Ilko Jaremukcs
(represented by PC Moore Solicitors)
v.
Maughan Construction Ltd.
(represented by McDonough, Matthews and Breen, Solicitors)
Claim
1.1. The case concerns a claim by Mr Ilko Jaremukcs that Maughan Construction Ltd, discriminated against him on the ground of race contrary to Sections 6(2)(h) of the Employment Equality Acts 1998 to 2004, in relation to a collective agreement, in discriminating against him in his conditions of employment and by discriminatorily dismissing him contrary to S. 9(2), 8(1)(b) and 8(6)(c) of the Acts.
2. Background
2.1. The complainant submits that he was not paid in accordance with the Registered Employment Agreement for the Construction Industry, that no contributions in respect of the CIF Pension and Sick Pay scheme were made for him, that he did not properly receive his P60 and P45 forms, that he received no employment contract and no documentation required under health and safety legislation, and that he was dismissed without proper procedures.
2.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 20 March 2006. On 3 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, on which date my investigation commenced. A submission was received from the complainant on 20 July 2007. No submission was received from the respondent. As required by section 79(1) of the Acts, and as part of my investigation, I held a hearing of the claim on 10 September 2008. The representative of the respondent excused himself from the hearing after stating that he had not received any instructions from the respondent with regard to the complaint, and that the respondent would therefore not contest the case.
3. Summary of the Complainant’s Written Submission
3.1. The complainant states that he worked for the respondent as a bricklayer from 1 October 2005 to 19 January 2006. He submits that he did not receive a contract of employment, or health and safety information pursuant to the requirements of the Safety, Health and Welfare at Work Act 2005, in a language which he could understand.
3.2. The complainant further states that he was not paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry, and that no contributions in respect of his employment were made to the CIF Pension and Sick Pay scheme.
3.3. The complainant further submits that he did not receive his P60 and P45 forms, and claims that this failure left his tax affairs and the matter of his social welfare entitlements in disarray.
3.4. Finally, the complainant submits that he was dismissed without proper procedures.
4. Summary of the Respondent’s Written Submission
4.1. No submission was received from the respondent.
5. Conclusions of the Equality Officer
5.1. The issues for decision in this case are whether the complainant has a claim in relation to a collective agreement pursuant to S. 9 of the Acts; whether the complainant was treated less favourably on ground of his race in his conditions of employment contrary to S. 8(1(b) of the Acts, and whether he was discriminatorily dismissed on the same ground contrary to S. 8(6)(c) of the Acts.
5.2. I first turn to the complainant’s complaint that he was not paid in accordance with the REA for the Construction Industry. The Tribunal has specific jurisdiction regarding collective agreements under S. 9(2) of the Act.
5.3. Under S. 86(1) of the Act, a person, who is affected by a collective agreement who claims that a provision of that agreement is null and void by virtue of section 9 of the Act, may refer the question of that agreement to the Director. No argument was made by the complainant that a provision in the collective agreement was discriminatory. Therefore I have no jurisdiction in the matter and accordingly, I make no finding of discriminatory treatment in this regard.
5.4. In evaluating the evidence before me on the complainant’s complaint of discrimination in his terms and conditions of employment, and discriminatory dismissal, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Courthas held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established. In light of the fact that the respondent did not contest the case, I had further regard to the finding of the Labour Court in Dublin Corporation v. Gibney [EE5/1986], where prima facie evidence is defined as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has occurred.”
5.5. S. 6(1)(a) of the Acts states that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection(2) …”. S. 6(2)(h) states with regard to the race ground, that said persons must have a “different race, colour, nationality or ethnic or national origins”. The Labour Court, in its decision A Company v. A Worker [EED024] has found that “on balance of probabilities the treatment of the worker […] 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 […]”, and that this situation would not apply to an Irish employee who could possibly “seek support in making their decision from advisory services, family, understanding of the structure and the interactions of the labour market, financial support from the state, to name but a few.”
5.6. The complainant stated that at the building site where he worked, the respondent employed only Latvian workers, and that he had no interaction with, or knowledge of, any Irish worker the respondent might have employed elsewhere. He stated that he and the other Latvian workers were picked up at an agreed meeting point each day by the respondent and brought to the building site to work, to be brought back in the evening. The complainant stated that he worked as a bricklayer for a daily rate of payment, and that his work was set out for him every day. He could not appoint someone else to do it for him, nor could he earn more than the daily rate by working harder.
5.7. With regard to the complainant’s complaints in relation to his terms and conditions of employment, that is that
· no contributions in respect of his employment were made to the CIF Pension and Sick Pay scheme;
· that he did not receive a contract of employment or a written statement of terms and conditions of employment pursuant to the requirements of the Terms of Employment (Information) Act 1994;
· that he did not health and safety information in any language and
· that his tax affairs were not kept in order, and that he did not receive a P60 or a P45 form,
I am satisfied that an Irish national would not have been treated as the complainant was due to a better awareness of their rights and greater availability of support in asserting them, and that the Labour Court decision in A Company v. A Worker [EED024], which I have outlined in paragraph 5.5 above therefore applies to this case. I am also satisfied that the uncontested facts averred to by the complainant meet the “reasonable person” test as set out in Dublin Corporation v. Gibney (see paragraph 5.4 above), that discrimination has occurred. I therefore find that the complainant has established a prima facie case that he was discriminated against in his conditions of employment contrary to S. 8(1)(b) of the Acts, on grounds of his race pursuant to S. 6(2)(h) of the Acts.
5.8. I now turn to the circumstances of the complainant’s dismissal. The complainant stated in oral evidence that on the Thursday afternoon before his dismissal, he fell off some scaffolding and hurt his back. On Friday morning, he was in considerable pain and barely able to move. He tried to contact his employer to advise he would not be able to report for work. He received no reply. On Friday evening, the complainant’s colleagues informed him that the respondent did not want him back at work and that there would be no more work for him. On Monday, the complainant’s back still hurt, but he went to the pick-up point from where the respondent would drive his workers to the building site. The respondent drove by and did likewise on Tuesday and Wednesday. The complainant had no further contact with the respondent, and never learned why he was dismissed.
I am again satisfied that an Irish worker would not have been dismissed in this manner. I therefore find that the complainant has established a prima facie case that he was discriminatorily dismissed contrary to S. 8(6)(c) of the Acts, on grounds of his race pursuant to S. 6(2)(h) of the Acts.
6. Decision
6.1. Based on all of the foregoing, and in conclusion of my investigation, I find, in accordance with S. 79(6) of the Acts, that:
(i) The respondent did discriminate against the complainant in his conditions of employment contrary to S. 8(1)(b) of the Acts and
(ii) The respondent discriminatorily dismissed the complainant contrary to S. 8(6)(c) of the Acts on the ground of race pursuant to S. 6(2)(h) of the Acts.
(iii) No argument was made by the complainant that a provision of a collective agreement was discriminatory.
6.2. I therefore order pursuant to S. 82(1) that respondent pay the complainant €5000.—for the effects of the discrimination suffered. This award is not in the nature of pay and therefore not subject to tax.
_____________________
Stephen Bonnlander
Equality Officer
17 October 2008