THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2013-148
Karol Cywka
(represented by Cathy Hamilton B.L. instructed by Blazej Novak)
Versus
AGC Temps Ireland Ltd
File reference: EE/2011/352
Date of issue: 13th November 2013
Keywords: Employment Equality Acts, Race, Discriminatory Dismissal, Unfair Dismissal Acts 1977 to 2007
1. Dispute
1.1 This dispute concerns a claim by Karol Cywka, who is Polish, against his former employer AGC Temps Ireland Ltd that he was discriminatorily dismissed on the grounds of race contrary to 8 (1)(b) of the Employment Equality Acts 1998-2011[hereinafter referred to as ‘the Acts’]. He also claims discriminatory dismissal on the same ground.
1.2 Through his legal representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 23rd March 2011. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 19th March 2013 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. A Hearing was held on 3rd April 2013 as required by Section 79(1) of the Acts.
2. Summary of the complainant’s case
2.1 The complainant was employed as a general operative by the respondent from 8th December 2009 until 8th October 2010. His role was separating plastics from other recycling material. He admits that he passed a driver for another company a lunch and some magazines and this was observed on camera. The respondent assumed these were stolen goods and he was called into a meeting to explain what happened. He submits that he did not get an opportunity to explain that it was merely some food and magazines. He maintains an Irish person would have got an opportunity to explain, call witnesses and bring a representative. Cases cited were Ning Ning Zhang v Towner Trading[1] and Ntoko v Citibank[2].
3. Summary of the respondent’s case
3.1 The respondent submits that the complainant did get an opportunity to explain and when he realised he was caught on camera, he acquiesced to being dismissed. They submit that theft is a huge problem with employees there and it was not merely food and magazines that he was passing over. They submit that they certainly would not dismiss somebody for merely passing what he said he passed over. They maintain they were surprised when he submitted an equality complaint as he was so meek when he was dismissed.
4. Conclusions of the Equality Officer
4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. The issue for me to decide is whether the complainant discriminatorily dismissed on the ground of race in terms of 8 (6) (c) of the Acts?
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
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.[3]
4.3 I note that the complainant was working for less than a year for the respondent so therefore, in the circumstances of his case, was not entitled to claim under the Unfair Dismissal Acts 1977 to 2007 which would be appear to be a more appropriate forum for Mr Cywka’s complaint[4]. I have no jurisdiction under these Acts to investigate whether a dismissal is unfair or not. I only have the power to decide whether or not it was discriminatory. I am not satisfied that had the complainant been Irish or an other nationality that he would have been treated in a different way. I am satisfied that the complainant’s English was more than adequate to give a satisfactory explanation to his employer. He made himself understood (without an interpreter) at the hearing and has emailed me directly subsequently. I find that Mr Cywka was dismissed for gross misconduct and that a person of an other nationality would have been treated in the same way. Therefore the complainant has failed to a prima facie case of discriminatory dismissal
Decision
I have concluded my investigation of Mr Cywka’s complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that the complainant was not discriminatorily dismissed in terms of 8(6)(c) of the Acts
His complaint fails.
_______________
Orlaith Mannion
Equality Officer
Footnotes:
[1] Equality Tribunal Decision DEC-E2008-001
[2] Labour Court Determination EED045
[3] Labour Court Determination No. EDA0917
[4] Normally an employee must have at least 12 months' continuous service with his/her employer in order to bring a claim for unfair dismissal. However there are exceptions to this general rule. If an employee with less than 12 months' continuous service s(he) may bring a claim for unfair dismissal if s(he) is dismissed for:
Trade union membership or activity
Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer's Leave Act 2001