EDA1413

Mr Krystian Matuszczak (the Complainant) submitted a complaint to the Equality Tribunal on the 3rd December 2012 in which he stated that he was subjected to discriminatory treatment, harassment and discriminatory dismissal by the Respondent on the grounds of race and that the Respondent breached the principle of Equal Remuneration in terms of Sections 6(2), 14A and 29 of the Employment Equality Acts and contrary to Section 8 of those Acts.

An Equality Officer investigated the complaints and decided that they were not well-founded.

The Complainant appealed to this Court against the Decision of the Equality Officer in respect of the complaint that he had been the subject of discriminatory dismissal by the Respondent on the race ground.

The Equality Officer’s Decision was issued on 13th November 2013. The appeal was filed with this Court on the 26th November 2013.

The Case came on for hearing before this Court on 19th March, 2014.

Background.

The facts of the case are not in dispute.

The Complainant is a Polish national and was initially employed with the Respondent through an employment agency commencing on 18th May 2008. On 7th September 2009 the Complainant commenced direct employment with the Respondent. The Complainant states that he raised with the Respondent an issue regarding the speed of the production line on which he was working. The Respondent called him to the office and summarily dismissed him from his employment.

The Respondent agrees that it summarily dismissed the Complainant and does not deny that proper procedures were not followed. However, the Respondent submits that it has dismissed other employees in the past in a similar fashion regardless of their nationality.

Section 85(a) of the Act sets out where the burden of proof falls in cases of discrimination under the Act. It places the onus on the Complainant to establish facts regarding the impugned treatment from which an inference of discrimination may be drawn. Where that onus is discharged the burden of proving compliance with the Act shifts to the Respondent.

Findings of the Court

Facts established by the Complainant

The Complainant told the Court that while he was dismissed without reason, explanation or access to natural justice, Irish workers, that had infringed company policy or procedures, were treated in a more lenient manner and given the benefit of procedures that conformed to normal standards of natural justice.

He identified three Irish employees and outlined the manner in which they had been dealt with. In the three cases outlined he told the Court that while they had failed to discharge their duties occasioning considerable financial consequences for the Respondent, they were dealt with through a disciplinary procedure and had sanctions applied to them that fell far short of dismissal.

The Respondent confirmed that the three identified employees had been so treated but argued that they had longer service than the Complainant. It argued that the Complainant was on probation and that all probationers were or would, without regard for nationality, be treated in the manner in which the Complainant was treated without recourse to procedures or natural justice.

However, when asked to identify another employee of a different nationality to the Complainant that had been so treated the Respondent was not in a position to do so.

The Complainant stated that the Respondent failed to reply to the EE2 form served on it in relation to this case and asked the Court to draw whatever inferences it considered appropriate in accordance with the Act. The Respondent did not address this matter in its submissions to the Court.

The Complainant stated that, in response to an enquiry from the Department of Social & Family Affairs, the Respondent replied that the Complainant’s employment ended because it had“no work for him”. The Complainant stated that this was manifestly untrue as the Respondent had employed at least nine employees between the date of his dismissal and the date on which the response to the Department of Social & Family Affairs was completed.

The Respondent did not address that matter in the course of the hearing.

Having regard to the foregoing the Court finds that the Complainant established facts from which an inference of discrimination may be drawn.

The Respondent’s Position

The Respondent presented no evidence in support of it's assertion that all of it's probationary employees would be, and that a number of them had been, similarly treated in the past regardless of race.

Findings of the Court.

It is well settled law that mere assertion cannot be elevated to the status of evidence. In this case the Respondent offered no more than mere assertion in support of it's contention that the decision to dismiss the Complainant was not related to his race or ethnic origins or that it had treated other workers of different racial origin in a similar manner.

Accordingly the Court finds that the Respondent has failed to discharge the burden of proving that it complied with the Act when it dismissed the Complainant.

Determination

Having considered all of the written and oral evidence presented to it the Court finds that the complaint is well-founded and allows the appeal.

The Court orders the Respondent to pay the Complainant compensation in the sum of €15,000 for the breach of his rights under the Act.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
2nd April, 2014______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.