DEC-E2008-014 - Full Case Report

Mr. Darius Gorys

(Represented by PC Moore & Co., Solicitors)

vs

Igor Kurakin Transport Limited

SUMMARY[1]

Mr. Darius Gorys (complainant) Represented by PC Moore & Co., Solicitors  vs  Igor Kurakin Transport Limited (respondent):

Employment Equality Acts, 1998-2007  Sections 6 and 8  -  Employment  -  Discriminatory Dismissal  -  Race

Background:

The complainant, a Lithuanian national, was employed by the respondent as a truck driver.  He states that he was not provided with a Contract of Employment, time sheets, payslips and it took some time after his dismissal before he received a P45, which was inaccurate.  It is the complainant’s contention that he was subjected to discriminatory dismissal on the grounds of his race.  The respondent denies the allegation.

Conclusions and Decision:

The Equality Officer found that a hypothetical comparator of Irish Nationality would not have been treated any differently to the complainant in terms of receiving a Contract of Employment, payslips and time sheets.  The Equality Officer further found that the evidence did not support the contention of discriminatory dismissal in this case.

Cases Cited:

Equality Officer Decision – 5 Complainants v Hannons Poultry Exports Limited – DEC-E2006-050

Labour Court Determinations:

            Campbell Catering Limited v Aderonk Rasaq – EED048

            Citibank v Massinde Ntoko – EED045

            Mitchell v Southern Health Board [2001] ELR 201

1.           DISPUTE      

1.1       The dispute concerns a claim by Mr. Darius Gorys, that he has been subjected to discriminatory dismissal by Igor Kurakin Transport Limited on the grounds of race within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.

2.           BACKGROUND

2.1       The complainant, a Lithuanian national, was employed by the respondent as a truck driver.  He states that he was not provided with a Contract of Employment, time sheets, payslips and it took some time after his dismissal before he received a P45, which was inaccurate.  It is the complainant’s contention that he was subjected to discriminatory dismissal on the grounds of his race.  The respondent denies the allegation.

2.2             Consequently the complainant referred his complaint of discriminatory dismissal to the Director of the Equality Tribunal on 28^th August, 2006 under the provisions of the Employment Equality Acts, 1998-2004.  In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 5^th October, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.  Following receipt of submissions a joint hearing took place on 6^th February, 2008.  Final information in this claim was received on 13^th March, 2008.

3.            SUMMARY OF THE COMPLAINANT’S SUBMISSION

3.1       The complainant states that he commenced employment with the respondent organisation in April, 2006 and in July of that year he was dismissed.  He is a Lithuanian National and he sought additional information from the respondent in accordance with his right to do so under the Equality legislation.  It is the complainant’s submission that no response was received to this request and he asks that the Equality Officer draws an inference from this fact.

3.2             The complainant notes that he was not furnished with a contract of employment.  It is his contention that there is an obligation to provide any employee with a written contract of employment and in the case of a foreign national with limited English it is extremely important that they receive it in their own language.  In this regard the complainant cites the case of 5 Complainants v Hannons Poultry Exports Limited[2] which he says is an authority for the view that where a respondent fails to furnish such documentation this will amount to discrimination.

3.3             The complainant states that the Rights Commissioner found that the respondent had made an illegal deduction of wages and as this was never appealed the complainant assumes that the respondent accepts that same occurred.  According to the complainant the respondent provided no proper procedures in relation to the Payment of Wages Act as regards deductions and the complainant contends that this amounts to discrimination on the grounds of race.  The complainant also states that the respondent failed to furnish him with tax documentation on time and this failure to do so severely prejudiced him.  It is the complainant’s submission that failure to furnish him with his tax documentation created significant difficulties for him as a foreign national and ultimately amounts to discrimination.

3.4             The complainant says that in his request for information (Notice of Particulars) he sought all tax documentation but has only been provided with his P45.  While this document was furnished it does not comply with the period of employment.  The complainant submits that this adversely affects his social welfare history in Ireland and this is also relevant to his statutory position in his home country as pension rights can have been affected.  It is the complainant’s contention that this amounts to discrimination.  The complainant states that the Notice of Particulars (Form EE2 of the Equality Tribunal) requested particulars in relation to dismissal.  No documentation regarding dismissal was furnished and he received no contract of employment.  In these circumstances the complainant considers, having regard to the Determination in the case of Campbell Catering Limited v Aderonk Rasaq[3] there is an obligation on an employer particularly in the case of foreign nationals to comply with procedures.

3.5             Following the Determination in Citi Bank v Massinde Ntoko[4] the complainant submits that he has a case where there was:

·       Failure to pay proper wages;

·       Illegal deductions from the wages;

·       Failure to furnish the P45 at the appropriate time;

·       No written contract of employment;

·       No written contract in a language likely to be understood by him;

·       No response to Form EE2 or the Notice of Particulars;

·       No attempt to address any of the issues raised;

            and in these circumstances the burden shifts to the respondent.

4.                 SUMMARY OF THE RESPONDENT’S SUBMISSION

4.1             The respondent states that the complainant commenced employment on 1^st May, 2006 and finished employment on 30^th June, 2006.  It is noted that he was in the employment of the respondent organisation less than two months as concluded by the Rights Commissioner.  The respondent notes that the complainant is making a claim of discriminatory dismissal but submits that there is no point in his submission which refers to or sets out how or why he was dismissed and how it was discriminatory.  It is the respondent’s submission that the cases cited by the complainant have no similarity or relevance to this case.

4.2             The respondent agrees that the complainant is a Lithuanian national.  It is pointed out that the owner/director of the respondent organisation and all the staff of the organisation are Lithuanian nationals.  The respondent notes that the complainant has failed to explain how one Lithuanian can be racially discriminated against by one of his countrymen.  It is the respondent’s submission that this case has been brought in bad faith and is frivolous, vexatious and misconceived and it seeks to have it dismissed pursuant to Section 77A of the Employment Equality Act, 1998.

5.                 CONCLUSIONS OF THE EQUALITY OFFICER

5.1             In this case the respondent raised the issue of this claim being dismissed in terms of Section 77A of the Employment Equality Act, 1998 as having being brought in bad faith, being frivolous, vexatious or misconceived.  For his part the complainant denied that this claim was misconceived.  He says that he has referred a valid claim and it should not be dismissed in terms of Section 77A of the Act.  The Director did not exercise her power under Section 77A of the Act and dismiss this claim as being brought in bad faith, being frivolous, vexatious or misconceived.

5.2             The issue for decision in this claim is whether or not the complainant was subjected to discriminatory dismissal on the grounds of his race by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.  In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.

5.3             It is the complainant’s submission that he was subjected to discriminatory dismissal on the grounds of race.  The complainant is Lithuanian.  He states that he was treated less favourably on the grounds of race than an Irish person would have been treated in similar circumstances.  It is the complainant’s submission that he was not given a Contract of Employment so he was afforded no details as to his employment rights.  Furthermore he was not given a P45 until some significant time after his dismissal.  The complainant says that he was dismissed without proper procedures i.e. there were no disciplinary procedures, he received no proper payslips and when he did receive his P45 it was inaccurate.  It is on the basis of the foregoing and having regard to previous caselaw[5] that the complainant contends that he was discriminated against on the grounds of race under the Equality legislation when he was dismissed.  The respondent has denied the allegations.

5.4             The respondent, who is Lithuanian, commenced the operation of his business in early 2006 following the purchase of his first truck.  At the time of the complainant’s employment he had three employees (including the complainant) in the business, all of whom were Lithuanian.  The respondent accepts that he did not have Contracts of Employment, time sheets or payslips for his employees at that time but that with the assistance of an independent company he drew up these documents in November, 2006.  Subsequent to the hearing of this claim the respondent submitted evidence of these Contracts of Employment, time sheets and payslips.  The respondent further stated that the complainant had incurred significant damage to his truck.  According to the respondent the complainant had ordered materials from a third party for which he (the respondent) was billed but these materials had not been used in the course of the business.  I note that the complainant did not deny these incidents.

5.5             The issue to be addressed by me is whether or not the complainant’s dismissal was discriminatory on the grounds of race under the 1998-2007 Acts because the complainant did not receive a Contract of Employment, time sheet and payslips and as a result he was not afforded fair procedures in terms of his dismissal.  At the hearing of this claim the complainant argued that, irrespective of whether the respondent and all the employees are Lithuanian, the respondent organisation is an Irish Registered Company and as such must follow Irish legislation.  He contends that a respondent organisation, which is registered as an Irish Company and where the shareholders, management and employees are all of the same nationality (which is not Irish), cannot be outside the scope of the Employment Equality legislation.  It is his submission that all of these employees are entitled to the protection of the 1998-2007 Acts in the event of discrimination.

5.6             In this case the complainant contends that he was treated less favourably on the grounds of race and that his dismissal was discriminatory as he did not receive a Contract of Employment, time sheets and payslips and a correct and timely P45.  In support of this argument the complainant cites the case of Campbell Catering v Aderonke Rasaq[6] in which he says it was held that there is a higher duty on employers in relation to the employment of foreign nationals.  I note that, in this case, there is no actual comparator but the complainant is relying on a hypothetical comparator who is an Irish national.  Under the legislation there is a requirement on the complainant to establish the primary facts upon which the assertion of discrimination is grounded.  If those facts are regarded as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination[7].   In this case there is evidence that the respondent had breached other employment legislation i.e. the Payment of Wages Act and in those circumstances I find that this raises a prima facie case of less favourable treatment particularly having regard to the findings in the Campbell[8] case.

5.7             I note that the respondent was in a start-up situation.  While I accept that he should have put all proper procedures in place e.g. Contracts of Employment, payslips and timesheets at the commencement of his business I note that a notional comparator (i.e. an Irish person) would not have received a Contract of Employment, payslip or time sheet.  Therefore I find that the notional comparator would have been treated no differently to the complainant in these circumstances.  Consequently I find that the failure to provide the complainant with a Contract of Employment, payslips and time sheets was not discriminatory on the grounds of race under the equality legislation.

5.8             The complainant has argued that he was subjected to discriminatory dismissal on the grounds of race when he was not provided with a Contract of Employment, payslips and time sheets.  The evidence before me is that the complainant crashed the respondent’s lorry.  According to the respondent he disappeared after this for a few days and then rang looking for his P45.  I do not find any evidence of discriminatory dismissal in this claim.

6.                 DECISION

6.1             In view of the foregoing I find that Igor Kurakin Transport Limited did not subject Mr. Darius Gorys to discriminatory treatment and discriminatory dismissal under the provisions of the Employment Equality Acts, 1998-2007 and in contravention of Section 8 of those Acts.

            ______________________

            Gerardine Coyle

            Equality Officer

            4^th April, 2008