The Equality Tribunal
Employment Equality Acts
Decision DEC-E2013-116
PARTIES
Jekaterina Dokutsaeva & Lina Alioniene
(Represented by Richard Grogan & Associates)
- V -
E&C Tynan Ltd, in Liquidation
File references: EE/2011/718 & EE/2011/719
Date of issue: 25 September 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainants that that they were subjected to discriminatory treatment by the respondent on the grounds of their race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal on 17 October 2011 respectively under the Employment Equality Acts. On 21 May 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 12 June 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. The Liquidator replied, indicating that he would not be in a position to attend the case.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainants submitted that they were employed by the respondent and that when they were made redundant they indicated that they wished to have it checked by a solicitor before signing anything.
2.2 The complainants have limited English and submitted that the respondent sent a offensive text to the second-named complainant and indicated that it is inappropriate to send a text which uses the "f" word to a lady
2.3 The complainants submitted that they must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.4 The complainants submitted that they are seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the company was insolvent and had to be put into liquidation with the loss of all jobs. The director of the company, Mr X, prepared RP50 redundancy forms for signature by all staff members. Of all company employees, only the two complainants refused to sign the RP50 forms.
3.2 The respondent submitted that later that day Mr X received an abusive phone call followed up by a text from a relation of the second-named complainant. The respondent submitted that Mr X felt provoked and was annoyed when he felt that he was assisting his former staff to claim their redundancy entitlement and that he respondent to the text with another text to the same number.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainants to discriminatory treatment on grounds of race and gender, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 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.
4.3 At the start of the oral hearing, the complainants stated that in Estonia it is unacceptable to say such things to a woman. The complainants indicated that they felt humiliated and badly treated as wives, mothers, grandmothers and Estonians.
4.4 The complainant's representative stated that a text including the "F" word would not have been sent to a hypothetical Irish male and therefore this amounts to discrimination.
4.5 Having considered the evidence before me, I am not satisfied that a text including the "F" word would not have been sent to a hypothetical Irish male. Upon reflection, I consider that it is actually more likely to occur in the case of a hypothetical Irish male.
4.6 I am satisfied that the complainants have not established facts from which discrimination may be inferred. Accordingly, the complainants have not established a prima facie case of discrimination on either ground and these complaints fail.
5. DECISION
5.1 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.
5.2 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 gender ground has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
25 September 2013