DEC-E2008-020 - Full Case Report

SUMMARY[1]

58 Named Complainants (complainants) Represented by P.C. Moore Solicitors  vs  Goode Concrete Limited (respondent):

Employment Equality Acts, 1998-2007  Sections 6, 7, 8 and 29  -  Employment  -Discriminatory Treatment  -  Equal Pay  -  Discriminatory Dismissal  -  Harassment  -  Victimisation  -  Race

Background:

Each of the complainants (with the exception of four, two employed as mechanics and two employed as General Operatives) are employed by the respondent as truck drivers.  They are claiming discriminatory treatment, discriminatory dismissal, harassment, victimisation and equal pay against the respondent on the grounds of race.  The respondent denies all the allegations.

Conclusions and Decision:

The Equality Officer found that each of the complainants were subjected to discriminatory treatment on the grounds of race in relation to their Contracts of Employment and Safety documentation.  The Equality Officer awarded each complainant the sum of€5,000 for the affects of the discrimination.  The Equality Officer made a further award of €2,000 to Mr. Aleksanders Petrovs for the stress suffered as a result of the discriminatory treatment when he returned to work late after the Christmas vacation.  The Equality Officer did not find for each of the complainants in terms of their claims of harassment, victimisation and equal pay.  The Equality Officer held that Mr. Petrovs and Mr. Valusis were subjected to discriminatory dismissal and awarded them €10,000 and €25,000 respectively.  The Equality Officer ordered the respondent to put in place clear procedures for ensuring that non-national employees understand their terms and conditions of employment; understood all safety documentation; maintain better records of disciplinary meetings and provide training to management on the provisions of the Employment Equality Acts, 1998-2007.

Cases Cited:

Supreme Court:

            Siswan Shelley-Morris and Bus Atha Cliath – 11^th December, 2002

High Court:

            Mandate v Penneys  -  12^th February, 1997

            Minister for Transport v Campbell [1996] ELR 106

            Department of Tourism v 4 Workers [1997] ELR 1

            Stoskus v Goode Concrete [2007 No. 7066 P]

Labour Court Determination:

            Campbell Catering Limited and Aderonke Rasaq – EED048

            Goode Concrete Limited and Dermot Munroe –  DWT051

            A Company and A Worker – EED024

            Southern Health Board v Dr. Teresa Mitchell [1999] ELR 120

            Director of Public Prosecutions and Robert Sheehan –  EDA0416

            Icon Research Limited and Djemma. Tsourova – EED054 & EDA071

Equality Officer Decisions:

            5 Complainants v Hannon Poultry Export Limited, Roscommon –

            DEC-E2006-050

            Francis and Bus Eireann, Dublin Bus – DEC-E2006-046

            Gaki v Hillmount Properties Limited – DEC-E2005-061

UK:

            House of Lords – Abraham v Thompson [1977] 4AER362

SUMMARY[1]

58 Named Complainants (complainants) Represented by P.C. Moore Solicitors  vs  Goode Concrete Limited (respondent):

Employment Equality Acts, 1998-2007  Sections 6, 7, 8 and 29  -  Employment  -Discriminatory Treatment  -  Equal Pay  -  Discriminatory Dismissal  -  Harassment  -  Victimisation  -  Race

Background:

Each of the complainants (with the exception of four, two employed as mechanics and two employed as General Operatives) are employed by the respondent as truck drivers.  They are claiming discriminatory treatment, discriminatory dismissal, harassment, victimisation and equal pay against the respondent on the grounds of race.  The respondent denies all the allegations.

Conclusions and Decision:

The Equality Officer found that each of the complainants were subjected to discriminatory treatment on the grounds of race in relation to their Contracts of Employment and Safety documentation.  The Equality Officer awarded each complainant the sum of€5,000 for the affects of the discrimination.  The Equality Officer made a further award of €2,000 to Mr. Aleksanders Petrovs for the stress suffered as a result of the discriminatory treatment when he returned to work late after the Christmas vacation.  The Equality Officer did not find for each of the complainants in terms of their claims of harassment, victimisation and equal pay.  The Equality Officer held that Mr. Petrovs and Mr. Valusis were subjected to discriminatory dismissal and awarded them €10,000 and €25,000 respectively.  The Equality Officer ordered the respondent to put in place clear procedures for ensuring that non-national employees understand their terms and conditions of employment; understood all safety documentation; maintain better records of disciplinary meetings and provide training to management on the provisions of the Employment Equality Acts, 1998-2007.

Cases Cited:

Supreme Court:

            Siswan Shelley-Morris and Bus Atha Cliath – 11^th December, 2002

High Court:

            Mandate v Penneys  -  12^th February, 1997

            Minister for Transport v Campbell [1996] ELR 106

            Department of Tourism v 4 Workers [1997] ELR 1

            Stoskus v Goode Concrete [2007 No. 7066 P]

Labour Court Determination:

            Campbell Catering Limited and Aderonke Rasaq – EED048

            Goode Concrete Limited and Dermot Munroe –  DWT051

            A Company and A Worker – EED024

            Southern Health Board v Dr. Teresa Mitchell [1999] ELR 120

            Director of Public Prosecutions and Robert Sheehan –  EDA0416

            Icon Research Limited and Djemma. Tsourova – EED054 & EDA071

Equality Officer Decisions:

            5 Complainants v Hannon Poultry Export Limited, Roscommon –

            DEC-E2006-050

            Francis and Bus Eireann, Dublin Bus – DEC-E2006-046

            Gaki v Hillmount Properties Limited – DEC-E2005-061

UK:

            House of Lords – Abraham v Thompson [1977] 4AER362

1.           DISPUTE      

1.1       The dispute concerns claims by 58 Complainants against Goode Concrete Limited.  These claims relate to allegations of discriminatory treatment, discriminatory dismissal, harassment, victimisation and equal pay in accordance with the relevant provisions of the Employment Equality Acts, 1998-2007.

2.           BACKGROUND

2.1       Each of the complainants is a foreign national and all, but four, are employed as drivers by the respondent.  Two of the four complainants who are not drivers are employed as mechanics while the other two are employed as General Operatives.   All of the complainants are alleging discriminatory treatment on the grounds of race.  Many of the complainants are making a claim for equal pay with a named driver who is of Irish Nationality.  There are a number of claims of harassment, victimisation and discriminatory dismissal.  The details of all these claims are set out in Appendix A.  The respondent has denied all the allegations and says that there are ‘grounds other than race’ for the difference in pay between the complainants and the named comparator. 

2.2            Consequently each of the complainants, through their representative, referred claims to the Director of Equality Investigations on varying dates commencing on 6^th October, 2005 under the provisions of the Employment Equality Acts, 1998-2004.  The date of receipt of the most recent claim was 18^th February, 2008.  In accordance with her powers under Section 75 of those Acts the Director then delegated the claims to Gerardine Coyle, Equality Officer on varying dates between 16^th March, 2007 and 22^nd February, 2008 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.  Under the Equality Legislation there is no provision for class actions.  There are 61 separate claims involving 58 complainants.  I will deal with the complaints all together for administrative convenience.  A preliminary hearing took place on 30^th November, 2007 after which further submissions and clarifications were received.  A second hearing took place on 12^th February, 2008.  Further information was received from the parties and the final information was received on 28^th April, 2008. 

3.                 SUMMARY OF THE COMPLAINANTS’ SUBMISSION

            Equal Pay

3.1             Each of the complainants contends that they are entitled to equal pay with Mr. Nolan on the grounds of race.  The basis of these equal pay claims is that each of the complainants who are employed as drivers allege that the named comparator, who was a driver in the respondent organisation, received a higher hourly rate of pay and in addition was paid overtime at a higher rate of pay to each of them.

Contract of Employment

3.2             Each of the complainants note that they sought information from the respondent in accordance with the Equality Tribunal form EE2 accompanied by a Notice for Particulars and the respondent failed to respond to this request except in relation to two complainants (namely Gintautas Zydelis and Darius Nawrocki).  It is each of the complainants’ contention that the decision in Five Complainants v Hannons Poultry Export Ltd, Roscommon[2] is authority for the view that failing to provide a foreign national with translated documentation is discrimination.  Each of the complainants say that failure to furnish any documentation at all in relation to a Contract of Employment as provided under Section 3 of the Terms of Employment (Information) Act is discriminatory.  According to each of the complainants the respondent has not furnished Contracts of Employment despite requests and while some complainants have contracts it is each of the complainants’ contention that these Contracts are defective because:

·      they are not in the language of the foreign national;

·       they do not provide that employees may under Section 23 of the National Minimum Wage Act, 2000 request from the employer written statement of the employees average hourly rate of pay for any pay reference period as provided in that section;

·       while a grievance and disciplinary procedure was set out it was not furnished in accordance with the provisions of clause 3.3 of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 SI Number 146/2000.  This provides that a copy of the grievance and disciplinary procedure should be given to the employee “at the commencement of employment”;

·       Pursuant to the Terms of Employment (Additional Information) Order 1998, statutory instrument number 49 of 1998 Article 3(1), the employer must give or cause to be given within 2 months of the commencement of employment a statement in writing containing particulars of the terms and duration of rest periods and breaks referred to in Sections 11, 12 and 14 of the Organisation of Working Time Act, 1997 that are being allowed to the employee and any other Terms and Conditions relating to these periods and breaks;

·       The Contract furnished in itself is misleading in that the position concerning the wage rates for salary provides that “the terms of any national agreement save any Employment Relation Orders made by the Labour Court at the request of the Law Clerks Joint Committee shall not apply to your employment”.  Each of the complainants note that they are not covered by the Law Clerks Joint Committee as this related to Law Clerks and this document was produced in a legal office for a legal office and simply copied.

3.3             The complainants’ representative refers to the case of Francis and Bus Atha Cliath – Dublin Bus[3] and the case of Campbell Catering Limited and Aderonke Rasaq[4]   and says that both cases are an authority for each of the complainants’ contention that non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights.  According to each of the complainants they were working far in excess of the hours specified in their Contracts of Employment and the respondent made no effort to inform each of them that no employee was required to do overtime unless a Notification under Section 17 of the Organisation of Working Time Act was furnished.

3.4             Each of the complainants say that they have been provided with some documentation, which has been translated and each of them says that this means that the respondent was aware that employees do not have good English and require to be notified in their foreign language.  It is each of the complainants’ contention that failure to furnish documentation in their own language amounts to discrimination.

Safety Documentation

3.5       Each of the complainants state that under Section 20(3) of the Safety, Health and Welfare at Work Act, 2005 the respondent is obliged to furnish each of them with a Safety Statement or to bring the Safety Statement to their attention upon commencement of employment.  As each complainant is a foreign national each of them says that this should have been done in a form, manner and appropriate language that was likely to be understood by each of them but it was not done.  According to each of the complainants the respondent failed to comply with Section 8 of the Act and in particular Section 8(2) in providing a safe system of work.  Furthermore the respondent failed to provide any risk assessment documentation.  Also the respondent failed to comply with Section 9(1) by failing to provide this in a form, manner and language that was likely to be understood by each of the complainants.  It is submitted by each of the complainants that the respondent failed to comply with Section 8(2)(G) regarding information, instruction, supervision and training necessary to protect their health.   Each of the complainants say that the respondent did not comply with Section 10 by failing to provide any proper form of training and have also failed to comply with Section 36 by not consulting with each of them or making them aware of any Safety Committee under Section 26(3) of the Safety, Health and Welfare at Work Act.  It is contended by each of the complainants that following the reasoning in the case of Five Complainants v Hannons Poultry Export Limited, Roscommon[5] that failing to do so amounts to discrimination.  Each of the complainants also refer to the reasoning in Campbell Catering Ltd[6] and Francis –v- Bus Atha Cliath – Dublin Bus[7].   According to each of the complainants foreign nationals coming to Ireland encounter special difficulties in employment arising from lack of knowledge concerning statutory and contractual employment rights, together with differences of language and culture.  Each of the complainants says that foreign nationals coming to this country particularly when they have limited English are in a particularly vulnerable situation.  They would have limited knowledge of Health and Safety Law as it applies in Ireland and they would have limited knowledge of their entitlements under Irish Law to Health and Safety Training.  In these circumstances each of the complainants submits that foreign nationals are in a particularly vulnerable position.  Each of the complainants contends that the failure by the respondent to furnish Health and Safety documentation and to comply with the Act of 2005 is an issue, which amounts to discrimination on the grounds of race.

Working Time

3.6       Each of the complainants says that each of them is covered by the Organisation of Working Time Act and the following issues relate to those who were employed post 2^nd January, 2006:

·       Where employees were in employment post 2^nd January, 2006 the provisions of Statutory Instrument Number 2 of 2005 is applicable.  It applies to workers who were drivers.  Regulation 8(1) provides that no mobile worker should work for more than 6 hours without a break.  It goes on to provide that a mobile worker who’s time exceeds 6 hours but does not exceed 9 hours is to receive a break of at least 30 minutes.  When the working time exceeds 9 hours the worker shall be entitled to a break for at least 45 minutes.  Each break must not be less than 15 minutes each.

·       Regulation 9 provides that the employer shall ensure that the daily and rest/break periods are complied with.

·       Regulation 5 provides that the working time of a mobile worker shall not exceed 60 hours in a week.  It also provides in Regulation 5(2) that the average shall not exceed 48 hours in each week.

·       Regulation 12 provides that a mobile worker is entitled to request a copy of the records of hours worked by that worker.

3.7       It is submitted by each of the complainants that all of them who were employed post 2^nd January, 2006 or were in employment post that date were working in excess of 48 hours a week and on numerous occasions were working in excess of 60 hours per week.  On some occasions each of them were working over 70 hours per week and this also applied to non-drivers.

3.8       Each of the complainants says that they do not have all their payslips.   Also there are detailed working time records and particulars of breaks but the respondent has failed to produce this documentation and each of the complainants contends that this failure is one from which an inference should be drawn.  Each of the complainants notes that the respondent cannot argue that it is not fully aware of the provisions of the Organisation of Working Time Act.

3.9       Each of the complainants say that in the case of Goode Concrete Limited –and- Dermot Munroe[8] the Labour Court determined that because of breaches of the provisions concerning rest periods Mr. Munroe was awarded€15,000.  It is submitted by each of the complainants that the respondent was well aware of their obligations to provide rest periods.  Each of the complainants further notes that the respondent has been before the Labour Court on a number of occasions concerning working time, having being brought there by Agemo Trade Group.

3.10     Each of the complainants notes that the respondent is claiming that there are contracts of employment for employees and that those contracts of employment are specific as regards break periods.  According to each of the complainants those break periods have not been complied with by the respondent and each of them give evidence that breaks were not always available, they were not given at the times specified and that, at best, each of them took breaks, whenever possible.  Each of the complainants says that the respondent, when coming before the Rights Commissioner and the Labour Court, has made great play of the fact that employees got break periods but not always at the times that they were entitled to because of the fact that they were mobile workers.  It is submitted by each of the complainants that the respondent has never produced working time records relating to break periods as they haven’t maintained them even though they were required to do so for employees who were in the employment post 2^nd January, 2006.  Each of the complainants argues that the respondent cannot use the defence of lack of knowledge of the relevant provisions and each of them notes that the respondent took no steps to bring the regulations to their attention.  Furthermore each of the complainants submits that the respondent took no steps to ensure that they received their appropriate rest and break periods, rather they had to work in excess of 60 hours and sometimes in excess of 70 hours.

3.11     Each of the complainants contends that the reasoning in the case of Francis and Bus Atha Cliath-Dublin Bus[9] and Campbell Catering Limited[10] applies to their contention regarding rest and working time periods.  Rest periods and maximum working hours are provided for Health and Safety reasons.  Each of the complainants says that a foreign national coming to Ireland will not be aware of their employment law rights as regards rest periods and maximum working hours.  Each of them contends that it is not open for any employer to disregard same and it is the complainants’ belief that there is an obligation on an employer to explain the law to them and ensure that they get their breaks at the right time.  It is contended by each of the complainants that the failure to do so is discrimination.

3.12     Each of the complainants says that the respondent has, at no stage, sought to limit their hours of work to 48 hours.  Furthermore none of the complainants, at any stage, were advised that the maximum hours to be worked were 48 hours in any week averaged over a four month period of time.  According to each of the complainants the respondent took no steps to bring the provisions of the Organisation of Working Time Act to the attention of each of them prior to the case being listed for hearing before a Rights Commissioner on 8^th October.  Each of the complainants contends that what the respondent has done in relation to the working time is to seek to amend their contracts of employment so that they work 48 hours a week.  Each of them does not work all the days that they are contractually bound to work.  Each of the complainants say that because of the respondent’s breach it has attempted to change the terms and conditions of employment now to provide that instead of the employees working as per the contract documentation, which the respondent will say was furnished, the respondent has now attempted to work the employees 48 hours but over a more limited period of time by providing each of them with driver days off in respect of which the complainants do not receive payment.

3.13     It is submitted by each of the complainants that as foreign nationals coming to Ireland they are in a particularly vulnerable position and the respondent is aware that they each have limited English.  Each of the complainants notes that this was admitted by the respondent’s representative in writing by way of letter dated 8^th January, 2007.  Each of the complainants refer to a case of A Company –and- A Worker[11] in which the Labour Court held on appeal that it “…is also satisfied on the balance of probabilities that 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 a different nationality, who would not have the capability to stand on their legal rights”.  Each of the complainants notes that this case was determined as far back as 2002 when the Labour Court stated that it “… recommends the companies employing non-nationals recognise that difficulties that may arise, provide proper induction courses and that they make resources available to enable them to deal with any social and cultural differences which may arise in these situations”.

3.14     Each of the complainants say that the respondent was written to on 5^th January, 2007 about pressure being put on some of them to retract the proceedings which they each had issued.  Each of them was also requested to sign certain documentation.  According to each of the complainants the respondent’s representative has alleged that each of them in this case was asked to sign documentation (referral forms) without any explanation.  Each of the complainants say that, from the documentation, the respondent is taking the view that an allegation has been made that the respondent organisation is racist whereas their claims relates to discrimination on the race ground.  It is submitted by each of the complainants that the respondent is appearing to claim that these claims have been issued as a matter of course and each of the complainants consider this to be a serious allegation.  Furthermore each of the complainants says that nothing has been done to explain the working time provisions to each of them.  Each of the complainants says that each of them was required to work excessive hours.

3.15            Following the decision in Southern Health Board v Dr. Teresa Mitchell[12] each of the complainants contends that the established facts from which it can be presumed the principle of equal treatment has not been applied applies here.  Each of them relies on the case of A Company and A worker[13] in relation to the issue of complete non-implementation of the relevant legislation.  It is each of the complainants’ submission that the non-implementation of the legislation is sufficient to move the onus of proof to the respondent.  Each of the complainants also refers to the decision in the case of Director of Public Prosecutions and Robert Sheehan[14] in which the Labour Court stated:

               “In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or the age ground”.

            It is submitted by each of the complainants that this would also apply to the race ground.  Each of the complainants notes that the Court in that case proceeded to explain what a complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred.  There is no exhaustive list of factors, which can be regarded as indicative of discrimination in the filling of employment vacancies.  However, an inference of discrimination can arise where, for example a less qualified man is appointed in preference to a more qualified woman.  Each of the complainants contend that the respondent should be in a position to produce the payroll and working time records of the Irish national Mr. Nolan for comparison purposes.  According to each of the complainants they have been working 6 days a week, which is in complete non-compliance with the Organisation of Working Time Act.  In terms of establishing the burden of proof each of the complainants refers to the decision of Icon Research Limited and DJE Ms Tsourova[15].   Each of the complainants says that the manner in which their claims were dealt with in the workplace had the effect of creating an intimidating, hostile and degrading environment.  Individuals were being dismissed without any proper procedures being applied.  Individuals were required to work excessive hours and those who did not work these hours were fired.  Each of the complainants says that the threat of dismissal was always in the air if the employee did not do what they were told and a draconian attitude towards employees was adopted.  On 23^rd August, 2005 each of the complainants says that the respondent sent a note to all drivers in which the following is stated:

              “Any driver who is caught throwing litter in the yard will also be dismissed on the spot”.

              “Any driver who turns up to work under the influence of alcohol (i.e. smelling or behaving in a drunken manner) will be dismissed on the spot”.

            Each of the complainants says that while the issue in relation to drunkenness is one, which may warrant an investigation, it does not warrant summary dismissal.  It is submitted by each of the complainants that on 11^th January, 2005 a letter was sent to all drivers and individually addressed to each employee advising that some drivers had not returned to work on 4^th January.  Each of them were advised that drivers who had not returned to work on 4^th January were required to re-apply for their position with the respondent organisation and obliged to sign a new contract of employment and all rights and privileges accumulated by such drivers would be lost.  Each of the complainants again submits that this is a draconian approach to employment.  According to each of the complainants employees were constantly under the threat of dismissal if rules set by the respondent were not strictly adhered to and sending a note about throwing litter would result in dismissal resulted in a very intimidating and hostile working environment.  Each of the complainants notes that they did not get promotion.

3.16     Set out below are specific details on complainants who were either dismissed or where a specific issue needs to be raised:

              Kaspars Jaunslavietis and Vytoutas Kuliesis

               The respondent employed both these complainants as mechanics.  They both contend that they worked in excess of 60 hours per week.  It is their claim that they were put under pressure to withdraw their claim before both the Rights Commissioner Service and the Equality Tribunal.  In this regard these two complainants were asked to sign forms but subsequently decided to retract their withdrawals.  These complainants state that they were housed in premises belonging to the respondent and deductions were made from their salaries contrary to the provisions of Section 5 of the Payment of Wages Act.  According to these two complainants they never consented to these deductions being made and once they retracted their withdrawals the rent was increased.  These complainants say that there was a deduction made for rent and a deduction made for some services but they have found out that those services have not been paid.

               In respect of Mr. Jaunslavieties the respondent purchased goods to the value of €3,000 in or about June, 2004.  It is this complainant’s contention that these tools are used on the premises of the respondent organisation and their cost have been deducted from his wages.

              Irmantas Putnas

               This complainant fell ill on 8^th December, 2006.  He was working excessive hours.  While the medical condition cannot be specifically addressed to his employment, the reality is that individuals who are working excessive hours have a tendency to be more prone to illness.

              Vidmantas Stoskus

               This complainant was dismissed by reason of getting a notification on the 11^th October, 2007 advising him that he was dismissed.  Proceedings in this case are before the High Court.

              Vytautas Stoskus

               This complainant commenced employment on 13^th January, 2003.  He was dismissed on 31^st November, 2006.  No procedures in relation to the dismissal whatsoever were applied.  The complainant stopped his vehicle to give his wife a lift.  Two persons from the respondent’s management team were passing at the time and stopped the complainant.  They told the complainant’s wife to get out of the vehicle and then accused the complainant of robbing diesel and they said that the complainant was dismissed.  He was told to leave his vehicle there.  Later the Gardai came to his house.  There was a can of kerosene in his garden and the Gardai removed this from the premises.  The complainant received no written notification of the dismissal despite requests for same and some two to three weeks later he received his P45.   It is this complainant’s submission that no fair procedures were applied to him.

              Vygintas Stoskus

               On 15^th December, 2006 a Form EE2 was furnished to the respondent and subsequently a written warning dated 11^th January, 2007 was issued to this complainant.  The complainant had a medical certificate in respect of an illness.  According to the complainant the notification stated that the warning has invoked the disciplinary procedures.  On 17^th January, 2007 the complainant sent a letter to the respondent at its head office and at its registered office requesting a copy of the notification of the disciplinary hearing, the notes and a copy of the disciplinary policy.  The complainant says that a formal appeal was put in but no appeal was heard and no communication was received as a result of the matter.  It is the complainant’s contention that this amounts to victimisation.

              Aleksanders Petrovs

               The complainant issued his claim on 15^th December, 2006.  According to the complainant he was given permission to return late after the Christmas vacation.  On 9^th January, 2007 a written warning was furnished and no disciplinary hearing was held.  A letter from the respondent dated 12^th February, 2007 clearly shows that a disciplinary hearing was refused and no documentation was furnished about the disciplinary meeting.  The complainant says that the issue is that a written warning was given stating that the warning had invoked the disciplinary procedure.  It is the complainant’s submission that a disciplinary procedure under the Code of Practice, Grievance and Disciplinary Procedures would require an investigation and for him to attend at all stages and be represented.  The complainant says that the warning letter was very aggressive and intimidating and it warned that if any other warnings issued to him, he was at risk of losing his employment.  The complainant says that he sought the right of appeal but this was refused and it is the complainant’s contention that the reason for the refusal was because the Company made no attempt to comply with the Code of Practice on Grievance and Disciplinary Procedures and it took no steps to deal with the matter in a fair and reasonable way.  As he was refused the right of an appeal the complainant contends that this refusal was because he was a foreign national.

              Oleg Dimovs

               The complainant was dismissed in August, 2006 and issued his complaint on 15^th December, 2006.  A notice of particulars was furnished on that date but no response was received and no procedures were applied to the dismissal.

              Vladimirs Petrovs

               This complainant is the father of another employee in the respondent organisation.  He was dismissed after his son brought a claim against the respondent organisation.  According to the complainant no procedures were applied.  He had commenced employment on 11^th December, 2006 and was fired on 5^th January, 2007.  The complainant was employed as a driver of a cleaning machine i.e. a sweeping machine and he worked in the yard in Blessington and Ballycoolin.  The complainant says that the respondent told him that he was not going to be paid because he was being trained.  He states that he was told that he was fired because he was drunk.  It is his belief however that he was dismissed because his son had brought a claim against the respondent organisation.  The complainant notes that no investigation took place, he was not tested and no procedures were followed.  It is the complainant’s submission that he was simply dismissed so he had himself tested and the lab report showed that no ethanol was detected.  The complainant contends that his dismissal amounts to discrimination where no investigation was put in place and in circumstances where the reason for his dismissal was untrue.

              Eduards Juskvicius

               This complainant commenced employment on 9^th December, 2004.  It is this complainant’s contention that he was treated less favourably than an Irish person would be treated and his treatment was specifically related to the fact that he is a foreign national.  The complainant alleges that he was not paid in accordance with the LRC Determination CD/05/1C this being Determination No: 52 of 21/3/05[16].   He did not receive the same terms and conditions as other workers because of the fact that he was a foreign national.  According to this complainant he was required to work excessive hours with no proper breaks and he never received a Contract of Employment.  It is the complainant’s submission that he was never advised of his legal rights as an employee because he is a foreign national.

              Gintautas Zydelis

               The same issues relate to this complainant as set out for the previous complainant.

              Darius Nawrocki

               This complainant states that, according to the respondent, he resigned.  He says that the respondent has produced a letter dated 16^th February, 2005 which the respondent says is a letter of resignation.  The complainant denies that this is his handwriting and says that he did not resign.  According to the complainant it is the respondent’s submission that the letter was prepared at the request of the complainant with the assistance of an employee at the Ballycoolin site.  The complainant says that the respondent submits that this letter of resignation was written on the grounds that the complainant did not wish to pay for a registration of his car in Ireland and was returning to Poland in July, 2005.  It is the complainant’s submission that he had no intention to returning to Poland at that time.  The complainant is seeking compensation on the basis that no proper procedures were applied.  The resignation letter is challenged and the complainant notes that it has not been signed.  The complainant notes that the respondent had a letter dated 15^th June, 2005 which was a warning but it is marked as not given to him.  The complainant expresses concern about the fact that this so called letter was prepared in February and from the documentation received under the Freedom of Information Act there was included therein a document dated 14^th December, 2004 addressed to ‘whom it may concern’ stating that the complainant will be ceasing employment in July, 2005.  The complainant denies that he resigned and says that this was simply a methodology for dismissing him.

4.                 SUMMARY OF THE RESPONDENT’S SUBMISSION

Introduction

4.1             The respondent states that it is a limited company and it supplies concrete to the building industry.  Its head office is at Killeen Road, Ballyfermot, Dublin 12 and it has plants at Naas, Carbury and Ballinderry, Co. Kildare; at Gort, Co. Galway; at Kinnegad, Co. Westmeath and at Ballycoolin, Co. Dublin.  According to the respondent it employs a total of 166 staff broken down into the areas of: 

·       Management/Administration

·       General Operatives

·       Drivers

·       Mechanics

·       Technicians/Engineers

            The respondent notes that there are many different nationalities within its employment as follows:

·       Polish

·       Lithuanian

·       Latvian

·       Slovakian

·       Romanian

·       Uzbekistanian

·       Irish

·       Moldovian

·       Mauritian

·       English

·       Brazilian

·       Senegalese

·       Ukrainian

·       Chinese

            It is the respondent’s submission that each of the complainants lodged virtually identical claims before the Rights Commissioner Service relating to the same matters, which each of them complain of before the Equality Tribunal.  In summary each of the complainants make the following claims:

·       Each of them have received no written Contract of Employment

·       Each of them did not receive proper rest periods

·       Each of them were required to work excessive hours

·       Each of them were not paid proper holiday pay

·       Each of them did not receive particulars of time worked

·       A claim for payment of wages for €25,000

·       A claim for holiday pay of €5,000

·       No safety statement furnished

·       No risk assessments

·       No safe system of work

·       No information supplied

·       No instruction

·       No supervision

·       No training

·       Failure to provide risk assessment documentation

·       Failure to furnish name of safety representative

·       Failure to consult

·       Failed to receive proper breaks

Burden of Proof

4.2             Having regard to Campbell Catering and Aderonke Rasaq[17] before a complainant can succeed in his/her claim, the Court must be satisfied that he/she was treated less favourably than a comparator of a different racial origin is, was or would be treated in similar circumstances as those arising in the present case.  The respondent notes that as the complainants comprise six different nationalities (namely Polish, Lithuanian, Latvian, Slovakian, Romanian and Uzbekistanian) it is unclear as to the basis of their claims.  The respondent submits that the submission on behalf of each of the complainants shows that six different nationalities were treated in the same manner.  It is the respondent’s contention that the submission on behalf of each of the complainants alleges what could be generally termed unfair treatment, which it does not accept.  However it says that simply establishing unfair treatment generally is not sufficient and each of the complainants must link the act of discrimination with one of the nine protective grounds under the legislation.  The respondent states that no such link has been made and as such each of the complainants has failed to even prove a prima facie case.

4.3             In Francis v Dublin Bus[18] the Court indicated that special measures may be necessary to vindicate the rights of foreign workers.  The respondent notes that, while the complainant in that case was of Afro-Caribbean ethnicity, she was of English nationality.  Her first language was English and she lived in Ireland for many years.  The respondent states that the Court did not accept that she was in the potentially vulnerable situation envisaged in the Campbell Determination[19] and the Court found that the respondent did not discriminate against or harass Ms. Francis on the grounds of race contrary to the provisions of the Employment Equality Acts, 1998-2004.  It is the respondent’s submission that the Francis case can be distinguished from the present claims in a number of ways as follows:

·       In the Francis case the complainant was the only employee of Afro-Caribbean ethnicity in the Company whereas in the present claims there is a multi-national workforce;

·       The respondent, in these claims, has provided several documents translated into a common language;

·       There was a substantial union representation on behalf of foreign employees for a number of years.

4.4             The respondent notes that each of the complainants claimed that the respondent failed to implement a recommendation and/or determination of the Labour Court.  According to the respondent the said recommendation and/or determination has been quashed by the High Court.

Equal Pay

4.5             The respondent notes that each of the complainants have alleged that the named comparator was paid a different and higher rate of overtime for performing the same work.  It is the respondent’s submission that the High Court in the case of MANDATE v Penneys[20] upheld the Labour Court’s finding that unequal pay (on sex grounds) was justifiable for economic reasons.  In relation to these claims the respondent notes that the named comparator is Irish and he commenced employment with the respondent organisation in 1999 as a general operative.  He was subsequently promoted to the position of yard foreman in 2001.  In April, 2002 the named comparator sustained serious injuries and was out of work for a number of months.  According to the respondent this named comparator had a further accident in August, 2005 and was again absent from work for a period of one month.  In 2006 he was absent from work suffering from chest pains as a result of his first accident.  The respondent says that the named comparator was on very strong medication and his medical practitioners had recommended that he would not operate machinery.  They also recommended that his hours of work be reduced.  As a result the named comparator was unable to continue in his position as yard foreman.  The respondent says that following negotiations it was agreed that the named comparator would return to work as a dump truck driver.  According to the respondent the named comparator had a good work record and he had been promoted.  However because of health concerns the respondent says that the named comparator was going to be demoted.  Hence as part of the agreement in relation to his demotion the respondent states that it was agreed that he would be paid overtime at a rate of time and a half as he had been prior to his demotion.  On his return to work the named comparator had to drive a dump truck, which had a comfortable cab.  The respondent notes that the named comparator was not responsible for anyone else and his job was less stressful.  It is the respondent’s submission that this agreement was made for the benefit of both the respondent and the named comparator.   Hence the named comparator had his pay ‘red-circled’.  The respondent notes that this principle has been accepted in the Minister for Transport v Campbell[21] and Department of Tourism v 4 Workers[22].

4.6             In terms of the claim of ‘like work’ under Section 7 of the Employment Equality Acts, 1998-2007 the respondent states that the position of a dump truck driver is categorised as that of a general operative as distinct from the position of driver.  The respondent says that the distinction exists for a number of reasons the main differences being as follows:

·       A dump truck driver is in a pit and never leaves it.  This driver therefore works in the one location all of the time.  On the other hand a driver is on the public road.

·       A driver must have an appropriate category C driving licence.   There is no requirement for a dump truck driver to have such a category C licence.

·       A dump truck driver must have what is called a ticket, issued under the Health and Safety legislation, whereas a truck driver has no requirement for such a ticket.

·       A truck driver must have a Safe Pass issued under the Health and Safety legislation to allow him to go into other sites, whereas the dump truck driver has no such requirement.

·       The truck driver is driving a large vehicle on the public roadway, which when loaded is 28 tonnes in weight.  This is a position of much greater responsibility.

              The respondent states that the named comparator did not have a category C licence and could never have driven a truck on the Public roadway and therefore his job would never have been interchangeable with the other drivers.  As a result the respondent submits that this is not ‘like work’ and states that within the industry, dump truck drivers and drivers generally are not classified in the same category.

Contracts of Employment

4.7             In relation to Contracts of Employment the respondent says that each of the complainants claims fall under three categories (the list of complainants and their associated category are set out in Appendix B) as follows: 

               Category A:

                These complainants were supplied with a contract of employment and the contracts were signed and one copy given to the complainant and the other retained by the respondent.

               Category B:

                These complainants were supplied with a contract of employment and the respondent retained a copy thereof.  Each of these complainants refused to sign a copy or return a copy thereof to the respondent.  According to the respondent it has discharged its statutory duty by furnishing the required particulars to each of these complainants.

               Category C:

                These complainants were supplied with a contract of employment but the respondent did not retain a copy.  The respondent notes that in identical cases[23] the Employment Appeals Tribunal considered these matters and setting aside the recommendation of the Rights Commissioner held that the contracts were issued to each of the claimants in question.

4.8             The respondent refers to the case of Five Complainants and Hannon’s Poultry[24] in which the workers’ claim that 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.  It is noted by the respondent that the Equality Officer in that case considered that each of the complainants were discriminated against on the grounds of race by virtue of having unlawful deductions made from their wages.  The respondent says that contracts are mentioned in the Labour Court Determination in this case but in the light of deductions.  It is the respondent’s contention that there is no finding of discrimination by failing to furnish a contract of employment in a language understood by the complainants.   In these claims the respondent notes that there is no requirement in law or is it common practice for an employer to provide contracts in the language of the foreign national.  The respondent says that to make a decision that each employee is entitled to a contract in its own native language would be a very substantial shift in policy where there is not such requirement to date.  To accept the argument by each of the complainants the respondent says would require it to produce contracts in 13 different languages.  The respondent says that this would pose an enormous financial and logistical burden, not only on it, but also on all employers.  It is noted by the respondent that all contracts to its employees are the same and that it has strictly complied with its obligations in 49 out of 57 of these claims and the EAT accepts that it issued contracts in the remaining 8 claims.  It is the respondent’s submission that there is no discrimination between any nationalities regarding their contracts of employment.

4.9             The respondent notes that each of the complainants alleges that their contracts of employment are defective and states that Section 23 deals with the entitlement of an employee to a statement of the average hourly rate of pay for a pay reference period.  According to the respondent Section 23 does not state that such an entitlement be included in a contract of employment.  Rather the Act specifically delegates any complaints regarding minimum wages to the Rights Commissioner Service.  The respondent notes that its grievance and disciplinary procedure was recently the subject of scrutiny by the High Court in the case of Stoskus v Goode Concrete[25] and the High Court had no complaint regarding its grievance and disciplinary procedure.  It is the respondent’s submission that it is clear from the contracts that employees were provided with such information at the commencement of their employment.  Furthermore the contracts furnished deal with the rest periods of employees.  The reference in the contracts to the Joint Law Clerks Committee was a mistake and the respondent says that this does not in any way affect the validity of the contract itself. 

Safety Documentation

4.10         The respondent notes that each of the complaints is under the Safety, Health & Welfare at Work Act, 2005 which came into effect on 1^st September, 2005.  It is the respondent’s submission that the Equality Tribunal has no jurisdiction per se to make any adverse finding under the Safety, Health & Welfare at Work Act, 2005.  The respondent further notes that in the case of Five Complainants v Hannons Poultry Exports Limited[26] safety documentation was not mentioned or considered.  In relation to Safety Statements the respondent notes that Section 20(3) of the Safety, Health & Welfare at Work Act, 2005 does not oblige an employer to furnish a safety statement to an employee and the Act states “every employer shall bring the safety statement, in a form, manner and an appropriate language that is reasonably likely to be understood, to the attention of – his or her employees”.  According to the respondent each of the complainants received two weeks of training by a fellow employee.  Furthermore an employee who spoke the same language as each of the complainants conducted the training.  The respondent states that each of the complainants were provided with shortened particulars regarding health and safety issues in Russian and the existence of a safety statement was brought to their attention.  According to the respondent each of the complainants were advised that an interpreter was available to interpret the Health and Safety Statement.  The respondent notes that it has prepared a driver safety handbook in both Russian and English and all drivers are provided with this safety handbook as part of their induction and training.  It is the respondent’s submission that it organised a Health and Safety seminar in a local hotel one evening outside of working hours to which all employees were invited to attend and were told that they would be paid their salary if they did attend.  A Russian translator was organised to translate and light refreshments were served at the function.  Despite this the respondent notes that only 5 drivers attended the seminar.

4.11         The respondent states that it has no objection and has never had any objection to any employee becoming a member of a Trade Union.  According to the respondent AGEMOU Trade Group (a branch of SIPTU) has a long history of involvement with employees of the respondent organisation.  AGEMOU held a meeting with employees of the respondent organisation in 2001 but at that time no employees were members of the Union.  Employees joined the AGEMOU in January/February, 2004 and since that time the Branch Secretary of the AGEMOU has had a number of, both formal and informal, meetings with members of his Union.  It is the respondent’s submission that a significant number of the complainants were members of the Trade Union.

Working Time

4.12         The respondent notes that each of the complainants refer to various complaints made under the Organisation of Working Time Act and say that most, if not all, of them have lodged claims before the Rights Commissioner Service for breaches of this Act.  A decision in these claims is still awaited.  It is the respondent’s submission that the Equality Tribunal does not have jurisdiction to determine claims under the Organisation of Working Time Act.  The respondent accepts that some of its employees have worked in excess of the maximum working hours provided for under the Organisation of Working Time Act but says that this in itself is not evidence of discrimination.  In the case of Gaki v Hillmount Properties Limited[27] the Equality Officer heard evidence of a finding by a Rights Commissioner that the employer had breached the Organisation of Working Time Act.  The Equality Officer stated:

                “the Rights Commissioner was apparently satisfied that the failure to pay the complainant for bank holidays was incorrect under the provisions of the Organisation of Working Time Act, but this cannot constitute evidence of discrimination under the provisions of the Employment Equality Acts.  From the evidence of the respondent, uncontradicted by the complainant, bank holiday payments were not made to any of the a la carte staff, who were both Irish and non-Irish.  In the circumstances, I cannot find that the treatment of the complainant constituted less favourable treatment on the race ground”.

            The respondent notes that in the submission made on behalf of each of the complainants no comparators have been named in respect of their complaints and therefore argue that there is no prima facie evidence of any discrimination.  Whilst employees do work long hours, there is no discrimination between nationalities of any kind.

           Investigation by Respondent

4.13         Following receipt of a number of complaints the respondent says that the Human Resources Manager carried out an investigation into the claims being made against the respondent organisation.  According to the respondent in the submission made on behalf of each of the complainants a distinction seems to have been drawn between their claims that the respondent was racist or to use their phrase that the respondent ‘discriminated on the race ground’.  The respondent says that it sees no essential difference between either allegations but it was obliged to investigate these claims to see if there was any substance to them.  To establish if any person was being treated in a racist manner or discriminated against on the basis of their race the respondent says that a number of employees, including a number of the complainants, were interviewed.  The investigation was informal and no notes were kept of the interviews.  It is the respondent’s submission that, despite interviewing approximately 30 employees, no one employee informed the HR Manager that they felt that they were being treated in a racist manner or discriminated against on the basis of their race or nationality.  The respondent notes that no one employee was prepared to say that the respondent organisation or any person within the organisation or its management had treated them in any manner which was racist or discriminated against them on the basis of their race.

4.14         The respondent states that none of the complainants have made any complaint directly to it in respect of any of the issues of which they now complain and in particular no employee has ever made a complaint about discrimination.  Furthermore no complaints have been made about working excessive hours and the respondent states that it has reduced working hours to below 48 hours per week and this has resulted in a number of complaints from employees who wish to work longer hours.  The respondent further notes that no employee has ever made any complaint, of any nature, alleging that they have failed to receive appropriate breaks or have failed to have available to them appropriate and sufficient time to take their breaks as set out in their contract.  According to the respondent none of the complainants have made any claims directly or indirectly on the issue concerning health and safety and no complaint has been made to the Health and Safety Authority on any aspect of the respondent’s Health and Safety Policy.  This, the respondent contends is the appropriate forum for the remedying of any such complaints.

Similarity of Complaints

4.15         The respondent states that the same solicitor is handling all of the complaints under the Equality legislation and virtually all of the claims are in an identical format and many clearly on photocopied forms.  Indicative of the manner in which the claims are being processed are claims under the Payment of Wages Act to a Rights Commissioner for €15,000 and claims for holiday pay of €2,000 irrespective of the length of service or rate of pay.  Typically also are claims that each of the complainants received no contract of employment when they clearly have done so.  If one considers the documents lodged and in particular their similarity one cannot but conclude that there is an element of ‘jumping on the bandwagon’.  In these circumstances the respondent submits that the claims before the Equality Tribunal are an abuse of the process and in particular relies on the comments of Millet LJ in the case of Abraham v Thompson[28] in which he said:

                “It is an abuse of the process of the Court to bring a claim with no genuine belief in its merits but in bad faith for an ulterior purpose … a party who makes an exorbitant claim with no genuine beliefs in its merits, rejecting all reasonable offers of settlement and exploiting his own inability to satisfy an order for costs in order to bring pressure on the other party to settle for an excessive sum, is abusing the process of the Court”.

            It is the respondent’s submission that this is particularly relevant as, before the Equality Tribunal, the respondent has no hope of recovering the costs of the proceedings and has been put to the expense of defending claims without any hope of recovery of the costs thereof.

4.16         The respondent also relies on the comments of Mr. Justice Hardiman in the case of Siwsan Shelley-Morris and Bus Atha Cliath[29] where he summarised the Court’s approach to exaggerated claims as follows:

                “I wish to reiterate what was said by this Court in Vesey; that the onus of proof in these cases lies on the Plaintiff who is, of course, obliged to discharge it in a truthful and straightforward manner.  Where this has not been done ‘a court is not obliged, or entitled, to speculate in the absence of credible evidence’.  To do so would be unfair to the Defendant.  Moreover, a Plaintiff who engages in falsehoods may expose himself or herself to adverse orders on costs.  Furthermore, as observed in Vesey ‘… there is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose on the other party”.

            The respondent notes that this last proposition is well established but little considered in the context of personal injuries claims. 

4.17         The respondent makes the specific comments on the following individual complainants:

               Kaspars Jaunslavietis & Vuitoutais Kuliesis

                These complainants are employed as mechanics and both have received contracts of employment.  They are both paid the same rate of pay for mechanics, which is €15.22 per hour.  The respondent notes their claim that they were put under pressure to withdraw their claims before the Rights Commissioner and before the Equality Tribunal and were asked to sign forms.  The respondent denies this absolutely and completely.  According to the respondent these two complainants spoke to the HR Manager on several occasions and informed her that they had no wish to pursue any claims against the company, that they had no complaint and that they were happy to continue to work with the respondent organisation.  They were each advised that they should inform their solicitor if they wished to withdraw their claims.  The respondent says that in September 2007 they asked the HR Manager to draft a letter for them to their solicitor withdrawing their claims and the HR Manager agreed to do so.  These complainants signed the letters and sent them to their solicitor.  Within a matter of days the complainants retracted their withdrawal, and the respondent says, presumably following consultation with their solicitor.  It is the respondent’s submission that on no occasion did any manager in the organisation put pressure on either of these complainants to withdraw their claims. 

                In relation to the personal injury claim, which has been brought by Mr. Jaunslavietis the respondent says that this is being handled by the insurance company over which they have no control and which has nothing to do with this claim.

                The respondent notes that the complainants’ representative has made reference to the fact that both Mr. Jaunslavietis and Mr. Kuliesis were ‘housed’ in premises owned by the respondent.  It is the respondent’s view that this reference is demeaning.  According to the respondent it was agreed with the two complainants that the agreed rent could be deducted from their wages and had been so deducted since the commencement of their employment.  The respondent notes that both these complainants claim that there is a deduction for ‘some services’, which they have ‘found out’, have not been paid but it says that it is unclear what allegation is being made.

                The respondent states that both these complainants are mechanics and it is aware that outside of working hours the complainant (Mr. Jaunslavietis) carries out work for other people and in particular services cars for fellow employees.  According to the respondent it has no particular objection to this but it notes that Mr. Jaunslavietis’s tools are used for purposes outside of work.  The respondent notes that Mr. Jaunslavietis wanted to purchase tools in June, 2004 for use both inside and outside the company but he did not have the necessary funds.  It is the respondent’s submission that it purchased the tools, which were then and still are the property of Mr. Jaunslavietis.  It is common practice for a fitter to provide their own tools.

                The respondent states that the submission on behalf of these two complainants is disingenuous when it says that the ‘company will probably claim that there is a contract for both of them’ because it was clearly acknowledged that there was a contract of employment for Mr. Kuliesis and a contract of employment has been furnished for Mr. Jaunslavietis.  According to the respondent it should be noted that there has been no claim under the Payment of Wages Act for either of these complainants regarding the agreed deductions.  The respondent notes that both complainants paid the sum of €50 each per week rent for accommodation.  As this represented 40% of normal rent the respondent informed the complainants that the rent was to be increased.  The respondent states that the complainants simply walked out of the accommodation without notice or discussion.

               Irmantas Putnas

                This complainant claims that he developed haemorrhoids and while he acknowledged that the medical condition couldn’t be specifically addressed to his employment, he suggests that he may have been working excessive hours and have a tendency to be more prone to illnesses.  As the complainant raised the suggestion that haemorrhoids could be an indirect consequence of his employment the respondent does not accept that the complainant’s haemorrhoids were in any way related to his working hours and cites the Family Health Encyclopaedia which states ‘haemorrhoids are caused by increased pressure in the veins of the anus, usually due to straining to pass hard faeces.  Such faeces may result from a diet that contains too many highly refined foods and that lack sufficient fibre’.

               Vidmantas Stoskus

                The respondent contends that the Equality Tribunal has no jurisdiction to deal with this claim as the complainant is pursuing an alternative remedy in the High Court.  According to the respondent Mr. Stoskus was dismissed because he verbally and physically abused another member of staff and refused to obey legitimate instructions on 14^th September, 2007.  The respondent says that the complainant brought injunction proceedings before the High Court alleging that his solicitor should be entitled to legally represent him at the disciplinary hearing.  The injunction application was dismissed by the High Court and the respondent notes that Ms. Justice Irvine had no criticisms whatsoever of the procedural fairness of the respondent or the manner in which the investigation was conducted.

               Vytautas Stoskus

                The respondent says that it considers this claim to be an abuse of process.  The complainant was dismissed on 31^st November, 2006.  It is his claim that he innocently stopped his vehicle to give his wife a lift but this, the respondent says is completely untrue.  According to the respondent this complainant had a very poor disciplinary record and was on a final written warning issued in early November, 2006 for vulgar and abusive behaviour.  The respondent says that it received confidential information that Mr. Stoskus was stealing diesel from the respondent’s trucks and was selling the same diesel from his home.  A preliminary investigation suggested that there was substance to the allegation.  On that morning (31^st November, 2006) the complainant filled his truck with diesel and set off with his initial load to deliver concrete to Tallaght.  Having delivered his load he drove home to Clondalkin and parked the vehicle at the back of his house.  Two members of the respondent’s management team were passing at the time and noticed the truck parked at the back of his house.  They witnessed the complainant move an oil drum adjacent to the fuel tank of the vehicle and using a manual pump began pumping diesel from the truck into the drum.  The respondent says that the two members of the management team approached the complainant and asked him if he was pumping oil from the truck but he denied that this was what he was doing.  According to the respondent the two members of the management team observed dozens of oil drums at the back of the complainant’s garden.  The Gardai were called and interviewed the complainant.  The respondent says that the Gardai reported that the complainant admitted that he was stealing diesel from the respondent as the respondent owed him €25,000 from the proceeds of his employment claims.  It is the respondent’s submission that the Gardai stated that diesel ‘laundering’ was happening on an industrial scale.  The respondent informed the complainant that he was dismissed with immediate effect and says that his dismissal was solely related to his criminal activity.

               Vygintas Stoskus

                The respondent states that this complainant claims that a form EE2 was furnished to the respondent organisation on 15^th December, 2006.  According to the respondent this is incorrect as the form was not furnished until 23^rd January, 2007 and stamped and acknowledged received by the respondent on 25^th January, 2007.  Thus any disciplinary action complained of pre-dated the receipt by the respondent of the notification of the claim.  The respondent says that in his letter dated 17^th January, 2007 the complainant’s solicitor claims that he is entitled to represent his client at any disciplinary hearing and threatens to update a High Court injunction.  It is noted by the respondent that a similar application on behalf of this complainant’s brother (Mr. Vidmantas Stoskus) was dismissed by the High Court.

                Without prejudice to the foregoing the respondent says that the complainant was due to return from holidays on 2^nd January, 2007 but did not return until 9^th January, 2007 (some six days later).  When the complainant returned to work he indicated that he had missed his flight back and was then sick.  The respondent says that it was only when a formal notice was issued to him that he obtained a medical certificate dated 9^th January, 2007 certifying that he was unable to attend work from 3^rd to 8^th January, 2007.  It is the respondent’s contention that the complainant was not in the country prior to 8^th January, 2007.  The respondent notes that the complainant alleges that he issued a complaint on 15^th December, 2006 but says that his complaint is dated 13^th January, 2007 and therefore pre-dates any of the issues raised before the Equality Tribunal.  According to the respondent on the date the complainant was due to return to work the manager received a phone call from him saying that he had missed his flight and that he was still in Lithuania.  The respondent says that no permission had been given to return late.  It is noted by the respondent that the complainant alleges that the tenor of the correspondence from the respondent was in some way aggressive or intimidating.  The respondent refers the Equality Tribunal to the correspondence issued from the complainant’s solicitor where even minor mattes result in threats of High Court injunctions.

               Oleg Dimovs

                The respondent considers this case to be an abuse of the process.  The complainant alleges that he was dismissed in August, 2006 and issued his complaint on 15^th December, 2006.  He was employed by the respondent organisation for a period of two years.  On 26^th August, 2006 he wrote to the respondent wherein he stated “Due to personal circumstances, I have to leave the employ of Goode Concrete.  I am resigning my position and I am breaking my contract.  I have not given any notice of my resignation”.  The respondent says that there was never any question of this complainant being dismissed.

               Vladimirs Petrovis

                The complainant was employed for less than one week.  He was informed that he would be employed on probation and the respondent says that it soon became clear that the complainant was not suitable for the position for which he was engaged and he was informed, before the end of his initial week, that they were not going to continue to employ him.  The respondent says that there was never a claim that he was being fired because he was drunk and the fact that he was let go had nothing whatsoever to do with his son bringing a claim under the Equality legislation.

               Eduardas Juskevicius

                The complainant claims that there was a discriminatory dismissal on the basis that a form EE2 dated 9^th November, 2005 was furnished along with additional particulars.  The respondent says that it is a fact that this complainant had ceased employment several months earlier.  According to the respondent the complainant resigned his position on 15^th August, 2005 by stating in a letter of that date – “I Eduardas Juskevicius today wish to give Goode Concrete Limited two weeks notice of my decision to cease employment.  I am willing to work until Saturday the 27^th August.  I have enjoyed my time at this company and wish to leave for personal reasons”.

               Gintautas Zydelis

                The complainant was training another driver as part of his induction training, driving a truck from the Ballycoolin plant.  The trainee was driving the truck under the supervision of the complainant.  On arrival at the building site the foreman stopped the truck to direct it as to where it should go.  In order to direct them to the specific area the foreman got into the truck with the complainant and his instructor.  On entering the truck the foreman discovered that the instructor was drinking from a can of Heineken and he offered one to the foreman.  The respondent says that later that afternoon the complainant went to the office of the manager at the Ballycoolin plant to discuss an unrelated matter.  The manager, who was unaware of the previous incident, noticed a severe and potent smell of alcohol from the complainant and he questioned him about this fact but the complainant denied that he had been drinking alcohol.  The respondent says that the Plant Manager also noticed a strong smell of alcohol of this complainant.  Subsequent to this latter incident the foreman reported the incident to the manager who again asked the complainant to come to his office.  According to the respondent the complainant again denied that he had been drinking alcohol whilst instructing another driver.  From the manager’s own observations and those of the Plant Manager, he was satisfied that this was untrue.  The respondent says that the manager deemed that such conduct constituted gross misconduct and terminated the complainant’s employment with immediate effect.  It is the respondent’s submission that the complainant was not discriminated against and was treated in the same manner as any fellow employee would have been treated in the circumstances.

               Dariusz Nawrocki

                The complainant commenced employment with the respondent on 14^th July, 2003.  He submitted a letter of resignation on 16^th February, 2005 and his employment with the respondent organisation terminated on 15^th July, 2005.  The respondent says that the background to the foregoing is that in December, 2004 the complainant requested the Transport Manager to write a letter addressed ‘To whom it may concern’ confirming that his employment would cease in July, 2005.  According to the respondent it was its understanding that the complainant intended to return to Poland in July, 2005.  The respondent says that the complainant instructed a batcher at the Ballycoolin Plant to write a letter of resignation on his behalf.  This was done on 16^th February, 2005 and submitted to the then Financial Controller of the respondent organisation.  The respondent notes that the complainant also asked the batcher to write a letter confirming that he would be resigning from the respondent organisation as of Friday, 15^th July, 2005 and this letter is also dated 16^th February, 2005.  It is noted by the respondent that 15^th July, 2005 was the commencement of the builder’s holidays when the complainant would normally be taking two weeks holidays in any event.  The respondent states that the complainant’s resignation took effect on 15^th July, 2005 and he was sent his P45 on 27^th July, 2005.  The P45 was sent to his former address in the hope that it would be forwarded to him.  In the circumstances of this claim the respondent notes that the complainant resigned and says that there could not have been any discrimination as any person who would have resigned, irrespective of his nationality, would have been treated in exactly in the same manner.

5.                 CONCLUSIONS OF THE EQUALITY OFFICER

5.1             The issue for decision in each of these claims is whether or not the complainants, having regard to the complaints they made, were subjected to discriminatory treatment, discriminatory dismissal, harassment and victimisation on the grounds of race in terms of Section 6 of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.  I must also decide on the merit of each of the claims for equal pay within the meaning of Sections 7 and 29 of the 1998-2007 Acts which have been brought against a named comparator on the grounds of race.

5.2             Each of the complainants comprise a number of different nationalities.  I note that, at the second hearing of these claims, the complainants’ representative expressed surprise at this as he had considered that the complainants were all of the same nationality (Lithuanian).  A total of 21 complainants referred claims in relation to a Collective Agreement (see Appendix A).  These claims were withdrawn by the complainants’ representative at the second hearing of these claims and subsequently in writing by letter dated 4^th April, 2008.

Equal Pay

5.3             A total of 54 complainants have referred equal pay claims (see Appendix A) in which they each contend that they are entitled to equal remuneration with a named comparator who is an Irish national.  It is contended by each of these complainants that this named comparator was also a driver who performs ‘like work’ with each of the named complainants but was in receipt of a higher rate of pay and also in receipt of overtime pay.  The named comparator is no longer in the employment of the respondent organisation.  I note that the respondent has submitted that none of the complainants and the named comparator performed ‘like work’ with each other as each of the complainants are employed as truck drivers whereas the named comparator was employed as a dump truck driver.  The respondent has also argued that there were ‘grounds other than race’ for the difference in pay to each of the complainants and the named comparator inasmuch as the named comparator was ‘red-circled’ due to injuries sustained in the workplace.  In this regard the respondent submitted medical evidence regarding his injuries and a note of a meeting with the named comparator in which he was told that he would be moved to a different position (effectively demoted) but he would remain on the same pay and overtime rates.  The respondent submitted details of the named comparator’s pay prior to and post the demotion.  I note that none of the complainants challenged the respondent’s argument regarding the named comparator.  Having considered all of the evidence I am satisfied that the named comparator was red-circled and I find that there were ‘grounds other than race’ for the difference in pay to each of the complainants and to this named comparator.  As there were ‘grounds other than race’ for the difference in pay it is not necessary to address the issue of ‘like work’.

Contracts of Employment

5.4             It has been argued by each of the complainants that they did not receive Contracts of Employment.  The respondent denies this and says that all complainants (with the exception of Mr. Vladimirs Petrovs who was with the respondent organisation for a very short period of time before his dismissal) were furnished with Contracts of Employment (see Appendix B).  Each of the complainants state that they were treated less favourably on the grounds of race in relation to their Contracts of Employment because they were given Contracts which were in English and not ones in their native language.  It is the respondent’s submission that there is no requirement in law to provide employees with Contracts of Employment which are written in their native language.

5.5             The Labour Court in the case of Campbell Catering Ltd and Aderonke Rasaq[30] has stated “It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture.  In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation.  Special measures may be necessary in the case of non-national workers to ensure that this obligation in fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence.  In such cases, applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”            It could be argued that there is an onus on the respondent to provide its non-national employees with Contracts of Employment which are in a language which is understandable to them.  I note that the respondent in each of these claims has stated that this would put an unreasonable burden on it to provide Contracts of Employment in a number of different languages as they have employees from 12 countries other than the UK and Ireland.  I note that other Company documentation has been translated into a common language (i.e. Russian) and it could be considered reasonable for the respondent to provide employees with Contracts of Employment in either English or Russian.  Alternatively if the employer is not in a position to provide Contracts of Employment in different languages the employer should undertake to have the Contract of Employment explained to all employees irrespective of their nationality.  In relation to non-national employees this would mean that a translator acting on behalf of the employer (not another employee) should explain the terms of the Contract of Employment and employees (irrespective of nationality) should be asked to sign a document confirming that the Contract of Employment has been explained to them.  In these claims I note that each of the complainants (with the exception of one) were provided with Contracts of Employment which were in English and while the respondent has said that another non-national employee explained the terms of the Contract of Employment to new non-national employees there is no evidence to support this submission.  In the circumstances I find that each of the complainants was treated less favourably than Irish employees in relation to their Employment Contracts.

Safety Documentation

5.6             In relation to safety documentation the issue for me to address is whether or not each of the complainants were treated less favourably than Irish nationals in relation to their access to and understanding of safety documentation.  It is contended by each of the complainants that the respondent’s failure to provide them with safety documentation in a language which they understood and failure to provide proper safety training constituted less favourable treatment on the grounds of race.  According to the respondent some of the safety documentation was provided to the complainants in Russian.  The respondent states that each of the complainants were provided with two weeks training by a fellow employee who spoke Russian and each of them was informed that an interpreter would be available to translate the Safety Statement should this be required.  The respondent stated that it organised a Health and Safety Seminar in a local hotel at which a Russian interpreter was present but only 5 of its drivers attended.  The complainants’ representative on behalf of the complainants did not deny this.  The evidence is that the respondent has endeavoured to communicate safety documentation to all of its employees irrespective of their nationality with the provision of documentation both in English and Russian.  In terms of the training employees received this should be documented and all employees (irrespective of nationality) should be obliged to sign a document confirming that they have received this training in a language which is understood.  Having carefully considered all of the above I find that there was an onus on the respondent to ensure that all safety documentation was set out in whatever language or languages that all employees would understand.  As this was not the case I find that each of the complainants was treated less favourably on the grounds of race when all safety documentation was not translated into a language they understood.

Working Time

5.7             Each of the complainants note that they are all covered by the provisions of the Organisation of Working Time Act and state that since 2^nd January, 2006 there is a limit to the number of hours that they should work weekly and the provision of rest periods.  It is each of the complainants’ contention that they have been required to work in excess of the hours set out in this legislation.  On this basis they each argue that they have been treated less favourably on the grounds of race.  Each of the complainants notes that they have not received all their payslips and they have not received detailed working time records and particulars of breaks.  Each of them submits that an inference should be drawn from this failure by the respondent.  For its part the respondent notes that each of the complainants has referred claims to the Rights Commissioners under the provisions of the Organisation of Working Time Acts and the outcome of these claims is still awaited.  It is the respondent’s submission that the Equality Tribunal has no jurisdiction to determine claims under the Organisation of Working Time Acts and in this regard the respondent cites the case of Gaki v Hillmount Properties Limited[31].  

5.8             The issue for me to consider in this regard is whether or not each of the complainants have been treated less favourably than Irish nationals in relation to the hours worked.  On the basis of evidence received I note that Irish employees (employed in a similar capacity to the complainants) have also worked in excess of the hours required to work under the Organisation of Working Time Acts.  In these circumstances then I find that none of the complainants has been treated any differently to Irish national in relation to the hours worked.  As has been held in Gaki[32] breaches of the Organisation of Working Time Acts (and I note that this matter has yet to be decided on by the Rights Commissioners Service) cannot constitute evidence of discrimination under the Equality Legislation.

5.9             Each of the complainants has stated that they have not received all their payslips, detailed working time records and particulars of breaks.  Each of them argues that this constitutes less favourable treatment on the grounds of race.  I find that each of the complainants did not provide prima facie evidence to support this contention.

5.10         Each of the complainants has alleged that the manner in which their claims were dealt with by the respondent had the effect of creating an intimidating, hostile and degrading environment.  They each say that individuals were being dismissed without proper procedures being applied and if they refused to work excessive hours they were fired.  It is submitted by each of the complainants that the threat of dismissal was always in the air if an employee did not do what they were told and a draconian attitude was adopted towards employees.  Each of the complainants cited the example of directions being sent to all drivers about a driver throwing litter in the yard being dismissed on the spot and a driver who turns up for work under the influence of alcohol being dismissed on the spot.  It is submitted by each of the complainants that the latter does not warrant summary dismissal.  I note that the directions from the respondent were sent to all drivers and applied to all drivers irrespective of nationality.  In those circumstances I find that each of the complainants was not treated less favourably on the grounds of race in relation to the above.

Issues raised by individual complainants

5.11         Set out below are details of claims raised by individual complainants under the Equality Legislation:

                 Kaspars Jaunslavietis and Vytoutas Kuliesis

                  It is alleged that both of these complainants were victimised in terms of Section 74(2) of the Employment Equality Acts, 1998-2007 when they were pressurised into withdrawing their claims before the Rights Commissioner Service and the Equality Tribunal and when they retracted their withdrawals their rent was increased.  It is alleged that this rent was being deducted from their salaries without either their consent.  The respondent denies that these complainants were put under pressure to withdraw their claims and say that they both approached management on several occasions stating that did not wish to pursue their claims and they asked the HR Manager to draft a letter in this regard to their legal representative so that they could sign and send it to him.  According to the respondent both these complainants retracted the withdrawal of their claims within a matter of days.  The respondent denies ever putting pressure on any of the complainants to withdraw their claims.  In relation to the reference to the deduction of rent from these complainants’ wages the respondent notes that the deductions were agreed with these complainants at the commencement of their employment and no claim has been made under the Payment of Wages Act by either complainant in relation to these agreed deductions.  According to the respondent it was decided to increase the rent which was significantly below normal rents at that time and after informing both of these complainants that the rent was going to be increased the respondent says that they simply walked out without notice or discussion. 

                  The complainant Mr. Jaunslavieties states that the respondent purchased tools for him which are used for the purposes of his work and the cost of these tools were deducted from his salary.  The respondent states that it is common practice for mechanics to provide their own tools but as Mr. Jaunslavieties did not have tools it purchased them for him and have allowed him to use them both for work and for purposes outside of work. 

                  In relation to these claims of alleged victimisation I note that the complainants have not responded to or refuted the respondent’s version of events in the matter.  In the circumstances I find that the respondent’s version of these events is very plausible and in the absence of any response it is impossible for me to find that these complainants were subjected to victimisation by the respondent in the manner alleged.  I am further satisfied that there is no evidence of less favourable treatment on the grounds of race in relation to the deduction of rent from the complainants’ wages or the purchase of tools for Mr. Jaunslavieties as alleged.

                  At the second hearing of this claim Mr. Jaunslavieties submitted that he had to work 6 days a week as a mechanic and that the reason he had to work a 6 day week was because he was a foreign national.  He alleged that this was a form of harassment.  I note that there are other nationalities employed as mechanics including Irish mechanics.  It is the respondent’s submission that all mechanics had to work on 6 days of the week i.e. Monday to Friday and a half day on Saturday.  I find that there is no evidence to support his claim that he was treated any differently to any other mechanic employed by the respondent irrespective of nationality.

                 Irmantas Putnas

                  The complainant alleges that he fell ill in December, 2006 because he was working excessive hours.  It is his contention that the excessive hours worked means that he has a tendency to be more prone to illness and this constitutes discriminatory treatment on the grounds of race.  According to the respondent this complainant suffered from haemorrhoids and it contends that this condition cannot be specifically addressed to his employment.  I agree with the respondent in this matter and find that there is no evidence that the complainant’s illness was as a result of his employment.

                 Vidmantas Stoskus

                  At the time of the referral of this claim of alleged discriminatory treatment and harassment to the Equality Tribunal it was stated by the respondent that this complainant was in proceedings before the High Court in relation to this same matter and in accordance with Section 101 of the Employment Equality Acts, 1998-2007 this claim was not properly before the Equality Tribunal.  It was clear from the respondent’s submission that this complainant had applied to the High Court for an injunction and according to the respondent the High Court had no criticism of the procedural fairness of the respondent or the manner in which the investigation was conducted.  I am satisfied that the High Court was addressing the specific issue of an injunction and not the issue of discriminatory treatment and harassment.  In the circumstances I find that this claim is properly before the Equality Tribunal.  The issue of discriminatory treatment has been addressed above in relation to all of the complainants including this complainant.  In relation to his claim of harassment I note that, while this complainant was present in the Tribunal on the day of the second hearing, his representative did not request him to attend the hearing to outline his issues in relation to the alleged harassment.  I find that this complainant has, therefore, failed to substantiate his claim of alleged harassment (see paragraph 5.12 below).

                 Vytautas Stoskus

                  It is alleged that this complainant was subjected to discriminatory dismissal under the Equality Legislation when he was dismissed without proper or fair procedures.  The respondent alleges that this complainant was caught stealing diesel from the respondent’s vehicle and this was the final act which resulted in his dismissal.  According to the respondent the complainant was issued with a final warning for vulgar and abusive behaviour in early November, 2006.  Following the hearing of this claim the respondent submitted two letters of complaint which it had received from customer sites in which complaints were made about this complainant’s behaviour where it was described as abusive.  The respondent also submitted a copy of the final warning which it issued to this complainant.  At the hearing of this claim the respondent was asked to furnish a copy of the Garda report on the alleged diesel incident.  In furnishing additional information following the hearing of this claim the respondent stated that they had sought a copy of the Garda report in the matter and this was awaited.  At time of writing this Decision the Garda report had not been furnished.

                  It is clear that the respondent was experiencing difficulties with this complainant.  I note that he was issued with a warning for vulgar and abusive behaviour.  In terms of the vulgar and abusive behaviour and the allegation of theft I note that the respondent deemed these incidents to constitute a gross misconduct and dismissed the complainant instantly.  There is no evidence that this complainant was treated any differently to how any other employee would have been treated, irrespective of nationality, in similar circumstances.  Therefore I do not find that the complainant was subjected to discriminatory dismissal on the grounds of race as alleged.

                 Vygintas Stoskus

                  This complainant alleges that he was subjected to victimisation by the respondent when he was issued with a written warning following the making of a claim of discriminatory treatment under the Equality Legislation.  According to the complainant he sent details of his claim to the respondent on 15^th December, 2006 and the written warning dated 11^th January, 2007 stated that the warning had invoked the disciplinary procedures.  Then on 17^th January, 2007 the complainant wrote to the respondent requesting a copy of the notification of the disciplinary hearing and a copy of the disciplinary policy.  As the complainant received no communication as a result of the matter he alleges that he was subjected to victimisation as a result of making a claim under the Equality Legislation.  The respondent denies this and notes that the covering letter with the original referral form which was sent to the respondent was dated 23^rd January, 2007 and acknowledged received by the respondent on 25^th January, 2007.  It is the respondent’s submission that any disciplinary action complained of pre-dated the receipt by the respondent of the notification of the claim under the Equality Legislation.

                  The respondent submitted evidence of the covering letter and referral form having been marked received on 25^th January, 2007.  The referral form received by the Equality Tribunal from this complainant is dated 15^th December, 2006 but was not received in this office until 21^st December, 2006.  The Equality Tribunal did not copy this referral form to the respondent and only communicated with the respondent about this referral by letter dated 8^th February, 2007.  The complainant’s representative sent copies of all referral forms directly to the respondent.  At the second hearing of this claim the complainant’s representative stated that he had sent the referral form earlier to the respondent but he did not provide any evidence to support this contention.  In the circumstances I must accept that this complainant’s referral form was received by the respondent post the issue of the warning and, therefore, his allegation of victimisation cannot be sustained. 

                 Aleksanders Petrovs

                  It is alleged by the complainant that he was issued with a written warning after he returned to work late after the Christmas break.  The complainant says that he had permission to return to work late and the written warning was not appropriate.  The complainant alleges that no disciplinary hearing was held as a result of the written warning and the warning of itself was aggressive and intimidating and it stated that if he received other warnings he would be in danger of losing his job.  According to the complainant he was refused the right of appeal and he contends that this was because he is a foreign national.  It is the complainant’s contention that his treatment constituted discriminatory treatment, harassment and victimisation under the Equality Legislation.

                  At the second hearing of this claim the respondent stated that prior to the Christmas break all drivers were notified in writing of the consequences of returning late after the Christmas break.  According to the respondent this complainant did return late from his Christmas break and was duly issued with a warning and he attended a meeting with management regarding the incident.  While it was stated at the second hearing of this claim that an interpreter was present at the meeting I note that this fact was not recorded in the note of the meeting which did state that two of the management team attended the meeting with the complainant.  The respondent stated that this was not the first time this complainant had returned late after the Christmas break but were unable to provide me with copies of warning which would have issued to him previously in this regard.  The respondent did submit a copy of a warning which issued to this complainant in April, 2005 in relation to another matter.  It was the respondent’s submission that drivers returning late from the Christmas break posed a major problem for it in terms of its business.  In relation to this complainant the respondent stated that it had a good working relationship with him.  It is denied that this complainant was subjected to discriminatory treatment, harassment or victimisation as alleged.

                  I note that drivers returning back to work late after the Christmas vacation caused a big problem for the respondent in relation to the running of the business.  The notification to drivers about this which issued prior to the Christmas break was issued to all drivers irrespective of nationality and was applied to all drivers irrespective of nationality.  There is, however, no evidence that this notification was issued to non-national drivers in a language understandable to them e.g. Russian or that the details of the notification were clearly explained to them.  While the respondent contends that this complainant was late back after Christmas in previous years the evidence of the warnings which issued is not available.  In these circumstances I find that this complainant was treated less favourably on the grounds of race in terms of the respondent’s failure to ensure that he was fully aware of the implications of returning late after the Christmas period and in circumstances where his late return to work adversely impacted on him.  I am satisfied that there is no evidence of harassment or victimisation in this case.

                 Oleg Dimovs

                  This complainant alleged that he was subjected to discriminatory dismissal by the respondent.  This was denied by the respondent who stated that this complainant wrote to the respondent and stated he was resigning his position for personal reasons.  At the second hearing of this claim this complainant indicated that he was withdrawing his claim.

                 Vladimirs Petrovs

                  This complainant alleges that he was dismissed because his son (who is also an employee) brought a claim under the Equality Legislation against the respondent.  According to this complainant the respondent told him that he was drunk and for that reason he was being dismissed.  The respondent notes that this complainant was in its employment for less than a week and he was let go because he was proving unsuitable for the job.  According to the respondent there was no issue of this complainant being drunk.

                  At the second hearing of this claim the respondent confirmed that a member of the management team informed the complainant that he was being let go.  The respondent acknowledged that the complainant was not informed of this in a language other than English but the respondent was satisfied that the complainant understood the reason for his dismissal.  I find that it is immaterial that the complainant was on probation at the time.  Rather he was entitled to an explanation in a language familiar to him as to difficulties with his work and he had a basic right to be afforded the opportunity of improving.  In the circumstances I find that this complainant was subjected to discriminatory dismissal where his shortcomings were not outlined in a language he understood which meant that he could not respond or have an opportunity to improve.

                 Eduards Juskvicius and Gintautas Zydelis

                  Both of these complainants are alleging discriminatory treatment on the grounds that they were treated less favourably than Irish nationals would have been treated.  They both refer to their Contracts of Employment, their pay and the excessive hours they both worked.  These matters have already been dealt with above in relation to all of the complainants including these two complainants.  I note that Mr. Juskvicius resigned his position with the respondent for personal reasons and stated in his letter of resignation that he enjoyed his time with the respondent organisation.  In relation to Mr. Zydelis I note that there were serious issues with this complainant been under the influence of drink while training a new driver.  The respondent deemed this to constitute a gross misconduct and dismissed the complainant instantly.  There is no evidence that this complainant was treated any differently to how any other employee would have been treated, irrespective of nationality, in similar circumstances.  I note that this complainant was not present at the second hearing of this claim to give oral evidence.

                 Darius Nawrocki

                  There is a conflict between the parties over whether or not this complainant tendered his resignation.  The complainant was not present at the hearing of this claim and in the circumstances I find that his claim of discriminatory dismissal has not been substantiated.

                 Jurijs Volosanovs

                  At the second hearing of this claim this complainant stated that he was harassed on the grounds of race when he was refused a particular card which proved that he was qualified to be a dumper driver.  He stated that he needed this card to get another job and by not having the card it adversely impacted on his ability to get another job.  The complainant says that when he submitted his notification of his intention to leave he was instantly dismissed.  This he contends was discriminatory.  It is the respondent’s submission that this complainant handed in his notice stating that he had secured employment with another Company and he said that he would not be working out his notice.  The respondent stated that the complainant returned 2 weeks later asking for the card which he had secured just one week before he left the respondent organisation.  According to the respondent the complainant was told by the manager that he should approach the HR Manager in the matter as she retained the cards but he failed to do so.  The complainant could offer no reason as to why he did not approach the HR Manager in the matter.  In the circumstances I find that the claims of harassment and discriminatory dismissal on grounds of race cannot be sustained in this case.

                 Arvydas Valusis

                  This complainant was working with the respondent organisation for a period of 7 to 8 months.  He stated that his probationary period was 11 months and on one particular day he was told not to return to work and no reason was given.  The respondent stated that it received an anonymous report that this person was driving erratically and not using indicators.  It was for this reason that the complainant was dismissed and the respondent states that the manager informed the complainant of the reason for the dismissal.  I note that in the previous 7 to 8 months this complainant had not been served with any warning notices.  I find that this complainant was treated less favourably on the grounds of race in circumstances where he was not given an explanation as to his dismissal in a language which was understandable to him which meant that he could not respond or indeed given a second chance.

                 Algis Pilkauskas

                  This complainant had an accident at work and on the day of the accident he was told to go home and return to the respondent organisation a few days later for a meeting in the matter.  According to this complainant he was asked at the meeting if he was qualified to drive the vehicle, if he realised he had endangered another driver and if he was going to re-imburse the organisation for the consequences of his accident.  The complainant said that when he answered in the negative to the final question he has dismissed.  He contends that his dismissal was discriminatory.  It is the respondent’s submission that the complainant reversed into a lorry.  According to the respondent the accident was an act of total negligence which resulted in the write off of the tractor unit and it was nearly the cause of serious injury to the driver of the lorry.  The respondent denies that the questions allegedly put to the complainant were in fact put to him.  According to the respondent the complainant remained very silent throughout the meeting with him (which was attended by an employee who could interpret into Russian) and failed to give any reason as to why he had not used his reversing camera and mirrors.  There was an issue about the training this complainant had received on this vehicle.  It was noted that he had not received training on this particular vehicle but had previously been trained on another vehicle which the respondent held was similar to the vehicle the complainant was driving when the accident occurred.  I accept that this was a serious incident and there is no evidence that if the driver had been an Irish national that he would have been treated any differently in the circumstances.

                 Kastytis Acas

                  At the second hearing of this claim the complainant said that he had worked for the respondent for 2½ years and was specially trained to look after the mixer.  The complainant says that he was offered other types of work e.g. driving a loading shovel (for which he received no training) but he refused to do these tasks.  He received two warnings for refusing to do other work and these were followed by a request to meet with the HR Manager in the matter.  The complainant says that it was put to him that he should carry out the tasks he was being asked to do and if he continued to refuse to do these tasks he would be dismissed.  When he continued to refuse to carry out the other tasks he was dismissed and he received his P45 in the post along with a letter setting out the reason for his dismissal.  It is the respondent’s submission that the work being undertaken by this complainant i.e. cleaning out mixers was not taking up all his time and he was asked to take on extra duties but he refused.  The respondent notes that this complainant was employed as a General Operative and he worked alongside another General Operative in the yard.  According to the respondent there was a turnover in General Operatives so the complainant was not partnered with the same General Operative all the time he worked for the respondent.  The re-organisation of tasks resulted from the appointment of a new manager in the area.  The respondent says that at the meeting with the complainant about taking on the extra duties he was given 30 minutes to consider his position but after that he still refused to carry out the extra duties.  It is the respondent’s submission that it had not wanted to dismiss the complainant but it had no option when he refused to undertake the extra duties being assigned to him.

                  I am satisfied that the complainant clearly understood that the respondent required him to carry out additional tasks to the tasks he was currently undertaking.  There was no issue that this request was in any way discriminatory.  The evidence shows that the complainant was given ample opportunity to agree to undertake the additional tasks but he consistently refused.  There is no evidence that the respondent would have dealt any differently if the employee refusing to do the extra tasks had been an Irish national.  In these circumstances I find that the complainant was not the subject of a discriminatory dismissal.

                 Alvydas Jankauskas

                  This complainant referred a claim of discriminatory dismissal.  In his claim he stated that he was dismissed without any proper procedures and he was replaced by an employee who is an Irish national.  As this complainant was not present at the hearing of these claims to outline the circumstances of his dismissal I find that he has failed to substantiate his claim of discriminatory dismissal.

5.12         The representative for each of the complainants has alleged that a total of 32 complainants (see Appendix A) have been subjected to harassment under the 1998-2007 Acts.  At the second hearing of these claims six of the claims of alleged harassment were withdrawn.  In this regard he stated at the second hearing of these claims that the harassment was caused by the manner in which each of the complainants was generally treated and the oppressive environment in which they had to work.  He also contended that these complainants had no access to disciplinary processes.  I note that there are no specific alleged incidents of harassment in relation to any of the complainants (with the exception of those specifically mentioned above i.e. Mr. Jaunslavietis, Mr. Aleksanders Petrovs and Mr. Volosanovs) who have referred harassment claims and in the circumstances I find that none of them were subjected to harassment as alleged on the grounds of race.

5.13         At the second hearing of this claim the representative for each of the complainants withdrew a number of claims and he subsequently confirmed this in writing as follows:

·       All claims of a Collective Agreement as noted above

·       Claim of discriminatory dismissal by Mr. Dimovs – No. 69 at Appendix A and noted above

·       Claim of victimisation by Mr. Petvros – No. 24 at Appendix A

·       Claim of harassment by Mr. Volosanovs – No. 33 at Appendix A and as noted above

·       Claims of harassment in relation to complainants at 16, 24, 32, 34 and 60 of Appendix A and as noted above

·       Claim of Discriminatory Treatment on the grounds of marital status and family status by Mr. Kastytis Acas – No. 34 at Appendix A

5.14         Following the second hearing of this claim a further claim of discriminatory dismissal was referred in relation to Mr. Dirse (original claim at No. 47 and alleged discriminatory dismissal claim at No. 62 of Appendix A).  By agreement with the respondent this additional claim was assigned to me for investigation and decision.  In his referral form the complainant stated that he was dismissed without any proper reasons or procedures.  He says that he did not receive proper Safety and Health Documentation or training and he was required to work in breach of the Organisation and Working Time Act.  In a further letter from the complainant’s representative dated 4^th April, 2008 it is stated that Mr. Dirse’s claim of discriminatory dismissal should be one of victimisatory dismissal.  According to this complainant’s representative when Mr. Dirse submitted his original referral forms to the Equality Tribunal he was moved from one site to another.  It is his submission that this caused him difficulties in travelling and he was given less hours to work.  The complainant says that this put him in a position that he effectively had to leave because he found it impossible to comply with the new rules as regards his place of work.  According to the complainant he was given no opportunity to make any grievance or objection to the move and he alleges that this treatment was discriminatory. 

5.15         In response the respondent has stated that the reason Mr. Dirse (the complainant) was transferred from the site at Carbury to the site at Ballycoolin was simply because one less fitter was required at the Carbury site and there was a demand for an extra fitter at Ballycoolin as there was a fitter at the site who was on long term sick leave.  According to the respondent there were three fitters at the Carbury site, two Irish nationals and the complainant who is a foreign national.  It is the respondent’s submission that the decision to move the complainant was on the basis of the last in, first out (the two Irish fitters commenced employment in the mid 1990s while the complainant commenced employment in 2005) as would happen in a redundancy situation and it was also considered that he was best qualified for the job at the Ballycoolin site.  The respondent notes that the complainant agreed to move and did not raise any objections either at the time of the move or thereafter.  The move took effect at the end of August, 2007 and the respondent notes that the complainant tendered his resignation in writing in November, 2007.  In light of the evidence I note that the move was necessitated by business reasons and there is no evidence that race formed any basis for the decision to move the complainant.  In these circumstances I find that the evidence does not support the allegation of victimisatory dismissal as alleged by the complainant.

Other Issues

5.16         It has been argued by the respondent that each of the complainants has failed to name a comparator in relation to their discriminatory treatment claims and for that reason they have failed to establish prima facie cases.  I do not accept this argument.  While a named comparator is required in claims of equal pay there is no such requirement in claims of discriminatory treatment under the Employment Equality Acts.

5.17         At the second hearing of these claims the respondent’s representative, on behalf of the respondent, stated that his client wished it to be put on the record of these proceedings that one of the complainants had threatened two members of the management team and had threatened to shoot one of them.  The respondent’s representative stated that this had caused great distress to his client and the HR Manager was visibly upset and stated that she lived in constant fear for the safety of herself and her children.  As this is a matter of a criminal nature I suggested to the respondent’s representative that his client raise the issue with the Gardai.

6.                 DECISION

6.1             In view of the foregoing I find that each of the complainants in these claims were subjected to discriminatory treatment on the grounds of race in terms of Section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts when their terms and conditions of employment and safety documentation were not set out in a language which was understandable to each of them or where there is no evidence that these terms and conditions of employment were explained to each of them by a person speaking a language they understood who was appointed by Goode Concrete Limited for this specific purpose.

6.2             I find that Mr. Aleksanders Petrovs was treated less favourably on grounds of race when Goode Concrete Limited failed to ensure that he was fully aware of the implications of returning late after the Christmas vacation.

6.3             I find that none of the complainants have an entitlement of equal remuneration with the named comparator as a result of their equal pay claims under Section 29 of the Employment Equality Acts, 1998-2004.

6.4             Claims of alleged harassment were referred in respect of 32 complainants.  A total of 6 complainants withdrew their claims of alleged harassment.  In relation to all of the other harassment claims I find that Goode Concrete Limited did not subject any of the complainants to harassment as alleged.

6.5             A total of 10 claims were referred alleging discriminatory dismissal.  In respect of the claims referred by Mr. Vladimirs Petrovs and Mr. Arvydas Valusis I find that they were both subjected to discriminatory dismissal on the grounds of race contrary to the provisions of the Employment Equality Acts, 1998-2004.  In relation to the 8 other claims of discriminatory dismissal I find that Goode Concrete Limited did not subject these complainants to discriminatory dismissal.

6.6             Three complainants referred claims of victimisation.  I find that Goode Concrete did not subject any of these complainants to victimisation in terms of Section 74(2) of the Employment Equality Acts, 1998-2004.

6.7             Under Section 82 of the 1998-2004 Acts I hereby order Goode Concrete Limited to undertake the following:

·       pay each of the complainants the sum of €5,000 each for the effects of the discriminatory treatment.  This award is not subject to tax.

and further

·       pay Mr. Aleksanders Petrovs the sum of €2,000 for the stress suffered as a result of the discriminatory treatment in relation to his return to work after the Christmas vacation.  This award is not subject to tax.

·       pay Mr. Vladimirs Petrovs the sum of €10,000 for the stress suffered as a result of his discriminatory dismissal.  This award is not subject to tax.

·       pay Mr. Arvydas Valusis the sum of €25,000 for the stress suffered as a result of his discriminatory dismissal.  This award is not subject to tax.

·       put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation.

·       maintain better records of disciplinary meetings.

·       provide training to management on the provisions of the Employment Equality Acts.

            ______________________

            Gerardine Coyle

            Equality Officer

            30^th April, 2008