The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-090
PARTIES
Segute Ziaugiene
(Represented by Tiernan Lowey B.L. instructed by MS Solicitors.)
AND
The Hollow Bar and Restaurant
(Represented by Mr Simon Kennedy)
File reference: EE/2011/375
Date of issue:17 December 2014
HEADNOTES: Employment Equality Acts, Race , Conditions of Employment.
1.DISPUTE
1.1. This dispute concerns a claim by Ms Segute Ziaugiene that she was discriminated against by The Hollow Bar and Restaurant on the grounds race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 5 April 2011 in relation to conditions of employment and dismissal. On 25 October 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on15 November 2013. Final submissions were received on 29 November 2013. The complainant withdrew her claim in relation to dismissal at the hearing.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant, a Lithuanian national, commenced employment with the respondent as a kitchen porter in April 2006, in a part time capacity working on Fridays, Saturdays and Sundays.
2.2. She submits that she was never issued with a written contract, never received any health or safety training and never received any payslips. The complainant says that during her employment that she was troubled by the fact that she could not be certain whether tax and social insurance payments were being paid.
2.3. The complainant submits that during her employment that she was denied her legal entitlement to annual leave and public holidays. Furthermore she submits that she was never paid a Sunday premium for work that she provided on Sundays and that she was denied payment and conditions of employment in accordance with the existing Employment Regulation Order for that industry. The complainant submitted a named comparator in relation to holiday pay and other conditions of employment.
2.4. The complainant submits that, in July 2010, she requested time off work from the respondent in September to allow her to travel to Lithuania for medical treatment (urgent dental work) and she submits that the respondent was agreeable at that time. The complainant says that while the respondent initially agreed that they later reneged on the agreed leave.
2.5. The complainant made an application to extend the period of consideration for the Tribunal to a 12 month period in accordance with Section 77 of the Acts. The complainant maintains that the instances of discrimination alleged formed part of a continuum of events.
3. RESPONDENT'S SUBMISSION
3.1. The respondent rejects all aspects of the complaint. They submit that the complainant was treated, at the very least, in the same manner as other employees and reject any allegation of discrimination. The respondent submits that the complainant received preferential treatment over other employees.
3.2. The respondent submits that every effort was made to accommodate the provision of working hours for the complainant as they were aware that the complainant was engaged in a number of other employments. At hearing the respondent named a number of individuals for whom they believed the complainant was also working for during the period in question.
3.3. The respondent submits that the complainant’s command of the English language was very good and that she could easily understand all directions in relation to her employment.
3.4. The respondent submits that the complainant received training consistent with other members of staff. Specifically food hygiene training was given and use of English was not a problem.
3.5. The respondent objects to an extension of time as they say the complainant has not shown any good reason to do so.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 Section 77(5)(b) of the Employment Equality Acts 1998 to 2011 provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal. In interpreting this in the instant case, I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows:
"The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".
At the hearing I allowed the complainant the opportunity to present evidence relating to the 12 month period before referral of the complaint. The complaint provided no reason to explain a delay in referring the complaint and no new evidence relating to that period. I find no evidence sufficient to establish a continuum of discrimination and no reason to extend the period of time for referral of the complaint.
4.2 The issues for decision by me are whether the complainant was discriminated in relation to conditions of employment. The complainant withdrew her complaint in relation to dismissal at the outset of the hearing and I will not consider any evidence regarding the incident that led to the alleged dismissal. During the hearing the respondent was requested to furnish evidence in relation to the hours worked by the complainant and holiday pay. The respondent complied with this request but submitted further unrequested material. I have not taken into account the unrequested material. In reaching my decision I have taken into account submissions regarding conditions of employment, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.3 I find that there is no evidence that the complainant ever raised the issue of language difficulties with the respondent and that the only evidence available supports the respondents assertion that it was reasonable for them to assume that there was no requirement for any special accommodation to be provided in this regard.
4.4 In relation to the work rotas the complainant contends that she was discriminated against because her work rotas were less favourable then a comparator. However at hearing the complainant was unable to give any specifics in relation to this claim I find that her claim in this regard amount to speculation on her part. For the most part the complainant was unable to present any evidence in relation to the conditions of employment of other employees and again, by her own admission, mostly resorted to speculation.
4.5 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Furthermore, in accordance with Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R there has to be ”evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
4.6 In looking at all the evidence in relation to conditions of employment including pay, I find that the complainant has relied on “mere assertion” and has failed to establish primary facts on which to ground her claims. I accept the respondent’s contention that the complainant had a sufficient level of English to understand her conditions of employment and the health and safety training she received. I accept their contention she was treated the same as any other worker in relation to work rotas. I find that the complainant has therefore failed to establish a prima facie case of discrimination in relation to conditions of employment.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts that:
- The complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment.
____________________
Peter Healy
Equality Officer
17 December 2014