DEC-E2015-021

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011 

Decision DEC – E2015 – 021

PARTIES 

Mr Andrej Suvac (represented by Richard Grogan and Associates, Solicitors)

and

Nurendale Ltd. t/a Panda Waste (represented by Mr Michael Shanley, in-house legal counsel) 

File Reference: EE/2013/111

Date of Issue: 12^th May 2015

Keywords: race – discriminatory treatment – discriminatory dismissal – no prima facie case.

1.   Claim

 The case concerns a claim by Mr Andrej Suvac that Nurendale Ltd t/a Panda Waste discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment and discriminatory dismissal.

1. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 22 February 2013. A submission was received from the complainant on 26 March 2013. A submission was received from the respondent on 8 May 2013. On 12 February 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 18 March 2015. Additional evidence was requested from the respondent at the hearing and received on 20 April 2015. The last piece of correspondence relating to the complaint was received on 1 May 2015.

2.   Summary of the Complainant’s Written Submission 

2. The complainant is a Romanian national, who commenced work for the respondent on 20 September 2012. He submits that he was required to work in excess of 48 hours per week, that he did not receive notifications under S. 17 of the Organisation of Working Time Act, and that he was not paid a premium for working on Sundays. He also complains that he did not receive a contract of employment. He is contending that an Irish national would not be so treated and that therefore, his treatment constitutes discrimination on the ground of race.
3. With regard to his dismissal, he submits that he did not receive his entitlement to Public holidays nor his entitlement to annual leave when he was dismissed. He also submits that he was dismissed with no procedures whatsoever and contends that this constitutes discriminatory treatment on the ground of race.

3.   Summary of the Respondent’s Written Submission 

3. The respondent denies discriminating the complainant as alleged or at all. It submits that its workforce consists of 202 Irish and 228 non-Irish national employees and that it is an equal opportunities employer. It insists that the complainant has a contract of employment, which it has on file, but nevertheless did not enclose in evidence. According to the respondent, this contract specifies a nine-month probationary period during which the employment can be terminated at any time. The respondent further states that the complainant was dismissed when a business project on which he was supposed to be employed fell through because the Environmental Protection Agency would not provide a license for it.
4. With regard to the conditions of employment complained of, the respondent takes issue with the fact that the complainant cites proceedings taken against it by another of its non-Irish national employees under the Organisation of Working Time Act, and generally the assertions made by the complainant relating to breaches of that Act. It does not, however, expressly deny them.

4.   Conclusions of the Equality Officer 

4. The issue for decision in this case is whether the complainant was discriminated against, and discriminatorily dismissed within the meaning of the Acts.
5. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
6. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
7. At the beginning of the hearing, the complainant’s representative withdrew the parts of the complaint which relate to working time.
8. I experienced the complainant as a credible witness. He asserted that he did not receive a contract of employment, but that named Irish co-workers did. Indeed, there is a Rights Commissioner finding made under the Terms of Employment (Information) Act 1994, that the complainant did not receive a written contract of employment, and compensation was awarded as a result. However, for this failure to be discriminatory on the ground of race, it must be proven that people of a different nationality did receive a written contract of employment. It is relevant to note in this context that the complainant’s solicitor is also representing these named Irish individuals in other employment law-related disputes against the respondents. It should therefore have been fairly straightforward either to bring these people as witnesses or to submit their employment contracts in evidence.   This did not happen, and therefore there is insufficient evidence for a prima facie case that the complainant was treated less favourably on the ground of his race, in terms of the provision of a written contract of employment.
9. In terms of his dismissal, the complainant described the circumstances which surrounded it as follows:
10. He stated that he had been out sick for three weeks following an accident at work. When he returned, he submitted a sick certificate and was sent for an appointment with the company doctor. When he was cleared to return to work and reported back to work, he was called into the office by one of the respondent’s managers and told there was no work with the company any longer, and that he would be paid his outstanding wages.   He was also aware of a Polish worker who had been with the respondent for longer than himself, who was kept at work following an injury, but fired eventually.   The complainant also accepted in cross-examination that the reason given to him was that there was no work any longer. He also accepted that with his starting date of 20 September 2012, he was one of the last fitters to have started work by the time of his dismissal in February 2013.
11. Mr Brian Bolger, the complainant’s line manager, gave evidence for the respondent. He became involved in managing maintenance of the plant in September 2012, and became responsible for hiring in December 2012. He stated that no staff was hired on the maintenance crew after the complainant had joined the team.   It is the respondent’s case that after a fire caused significant damage to its premises, they needed staff for the re-build and the clean-up. However, when the Environmental Protection Agency refused to issue an operational license in respect of a new facility, the respondent’s need for staff reduced drastically. The respondent maintains that the complainant was let go on the last-in-first-out principle.
12. I requested additional data from the respondent on this issue and from the information received, it is clear that there is no racial bias in the work terminations. An Irish fitter/welder, who started on 7 August 2012, just before the complainant, was let two days after the complainant, on 15 February 2013. An Irish machine operator who started on 20 March 2012 was let go on 22 February 2013. A Polish general operative who started on 12 December 2011 was let go on 8 February 2013.
13. I accept the evidence and the explanations of the respondent and find that the complainant has not made out a prima facie case of discriminatory dismissal on the ground of race. Therefore this part of the complainant’s case must also fail. 

5.   Decision

5. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Nurendale Ltd t/a Panda Waste did not discriminate against Mr Andrej Suvac, and did not discriminatorily dismiss him, on the ground of his race, contrary to S. 8(1) and 8(6) of the Employment Equality Acts 1998 to 2011.

______________________

Stephen Bonnlander

Equality Officer

12 May 2015