Equality Officer’s Decision No: DEC-E/2009/068
Parties
Silgalis
(Represented by Richard Grogan and Associates – Solicitors)
And
Frylite Dublin Ltd.
(Represented by Peninsula Business Services Ltd.)
File No: EE/2007/195
Date of issue 24 August, 2009
Headnotes: Employment Equality Acts, 1998-2008 – discriminatory treatment – conditions of employment – race – burden of proof – less favourable treatment.
1. DISPUTE
This dispute involves a claim by Mr. Vytautas Silgalis, who is a Lithuanian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a van driver between September, 2006 and February, 2007. He contends that during his period of employment he was (i) treated less favourably on the basis of his Lithuanian nationality as regards his conditions of employment and (ii) harassed by the respondent on the same discriminatory ground. The complainant referred a complaint under the Employment Equality Acts, 1998 to 2007 to the Equality Tribunal on 16 April, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 23 March, 2009, the date the complaint was delegated to me and a Hearing of the complaint took place on 19 June, 2009. A small number of issues arose at the Hearing which gave rise to further correspondence between the Equality Officer and the parties. This process concluded 23 July, 2009.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment with the respondent as a van driver on 11 September, 2006. He states that there were 6/8 other employees engaged as van drivers during his period of employment - four of whom were Irish and at least one other Lithuanian national. The complainant states that that he received no written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He contends that following the Decision of this Tribunal in 58 Complainants v Goode Concrete[1]there is an obligation on an employer to provide employees with a contract of employment in a language which they understand. In the course of the Hearing the complainant was unable to confirm whether or not the respondent had provided any of the other employees engaged at the same time as him with a contract of employment or other similar documentation.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement in a language which he could understand and that this failure constitutes less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete [2] and the Labour Court Decision in Watters Garden World Ltd v Iurie Panuta [3] in this regard. In the course of the Hearing the complainant stated he was unable to remember if he received health and safety training at the outset of his employment but confirmed that Mr. A (Supervisor) accompanied him on the job for a number of weeks at that time and gave him some instruction on how to perform his functions - in particular the handling of cooking oil (the main product of the respondent). In the course of the Hearing the complainant was unable to confirm whether or not other employees received this level of support, or any support/training at all.
3.3 The complainant states that employees were allowed to bring the respondent's vehicles home with them in the evening and at weekends and that he availed of this arrangement. He adds that he was not aware of any specific conditions which were placed on this arrangement and that the Depot Manager (Mr. X) was aware he used the company van in this manner. The complainant accepts that he crashed the van (14 January, 2007) whilst using it outside of normal working hours and that significant damage was caused to it. He states that he contacted Mr. X and arranged to meet with him to discuss the matter. The complainant adds that he met with Mr. X on 2/3 occasions to discuss the matter and in the course of one of these meetings Mr. X informed him that he (the complainant) would have to pay for the damage to the van. The complainant states that a couple of weeks later he was presented with an estimate for the damage (€6,873) and was informed by Mr. X that if he did not agree to repay the cost of the damage he would be dismissed. The complainant states that he replied he would have to think about things and that a few days later Mr. X produced a letter for his signature which accepted responsibility for the damage and gave the respondent authorisation to deduct €150 per week from his wages until the full cost of the damage was repaid by him. The complainant adds that he refused to sign this document, despite significant pressure from the respondent and he did not subsequently return to work. It is submitted on the complainant's behalf that the respondent's treatment of the him constitutes discrimination, or in the alternative harassment of him, on grounds of race contrary to the Acts. In particular, the complainant's representative argues that (i) if the respondent held insurance cover for the vehicle then the complainant was entitled to the benefit of that cover and (ii) the respondent did not engage in any form of investigation/disciplinary procedure before unilaterally deciding to fix the complainant with liability for the damage and recoup it from his salary.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent accepts that the complainant was not given a written contract of employment or terms and conditions during his period of employment. It states that this was due to a period of transition following the opening of its Dublin Depot in September, 2005. It adds that from then until December, 2006 the HR function for the Dublin Depot was handled by its Depot in Strabane, Northern Ireland. It accepts that this arrangement gave rise to shortcomings and submits that its failure to furnish the complainant with the aforementioned information was such an oversight - it was not based on the respondent's nationality. The respondent further submits that five other employees who were recruited for employment at the Dublin Depot during this transition period, one of whom was Irish and another Lithuanian, did not receive written contract of employment or terms and conditions and consequently, the treatment of the complainant does not constitute discrimination on grounds of race under the Acts.
4.2 The respondent accepts that the complainant was not provided with a health and safety statement during his period of employment. It states that this was due to the same transitional arrangements as set out above. It adds that it had a Health and Safety Policy for its Strabane Depot and asserts that this would have formed some basis for health and safety issues in the Dublin Depot. The respondent states that the complainant was accompanied by Mr. A (Training Supervisor) for the first four weeks of his employment. It adds that Mr. A would have instructed the complainant in lifting, cleaning and containment in cases of spillage as well as road safety. The respondent asserts that the complainant would not have been allowed to work without supervision unless Mr. A was satisfied that he was competent to discharge his duties. In this regard the respondent contends that the complainant had a good command of English and understood what was being said to him. The respondent adds that the complainant was furnished with the necessary protective clothing for the tasks he performed. It states that during this transitional period other employees were treated in the same manner as the complainant and submits that the treatment does not constitute discrimination contrary to the Acts.
4.3 The respondent rejects the complainant's assertion that it treated the complainant less favourably or harassed him on grounds of race contrary to the Acts in relation to the manner in which it sought to recover the costs associated with the damage caused by the complainant to one of its vans. It accepts that there was a practice in place at that time which allowed employees to bring company vehicles home but asserts that this practice only related to travel to and from the workplace, it did not extend to personal use. The respondent submitted that employees would have been made aware of these conditions by Mr. X. In addition the respondent states that the Company Handbook provides as follows "Any damage to vehicles, stock or property ... that is the result of your carelessness, negligence or deliberate vandalism will render you liable to pay the full or part of the cost of repair or replacement.". It states that Mr. X met with the complainant following the crash and he (the complainant) agreed he would repay the cost of the repairs. The respondent adds that it viewed the entire situation - use of a vehicle for personal use without permission, leaving the scene of an accident and failing to report the accident - as very serious but in light of the complainant's agreement Mr. X recommended his offer to the respondent's Managing Director - who accepted the proposal. The respondent states that the complainant was presented with the written estimate for the repairs two weeks later and was informed that the respondent required his written consent to the deduction from his salary. The respondent adds that the complainant refused to sign it then and again two days later when it was re-presented to him. The respondent accepts Mr. X advised him that his failure to sign the document may result in dismissal and states that the complainant did not subsequently return to work. The respondent states that an employee in the Strabane Depot caused damage to one of its vehicles in 2007 (amounting to €1,160) and he was required to repay the cost of the repair from his salary over a period. It further states that an employee at its Galway Depot lost a sum of cash (€440) and was required to repay it over a period from his salary as the respondent considered the employee was negligent. The respondent submits that its treatment of the complainant was merely the application of the company policy on such matters and does not constitute discrimination or harassment of him on grounds of race contrary to the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A 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 the parties at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998-2007 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) 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.."
Section 14A of the Acts defines harassment as "any form of unwanted conduct related to any of the discriminatory grounds ...being conduct which has... the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading , humiliating or offensive environment for that person.".
5.3 Section 85A of the Employment Equality Acts 1998 - 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.4 The first issue raised by the complainant relates to the respondent’s failure to furnish him with a written contract of employment. 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 respondent accepts that it did not furnish the complainant with either a contract or a written statement of certain terms of employment and states that this was due to an oversight on its part during a period of transition following the opening of the Dublin Depot. Details of other employees who commenced employment with the respondent around the same time as the complainant were furnished to the Tribunal and the respondent states that these employees were treated in the same manner as the complainant as regards contracts of employment etc. I note from this list that Irish, Polish and other Lithuanian nationals were amongst these employees. I am satisfied therefore that the respondent's failure to furnish this material to the complainant was not based on nationality. The complainant submits that the Decision of this Tribunal in 58 Complainants v Goode Concrete[4]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. That is not what happened in the instant case. Having carefully considered the evidence adduced by the parties I find that the complainant has failed to establish a prima facie case of discrimination on this element of his complaint.
5.5 The complainant makes a similar submission as regards the respondent’s failure to furnish him with a health and safety statement as he made in respect of that element of his complaint concerning a contract of employment. The Safety, Health and Welfare at Work Act, 2005 places certain requirements on employers as regards the health, safety and welfare of their employees in the workplace. Complaints of alleged breaches of those obligations rest with for a forum other than this Tribunal. Amongst these obligations is the provision of information, instruction and training of employees in respect of matters covered by the statute. The respondent accepts that it did not furnish the complainant with a health and safety statement but submits that it failed to furnish this material to all the other employees employed at the Dublin Depot during the transition period. It states however thatMr. A (Training Supervisor) accompanied the complainant on the job for the first four weeks of his employment and that Mr. A instructed him in lifting, cleaning and containment in cases of spillage as well as road safety. In the course of the Hearing the complainant accepted Mr. A accompanied him at the start of his employment and gave him instruction on health and safety matters but that it was not for four weeks. The respondent furnished the Tribunal with details of routes and drivers for the period in question and on examination of this material I am satisfied that the complainant is mistaken in his recollection in this regard. This material also shows that an Irish driver who commenced employment shortly after the complainant was treated in a similar fashion to the complainant on the issue of training. The complainant seeks to rely on this Tribunal's Decision in 58 Complainants v Goode Concrete[5] in support of his complaint on this point. In that Decision this Tribunal held that in fulfilling its responsibilities under health and safety legislation 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. In the instant case the complainant had a good command of English and confirmed that he understood the instruction Mr. A gave him. Having evaluated all of the evidence submitted by the parties I find that the complainant has failed to establish facts from which it could be inferred he was treated less favourably on grounds of nationality as regards this aspect of his complaint.
5.6 The final element of the complainant's case deals with the manner in which the respondent handled the recovery of the cost of damage caused by him to one of its vehicles. The respondent states that it is company policy to recoup such costs from employees and that this is covered by its Employee Handbook. The respondent did not enter this Handbook into evidence in the course of the investigation and accepted in the course of the Hearing that the complainant may not have received it at all. It accepts that employees were allowed to bring company vehicles home with them but that they were not permitted to use the vehicles for personal use. The respondent contends that these conditions would have been communicated to the complainant by Mr. X. The complainant was adamant that he was never informed of these conditions by Mr. X and as he (Mr. X) did not attend the Hearing and the respondent furnished no documentary evidence that the complainant was aware of these conditions, I accept the complainant's statement on this matter. That being said the complainant accepted that (i) he caused the damage to the vehicle, (ii) that the collision occurred in the early hours of a weekend morning when he was using it for personal use and (iii) that the damage was considerable. In the circumstances I consider it reasonable that the respondent would decide not to claim on its insurance policy and instead seek to recoup some, if not all of the repair costs involved and I am satisfied that it would have reacted in the same way had the situation involved an Irish employee. The respondent provided details of two other employees who had caused damage to a vehicle or lost property (cash) which belonged to it where it fixed responsibility on the employee concerned for the loss incurred by it. One of these employees worked in the respondent's Strabane Depot (Mr. B) and the other in its Galway Depot (Mr. C).
5.7 In Mr. B's case the damage totalled €1,160 and it was recouped over twenty-one weekly paycheques at weekly amounts ranging from €15-€95 - which represents between 3%-15% of his weekly net salary. In Mr. C's case the loss (€440) was recouped over nine weekly paycheques - eight at €50 and one at €40. This represents between 6.5%-8% of his weekly net salary. In the complainant's case the proposed weekly deduction was €150 - this represents in excess of 40% of his weekly net salary. In Finanzamt Koeln-Altstadt v. Roland Schumacker [6] the European Court of Justice held that “It is also settled law that discrimination can arise through the application of different rules to comparable situations or the application of the same rule to different situations.”. In the instant case the respondent applied different rules to similar circumstances. The absence of any clear written procedure permitted it to arbitrarily decide how the complainant would be treated and such latitude can give rise to an environment where discrimination can exist, even subconsciously. The Labour Court has previously held that it (and this Tribunal)“…must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution."[7]. In addition, I note from the respondent's current Staff Handbook that "unauthorised use or negligent damage or loss of our property" constitutes Minor Misconduct, which indicates dismissal as the last of four steps in its Disciplinary Procedures, yet the complainant was advised that if he failed to sign the necessary deduction authorisation form he risked being dismissed. In light of the foregoing I find that the complainant has established a prima facie case of discrimination on this element of his complaint.The respondent must therefore adduce evidence which rebuts this assumption of discrimination and it has failed to do so. In the circumstances the complainant is entitled to succeed with this element of his complaint. Finally, the complainant has failed to establish a prima facie case of harassment on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in respect of his conditions of employment. In accordance with my powers under section 82 of the Acts I order that the respondent pay the complainant the sum of €2,000 by way of compensation for the distress suffered by him as a result of this discrimination. This award does not include any element of remuneration and is not therefore subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Equality Officer
24 August, 2009