not have influenced the decision to terminate his employment and on the basis of the information before it the Court finds that the Respondent’s behaviour revealed no bias towards the Complainant on the basis of his nationality that would shed any retrospective light on the earlier decision to terminate his employment. Rather his decision to call the Gardai was not consistent with discrimination of the race grounds within the meaning of Section 6 of the Act.
Determination
The Court finds that the complaint of discriminatory dismissal is not well founded. The appeal is upheld. The decision of the Equality Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
12th March, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.