THE INDUSTRIAL TRIBUNALS 

CASE REF:	1954/02

APPLICANT:		Jorge Vieira

RESPONDENT:		D McElvogue

DECISION

The unanimous decision of the tribunal is that the originating application is dismissed.

Appearances:

APPLICANT:	Mr C Hamill, Barrister-at-Law, instructed by Kennedy Hughes, Solicitors.

RESPONDENT:	Mr M Wolffe, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

1.	After the case was opened to the tribunal a question arose as to illegality of the contract of employment and the awareness of parties to this illegality.  The tribunal gave the parties some time to consider their position and counsel for the applicant stated that the claim was in relation to race discrimination only because of the difficulties with the legal nature of the contract of employment.

2.	The tribunal accepted that the applicant was a Portuguese national and he had been employed by the respondent on a probation period for approximately 6 weeks.  There was a conflict of evidence as to whether the applicant asked to be paid in cash or whether the respondent paid him in cash and thus treated him less favourably than his other two employees who were paid by cheque.

3.	From the evidence we are satisfied that it was an arrangement which suited both parties at the outset.  We are also satisfied that the applicant told the respondent that he was planning to return to Portugal to collect some papers because he had lost his documents in Dungannon.  However, we accept the evidence from Mr Henderson, union official of 

ATGWU, that the applicant did come to his office in Portadown some time in May 2002 and expressed concern about not having legal documents from his employer with regard to tax and national insurance.  We accepted Mr Henderson’s evidence that he told the applicant to go back and sort it out with his employer.  We do not accept Mr McElvogue’s evidence in relation to the applicant approaching him about sorting out his contract of employment.  This does not mean that all the respondent’s evidence lacks credibility.  We think it is on this point only that the respondent is lacking credibility.

4.	The applicant was concerned to stress to the respondent that he was a qualified carpenter.  We accept the evidence from the respondent and his two employees that the applicant was very slow at his work and did not like to use the machines which were in the respondent’s workshop.  He preferred to use hand tools on a number of occasions when a machine would have done the job much quicker.  We accepted the respondent’s evidence that although he was not particularly happy with the applicant’s work he thought he would be returning to Portugal shortly, and he would keep him on until that time.  However an incident occurred on 6 June 2002 which changed the position.  The respondent had not been in the workshop for two days and the tribunal accepted that the applicant decided to make a door off his own volition.  The respondent came into the workshop and saw the applicant using a nail gun incorrectly which was going to damage the door.  The tribunal accept that he talked to the applicant and showed him this was not right, and in fact the applicant agreed that he was told it was not the correct way to do it.  When the respondent looked at the applicant again he was doing the door incorrectly.  We consider that there was an altercation between the two of them but having had an opportunity to consider the evidence carefully and the demeanour of witnesses in the tribunal, the tribunal find that it is more likely than not that the applicant shouted at the respondent in Portuguese and as a result of this he was taken into the office and told to leave.

5.	The case before the tribunal was that the applicant was singled out for treatment because he had tried to assert a statutory right, namely that he would be paid for overtime and at a higher rate per hour.  The tribunal does not accept this submission.  The tribunal finds that the applicant was dismissed for misconduct which could be viewed as gross, namely that he shouted at his employer who was giving him a reasonable work instruction.  The tribunal also accept that the applicant was not as capable of doing the job for the respondent as he had outlined at interview.  It is regrettable that the respondent did not give him any warning but we bear in mind that this is a small company and while the applicant had been doing a simple job like sanding he had not come to the employer’s attention to the extent that he did when he was asked to perform what was deemed to be simple joinery tasks.  The tribunal accepted the applicant was the only Portuguese national in the small business but that in itself does not mean he was less favourably treated than the other two employees.  The tribunal accepted they were paid less than the applicant was paid.

6.	It is for the applicant to discharge the burden of proof that he was discriminated against on the grounds of his racial origin.  He has failed to do so and the originating application is dismissed.

____________________________________
M P PRICE
Vice President

Date and place of hearing:	29 January 2004, Belfast

Date decision recorded in register and issued to parties: