EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-028
PARTIES
Benjamin Ndzingani
AND
Kyle International Transport Ltd
Represented by Peninsula
File reference: EE/2013/658 & EE/2014/387
Date of issue: 24 April 2017
HEADNOTES: Employment Equality Acts – Race ––discrimination- constructive discriminatory dismissal
1. DISPUTE
1.1.This dispute concerns two claims by Benjamin Ndzingani that he was discriminated against by Kyle International Transport on the grounds of his race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts and that he was harassed contrary to section 14A of the Employment Equality Acts
1.2.The complainant referred the first claim (EE/2013/658) to the Director of the Equality Tribunal on December 11th 2013 and the second (EE/2014/387) on June 13th 2014 under the Employment Equality Acts. On 30 March 2017, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Pat Brady an Adjudication Officer/Equality Officer), for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on April 11th 2017.
1.3.This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. COMPLAINANTS' SUBMISSION
2.1.There are two complaints. The first relates to a series of incidents which the complainant says represent discriminatory treatment by the respondent.
2.2.The second is the complaint submitted at a point where one can go no further than saying that a degree of uncertainty had arisen about the complainant’s employment status and there is more on this below. The complainant wrote to the Equality Tribunal with his complaint and this was subsequently processed by the Tribunal as a complaint under the Employment Equality Acts as a complaint of discriminatory dismissal.
2.3.At the hearing the complainant stated that he had not intended this to be a complaint of discriminatory dismissal, but one of simple constructive dismissal.
2.4.Regarding the first complaint (EE/2013/658) there were a total of seven complaints.
2.5.Three of these related to events in 2006. There were no further incidents giving rise to a complaint until December 2013. This second batch of complaints were;
2.5.1. Being laid off when he complained about faults on his vehicle
2.5.2. Being told he might be made liable for damage to the vehicle
2.5.3. An alleged theft of property from his vehicle by a co-worker
2.5.4. Having to drive his vehicle with a defective tyre
2.6.Regarding the discriminatory constructive dismissal, as noted above, the complainant indicated that it was not his intention that this be processed under the Employment Equality Acts. In general his submission was that he was not in a position to come back to work because the respondent had failed to address the issues as 2.5 above.
3. RESPONDENT'S SUBMISSION
3.1.The respondent submitted that there was no prima facie case of discrimination. The complainant had failed to establish facts from which it could be presumed that there has been discrimination as required by section 85A(1) and in line with the authority in Melbury Developments v Valpeters (EDA0917)
3.2.Also the complainant has not identified a comparator against whom a complaint of less favourable treatment could be evaluated.
3.3.In general, including in relation to the 2006 events, the respondent says that any allegations of racial abuse were dealt with by the respondent immediately and decisively.
3.4.In particular, in relation to the points at 2.5 above the respondent says as follows.
3.4.1. in relation to 2.5.1 the complainant was treated the same as every other employee insofar as lay off when a vehicle was undergoing repair and in line with the provisions of the respondent’s Handbook.
3.4.2. In relation to 2.5.2 it is accepted that a driver might be held liable for repairs to a damaged truck but this applied to all of the company’s employees regardless of race.
3.4.3. In relation to 2.5.3 the complainant himself had accepted at the time that he could not offer proof to the respondent to enable him to act in the matter of the alleged theft.
3.4.4. In relation to 2.5.4 the respondent had asked the complainant to drive a vehicle back to base on the basis of the advice of the tyre fitting company that it was safe to do so. No issue of race arises.
3.5. The respondent gave a comprehensive narrative of events from the date in December 2013 when the complainant was laid off. It shows numerous items of correspondence in which the complainant was reassured that his job was available to him as soon as he was available to return to it. (There was a period of sick leave when he was not available).
3.6.The complainant responded at the time by making a number of demands all of which could have been easily resolved. He was invited to avail of the company Grievance machinery which he declined to do.
3.7.This then led to the first of a number of requests for his P45 despite efforts by the respondent to dissuade him.
4. FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
4.1.I have to decide whether the complainant has initially established a prima facie case under either of his complaints of discrimination on the race ground.
4.2. In reaching my decision I have taken into account all of the submissions, 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 nothing remotely resembling a prima facie case in respect of either complaint. The incidents outlined in complaint EE/2013/658 are addressed at paragraphs 2.5 and 3.4 above. There is no hint of a racial dimension to any of the complaints which are entirely misconceived and vexatious.
4.4.In respect of complaint EE/2014/387 the complainant stated that he had intended to lodge a complaint of general constructive dismissal and not one on the discriminatory ground of race.
4.5.Following the submission of his complaint on June 13th 2014 he received a letter from the Tribunal in which the following appeared; ‘I refer to your new complaint alleging discriminatory constructive dismissal under the above acts by [the respondent], and the heading on the letter was ‘Complaint under Employment Equality Acts’.
4.6.He received further correspondence from the Equality Tribunal requesting detail of the last date of discrimination (August 15th 2014) and on September 24th a letter outlining the requirements of a complaint under the Employment Equality Acts in circumstances where there may have been a duplicate referral to the then Rights Commissioner service.
4.7.He replied to the Tribunal by telephone on September 25th confirming that there was no conflict with the Rights Commissioner referral and confirming that the last date of discrimination was June 12th 2014.
4.8.There are no grounds for the complainant’s apparent belief that his complaint was not one under the Employment Equality Acts.
4.9.In any event, in the course of my investigation I established that no case of constructive dismissal arises on any grounds. The conduct of the respondent was at all times compliant with best practice, while the same could not be said for the complainant who put quite frivolous obstacles in the way of his return to work, and in respect of which the respondent showed commendable restraint.
4.10.The respondent has been put to considerable unnecessary expense and inconvenience by these complaints which, as I have noted are entirely as misconceived and vexatious.
5. DECISION
5.1.I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts that:
The complainant has failed to establish a prima facie case in respect of either of his complaints.
5.2.Accordingly the complaints are not upheld and both are dismissed.
____________________
Pat Brady
Adjudication Officer
24 April 2017