EDA173

Position of the Appellant

At the hearing of the Court the Appellant stated that his complaints of discrimination related only to (1) issues related to holidays arrangements and holiday pay, (2) the fact that he was initially not paid the correct rate of pay when the Respondent became his employer on the takeover of the Viking Security Limited contract on which he was employed, and (3) his dismissal.

The substance of the Appellant’s case is that while employed by the Respondent the following events occurred

• 
  •He did not receive his full entitlement to holiday pay and his holiday pay was delayed in payment in 2015.

• 
  •He was not facilitated in carrying over annual leave from the 2014 leave year to the 2015 leave year but was instead required to take his leave in the 2014 leave year.

• 
  •He was initially not paid his correct rate of pay on takeover of his employment albeit that matter was corrected in dialogue with the Respondent

• 
  •He was dismissed for allegedly making an offensive posting on the Respondent’s Facebook page.

The Appellant clarified at the hearing of the Court that he was no longer contending that he had been discriminated against on grounds of his gender.

The Appellant asserted to the Court that he was among the oldest security persons in the employment of the Respondent. He did not supply any details in this regard. He asserted that the Respondent employed many persons whose national origin was Pakistan. He did not supply any details in this regard to the Court. The Appellant asserted to the Court that the fact that his national origin was not Irish was a reason for his treatment by the Respondent.

Position of the Respondent

The Respondent denied any discriminatory treatment of the Appellant.

The Respondent asserted that on takeover of the Viking Security Limited contract it was advised as part of the due diligence process that the Appellant’s rate of pay was €10.01 per hour. The Respondent stated that the Appellant subsequently demonstrated to the Respondent that this was incorrect and this was corrected in full. The Respondent asserted that no taint of discrimination attached to this event.

The Respondent set out a history of engagement with the Appellant as regards his holiday pay. The Respondent outlined the arrangements made to resolve a proportion of matters in that regard which had been in issue but accepted that a disagreement remained between the parties as regards outstanding holiday pay. The Respondent contended that the matter was a normal dispute between parties as regards terms and conditions of employment and not in any way capable of being characterised as constituting an act of discrimination on the grounds of the Appellant’s national origin. The Respondent asserted that the arrangements for carry over of leave imposed on the Appellant in 2014 were in alignment with the policy of the Respondent in that regard and as applied to all employees.

The Respondent asserted that the Appellant’s dismissal arose from a posting made by the Appellant on the Respondent’s facebook page wherein the Respondent was accused of many things which were unacceptable to the Respondent and which amounted to gross misconduct. The Respondent asserted that the events giving rise to dismissal could not be characterised as constituting an act of discrimination by the Respondent on grounds of the Appellant’s age and / or national origin.

Discussion and Conclusions

The Appellant in this case had appealed the decision of an Adjudication Officer and stated in the appeal documentation that he had been discriminated against on grounds of age, gender, race, colour, ethnic or national origin and also contended that he had been victimised.

At the hearing of the Court the Appellant clarified that his complaint centred on his treatment as regards (1) timing of and payment for holidays, (2) payment of JLC rates of pay, and (3) dismissal. The Appellant stated that he believed he had been discriminated against as regards timing and payment for holidays on grounds of his national origin. He contended that he had been discriminated against as regards payment of JLC rates on grounds of his national origin and his age. Finally he contended that he had been discriminatorily dismissed on grounds of his national origin and his age.

This Court considered the probative burden of proof that rests on an Appellant when it set out inMelbury Developments Limited v Arturs Valpeters [EDA0917]that the

• “…Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Court in the within case must be satisfied that the Appellant has established facts from which an inference of discrimination can be drawn. The Appellant has however, other than by making assertions to the effect that discrimination has occurred, offered no evidence to support his contention for a causative relationship between the events he described and any discriminatory ground. The Appellant has offered no submission as regards how a comparator of a different age or national origin was or would have been treated in the circumstances which arose during the course of his employment and as outlined above.

It is not for the Court in the within case to make general findings as regards the experience of the Appellant in the Respondent’s employment. It is for the Court only to address the contention that the Respondent discriminated against the Appellant on the grounds specified in his complaint. The Court has been offered no cogent evidence or submission to support the Appellant’s contentions in this regard.

The Court must therefore conclude that the Appellant has failed to discharge the burden of proof which rests upon him to establish a prima facie case of discrimination contrary to the Act in relation to any of the events he set out to the Court.

Determination

The Appellant has failed to establish a prima facie case of Discrimination within the meaning of the Act and consequently his appeal cannot succeed. The decision of the Adjudication Officer is affirmed and the appeal does not succeed.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
8th February 2016Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.