The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2008-070
PARTIES
Viktoras Gedmintas
(Represented by P.C. Moore & Co)
AND
Edward McNamara
File reference: EE/2006/226
Date of issue: 22 December 2008
1. DISPUTE
1.1 This dispute concerns a claim by Mr Viktoras Gedmintas that he was discriminated against by Edward McNamara on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to conditions of employment and a collective agreement in terms of sections 8(1)(b) and 9 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 3 July 2006 under the Employment Equality Acts 1998 and 2004. On 3 December 2007, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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. Despite several requests no submission was received from the respondent. As required by Section 79(1) and as part of my investigation I proceeded to hearing on 22 October 2008. The respondent did not attend the hearing.
1.3 The Equality Tribunal wrote to the respondent on a total of eleven occasions in relation to this complaint but they did not respond to any of these letters. In order to ensure that the respondent was aware of the investigation and the details of the hearing four letters were sent by registered post as well as normal post. One of the registered letters was returned as being ‘not called for’ but the others were delivered. I am therefore satisfied that the Equality Tribunal made every effort to engage with the respondent and that the respondent was on notice of the hearing. As the respondent had made no attempt to contact the Equality Tribunal to explain why they were unable to attend I convened the hearing.
2. SUMMARY OF THE COMPLAINANT'S CASE
- The complainant states that he is Latvian who came to Ireland in August 2004. He submits that he worked for the respondent as a labourer from 28 September 2005 to 3 March 2006. He was on a flat rate of €60 per day and was given a cheque for €300 each week.
- He submits that he was not aware of the Registered Employment Agreement (REA) for the construction industry during his employment with the respondent and only became aware of it after his employment ceased. He was not employed in accordance with the provisions of the REA, in particular:
- he was not paid the correct rate of pay,
- he was not a member of the Pension Scheme,
- he was not a member of the Sick Pay Scheme,
- he did not receive his annual leave entitlement, and
- he did not join a union.
Also, he did not receive a contract of employment setting out his proper terms and conditions and he never received payslips or any other documents in relation to his employment.
- The complainant further submits that he did not receive P60 or P45 forms, and claims that this had an effect on his tax affairs and social welfare entitlements.
The complainant submits that two pay cheques, dated 24 February and 3 March 2006 were not honoured by the bank so he left the respondent to find more secure employment.
3. SUMMARY OF THE RESPONDENT’S CASE
No submission was received from the respondent and they did not attend the hearing.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant alleges discriminatory treatment on the ground of his race in terms of Section 6(2)(h) of the Employment Equality Acts 1998–2008 and contrary to Section 8 and 9 of the Acts in his conditions of employment and in relation to a collective agreement.
4.2 Regarding the claim that the complainant was discriminated against in relation to a collective agreement, section 9 of the Acts states that where a provision of an agreement is discriminatory then that provision “shall be null and void.” The complainant made no argument that any provision of the REA for the Construction Industry was discriminatory. The complainant’s evidence was that the respondent did not implement the provisions of the REA. The implementation of a collective agreement does not fall within the scope of section 9 of the Acts and therefore I have no jurisdiction in the matter and accordingly I make no finding of discriminatory treatment in this regard.
4.3 I must now look at the complaint of discrimination in the complainant’s conditions of employment. Firstly I must consider whether the complainant has established a prima facie case. Section 85A of the Acts states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This requires the complainant to establish, in the first instance, primary facts upon which he can rely in asserting that the alleged discriminatory treatment took place. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 The Labour Court, in its determination A Company v. A Worker [EED024]¹ 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.”
4.5 In this claim the complainant was unaware of the Construction Industry REA. He was paid €300 per week and was aware that a Lithuanian colleague was paid the same, but he did not know the rate of pay of the other workers, who came from Poland, Brazil and Ireland. The lowest rate under the REA at the time was €13.48 per hour, amounting to €525.72 per week. Furthermore he was not employed in accordance with other provisions in the REA. I am satisfied that an Irish national would not have been treated the same as the complainant.
4.6 I find that the complainant has established a prima facie case that he was discriminated against in his conditions of employment on grounds of his race. Despite being given many opportunities between July 2006 and October 2008 the respondent made no engagement with the Equality Tribunal in relation to this claim and made no submission when requested and did not attend the hearing when invited. I find that the respondent has failed has failed to rebut the prima facie case of discrimination in relation to the complainant’s conditions of employment.
5. DECISION
I have investigated the above complainant and make the following decisions in accordance with section 79 of the Acts:
(i) That the respondent did discriminate against the complainant in his conditions of employment contrary to S. 8(1)(b) of the Acts on the ground of race. In accordance with section 82 of those Acts I award the complainant €5,000 in compensation for the discriminatory treatment suffered.
(ii) No argument was made by the complainant that a provision of a collective agreement was discriminatory.
This figure represents compensation for infringement of the complainant’s rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
_____________________
Hugh Lonsdale
Equality Officer
22 December 2008
Labour Court Determination No EED024, A Company v A Worker