Five Complainants
(Represented by Conor Power BL, on the instructions of the Equality Authority)
AND
Hannon's Poultry Export Ltd, Roscommon
(Represented by IBEC)
1. DISPUTE
1.1 This dispute concerns a claim by five complainants (Mr Alfredo Costa Ramos, Mr Rodrigo Lopes de Freitas, Mr Leandro Andre Tinoco, Mr Celso Alves Calisto and Mr Ubirajara Alves Barros) that they were discriminated against by Hannons Poultry Export Ltd on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004. They also claimed they were harassed and victimised, and that they were denied equal pay.
1.2 The complainants referred claims to the Director of Equality Investigations on 1 June 2001 and 2 August 2001 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 13 August 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties, with considerable delay being experienced in obtaining the submissions from the parties. Joint hearings were held on 18 September 2003 and 7 April 2006. Brazilian Portuguese interpreters were engaged by the Equality Tribunal to assist at the hearings.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 The complainants are all natives of Brazil, and were employed as general operatives in the respondent's poultry processing factory for varying periods between 10 August 2000 and 16 February 2001. They claim they were discriminated against by having money deducted from their wages, by being forced to work overtime, by being threatened with dismissal when they attempted to leave unsuitable accommodation and by being paid less than two named Irish comparators.
2.2 The complainants submit that they were engaged in Brazil by the respondent's General Manager, who undertook to arrange their work permits, flights and accommodation. They say the respondent deducted money from their wages to pay for the flights and accommodation, and that these deductions had been held by a Rights Commissioner to be unlawful under the provisions of the Payment of Wages Act 1991. The complainants submit that the deductions were made on the basis of their nationality, and consequently constituted discrimination, notwithstanding the fact that the amounts have been ordered to be repaid.
2.3 The complainants say they were obliged to work overtime and were threatened with dismissal if they did not do so. They say that no Irish workers were obliged to undertake overtime on the same terms. The complainants say that a Rights Commissioner found that they had worked in excess of the time permitted under the Organisation of Working Time Act 1997 and awarded them compensation. They submit that the requirement to work overtime and the threat of dismissal constitute less favourable treatment on the ground of race in contravention of section 8 of the 1998 Act.
2.4 The complainants say that the accommodation provided by the respondent was unsatisfactory. They say that three of them (Mr Ramos, Mr de Freitas and Mr Tinoco) moved to more suitable accommodation and were threatened with dismissal for so doing. They say the respondent's General Manager demanded they return to the designated accommodation, and that they were dismissed when they refused to do so. Mr Barros and Mr Calisto say that their accommodation was overpriced and overcrowded. They say they were subjected to unlawful wage deductions for utilities, which a Rights Commissioner has found to be in breach of the Payment of Wages Act.
2.5 Mr Barros says that he was promised he would be paid £280 per week, but that he was only actually paid £4.70 per hour. He says that he asked the General Manager on 16 February 2001 for the agreed amount, but that he was told aggressively that it would not be paid. He was also told that he would be fired and would have to leave his accommodation if he did not return to work immediately. Mr Barros says that he subsequently obtained alternative employment, and that the General Manager followed him around. He claims that the General Manager told other Brazilians working in the factory that their work permits would be cancelled and they would be deported if they had contact with Mr Barros.
2.6 Mr Calisto says that he was told he would be doing maintenance work when he was first recruited. He says he worked mainly in the de-boning section of the factory, but spent two weekends building a wall. He says he explained to the General Manager that his hands were swollen due to the cold, but the response was that he had been brought there to work and would otherwise have to go back to Brazil. He says that he was told on another occasion that he was not to take toilet breaks. Mr Calisto says he subsequently obtained alternative employment, and that the General Manager called to a house he was visiting and started to swear at him. He claims that the General Manager told other Brazilians working in the factory that their work permits would be cancelled and they would be deported if they had contact with Mr Calisto.
2.7 The complainants were all paid at the rate of £4.70 per hour gross, and they say that two Irish comparators were paid at the rate of £5.33 per hour gross. The complainants say they were engaged in like work with these comparators in terms of section 7 (1) (a), (b) and/or (c) of the 1998 Act. The complainants submit that the difference in pay amounts to a breach of section 29 of the 1998 Act, in that no objective reason for the difference in pay existed and the pay differential was based on their Brazilian nationality.
2.8 The complainants submit that the actions of the respondent in threatening them with dismissal constitute victimisation contrary to section 74 of the 1998 Act. They say that such arises as treatment following opposition to acts of discrimination and amounts to penalisation of them. They submit that the threat of dismissal, as distinct from an actual dismissal, can amount to victimisation actionable before the Equality Tribunal.
2.9 In support of their complaint, the complainants refer to the determination of the Labour Court in A Company (Respondent) and A Worker (Complainant) (Determination No EED024), where the Court said "The Court is also satisfied on the balance of probabilities the treatment of the worker by the manager, and the almost complete non-implementation of relevant legislation, was due to the fact that it regarded the worker as someone of different nationality, who would not have the capability to stand on their legal rights and that by its actions up to and including its constructive dismissal of the worker, it discriminated against her on the grounds of her nationality within the meaning of section 6 (2) (h) and Section 8 (1) (a) and (b) of the Act."
2.10 The complainants submit that the respondent had a duty of care to them associated with the recruitment of foreign nationals and that it failed to discharge such a duty in this case, by paying them less than Irish workers, by insisting on compulsory overtime, by threatening them with dismissal and by illegally deducting money from their wages. The complainants say that the respondent treated them less favourably than Irish workers in that relevant legislation (Organisation of Working Time Act, Payment of Wages Act and Employment Equality Act) was not complied with. They submit that the respondent took advantage of their lack of English and lack of supports generally, and treated them in a less favourable manner.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that discrimination had taken place. It says it employs some 80 people in its factory in Roscommon, of whom approximately 50 are Brazilian. The respondent's General Manager speaks fluent Brazilian Portuguese, and he travelled to Brazil on several occasions to recruit staff. The respondent says it recruited four of the complainants in Brazil as described, but Mr Tinoco was already in Ireland.
3.2 The respondent acknowledges that the deductions for the complainants' wages were technically in breach of the Payment of Wages Act, since the complainants' written permission was not obtained, and the money has been refunded. However, it says the money was deducted in respect of flights, accommodation and loans given to the complainants at the beginning of their employment, and that the money was owed to the respondent. It says such deductions without written permission had been made in the past from the wages of Irish employees in respect of loans, but the practice now is to get written authorisation.
3.3 The respondent says that working overtime was a condition of employment in the factory, and says that many Irish employees worked as much overtime as the complainants. It says it always had enough volunteers to do overtime and never actually compelled any employees to do it, and it denies the complainants were threatened with dismissal in this regard. It suggests that Irish employees would not tolerate a situation where Brazilian employees did all the overtime, given that it attracted premium payments. The respondent says that Mr Barros and Mr Calisto were in fact complaining because they didn't get enough overtime, and they left the respondent's employment because they felt they would get more money on building sites.
3.4 The respondent denies that any of its employees were compelled to live in accommodation provided by it. It says the option of having accommodation provided is offered to Brazilian employees, who frequently arrive in Ireland without money or connections, and indeed it would be expected by them. Employees are free to move from the provided accommodation on giving one month's notice. The respondent says that Mr Ramos, Mr de Freitas and Mr Tinoco left their accommodation without giving notice, and this was objected to by the respondent but they were not dismissed. They continued in the respondent's employment for three weeks after leaving the accommodation. The respondent says the accommodation provided to Mr Barros and Mr Calisto was priced at the normal market rate, and that deductions were made for utilities which would be normal for any tenant. It said the house was a five-bedroomed property which had seven occupants for most of the relevant period, and an eighth person moved in because he specifically requested to be accommodated with his brother.
3.5 The respondent denies that Mr Barros was promised payment at the rate of £280 per week. It says he, and the other complainants, were offered and received the standard rate for general operatives which was £4.70 per hour at the time. The respondent says that Mr Calisto was not told he would be doing maintenance work. The respondent denies that Mr Barros and Mr Calisto were followed and sworn at as claimed, and denies that other Brazilian employees were warned not to have contact with them. The respondent denies that Mr Calisto was told not to take toilet breaks. It says he was taking 15-minute toilet breaks during which he smoked in the bathroom, thereby setting off the smoke alarm. It says he was told he was not permitted to smoke in the bathroom.
3.6 The respondent says that the difference in pay between the complainants and the named comparators was based on grounds other than race. It says the comparators started work in the respondent's old factory, which had a different pay structure to the new factory. In the old factory, employees started on 70% of the general operative rate and progressed to 100%. If they worked in the Kill Area, they progressed onto the Licensed Kill Rate which was higher to reflect the fact that the work was unpleasant and difficult. The respondent says that this rate was abolished following the move to the new factory, due to increased automation, and all workers employed after September 1999 were placed on the standard general operative rate. The respondent says that the named comparators both worked in the Kill Area of the old factory and were paid at the Licensed Kill Rate. It says that several Irish employees, engaged before the complainants, are also paid at the standard general operative rate, and that the pay of the comparators was an appropriate case of "red-circling".
3.7 The respondent denies that it dismissed, or threatened to dismiss, three of the complainants. It says that Mr Tinoco was dismissed because he was frequently late arriving at work and his attendance was poor. He did not receive an Attendance Bonus of £30, payable for full attendance, in his last two weeks of employment. He was given three verbal warnings and then dismissed, and the respondent says an Irish employee who was not performing his/her duties would also have been dismissed. The respondent claims that Mr Ramos told the General Manager that he would resign unless Mr Tinoco was re-instated and that Mr de Freitas was also adopting this position. The respondent says that when the General Manager refused to re-instate Mr Tinoco, Mr Ramos tendered his resignation. Mr de Freitas never showed up for work again.
3.8 The respondent says Mr Barros and Mr Calisto both left in the hope of obtaining more highly paid work on building sites. It says that Mr Barros telephoned the General Manager about 10 days later seeking to be re-employed. The respondent says the General Manager informed Mr Barros that his work permit had been returned to the Department of Enterprise, Trade and Employment and he could not be re-employed.
3.9 The respondent concludes that it did not discriminate against the complainants and it denies they have claims under the Employment Equality Act 1998. It says they received the standard rate of pay for a general operative, and that they were not discriminated against in the allocation of overtime. The respondent denies that the complainants were forced to stay in provided accommodation, or were threatened with dismissal if they did not do so. The respondent denies dismissing any of the complainants, except Mr Tinoco because of his performance. The respondent says it employs many people of Brazilian nationality. It says these employees have integrated well into the community and they enjoy the same terms and conditions of employment as its Irish employees.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties. For completeness, I wish to record that an allegation that Mr Calisto was forced to work in his own clothes on his first day, denied by the respondent which said it would not be permitted by veterinary inspectors on site, was withdrawn at the first hearing of the complaints. A claim for equal pay citing a fork lift driver was withdrawn before the second hearing.
4.2 The complainants alleged that the respondent discriminated against them on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including race, colour, nationality or ethnic or national origins. Section 8 provides that
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the disability ground (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainants have established the relevant facts.
Unlawful deductions
4.4 From the Rights Commissioner's decisions provided to me it is clear that deductions were made from the complainants' wages, which were contrary to the provisions of the Payment of Wages Act 1991. In the case of Mr Ramos, those deductions were in respect of rent and repayment of a loan. In the case of Mr de Freitas, they related to the cost of his flight, rent and repayment of a loan. Mr Tinoco's deductions were for rent and a loan. The reasons for the deductions from the wages of Mr Barros and Mr Calisto were unspecified but excluded the flight cost.
4.5 The respondent argued that such deductions would also have been made from the wages of Irish employees, but having considered the matter carefully I am not satisfied that this would be the case. The respondent is of course entitled to recoup money due to it, but not without written authorisation. I consider it more likely that an existing Irish employee approaching management for a loan would be required to sign an undertaking of repayment, or at the very least would have been very clear about the necessity for repayment. It seems to me to be possible that the complainants may not have understood this clearly. I note that the translated contract of employment specifies that cost of flights and accommodation will be deducted from wages, but at the time the complainants were engaged no such translation was available. On balance, I consider that the complainants were discriminated against on the ground of race by virtue of having unlawful deductions made from their wages.
Overtime
4.6 The complainants argued that they were forced to do overtime and threatened with dismissal if they refused. The respondent denies this, saying that overtime was a condition of employment which never had to be enforced because there were always enough volunteers. The respondent supplied me with details of average hours worked in a seven-week period by the complainants and seven Irish members of staff. One of the Irish employees was absent for one week, so has been excluded. The figures show that the Irish employees worked between 48.9 and 56.3 hours, while the complainants worked between 50.6 and 59.5 hours. This does not appear to demonstrate a significant difference. The Rights Commissioner decision under the Organisation of Working Time Act found that the hours worked by Mr Ramos, Mr Barros and Mr Calisto were in breach of the Act, but the complaints of Mr de Freitas and Mr Tinoco were not upheld. Mr Barros and Mr Calisto agreed at the hearing that they actually wanted to work more overtime. I do not find that the complainants were compelled to work overtime, in a situation where Irish employees were not, and no evidence was adduced that they were threatened with dismissal in relation to overtime.
Accommodation
4.7 The respondent claimed that the provision of accommodation for Brazilian employees was expected, and the complainants' evidence supports this. The point in dispute is whether the complainants were compelled to live in this accommodation. A Brazilian employee of the respondent gave evidence at the hearing that he sourced his own accommodation and continued working at the factory. I note that Mr Ramos, Mr de Freitas and Mr Tinoco continued to work at the factory for three weeks after they left the provided accommodation, and the respondent gave a credible alternative reason for the conclusion of their employment (see 4.11 below). On balance, I do not find that the complainants were compelled to live in the provided accommodation nor that they were threatened with dismissal if they did not do so.
Salary
4.8 Mr Barros claimed to have been promised he would be paid £280 per week, but that he was instead paid £4.70 per hour. The respondent provided evidence that the standard general operative rate, payable to Irish and Brazilian employees, was £4.70 per hour at the relevant time. It is of course possible that Mr Barros was told that his salary could approach the larger amount with overtime, but no evidence of this was adduced. In any case, I am satisfied that Mr Barros was paid the rate for the job.
Harassment
4.9 Mr Barros and Mr Calisto claimed to have been harassed by the General Manager after they left the respondent's employment, by him following them and swearing at them. This was denied by the General Manager, and no evidence was adduced as to why he would do such things. Regarding Mr Calisto being allegedly told not to take toilet breaks, the respondent's explanation was that he smoked in the bathroom and set off the smoke alarm. Having considered the evidence, I find the respondent's version more credible, as it would seem strange that Mr Calisto would be uniquely singled out and prevented from using the toilet. I can find no evidence that the complainants were harassed in this regard.
Equal pay
4.10 The complainants alleged they were carrying out equal work, in terms of section 7 (1) (a), (b) and/or (c) of the Act, as two named Irish comparators who were paid a higher rate. The respondent argued that the comparators were "red-circled" on the higher rate because they had been paid on the factory's previous pay structure. From material submitted by the respondent, it is clear that Irish employees who were either employed in the old factory but never worked in the Kill Area, or who were recruited after the abolition of the old pay scale in September 1999, were all paid at the standard general operative rate of £4.70 per hour. I am satisfied that the comparators' pay was "red-circled" and the complainants were not discriminated against in relation to their pay.
Dismissal
4.11 Mr Ramos, Mr de Freitas and Mr Tinoco claim they were dismissed because they moved from the provided accommodation. The respondent disputed this, and said Mr Tinoco was the only complainant dismissed. Section 77 (2) of the 1998 Act states
If a person claims to have been dismissed-
(a) in circumstances amounting to discrimination by another in contravention of this Act, or
(b) in circumstances amounting to victimisation,
then...a claim for redress for the dismissal may be brought to the Labour Court and shall not be brought to the Director.
It is agreed that I do not have jurisdiction to consider the alleged dismissal of the complainants.
4.12 However, in the interest of completeness, the respondent submitted evidence of Mr Tinoco's attendance records. It said he was given three verbal warnings and then dismissed, and that an Irish employee would have been treated in the same way. As stated, I have no jurisdiction to find if the dismissal was discriminatory, or indeed unfair. However, from the records it would appear there was some evidence of attendance problems. The General Manager and Mr Tinoco both gave evidence at the hearing that they had had an encounter outside a pub where the General Manager accused Mr Tinoco of going drinking when he had called in sick. Whether he was correct or not, it is clear that he had some dissatisfaction with Mr Tinoco. Having considered the evidence available, I am satisfied that Mr Tinoco was dismissed in the circumstances described by the respondent and that Mr Ramos and Mr de Freitas left in solidarity with their colleague.
Victimisation
4.13 It was submitted on behalf of the complainants that a threat of dismissal, as distinct from an actual dismissal, could be investigated by the Equality Tribunal as an instance of victimisation. As I have not found that the complainants were threatened with dismissal in the circumstances claimed, I am satisfied that I do not require to consider this matter further.
Duty of care to foreign employees
4.14 A matter of some concern in these complaints is the fact that the respondent engaged a large number of foreign workers without having translated employment contracts available, and then proceeded to make unlawful deductions from their wages and to permit some of them to work hours in breach of the Organisation of Working Time Act. It appears that the company considered that the General Manager's fluency in Brazilian Portuguese was adequate support for a workforce comprising some 50 Brazilians, when it is clear that it was not.
4.15 The Labour Court's comments on the duty of care associated with recruitment of foreign workers in A Company (Respondent) and A Worker (Complainant) has already been referred to at 2.9 above. More recently, in Campbell Catering Ltd and Aderonke Rasaq (Determination No EED048), the Court said "It is clear that many non-national workers encounter special difficulties in employment arising from lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture." The Court went on to say that applying the same procedural rules to foreign workers as applied to Irish workers could in itself amount to discrimination. It is clear that the respondent in these complaints made no adequate provision for the employment of foreign workers.
5. DECISION
5.1 Based on the foregoing, I find that Hannon's Poultry Export Ltd discriminated against the complainants contrary to the provisions of the Employment Equality Acts 1998 - 2004, in its failure in its duty of care to them as foreign employees.
5.2 I find that the complainants were not harassed or victimised contrary to the provisions of the Act, nor were they deprived of equal pay.
5.3 I hereby order that the respondent
(i) pay each of the complainants the sum of €5,000 in compensation for the affects of the discrimination; and
(ii) carry out a review of all of its employment procedures, to include recruitment policy, grievance and disciplinary procedures, statutory requirements and all other obligations, to ensure that it meets its duty of care to its foreign workers.
_____________________
Anne-Marie Lynch
Equality Officer
18 October 2006