Complainant

Respondent

Parties

Denis  Bartasevicius

Wesco Electrical Limited

Representatives

  Self-Represented

Robin Hyde Alastair Purdy & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043852-001

03/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043852-002

03/05/2021

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

CA-00043852-004

03/05/2021

The Complainant was employed by the Respondent at its Drogheda branch from the 21st September 2020 until the 12th March 2021. The Complainant’s gross pay was €550.00 per week. On the 3rd May 2021 the Complainant raised a complaint that he did not receive a statement of his core terms of employment in writing, that he did not receive a statement of his terms and conditions of employment and that he was dismissed in a discriminatory manner on the ground of his race. The Respondent accepted that Complainant’s core terms of employment and statement of main terms of employment were not provided in the manner prescribed under legislation. The Respondent   denied that the Complainant was dismissed in a discriminatory manner on the ground of his race asserting that the Complainant’s employment was terminated during his probationary period on the grounds of gross misconduct.

CA-00043852-001 – Terms of Employment (Information) Act 1994

The Complainant gave evidence that he did not receive his statement of main terms of employment pursuant to Section 3(1) of the Terms of Employment (Information) Act 1994.

CA-00043852-002 – Terms of Employment (Information) Act 1994

The Complainant gave evidence that he did not receive his core terms of employment pursuant to Section 3(1A) of the Terms of Employment (Information) Act 1994.

CA-00043852-004 – Employment Equality Acts 1998 (as amended)

The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and the documentation submitted by him to the Workplace Relations Commission and gave an oral account of the employment relationship. The Complainant alleged that he was discriminated against on the ground of his race. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

EVIDENCE OF THE COMPLAINANT

The Complainant gave evidence that he believed he was treated in a discriminatory manner by the Respondent by reason of his race and nationality.  The Complainant stated that he was a Lithuanian national and that the General Manager and the rest of the Respondent’s management team were Irish nationals and that he was treated less favourably as compared to the General Manager and the management team because he was subjected to the Respondent’s disciplinary procedures and his employment was terminated on the 12th March 2021 for coming into work on the 1st March 2021 after being referred for a COVID-19 test while the General Manager was not subjected to disciplinary procedures nor was his employment terminated despite the General Manager failing to implement HSE measures designed to minimise the risk of COVID-19 outbreaks within the Respondent organisation.

The Complainant gave evidence that it took him 14 months to secure employment.

Under cross-examination the Complainant stated that he had a telephone consultation with a General Practitioner on the 28th February 2021 who subsequently advised the Complainant that a COVID-19 test was required. He denied that he attended work on the 1st March 2021 with flu symptoms. The Complainant gave evidence that he had no symptoms and no temperature when he attended work. The Complainant accepted that a COVID-19 test appointment was arranged for the 1st March 2021 and that he later tested positive for COVID-19. The Complainant stated that he did not contact the General Manager on the 28th February 2021 when he first felt unwell because he did not have the General Manager’s telephone number and it was out of hours. He accepted that he had a cough and a blocked nose but it was only for a short period of time and he did not believe he had COVID-19. He therefore did not ring any other manager. The Complainant accepted that during the course of conversations and meetings the issue of race never entered into the discussions between himself and the General Manager. He further accepted that he was dismissed for gross misconduct. When he was asked by the Respondent’s representative how his termination was related to his race he responded “I suppose it is not”.

SUBMISSIONS ON BEHALF OF THE COMPLAINANT

The Complainant submitted that the was employed by the Respondent at its branch in Drogheda, Co. Louth from 21st September 2020 until his employment was terminated by the Respondent  effective from 12th March 2021. The letter of termination from the General Manager stated that he was terminating the Complainant’s employment on the grounds of gross misconduct which “endangered the health and wellbeing of fellow work colleagues in addition to putting the business at risk”. On morning of Monday 1st March 2021 the Complainant got up without any symptoms or without feeling unwell and thought that the slight temperature he had on the previous Friday was just a 24 hour bug. The Complainant submitted that he knew that without any symptoms and without being a close contact he no longer qualified for a COVID-19 test. There was no training provided by the Respondent to employees regarding the procedure to follow. The Complainant did not think he had a reason to call in to work sick considering he was feeling well on the 1st March 2021. Around 10am on the morning of the 1st March 2021 the Complainant contacted the HSE Covid-19 team and explained that he had no symptoms and wanted to cancel his Covid-19 test however he was advised to attend the testing centre anyway.

The HSE contact tracing team confirmed to the Complainant that he had no close contacts during the morning of the 1st March 2021. The Complainant submitted that the HSE’s main concerns were work conditions and measures put in place by the Respondent to prevent infection and its spread. The Complainant submitted that it was his understanding that the HSE contacted the General Manager and advised on a number of measures he should implement because on the Complainant’s return to work the following week he could see a number of changes, e.g. inside doors were kept open with a door stop to reduce touchpoints and increase ventilation and additional leaflets were displayed around the premises.

The Complainant submitted that he strongly believed that he contracted COVID-19 while in work as he was the only member of his household who went outside of home to work and 95% of time he spent outside of the home was in work.

The Complainant set out the following sequence of correspondence in his written submissions to the WRC:

15.03.2021 letter of termination dated 12.03.2021 received by post

22.03.2021 appeal email sent to the Managing Director as per the procedure advised in termination letter

23.03.2021 the Managing Director responded with proposed appeal meeting time

24.03.2021 the Complainant confirmed the time proposed by the Managing Director

25.03.2021 10am telephone meeting

30.03.2021 response received from the Managing Director to confirm that the original decision stands. No advise whether this was the end of appeal procedure operated by the Respondent and whether the decision was final

06.04.2021 further letter of appeal sent. No response received to date.

In his letter of appeal, among other grievances, the Complainant expressed concern regarding the level of implementation of recommendations outlined in COVID-19 Safety Protocol (May 2020 amended November 2020).

The Complainant submitted that while being fully aware of the Respondent’s failure of management to implement the vast majority of the minimum measures required the General Manager continued to roster staff and instruct them to report for duty to the premises in Drogheda. Despite this continuous and deliberate failure by the Respondent to adhere to the minimum requirements as set out by HSA and HSE and thereby “endangering the health and wellbeing of fellow work colleagues in addition to putting the business at risk” the Respondent’s Directors did not consider it as gross misconduct leading to the immediate termination of employment in the case of the General Manager but the Complainant’s employment was terminated with immediate effect.

CA-00043852-001 – Terms of Employment (Information) Act 1994

It was accepted by the Respondent that the Complainant’s statement of main terms of employment pursuant to Section 3(1) of the Terms of Employment (Information) Act 1994 were not provided in the manner prescribed under legislation.

CA-00043852-002 – Terms of Employment (Information) Act 1994

It was accepted by the Respondent that the Complainant’s core terms of employment pursuant to Section 3(1A) of the Terms of Employment (Information) Act 1994 were not provided in the manner prescribed under legislation.

CA-00043852-004 – Employment Equality Acts 1998 (as amended)

The Respondent rejected that there had been discrimination. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

EVIDENCE OF THE GENERAL MANAGER

The General Manager stated that the Respondent is an electrical wholesaler providing to hospitals and food processing companies and was open during all of the lockdowns. At the relevant time there was no branch manager in the Drogheda branch where the Complainant was employed so the General Manager assumed direct reporting duty for the employees employed in the branch and he was the Complainant’s line manager. He disputed the Complainant’s evidence that he did not have the General Manager’s mobile stating that “despite what Denis said he had my number”. At the relevant time every individual who joined the Respondent started on 6 month trial/probationary period.

On the morning of 1st March 2021 the Complainant asked the Respondent’s financial manager to leave work early because he had to take a COVID-19 test. The Complainant was informed he had to leave the building immediately. The General Manager went and spoke with a number of staff and commenced the process of contact tracing. Due to the relatively short period of time there were no close contacts.

The General Manager received a telephone call from the HSE requesting information. He stated in evidence that he had been previously contacted by the HSE when there was a positive case of COVID-19 in another branch but that there was a different tone to the telephone call from the HSE in March 2021 which caused him concern.

The General Manager was subsequently informed by the HSE that the Complainant had told them that his symptoms first developed the previous Friday afternoon therefore the Respondent was required to go back and re-identify close contacts going back 48 hours from Friday. Based on the information provided to the HSE 5 members of staff had to be sent home and tested for COVID-19. None tested positive for COVID-19. 

The Complainant returned to work on the 10th March 2021. A number of the Complainant’s colleagues were unhappy with the situation particularly those who were in their 60s and high risk individuals however the General Manager explained to the them that the Complainant was medically clear to return to work.

The General Manager had a meeting with the Complainant on the morning of the 10th March 2021. He stated that when he met the Complainant on the 10th March 2021 his desire was ascertain the background of how the Complainant came to be in work on the morning of the 1st March 2021 despite having had a telephone consultation with a General Practitioner on the previous Friday and having been referred for a COVID-19 test and to see how the Respondent could learn from the instance going forward. However, he stated that following the meeting he was concerned by the Complainant’s total reluctance to accept any personal responsibility for attending work at a time when he was awaiting a COVID-19 test and his insistence that it was the fault of everyone else and in particular the Respondent. A short time after the meeting the Complainant informed the General Manager that he was feeling unwell and needed to go home.

The following day the General Manager received an email from a “Jelena” and thereafter he received the same email signed off by the Complainant. The General Manager felt that the points raised by the Complainant in his email of the 11th March 2021 were extremely disingenuous to the Respondent’s business in that he made an unsubstantial claim that he contracted COVID-19 at work. The General Manager stated that it was his understanding that the only way it could be confirmed that the Complainant contracted COVID-19 at work was if he was a confirmed close contact and no one else in the Respondent’s Drogheda branch had tested positive for COVID-19.

The General Manager expressed his surprise that the Complainant’s response following the meeting on the 10th March 2021 was to send a formal email wherein he made serious unsubstantiated allegations regarding the Respondent as a result of which the position became untenable. In light of the contents of the Complainant’s email of the 11th March 2021 the General Manager did not believe that the Complainant could come back into work and fit into the company. The Complainant was within his 6 months probationary period and his employment was terminated on the grounds of gross misconduct.

The General Manager gave evidence that the Complainant’s race was irrelevant and that the disciplinary policy was applied equally to all members of staff across the business. There had been no other incidents of any employee coming into work with COVID-19 symptoms or awaiting a COVID-19 test however he confirmed that if an employee did come into work with COVID-19 symptoms or while awaiting a COVID-19 test they would similarly be subjected to the Respondent’s disciplinary procedure.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

The Respondent’s representative made the following submissions on its behalf.

BACKGROUND

On the 21st September 2020, the Complainant commenced employment with the Respondent. The Complainant was employed as a Sales/ Store Staff on a fixed term basis and earned €550 gross per week. The Complainant was employed to work in the Respondent Drogheda location. On the 28th  February 2021, the Complainant attended his doctor due to him having symptoms relating to COVID-19. Following this appointment, the Complainant was referred for a COVID-19 test. Despite these circumstances, the Complainant attended the workplace on the 1st March 2021 rather than self-isolating. The Complainant was subsequently diagnosed with COVID-19 and was uncertified to work from the 1st March to the 9th March 2021.

Upon his return to work on the 10th March 2021, the General Manager asked the Complainant to attend his office to discuss his recent absence. This meeting took place in or around 9.45am. During this meeting, the General Manager brought to the Complainant’s attention that two of the Complainant’s colleagues who were over the age of 60 and deemed high risk, were very “upset” with the Complainant. In addition, the General Manager outlined to the Complainant that he was not happy with him coming into work after being referred for a COVID-19 test. The Complainant noted that this was “unfair” as the HSE had “no problem” with him coming into work on the Monday before the test. The General Manager explained to the Complainant that public guidelines were clear, in that anyone waiting for a test had to self-isolate. The General Manager then asked the Complainant what his doctor said to him upon referring him for a COVID-19 test. The Complainant replied stating “nothing”. The General Manager further explained that he was required to send 5 staff members home to isolate for a week following a contact tracing call from the HSE. When asked why he had come into work knowing he was awaiting a test, the Complainant replied stating that “he didn’t think he had COVID”.

Notwithstanding such, the General Manager reminded the Complainant that his 6-month probation review was coming up and outlined some concerns regarding his performance. After the meeting, the Complainant was later approached by the Complainant who said he felt “unwell” to which the General Manager instructed the Complainant to “go home if [you] are not well and keep in touch”.

On the 11th March 2021, the Complainant emailed the General Manager following their interaction from the day previous. In this email, the Complainant stressed he was infected in work; there was a “large number of practices in the workplace that facilitate the spread of COVID-19”; there was issues with the Respondent’s COVID-19 procedures; that the HSE contract tracing team “explicitly” advised him that the 2 hours in spent in work on the 1st March was not of any concern, as they “were only looking into [,my] movements in the 48 hours leading to first symptoms of being unwell”; and lastly, regarding his performance issues, the Complainant maintained that these were not a true reflection of the situation and noted that he was awaiting details of these complaints regarding his performance in advance of the probation review.

Later that evening, the General Manager replied to the Complainant’s email. He noted that he had no issue with the first 48 hours of the Complainant’s symptoms. Nor did he take issue with the HSE’s alleged comments that they had concern about the Complainant being in work on the 1st March. The General Manager explained that the issue related to the fact he was referred for a COVID-19 test on the 28th February and elected to come into work on the 1st March 2020 when he should have been self-isolating. The General Manager noted that this was to prevent the spread of COVID-19. The General Manager signed off by stating that he would formally write to the Complainant in the morning regarding the matter.

On 12th March 2021, the General Manager wrote to the Complainant advising him that his employment was to be terminated with the Respondent on the grounds of gross misconduct. In light of the Complainant’s short service and the fact that he was still under probation, the Respondent elected to terminate his employment with immediate effect without recourse to the disciplinary procedure. The Respondent submitted that disciplinary procedure did not apply to employees under probation. The Complainant was also notified of his right of appeal.

On 22nd March 2021, the Complainant emailed the Respondent’s Managing Director exercising his right of appeal. The Complainant raised a number of “grievances” in respect of his dismissal on the grounds of misconduct. Included in his appeal was the fact he did not receive a contract of employment or a copy of the disciplinary procedure. The Complainant also noted that he was not aware he was under probation and that it was likely he got infected with COVID-19 whilst working onsite as “95%” of his time outside of home was spent in work.

On the 25th March 2021, the Complainant’s appeal was heard by the Managing Director. In accordance with the meeting notes, the Complainant noted that he did not affect other staff members when he came into work on the 1st March and that he complied with HSE guidelines without reference to said guidelines. At no stage did the Complainant acknowledge or recognise the consequences of his actions arising from the 1st  March 2021.

On 30th March 2021, the Managing Director emailed the Complainant regarding the outcome of his appeal. The Managing Director noted that the “probation period of 6 months is informed to all new employees” of the Company and this was outlined to him at his interview. The Managing Director concluded by stating that she had reviewed his appeal and confirmed that she was upholding the decision to terminate his employment with the Respondent.

LEGAL POSITION

The Complainant’s contention that he was discriminated against by reason of his race pursuant to the Employment Equality Acts 1998 (as amended) was rejected by the Respondent. The Respondent submitted that the Complainant failed to adduce any evidence whatsoever that he was discriminated against by the Respondent in respect of his race and any such allegation of racial discrimination was entirely without foundation or substance. It was further submitted that the Complainant failed to identify an appropriate comparator to whom he alleged was treated more favourably than him.

BURDEN OF PROOF

The Respondent’s representative made reference to Section 85A of the Employment Equality Acts 1998 (as amended) and the case of Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 submitting that the Complainant is required to establish facts, from which it may be presumed, that discrimination has occurred. Reference was also made to the case of HSE Northeastern Region v. Sheridan EDA0820 wherein the Labour Court expanded on the test in Mitchell declaring:

“The first requirement is, that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. “It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Labour Court further elaborated on the interpretation of Section 85A (1) of the EEA in Melbury v Valpeters EDA/0917, wherein it is stated that this section: “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 rules”. The Labour Court further commented that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Respondent submitted that the Complainant must therefore establish a prima facie case of discrimination; he must establish both the primary facts upon which he intends to rely and that those facts are of sufficient significance to raise an inference of discrimination. In consideration of this position, the Respondent submitted that the Complainant failed and/or neglected to adduce any evidence or primary facts giving rise to inference of either direct or indirect discrimination by the Respondent.

COMPARATOR

The Respondent referred to the Race Directive 2000/43/EC which was adopted and given full effect in Ireland by the passing of the Equality Act 2004 amendment stating that the purpose of this Directive is to prohibit any form of direct or indirect discrimination, harassment or victimisation against an individual for reason of their race or ethnic origin.

The Employment Equality Acts 1998 (as amended) define race discrimination as occurring between two persons, where one person is “treated less favourably than another is, has been or would be treated in a comparable situation”. The Respondent submitted that in order for the Complainant to ground a claim of discriminatory treatment by virtue of his race, he must provide a comparator of a different race so as to highlight this difference in treatment. To that end, the Respondent stated that the Complainant failed to identify any such comparator so as to ground a complaint of discrimination.

In conclusion the Respondent submitted that the reason for the Complainant’s dismissal was clear, in that his employment was terminated on the grounds of misconduct and that same was wholly unrelated to his race.

I have carefully reviewed and considered all of the documentation provided to me and given due weight to the evidence and submissions of the parties.

CA-00043852-001 – Terms of Employment (Information) Act 1994

Relevant Law:

Terms of Employment:

The Terms of Employment (Information) Act 1994 as amended by the Employment (Miscellaneous) Provisions Act 2018 (hereinafter referred to as the “1994 Act”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1) of the 1994 Act obligates an employer to provide employees with information concerning an employee’s terms and conditions of employment in written form within two months of commencing employment as follows:

“3. Written statement of terms of employment

(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) […]

(b) […]

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) […]

[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

[(g) […]],

(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Redress:

Section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

In Beechfield Private Homecare Limited v. Megan Hayes Kelly, TED1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

In Javier Fernandez Torres v. Sitting Tree Limited T/A Harbour Bar, TED2214, the Labour Court awarded the maximum of four week’s remuneration stating in its “Discussion and Decision” that “[i]t is abundantly clear from the facts as accepted by both Parties that the Respondent did not issue the Complainant with a two-month statement of terms and conditions within the timeframe specified by section 3(1) of the Act for so doing.”

Findings:

The Complainant was employed by the Respondent from the 21st September 2020 until his employment ended on the 12th March 2021. It was accepted by the Respondent that the Complainant did not receive a statement in writing of his terms of employment. Consequently, the Respondent breached Section 3(1) of the 1994 Act and the complaint is well founded.

It was submitted on behalf of the Respondent that regard should be had to the technical nature of the breach and the fact that the Respondent has rolled out contracts across the organisation and that whilst there were employees who had not received statements of their terms and conditions of employment this has since been rectified.

I have taken into consideration the submissions by and on behalf of the parties and the above Labour Court determinations. As the Respondent failed to provide any statement in writing on the Complainant’s terms of employment, the breach was at the serious end of the spectrum. Pursuant to Section 7 of the 1994 Act, an award of four weeks’ remuneration is appropriate.

CA-00043852-002 – Terms of Employment (Information) Act 1994

Relevant Law:

Terms of Employment:

The Terms of Employment (Information) Act 1994 as amended by the Employment (Miscellaneous) Provisions Act 2018 (hereinafter referred to as the “1994 Act”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1A) of the 1994 Act obligates an employer to provide employees with certain essential information in written form within five days of commencing employment.

Section 3(1A) of the Term of Employment (Information) Act 1994 provides as follows:

Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week. … ”

Redress:

Section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

In Beechfield Private Homecare Limited v. Megan Hayes Kelly, TED1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

In Javier Fernandez Torres v. Sitting Tree Limited T/A Harbour Bar, TED2213, the Labour Court awarded the maximum of four week’s remuneration stating in its “Discussion and Decision” that “[i]t is abundantly clear from the facts as accepted by both Parties that the Respondent did not issue the Complainant with a five-day statement of terms and conditions in accordance with section 3(1A) of the Act.”

Findings:

The Complainant was employed by the Respondent from the 21st September 2020 until his employment ended on the 12th March 2021. It was accepted by the Respondent that the Complainant’s core terms of employment pursuant to Section 3(1A) of the 1994 Act were not provided in the manner prescribed under the legislation. Consequently, the Respondent breached Section 3(1A) of the 1994 Act and the complaint is well founded.

It was submitted on behalf of the Respondent that regard should be had to the technical nature of the breach and the fact that the Respondent has rolled out contracts across the organisation and that whilst there were employees who had not received statements of their terms and conditions of employment this has since been rectified.

I have taken into consideration the submissions by and on behalf of the parties and the above Labour Court determinations. As the Respondent failed to provide any statement in writing on the Complainant’s core terms of employment, the breach was at the serious end of the spectrum. Pursuant to Section 7 of the 1994 Act, an award of four weeks’ remuneration is appropriate.

CA-00043852-004 – The Employment Equality Acts 1998 (as amended)

Relevant Law

Discrimination

Discrimination in accordance with the Employment Equality Acts 1998  (as amended) 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

Section 85A of the Employment Equality Acts 1998  (as amended) provides as follows:

“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 section 85A of the Employment Equality Acts 1998  (as amended) 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, the responsibility is on the Complainant to show that, based on the primary facts, he was discriminated against because of his race, as he asserted.

The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A of the Employment Equality Acts 1998 (as amended) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed 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.”

The Labour Court has also consistently stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of  discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”: Kieran McCarthy v. Cork City Council EDA082

Once the prima facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

The Complainant in the instant case asserted that he was dismissed in a discriminatory manner by the Respondent by reason of his race and nationality.  The Complainant stated that he was a Lithuanian national and that the General Manager and the rest of the Respondent’s management team were Irish nationals and that he was treated less favourably as compared to the General Manager and the management team because he was subjected to the Respondent’s disciplinary procedures and his employment was terminated on the 12th March 2021 for attending work on the 1st March 2021 after being referred for a COVID-19 test while the General Manager was not subjected to disciplinary procedures nor was his employment terminated despite the General Manager failing to implement HSE measures designed to minimise the risk of COVID-19 outbreaks within the Respondent organisation.

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 discriminated against because of his race and nationality. Having regard to the Complainant’s evidence presented at the hearing, there was no relevant evidence presented by him which suggested that the Respondent discriminated against him on the ground race.

As highlighted in the Valpeters decision:

“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, the Complainant was asked in cross examination how his dismissal was related to his race and he responded, albeit somewhat reluctantly, by stating that “I suppose it is not”. Furthermore, the Complainant only made assertions that he was discriminated against because of his race and these assertions were unsupported by relevant evidence. Therefore, I cannot find that he has established a prima facie case of discrimination.

CA-00043852-001: This complaint is well founded. I award the complainant an amount based on 4 weeks x €550 weekly pay on termination = €2,200.

CA-00043852-002: This complaint is well founded. I award the complainant an amount based on 4 weeks x €550 weekly pay on termination = €2,200.

CA-00043852-004: Having regard to the written and oral evidence submitted in relation to this case, my decision is that the Complainant was not discriminated against on the ground of race. This complaint is not well founded.

Terms of Employment (Information) Act 1994 - terms and conditions of employment – core terms - Employment Equality Act - Burden of Proof – mere assertion - not well founded – discrimination not established