Complainant

Respondent

Parties

Marcel  Girigan

Mooncoin Auto Service Limited

Representatives

Self-represented 

Delahunty Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00063844-001

30/05/2024

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

CA-00063876-002

04/06/2024

Mr. Girigan was employed as a Mechanic by the respondent from January 2022 to July 2022, when he left to work as a driver. He recommenced employment on 14th August 2023 and left on 4th June 2024. He earned €850 gross per week.

His complaint is that he was discriminated against and harassed on race grounds (he is Romanian). His other complaint is that he did not receive a contract of employment over the course of his employment.

Summary of Mr Girigan’s Evidence

Mr Girigan, the complainant, gave evidence on two accidents he had at work. The first occurred on 3rd November 2023 when a liquid splashed in an eye. He attended hospital and he was then collected by Mr Aylward who started laughing when he heard what had happened. When he arrived back at the garage, he still did not feel well although he drove home.

On 28th May 2024, there was another accident when a ball joint exploded, and his hearing was damaged. As he was not feeling well, he went home and attended his doctor who certified him as unfit for work. He returned to work on 30th May 2024. When Mr Aylward became aware of the medical bill he threw it back to him. He blamed him for the accident and shouted at him. He said Mr Aylward then told him to fuck off and then there was a shouting match. He went home after this row. He returned to the garage a few days later on 4th June 2024 and he had a discussion with Mr Aylward. During this conversation he suggested that Mr Aylward should have a meeting with all staff about attendance. He was then told that he could not work there anymore.

He said he was discriminated against as he was shouted at when he was late for work on one occasion in April 2024. Mr Aylward met him in his office later that morning. He was told he was being paid too much. He was reminded of the start and finish times and his lateness was setting a bad example. He replied that he often stayed late after hours. He said he was never late again after this and waited in his car until it was time to start at 8am.  He said a new staff member was never on time, and he was not shouted at. He said others were late and were never shouted at, even though these colleagues took longer breaks. As he was stressed around this time, he applied for and was granted a four-day week.

He said he did not receive an employment contract over the course of his employment. He outlined that he was shouted at by Mr Aylward on 30th May 2024 when he sought to recoup medical expenses arising from an accident at work.

Under cross-examination, he confirmed that Mr Aylward shouted occasionally at all staff. He confirmed he was refunded his medical expenses. He was questioned on the two accidents and the steps he took for his personal safety. He confirmed that he was allowed use the garage at weekends. He was asked about the row with Mr Aylward on 4th June 2024 and whether he himself had decided to leave the employment.

Closing Submission

The complainant outlined that he was never late after the first occasion and that he had been treated differently to all other employees.   

Summary of Mr Aylward’s Evidence

Mr Aylward gave evidence that when the complainant returned to work in August 2023, he agreed to pay him €25 euro per hour and that he was the highest paid in the garage. He said he was a good mechanic, and he allowed him to use the garage at weekends. The complainant frequently availed of this as he was working on his campervan. He said he refunded the medical expenses and allowed the complainant work a 4-day week when it was requested. On the two accidents, he was disappointed with what happened as he had other tools that should have been used for the job at hand. He said he made an issue with the costs arising from the accident as he paid sick leave and medical costs. He said that on the 4th June 2024, the complainant had squared up to him physically and that he could not allow the complainant return to work. He said he had not issued a contract. When his employment commenced, he discussed the terms directly with him and he was granted appropriate holidays and sick leave.

Under cross-examination, Mr Aylward confirmed that he did not know who may have left the tube open which caused the first accident. He confirmed that the complainant requested him to address all staff on attendance and that he decided not to do this. He said he was dealing with other staff being late by docking wages and it was up to him to manage his staff.

Closing Submission

The respondent representative questioned whether the complainant had made out a prima facie case of discrimination. He submitted that any difference in treatment was not down to race, particularly as other nationalities were employed.

He conceded that no contract of employment issued. He said the complainant was not disadvantaged in any way as his terms of employment were known to him and were honoured in full.

CA-00063844-001

Discrimination on Race

The Law

The Employment Equality Act promotes equality in the workplace and provides protection against discrimination and harassment. An employer cannot discriminate against an employee in relation to several areas including conditions of employment. The Acts prohibit discrimination on nine grounds, including race. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator.

Harassment on Race Ground

The Acts defines harassment (a form of discrimination) as unwanted conduct which is related to any of the nine discriminatory grounds.

Section 14A(7) of the Acts provides:

“(a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds . . . (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Section 85A(1) of the Acts provides:

“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.”

The complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged that the burden shifts to the respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“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 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.”

Therefore, a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination.  In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Finding

The complainant confirmed to the hearing that the complaint of discrimination related to the way he was treated compared to his colleagues. Although he did not have a single comparator, he compared the way he was treated with other colleagues. He said he was laughed at when he was picked up from the Hospital after the accident in November 2023. He was shouted at when he was late in April 2024. He was shouted at again on 30th May 2024 after he submitted medical expenses.  

As noted above, a complainant must establish both (a) the primary facts upon which they rely and (b) that those facts are of sufficient significance to raise an inference of discrimination.

I have carefully considered all the evidence submitted by the complainant. Under cross-examination, the complainant accepted that Mr Aylward shouted occasionally at other staff.  I find that the complainant has not provided sufficient evidence to support his contention that the incidents and the way the respondent dealt with them was connected to his race. As noted by the Labour Court in Valpeters, mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The complainant’s assertion that he was treated differently on time keeping compared to other colleagues due to race is questionable. Mr Aylward testified that he was dealing with another staff’s attendance by reducing his paid hours. Equally, the reaction of Mr Aylward to the two accidents have not been compared with how he treated other staff, as comparators.

On the harassment complaint, again, there was insufficient evidence on how other staff were dealt with when late and how they were treated when accidents occurred. There was insufficient evidence that any adverse treatment of the complainant was due to his race.

The use of a hypothetical comparator was referenced in Regan, Employment Law, 2nd Edition, Chapter 17-

‘Less favourable treatment is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator(s) were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim for discrimination will fail.’

I find the complainant has not discharged the burden of establishing an inference of discrimination and therefore the burden of proof has not shifted to the respondent to prove that no unlawful discrimination took place. For the reasons outlined, I decide that the discrimination complaint and harassment complaint is not well founded.

CA-00063876-002

Terms of Employment Complaint

The Law

The Act provides for the employer to issue to new employees’ certain statements of terms of employment. The respondent conceded at the hearing that a statement of terms of employment did not issue to the complainant.

In accordance with Section 7 of the Act, I declare that the complaint is well founded. 

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4-weeks’ remuneration. The respondent representative outlined that the complainant was not prejudiced by having no contract as he was aware of his terms and was not disadvantaged.

I find there was still a breach of a statutory requirement. The complainant may well have benefited from a written contract, particularly when incidents arose, and the employment relationship began to deteriorate.

I order the employer pay to the employee the equivalent of 2-weeks’ pay which is €1,700. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00063844-001

I decide that the complaint of discrimination on race grounds is not well founded.

I decide that the complaint of harassment on race grounds is not well founded.

CA-00063876-002

I decide the complaint is well founded. I order the employer pay to the employee the equivalent of 2-weeks’ pay which is €1,700. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

Discrimination, Terms of Employment (Information) Act