THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009- 067
PARTIES
Mr. Mindaugas Valukonis
-V-
Strandford Limited
File Reference: EE/2007/521
Date of Issue: 19 August 2009
1. Dispute
This dispute involves a claim by Mr. Mindaugas Valukonis, that he was discriminated against by Strandford Ltd. on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 to 2007 in relation to training, conditions of employment and pay as well as discriminatory dismissal and a claim in relation to a collective agreement in terms of sections 8 and 9 of the Acts. The complainant also submits that he suffered harassment on grounds of race and victimisation in terms of sections 14(A) and 74 (2) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2007 to the Equality Tribunal on 23 July, 2007 alleging that the respondent had discriminated against him on grounds of race when he was dismissed from his job without any reason or proper procedure. The complainant further contends that he was not paid in accordance with, nor did he receive terms and conditions of employment as required under, the Registered Employment Agreement (REA) for the Construction Industry. The respondent rejects the complainant’s assertions and submits that the complainant was not treated less favourably than any other employee of Strandford Limited during the time of his employment.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 7th of May, 2009 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties and a hearing on the complaint took place on 10th of July, 2009.
3. Summary of complainant’s case
3.1 The complainant was employed by the respondent from 11th October 2005 and was dismissed on 13th April, 2007. The complainant states that he is a Lithuanian national and that he was employed as a Construction Worker by the respondent during the period.
3.2 The complainant submits that he did not receive a Contract of Employment (or a Statement under Section 3 of the Terms of Employment (Information) Act 1994). The complainant submits that the respondent’s failure to provide him with a Contract in a language likely to be understood by him amounts to discrimination. He seeks to rely on the decision of this Tribunal in 58 Complainants v Goode Concrete (DEC-E2008-020) in this regard. Furthermore it is submitted that an Irish National would be aware of this entitlement. The complainant seeks to rely on Rasaq v Campbell Catering Ltd (EED048) in his contention that there is a requirement that the respondents take special measures to advise the complainant as a foreign national of his rights such as the minimum rate of pay as per the REA.
3.3 The complainant submits that he did not receive a Health and Safety statement even though he is working in a potentially dangerous business. There is a statutory requirement to furnish individuals with Health and Safety documentation. The complainant states that the respondent’s failure to provide him with a health and safety statement in a language likely to be understood by him amounts to discrimination. He seeks to rely on the decision of this Tribunal in 58 Complainants v Goode Concrete in this regard. Furthermore it is submitted that an Irish National would be aware of this entitlement.
3.4 The Complainant further submits that he joined SIPTU himself but that he was not joined by his employer contrary to the provisions of the Registered Employment Agreement (REA) for the Construction Industry.
3.5 The complainant submits that he had not been joined to the Pension or Sick Pay Scheme for the Construction Industry and requests that the Tribunal look at a notional Irish comparator who would have been joined to these schemes and would have received the appropriate rate of pay. The complainant submits that he was not joined to a union by his employer but that an Irish national would have been aware of their rights re pay, pension and sick pay and would insist on the employer contributions being made and that this amounts to discrimination on grounds of race. It is submitted that there was a legal obligation to advise the complainant that he was covered by the REA and that special measures may have been necessary to advise the complainant of his rights and that no effort was made to advise him of his rights. The complainant seeks to rely on the Campbell Catering case in support of this contention.
3.6 The complainant submits that he was not paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry as he was only paid €450 per week which is less than what he should have been paid under the REA. The complainant does not know the rates paid to Irish Nationals. He is aware of names of Irish Nationals but not whether they were paid REA rates. It is submitted on his behalf that if the Irish Nationals were paid the REA rates that this amounts to discrimination. The complainant submits that these breaches of his conditions of employment and entitlements occurred because of his race.
3.7 It is submitted that the respondent did not advise the complainant of his right to raise a grievance as required by the Code of Practice and Grievance and Disciplinary Procedures and that no method was open to the complainant to raise issues. Again it is submitted that in the case of a foreign national special measures may be necessary to ensure that they are advised of employment rights and that failure to do so amounts to discrimination.
3.8 The complainant submits that he was dismissed one day after his return from holidays. The complainant alleges that no procedures were followed regarding his dismissal and that a request to the respondent to furnish particulars in the form of the EE2 form was not complied with.
4. Summary of respondent’s case
4.1 The respondent rejects the complainant’s assertions and submits that the complainant was not treated less favourably than any other employee of Strandford Limited during the time of his employment.
4.2 The respondent submits that no other employee received a Contract of Employment (or a Statement under Section 3 of the Terms of Employment (Information) Act 1994) and that the complainant was therefore not treated less favourably than any other employee of Strandford Limited during the time of his employment.
4.3 The respondent submits that no other employee received a Health and Safety statement and that the complainant was therefore not treated less favourably than any other employee of Strandford Limited during the time of his employment. The respondent further submits that the complainant received training in the operation of certain items of plant and that other individuals did not receive this training. Again it is submitted that the complainant was therefore not treated less favourably than any other employee of Strandford Limited during the time of his employment.
4.4 The respondent submits that Strandford Limited has not joined any employee in to SIPTU nor has it prevented any employee from joining SIPTU and has in fact dealt with SIPTU on various issues on behalf of employees. Again it is submitted that the complainant was therefore not treated less favourably than any other employee of Strandford Limited during the time of his employment.
4.5 The respondent submits that the complainant was joined to the Construction Workers Pension Scheme (CWPS).
4.6 The respondent submits that during the period of the complainant’s employment there were Irish Nationals who were employed at the same grade at the same rate of pay (details supplied). Again it is submitted that the complainant was therefore not treated less favourably than any other employee of Strandford Limited during the time of his employment.
4.7 Conditions of Employment- The respondent submits that the complainant received the same conditions of employment as all other employees of Strandford and that the complainant was therefore not treated less favourably than any other employee of Strandford Limited during the time of his employment.
4.8 The respondent submits that the complainant never made any complaint or report about harassment and that due to language difficulties the complainant was assigned to tasks with his brother or friends.
4.9 The respondent submits that the complainant returned to work one week after the Easter holidays after which he was dismissed for absenteeism. It is further submitted that other employees (details supplied) were also dismissed for absenteeism. The respondent contends that each dismissal is the result of several verbal warnings though none of these followed a documented procedure. Again it is submitted that the complainant was therefore not treated less favourably than any other employee of Strandford Limited during the time of his employment and in the manner in which he was dismissed.
5. Conclusions of the Equality Officer
5.1 On the day of the hearing the representative for the complainant reduced the scope of the claim as outlined in the original complaint form and indicated that he was no longer pursuing a claim in relation toharassment and victimisation in terms of sections 14(A) and 74 (2) of the Acts. The claim relating to the Pension and Sick Pay Scheme was also withdrawn by the complainants representative at the hearing. Furthermore it was submitted on behalf of the complainant that he was no longer pursuing a claim in relation to a collective agreement in terms of section 9 of the Acts.
5.2 The issue for decision by me is now whether or not Strandford Ltd. discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 and 2004 in relation to training, conditions of employment and pay and whether he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of both parties at the Hearing.
5.3 Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides 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)…..”. Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “ . Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian.
5.4 Section 85A of the Employment Equality Acts, 1998-2008 provides as follows: "(1) 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 prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.5 The first issue raised by the complainant relates to his rate of pay. On the day of the hearing the complainants representative confirmed that this was not a claim for equal pay under section 29 of the Acts as he had no comparator. However it was submitted that the complainant was not paid in accordance with the REA for the construction industry. The Industrial Relations Act 1946 (as amended), provides the Labour Court with jurisdiction on any question as to the interpretation of an REA or its application to a particular person and this Tribunal has no authority in those issues.
5.6 The next issue raised by the complainant relates to the respondent’s failure to furnish him with a contract of employment (or a Statement under Section 3 of the Terms of Employment (Information) Act 1994). In the first instance it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. The complainant submits that the Decision of this Tribunal in 58 Complainants v Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment in a language which they understand. This is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment it constitutes less favourably treatment of non-Irish employees if the respondent provides them with a contract in English and not in a language which they can understand. Indeed the Equality Officer went on to say in that Decision that if an employer is not in a position to provide contracts in different languages it should at the very minimum ensure that the contents of the contract is explained to those employees and have them sign a document confirming that the contract had been explained to them. On the day of the hearing the complainant indicated that the respondent did employ a number of Irish employees but was unable to say if the Irish employees received either a contract of employment or written terms of employment from the respondent. The respondent at the hearing stated that it had not provided contracts or terms of employment to any of its employees. In DublinCorporation v Gibney the Equality Officer defined prima facie evidence as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred". Thus having considered the totality of the evidence of both the complainant and the respondent I am not satisfied that the complainant has established a prima facie case.
5.7 In addition, the complainant seeks to rely on the Campbell Catering case in his contention that there is a requirement that the respondents take special measures to advise the complainant as a foreign national of his employment rights such as a notification under Section 3 of the Terms of Employment (Information) Act 1994. Again, enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. Furthermore, as the finding in Campbell Catering was that there was a difference in the application of procedures relating to a dismissal and as no such difference has been established in this case I find that the procedures, or lack of them, was not discriminatory on the grounds of the complainant’s nationality.
5.8 The complainants next issue relates tothe respondent’s failure to furnish him with a health and safety statement. Again the complainant seeks to rely on the decision of this Tribunal in 58 Complainants v Goode Concrete in this regard. In 58 Complainants v Goode Concrete this Tribunal held that in fulfilling their obligations under the Safety, Health and Welfare at Work Act, 2005 an employer risked a finding of less favourable treatment under the employment equality legislation if it did not provide the information, instruction or training in a language which non-Irish employees could understand. The complainant at the hearing stated that he did not receive any health and safety documentation but was unable to say if the Irish employees received such documentation. The respondent at the hearing stated that it had not provided health and safety documentation to any of its employees. I am satisfied that this was the case thus having considered the totality of the evidence of both the complainant and the respondent I am not satisfied that the complainant has established a prima facie case. It should be noted that complaints of alleged breaches of obligations under the Safety, Health and Welfare at Work Act, 2005 rest with for a forum other than this Tribunal.
5.9 As regards the complainants submission regarding discriminatory treatment in training the complainant at the hearing confirmed that he had obtained a safe pass prior to his employment with the respondent and that this had not required renewing during his period with the respondent. The respondent stated at the hearing that the complainant had received specific relief driver training during his employment with them which was evidenced by a certificate of completion. I thus find that the complainant has failed to establish facts from which it could be inferred that he suffered less favourable treatment as regards this aspect of his claim.
5.10 As regards the complainants contention that he had not been joined to a union the complainant indicated at the hearing that he was a member of SIPTU. The respondent submitted that it has not joined any employee in to SIPTU nor has it prevented any employee from joining SIPTU. I am satisfied that this was the case. I therefore find that the complainant was not treated less favourably than any other employee of the respondent during the time of his employment.
5.11 At the hearing the complainant outlined his version of events surrounding his dismissal. He stated that he was dismissed on his return from holidays. There is a conflict between the complainant's and the respondent's version of events regarding the date on which he returned to work. The complainant did concede that he did not return to work on the day he was due back. The respondent stated that the complainant often left days early and returned days late from holidays and that this had occurred at each end of official builders holiday periods. The respondent argued that the complainant had on a number of occasions booked flights departing a day or two before these holidays with return flights a day or two after the holiday period and would thus miss extra days at work. I do note that the respondent did not have a formal Disciplinary policy in place during the period in question and it is submitted on behalf of the complainant that he was dismissed without the application of proper procedures. Whilst this may have been the case this Tribunal is not dealing with an allegation of unfair dismissal, it is dealing with one of discriminatory dismissal on the basis of the complainant’s nationality. The respondent at the hearing indicated that a decision was made to dismiss the complainant due to chronic absenteeism. The respondent at the hearing stated that a number of Irish employees (details supplied) had also been dismissed for the same reason. I am satisfied based on the evidence provided by the respondent that other employees with similar or lesser periods of absenteeism were also dismissed. Having regard to the totality of the evidence given I prefer the respondents version of events and so find that the complainant was not treated less favourably on grounds of his nationality and has not established a prima facie case of discriminatory dismissal.
6. Decision of the Equality Officer
6.1 I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2008. I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race contrary to the Employment Equality Acts, 1998 and 2004 and his complaint must fail.
___________________
Orla Jones
Equality Officer
19 August 2009