Employment Equality Acts
Decision DEC-E2013-141
PARTIES
Piotr Marek
- V -
PCL Logistics Ltd
&
Gary Prenderville t/a Prenderville Couriers
File references: EE/2012/195 & EE/2012/196
Date of issue: 12 November 2013
Keywords - Employment Equality Acts – Discriminatory Treatment – Victimisation – Harassment - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that that he was subjected to discriminatory treatment, victimisation and harassment by the respondents on the grounds of his race in terms of Sections 6(2) 14(A) and 74 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred claims of discrimination to the Director of the Equality Tribunal on 27 March 2012 under the Employment Equality Acts. On 27 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 15 October 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 The date of the hearing was notified to the parties by post. Neither respondent attended the hearing of this matter.
2. SCOPE OF THE INVESTIGATION
2.1 In its written submissions, the respondents indicated that the complainant was never an employee of the first named respondent. Although the respondents did not attend the hearing, at the outset this issue was put to the complainant by the Equality Officer, seeking clarification as to the scope of the investigation.
2.2 In response, the complainant clarified that he had never worked for the first-named respondent and that he had never received any paperwork, payslips or otherwise, from that respondent which could establish the existence of an employment or analogous relationship.
2.3 Having regard to the foregoing I am satisfied that no employment or other relationship as provided by the provisions of the Acts exists between the complainant and the first named respondent and, as such, any complaint taken on this basis must therefore fail.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submitted that he commenced employment in January April 2010 as a driver for the respondent courier company and that he is a Polish national. In January 2012, the complainant made a complaint to his employer regarding his remuneration, specifically he submitted that he was underpaid owing to his nationality.
3.2 The complainant submitted that later in January 2012, he was informed that the respondent was going to cease trading at the end of the month.
3.3 The complainant submitted that he was harassed by the respondent.
3.4 The complainant submitted that he was victimised by the respondent.
4. SUMMARY OF THE RESPONDENT’S CASE
4.1 The respondent submitted the company ceased trading as the principal of the company was retiring at the end of January 2012
4.2 The respondent submitted that no employees of the company were provided with terms and conditions of employment and that on the cessation of the business all employees were provided with written statements in accordance with the statutory requirement.
4.3 The respondent submitted that all of its employees, Irish and non Irish alike, were treated in the same fashion.
4.4 The respondent denied that it harassed or victimised the complainant.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment, victimisation and harassment on grounds of race, in terms of Sections 6, 14(A) & 74 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
Discriminatory Treatment and Harassment
5.3 The complainant stated that at the outset of his employment, his employer promised him 6 to 7 hours of work per day. After some time there was a change in the duration of his duties and he now had to work on longer journeys. He was also required to work at night. The complainant stated that he was treated in a very rude manner by his employer and was asked to do “impossible” things, such as delivering to areas where a pallet truck could not make it.
5.4 The complainant stated that he was paid less than his Irish colleagues, but also confirmed that he was paid less than his Polish colleagues (who were paid the same as his Irish colleagues).
5.5 The complainant stated that from the start of his employment, his employer treated him badly. He further stated that he can’t judge how the employer was treating others as he wasn’t aware of specifics but indicated that he thought that the employer treated Irish drivers differently. The complainant gave an example of where he had to go to five points in Dublin while Irish drivers only had to go to one point. He was unable to give any detail of the locations or of the dates involved.
5.6 The complainant submitted that he would be required to drive for 15 hours while Irish drivers only did 7 hours. Although the complainant submitted some of his tachygraph readings, he was not in a position to indicate what drivers did less hours, or when, other than to indicate that they were Irish.
5.7 The complainant indicated that on one occasion his employer called him “f…ing Polish”, however, his partner who was called as a witness gave a different account of this occasion, which did not support the complainant’s version of events.
5.8 The complainant also indicated that on another occasion, he did not receive holiday pay. However the complainant was not able to say whether other employees received their entitlements regardless of their nationality.
5.9 The complainant gave evidence to the hearing in a forthright manner, and on occasion, gave evidence that was detrimental to his case. Having regard to the complainant’s evidence I am satisfied that he was a credible witness.
5.10 In the case of IBM Ireland Product Distribution Ltd and Michelle Svoboda (EDA1116) the Labour Court stated that it has “consistently found that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case and so transfer the burden of proof” and went on to cite its earlier decision in Melbury Developments Ltd v Valpeters (EDA 17/2009) where it stated that “mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. In the circumstances of this case, the complainant has not provided corroborative evidence to support his contention that he was treated differently on the basis of his nationality. In fact, he provided testimony to indicate that other Polish colleagues were treated the same as their Irish counterparts. Therefore, I must conclude that the complainant has not established any facts from which the inference of discrimination can be drawn. Therefore, this element of the complaint must fail.
Victimisation
5.11 In relation to the victimisation allegations, Section 74(2) of the Acts defines victimisation as follows:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
5.12 The complainant alleged that he was treated less favourably following an investigation by NERA. The Acts define ‘proceedings’ as relating to proceedings under the Employment Equality Acts. I am not satisfied that the complainant has established facts from which victimisation, as defined in the Acts, may be inferred. Therefore, this element of the complaint must fail also.
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this element of the complaint fails.
6.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the basis of the race ground has not been established and this element of the complaint fails.
6.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation has not been established and this element of the complaint fails.
6.4 Having regard to the complaint in relation to the first named respondent, I am not satisfied that any relationship existed such as to render a valid complaint under the Acts, and this element of the complaint must fail.
Conor Stokes
Equality Officer
12 November 2013