It’s a Funny old world in Employment Law and the Labour Court…
We were in the Labour Court today.
I was representing an employer who had recently successfully defended a case taken by an ex-employee for discrimination on the grounds of race.
The employee claimed he had been unfairly treated because he was a foreign national. He was a painter who had been with my Client for less than a month and a total in fact of just 8 days!
My Client offered him a job subject to him demonstrating his capability as a painter and evidence of his qualifications. It became clear very quickly to my Client and his team that the Claimant wasn’t as able as he’d led them to believe and because the project for which he was intended wasn’t materialising my Client decided against employing the Claimant.
He was then sued by the Claimant for;
Not providing him with a contract;
Not providing a health and safety statement in the Claimant’s own language;
Not joining the Claimant to the CIF pension scheme;
Not joining the Claimant to the CIF sick pay scheme;
Not advising the Claimant of his entitlements under Employment Law;
Not paying the Claimant the agreed REA rates;
Dismissing the Claimant without due process!
Needless to say my Client was flabbergasted and refused to entertain the Claim. He really felt someone was just trying to shake him down.
Two and a half years later at the Equality Tribunal my Client and two of his ex-employees gave evidence supporting my Client’s contention that this man was not discriminated against he was simply not capable to do the work he was asked to do.
The evidence confirmed that each of the other staff when they were recruited were expected to fulfill the same basic criteria and that in fact this man was not just incapable but regularly arrived late delaying the other staff and on occasion didn’t turn up at all!
In fact on the day in question for the hearing the Claimant turned up an hour and a half late while we all sat around waiting for him.
Never mind the fact that we would say that this man was never in fact employed, the test in law is in effect whether the Claimant was treated differently to another similar employee or a notional comparator.
The onus of proof is on the Claimant to establish with evidence that this is the case and in effect that other employees were treated differently or would have been treated differently in the same circumstances.
The caselaw in this area is extremely clear and needless to say the Equality Officer dismissed the Claim.
You would think that would be the end of it. However, today we were in the Labour Court to face an appeal of that decision!
And, wouldn’t you guess it….
The Claimant didn’t turn up!!!!
Now you’d expect at this stage, (my Client and I and two witnesses having travelled from Waterford for this case) that the Labour Court would simply dismiss the matter…
After all the person taking the case, didn’t even bother to appear…
They adjourned the matter…
In fairness to the Labour Court, under our Constitution this man has a right to have the Claim heard.
But what about my Client’s rights? What has it cost him to travel to Dublin today with two other people, not to mention my time?
And for the last three years, to have what he would claim is a spurious, vexatious claim hanging over him? And who pays my Client’s costs when the Claimant doesn’t turn up?
My Client has to pay them himself…
We’re a great little country!