Complainant

Respondent

Parties

Paul  Byrne

Power & Rock Limited

Representatives

  Self.

Patrick Kelly , Kelly Law Solictors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039533-001

02/09/2020

The Complainant was employed by the Respondent as a Dumper Driver, employment commenced on 13th January 2020 and ended on 29th August 2020.

The Complainant earned €19 per hour and worked 50 hours per week.

This complaint was received by the Workplace Relations Commission on 2nd September 2020.

The Complainant was injured in a workplace accident on 30th July 2020 and following this accident he was medically certified as unfit for work for a period. During this period of sick leave, he received a letter from his employer informing him that his employment was being terminated from 29th August 2020.

The contract of employment issued to the Complainant does not render the Complainant’s employment being conditional on the availability of a dumper.

The Complainant was often involved in non-dumper driving duties.

No consultation took place with the Complainant prior to the termination of his employment.

By email after the hearing of the complaint the Complainant sent an email to the WRC informing that he had not signed a contract of employment.

The Complainant was hired primarily as a dumper driver. His job description was as a dumper driver which is specifically stated on his terms of employment. The complainant was notified that the reason for the cessation of his employment was due to the fact that the dumper had been removed from site. The dumper was removed from the site because that part of the job that required a dumper was completed. The dumper was removed from site on 18th August 2020.

It is custom and practice in the construction industry that employees are hired for work on a particular site and when the work on the particular site has been completed the employment comes to an end.

I note that, per the complaint form, the Complainant has stated that he was employed as a Labourer. In the Statement of Particulars of Employment, the occupation is listed as Dumper Driver.

It would appear that whilst the complainant’s job title is that of dumper driver there would have been times where there was no requirement for the dumper and during such times it was normal for the complainant to be asked to carry out general labouring tasks, this is not unreasonable.

It was also stated at the hearing of the complainant that the respondent company ended all works by mid September and left the site. After the complainant’s employment had been terminated no further or replacement personnel were hired onto the site by the Respondent. This amounts to a redundancy situation and this was accepted by the representative of the Respondent. The Complainant did not have the necessary length of service to qualify for a statutory redundancy payment.

It would appear that at a point in time before the hearing of this complaint the complainant had the services of a legal representative. By letter dated 8th January 2021 the legal representative wrote:

“In satisfying the requirement under Section 85A of the Employment Equality Acts, 1998 – 2015 the client will have witness(es) available at hearing to give evidence that he was in a comparable situation but, unlike our client, he could return to his employment”.

No such witness(es) were produced by the complainant.

Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator must be employed by the same employer as the complainant or by an associated employer.

One case that is often mentioned in decisions is that of Melbury Developments Ltd v Valpeters [2010] ELR 64 that states “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In this instant case there has been no named comparator and I therefore find that the complainant has failed to present a prima facie case that would shift the burden of proof onto the Respondent.

The complaint as presented under the Employment Equality Act, 1998 is not well founded.

The complaint as presented under the Employment Equality Act, 1998 is not well founded.

Employment Equality.