ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046224
Parties:
| Complainant | Respondent |
Parties | Giuseppe Torres | Kelby Developments |
Representatives | Self | Hugh O’Donnell B.L. instructed by Joseph Morrin Osborne Morrin Denieffe Solicitors |
Complaint(s):
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-00042975-001 | 09/03/2021 |
Date of Adjudication Hearing: 24/11/2023
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant made a single claim: CA-00049521-001 A claim pursuant to Section 77 of the Employment Equality Act 1998 (as amended). I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
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Summary of Complainant’s Case:
The Complainant represented himself. The Complainant, an Italian national was employed by an employment agency named CLS Recruitment who deployed him to a construction where he worked under the direction of the Respondent. The Complainant had issues with his pay, but he clarified at the hearing that these issues were not the responsibility of the Respondent. The Complainant’s claim against the Respondent arose from incidents where he alleged that he was verbally abused by employees of the Respondent on the basis of his nationality. |
Summary of Respondent’s Case:
The Respondent was unable to respond to the allegations made by the Complainant. The Respondent had not received any written complaints from the Complainant nor was there a record of any verbal reports having been made by him to any of its staff nor had the Respondent received any complaints or reports from the Complainant’s employer CLS Recruitment arising from any alleged incidents of any sort from any of the Respondent’s sites where the Complainant worked. For the avoidance of doubt the Respondent denied that any of its employees had discriminated against or harassed the Complainant on the basis of his nationality or on any other basis. |
Findings and Conclusions:
The Complainant’s submissions were extremely vague and unclear. He accepted that he did not make any written complaints to any person regarding alleged verbal abuse on the basis of his nationality. He could not specifically recall the site where the alleged incidents occurred. He could not specifically recall the date or the year when the incidents occurred. He was unable to provide the name or names of any of the individuals who, he alleged, had verbally abused him. He could not recall exactly what was allegedly said. He did not make a personal note or record of the incident or incidents at the time of their occurrence or at any other time. He said that he did complain verbally about the mistreatment to two different women in CLS Recruitment, but he could not recall the names of these individuals or the dates when he spoke to them or what arose following those discussions. The Respondent contended that it was hopelessly prejudiced in its ability to respond to the allegations made by the Complainant. The Respondent had no record of any reports of incidents or complaints whether written or verbal either from the Complainant directly or from CLS Recruitment, his employer. The Respondent denied all the allegations made by the Complainant. In making a claim for discrimination pursuant to the Employment Equality Acts, Section 85A makes specific provision in relation to the burden of proof 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.” I find that the Complainant has failed to adduce sufficient evidence to establish any facts capable of giving rise to a presumption of discrimination and this being the case the Complainant has failed to meet the threshold required to support his claim for discrimination or harassment. I find that the Respondent did not discriminate against or harass the Complainant. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The Respondent did not discriminate or harass the Complainant.
CA-00042975-001 The Respondent did not discriminate or harass the Complainant. |
Dated: 7th of March 2024
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Key Words:
Employment Equality Act, Sections 77, 79 and 85A – Facts giving rise to presumption of discrimination not established |