Golovan
-v-
Porturlin Shellfish Ltd
Claim
1.1. The case concerns a claim by Ms Nataliya Golovan that Porturlin Shellfish Ltd, discriminated against her on the grounds of gender and race contrary to Sections 6(2)(a) and 6(2)(h) of the Employment Equality Acts 1998 to 2004, in access to employment, conditions of employment, payment of wages, hours of work, and overtime work pursuant to Sections 8(1)(a), 8(1)(b), and 8(6(c) of the Acts.
Background
2.1. The complainant submits that she was not paid overtime like Irish workers, although she was required to work longer hours than her Irish colleagues; that her employer refused to obtain a work permit for her; that her employer failed to pay tax and social insurance contributions for her; that her employer kept her passport; that one week’s pay was withheld from her; that she was paid on a different basis than her Irish colleagues and was not paid bonuses; and that she was obliged to pay a supervisor €2 per day to travel to and from work in his car.
2.2. The respondent claims that it is committed to non-discrimination in all areas of employment and that the complainant fails to establish a prima facie case of discrimination.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 16 November 2005. A submission was received from the complainant on 30 July 2007. A submission was received from the respondent on 16 October 2007. On 4 December 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Additional documentation was received from the respondent on 12 February. A joint hearing of the claim was held on 3 March 2008. The last piece of correspondence relating to the complaint was received on 4 April 2008.
Summary of the Complainant’s Written Submission
3.1. The complainant submits that she is a Ukrainian citizen, and that she was employed by the respondent from 23 February 2004 to 27 June 2005. She submits that she received a basic weekly wage of €280 per week, of which €10 was deducted for travel expenses to and from work. The complainant travelled to work as a passenger in her supervisor’s car. The complainant submits that she had no choice with regard to this wage deduction.
3.2. The complainant submits that she had been previously employed in Ireland under a work permit, but had been made redundant. She submits that she furnished the respondent with her passport, photographs and educational certificates for the purpose of obtaining a work permit. She submits that retaining originals documentation is in excess of what the Department of Enterprise, Trade and Employment requests for the processing of a work permit application. She submits that she received her passport back only a short time before her employment terminated and that she never received her certificates back.
3.3. The complainant submits that from the lack of available documentation regarding the application for her work permit, she suspects that the respondent never applied to the Department of Enterprise, Trade and Employment for a work permit for her. The complainant submits that not having a valid work permit compromised her legal position in this country in light of the fact that she is not an EEA national.
3.4. The complainant submits that she was not paid one week’s wages by the respondent when the employment was terminated.
3.5. The complainant submits that she was asked to work overtime when her Irish colleagues were not, and that she was not paid for the overtime she worked.
3.6. The complainant submits that regarding the deductions made from her wages for travel to and from work in her supervisor’s car, she had no choice about these, and that even when she obtained transport from Irish friends, these deductions were still made. The complainant submits that it should have been left to her to pay her supervisor directly on those days where she accepted transport from her.
Summary of the Respondent’s Written Submisison
4.1. The respondent submits that the complainant was initially employed as a child minder, but proved unsuitable in that position, and was given work as an operative in the respondent’s seafood factory. The respondent submits that she was paid €280 weekly, the then minimum wage.
4.2. The respondent submits that the complainant had not been made redundant in her previous employment, a mushroom factory, but rather that she had approached the respondent for work as she was unhappy with her terms and conditions in the mushroom factory. The respondent submits that it made efforts to obtain a work permit for the complainant, but that it was informed by the Department of Enterprise, Trade and Employment that preference would be given to workers from the new EU accession states. The respondent submits that it had obtained work permits for non-EEA nationals in the past and attributes the lack of success of the application on behalf of the complainant to this policy change.
4.3. The respondent submits that the complainant was asked for her passport in connection with the application, but that the respondent never received any other documentation, including educational certificates. The respondent submits that it has never seen these. With regard to the retention of the complainant’s passport, the respondent submits that the complainant never asked for her passport back, and that when giving evidence in the Employment Appeals Tribunal in this matter, she stated that she had no wish to leave Ireland during the time of her employment with the respondent and was therefore not disadvantaged.
4.4. The respondent submits that the complainant’s final week’s wages were left for her for collection, and that a few days after receiving notice of termination of employment, the complainant attended the respondent’s premises in the company of a man who behaved in an intimidating and aggressive manner, to the extent that staff at the premises called the police.
4.5. The respondent submits that the complainant did not work overtime, and that her hours of work were 8:30am to 5:15pm at all times. The respondent submits that the complainant left her place of work each evening at 5:15pm to travel home with a Polish colleague.
4.6. With regard to the deductions from wages made for travel to work, the respondent submits that its premises are located in a remote area and that the complainant’s supervisor had to make a detour of approximately 14 miles in the morning and evening to bring the complainant to and from work. The respondent submits that when giving evidence in this matter before the Employment Appeals Tribunal, the complainant stated that she never protested about this deduction.
4.7. The respondent further submits that in her evidence before the Employment Appeals Tribunal, the complainant stated that she was happy working for the respondent and that she would have liked to stay in the respondent’s employment. The respondent submits that despite its best efforts, it could not obtain a work permit for the complainant, but that notwithstanding that fact, the complainant had the benefit of 16 months’ work at the minimum wage.
4.8. The respondent submits that since the termination of her employment, the complainant has brought complaints before the Rights Commissioners in relation to the Terms of Employment (Information) Act 1994; the Organisation of Working Time Act 1997, the National Minimum Wage Act 2000, the Payment of Wages Act 1994 and the Unfair Dismissals Act 1977. The respondent submitted updated documentation in relation to these complaints.
4.9. The respondent finally submits that the complainant has failed to make a prima facie case that her complaints against it were related to her gender or her national origin.
Conclusions of the Equality Officer
5.1. At the hearing, the complainant’s representative withdrew his client’s complaint regarding unpaid overtime. Therefore, two issues arising from the original submissions were left to be determined: the retention of the complainant’s passport, and the deductions made from her pay for her travel to her place of work.
5.2. In addition, the complainant’s representative was also asked to clarify in which way his client’s experiences were linked to her gender, the race ground being prima facie evident due to her status as a non-Irish national. The complainant’s representative submitted on this point that as a middle aged woman she would have felt herself to be in a more vulnerable than a male foreign national, and less able to assert her rights as strongly as a man. He did not submit any additional evidence in support of this contention.
5.4. The respondent submitted in evidence that the complainant had asked her to keep the passport in her safe, as she was sharing a house with several other people and wanted it to be kept safe. The respondent referred to the complainant’s evidence in Labour Court proceedings that she was happy at work and did not ask for her passport back.
5.5. In weighing up the evidence on this matter, I prefer the complainant’s evidence to the respondent’s. I find it unlikely that the respondent would have retained another worker’s passport beyond the initial need to take a copy to submit along with the work permit application to the Department of Enterprise, Trade and Employment. The complainant’s passport is a personal document belonging to the complainant that the respondent had no business in keeping. The fact that the complainant did not ask to get it back, or her statement to the Labour Court that she was happy with her work, have no bearing on this matter.
5.6. I therefore find that the retention of the complainant’s passport by the respondent until a week before her employment came to an end raises a prima facie case of less favourable treatment on grounds of race pursuant to S. 6(2)(h) of the Acts and that the respondent’s evidence does not sufficiently rebut it.
5.7. Turning to the issue of travel deductions from the complainant’s wages, the complainant’s representative reiterated that his client was never notified of the deductions, that her consent was not sought, that €2 per day were taken off her pay whether she availed of the travel or not, and that she had Irish friends in the locality from which she could have gotten a lift.
5.8. The respondent did not dispute that the complainant’s consent was not sought for the deduction, although she did submit further evidence on the other circumstances surrounding the deduction (see para 5.10 below).
5.9. The Tribunal has no jurisdiction to make any finding regarding a possible breach of the Payment of Wages Act 1994 in this regard, however it does appear that no consent was sought and there may have been a breach of the Act.
5.10. In further evidence regarding this issue, the respondent submitted that her factory was in a very remote, isolated area of the ErrisPeninsulain Co. Mayo, and that the complainant’s previous employment had been at the opposite end of the peninsula, some 25 miles from Porturlin. The respondent submitted that that was also were the complainant’s friends would be travelling for their jobs. The respondent stated that the complainant was dependent on the transport arranged for her to get to work.
5.11. The respondent further submitted that when breaks in transport occurred, money was not deducted from the complainant’s wages. The respondent was able to give dates on which this applied, and was able to demonstrate from copies of the complainant’s payslips that the travel deductions did indeed vary. In this context, I would also like to note that a deduction of €2 per day for a two-way car share trip of several miles struck me as reasonable – and the complainant’s representative did not seek to aver that it was not – compared to other costs of commuting a similar distance.
5.12. In light of the fact that the complainant’s representative did not submit any evidence as to how other employees of the respondent were treated with regard to travel deductions, i.e. whether another employee travelled for free, for example, and the clear evidence that the complainant was in need of a lift to and from work, and that her travel deductions were properly accounted for, I find that the issue of less favourable treatment does not arise in respect of this part of the complainant’s case.
5.13. At the hearing of the complaint, on behalf of the complainant, made an additional claim with regard to the complainant’s tax and social insurance status. He submitted that the complainant did not receive her P60 forms for either the year 2004 or 2005, or her P45. He further submitted that this put his client at a serious detriment, in particular with regard to her immigration status, and with a potential transfer of social welfare entitlements worked up on her return to the Ukraine. He further submitted that his client was prejudiced with regard to working up time for PRSI related benefits such as dental and optical benefit.
5.14. The complainant’s representative submitted that the withholding of her tax and social welfare documentation made his client an “invisible employee” vis-à-vis the Irish authorities. He further submitted that not having these documents in her possession, also meant that his client was unable to prove her length of residency to the Garda National Immigration Bureau, with subsequent effects in terms of her right to apply for permanent residency or Irish citizenship.
5.15. While I consider that any finding on the tax or social welfare codes was outside the Tribunal’s jurisdiction, the complainant’s representative submitted that I should look at the issue of less favourable treatment of his client vis-à-vis an Irish worker, who would have known that he was entitled to a P60 and P45 and would have demanded it of his employer.
5.16. In response, the respondent stated that the P60 and P45 were sent to the Revenue, and that she posted the P60 to the complainant’s last know address after the Labour Court appeal in the matter of the complainant’s unfair dismissal. She also offered to re-send the documents to the complainant’s representative. P35 forms for 2004 and 2005 were subsequently sent to the Tribunal and forwarded to the complainant’s representative. I note that this was nearly three years after the complainant’s employment with the respondent came to an end through unfair dismissal.
5.17. In making a finding on this additional submission, I am mindful of the fact that it was only submitted to the Tribunal at the hearing, and that the respondent was unrepresented at same. However, the timely issue of P60 and P45 forms, respectively, is not an arcane point of law, but rather, a well-known obligation of employers carrying on a business in the State. Pursuant to S. 81 of the Acts, I am further drawing inferences from the fact that when the P35 form (which is a form prescribed by the Revenue Commissioners in which an employer lists all employees, their PPS number and PAYE and PRSI contributions paid on their behalf in a tax year) was sent in after the hearing, only the P35 for 2004 was submitted, and it took an additional request to obtain the P35 for 2005. Furthermore, the P35 forms in question have only the complainant’s name on them and were only filed in July 2007, which leads me to infer that the respondent’s tax situation with regard to the complainant, was only updated at that time.
5.18. In CampbellCatering v. Aderonke Rasaq [ED0252], the Labour Court held that
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 such cases, applying the same procedural standards to a non-national workers 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.
5.19. I find that placing the onus on the complainant to demand her P60 and P45 forms like an Irish worker who would have known of his or her entitlement to same, does bring the complainant’s situation under the test formulated in Campbell Catering.
5.20. I therefore find that the two-year delay in rectifying the complainant’s tax situation, and a near three-year delay in providing the complainant with the relevant documentation, constitutes less favourable treatment on grounds of race pursuant to S. 6(2)(h) of the Acts.
Decision
6.1. Based on all of the foregoing, I find that:
(i) The respondent did discriminate against the complainant on grounds of race pursuant to S. 6(2)(h) of the Acts, in her conditions of employment contrary to S. 8(1)(b) of the Acts, by retaining her passport beyond the time it took to take a copy of it for the purpose of applying for a work permit with the Department of Enterprise, Trade and Employment;
(ii) The respondent did not discriminate against the complainant on grounds of race pursuant to S. 6(2)(h) of the Acts, in her conditions of employment contrary to S. 8(1)(b) of the Acts, by deducting properly accounted contribution for the complainant’s travel to work from the complainant’s wages;
(iii) The respondent did discriminate against the complainant on grounds of race pursuant to S. 6(2)(h) of the Acts, in her conditions of employment contrary to S. 8(1)(b) of the Acts, by not providing her with basic tax documents such as P60 forms in a timely manner as would have been the case with an Irish employee aware of their rights.
6.2. I therefore order that
(i) the respondent pay the complainant €5000 in compensation for the discriminatory effects of withholding her passport and
(ii) that the respondent pay the complainant €5000 in compensation for the discriminatory effects of the delay in issuing the complainant with the relevant tax documentation. These awards are not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
13 June 2008