Complainant

Respondent

Parties

Afolabi  Odesanya

Mylan

Representatives

Waheed Mudah Kevin Tunney Solicitors

Lorna Lynch BL instructed by A & L Goodbody Solicitors

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-00041740-002

30/12/2020

The Complainant commenced his employment as a Manufacturing Operator with the Respondent on 6 September 2007 and was paid €1,277 fortnightly. His employment was terminated on 23 July 2020 as a result of him using his mobile phone while working and he is asserting that his dismissal was discriminatory.

The Complainant stated that he was dismissed from his employment on 23 July 2020 as a result of an allegation that he used his phone on the production floor, which he claimed was untrue. He asserted that the Team Lead, who reported the case, confirmed that he was checking the phone and was not using it and further stated that the incident did not happen on the production floor but in the filter room, which is a room adjoining the production floor.

He stated that he explained during the investigation that he did not realise that the phone was in his pocket as he had his overalls on and that it was unintentional. He also said that he was required to wear PPE over his clothes and in a hurry to do so, he completely forgot about the phone in his pocket. He stated that when the phone vibrated, he exited to the filter room to remove it and put it in his locker. He added that he looked on the screen whilst removing the phone to put it in the locker and this was when the Team Lead saw him.

He highlighted that this happened in the filter room and not on the production floor. He also stated that it was unintentional and that this should have been taken into account. He asserted that he was dismissed because of his race.

While it is clear from the case documentation that the Respondent made numerous attempts to obtain a written submission from the Complainant in advance of the hearing date, this was not forthcoming. Given the absence of same, the Respondent did not provide any written submission.

As highlighted above, the Respondent did not present any witnesses and simply asserted that the Complainant had not established a prima facie case of discrimination.

The Law

Discrimination

Discrimination in accordance with the Acts is set out in section 6 and states:

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”),

( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”),

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

Findings

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he was dismissed because of his race, as he asserted. 

I note firstly that the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addresses the onerous nature of the burden of proof:

“This requires 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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

At the hearing of this complaint, the Complainant asserted that he was dismissed for using his phone in the workplace and stated that this was wholly unfair but presented no evidence of racial discrimination.

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination, the Complainant must show that he was dismissed because of his race. Having regard to the Complainant’s evidence presented at the hearing, there was no direct evidence presented by him which suggested that the Respondent discriminated against him or that his dismissal had anything to do with his race.

As highlighted in the Valpeters decision however,

“the Complainant must first establish facts from which discrimination may be inferred.” 

and that such facts must

“be of sufficient significance to raise a presumption of discrimination. 

Crucially, it also highlights that these

“must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. 

In the instant case however, given that the Complainant only made assertions (my emphasis) that he was dismissed because of his race and that these assertions are unsupported by evidence (my emphasis), I cannot find that he has established a prima facie case of discrimination.

As the Complainant failed to establish a prima facie case, I find that he was not discriminated against.

Racial discrimination;