THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009 - 116
PARTIES
Mr. Janis Cers and Mr Utaras Eimas
(represented by Richard Grogan and Associates, Solicitors)
and
Securazone Manhour Ltd (in liquidation)
File References: EE/2006/449
EE/2006/474
Date of Issue: 10th December 2009
Claim
1.1. The case concerns claims by Mr Janis Cers and Mr Utaras Eimas that Securazone Manhour Ltd discriminated against them on the ground of disability and race, contrary to Sections 6(2)(g) and 6(2)(h) of the Employment Equality Acts, in terms of not access to employment, terms and conditions of employment and discriminatory dismissal.
1.2. Mr Cers referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 17 November 2006, and Mr Eimas did so on 8 December 2006. A submission on both cases was received from the complainant on 23 July 2008. Submissions were received from the respondent on 4 and 18 September 2008. On 23 March 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated both cases to me, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 November 2009. The respondent did not attend the hearing, nor was the company represented by a liquidator.
2. Summary of the Complainant's Written Submission
2.1. Mr Cers complains that the respondent failed to ascertain his medical status, and as a result made him work excessive hours, thereby breaching employment regulations applying to night workers. The complainant contends that this amounts to discriminatory treatment on the ground of disability. In this context, he further contends that a hypothetical Irish comparator would have been requested to undergo a medical exam, which would have brought any medical conditions to the attention of the respondent. In his submission, the complainant does not identify which medical condition he suffers from, and in which way it is a disability within the meaning of the Acts.
2.2. Mr Cers further complains that the respondent did not implement the JLC for the Security Industry, which, he alleges, would have happened in the case of a hypothetical Irish comparator. Mr Cers contends that this amounts to discriminatory treatment on the ground of race.
2.3. Mr Cers also complains that he was dismissed without proper procedures and that a hypothetical Irish comparator would not have been dismissed in this manner, and contends that this amounts to discriminatory dismissal on the ground of race.
2.4. Mr Eimas complains that the respondent made him work excessive hours, thereby breaching employment regulations applying to night workers. Mr Eimas further complains that the respondent did not implement the JLC for the Security Industry, which, he alleges, would have happened in the case of a hypothetical Irish comparator. Mr Eimas contends that this amounts to discriminatory treatment on the ground of race.
2.5. Mr Eimas further complains that he was dismissed without proper procedures and that a hypothetical Irish comparator would not have been dismissed in this manner. Mr Eimas contends that this amounts to discriminatory dismissal on the ground of race.
3. Summary of the Respondent's Written Submission
3.1. The respondent rejects the allegations of the complainants. The detail of the respondent's submissions relates to Mr Cers's complaint of discrimination on the ground of disability.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainants were discriminated against and discriminatorily dismissed on the ground of race within the meaning of the Acts; and whether Mr Cers was discriminated against on the ground of disability.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has 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 and the burden of proof shifts to the respondent.
4.3. Mr Cers did not attend the hearing of the complaint. Accordingly, he has not established a prima facie case of discrimination on the grounds of race or disability and therefore his complaint fails.
4.4. Mr Eimas is Lithuanian. He worked for the respondent, providing security services on building sites where the respondent was contracted to provide such services, from November 2004 to June 2006. Mr Eimas stated in evidence that the respondent employed mostly Irish nationals, and employed four non-Irish nationals, of whom he was one.
4.5. Mr Eimas's complaint about less favourable treatment on the ground of his nationality is as follows: He stated in evidence that the respondent's Irish workers were allocated "the best sites" for security duties. By this he meant that they were allocated sites that were convenient to reach from their homes and were often quite close to their homes, whereas non-Irish workers, including himself, would be rostered for duty on sites which could be an hour or more from their homes.
4.6. Furthermore, the complainant contends that the respondent's Irish workers were allocated day shifts where possible, whereas the non-Irish workers were allocated night shifts almost exclusively. In this context, the complainant stated that it was not possible to reach many sites by public transport during night hours; that incidents of assault, such as stones thrown at security personnel, were much more common during night hours, and that the PortaCabins provided for workers during the day, and which to which the daytime security personnel had also access to make themselves tea and coffee and to dry wet clothing, were locked during the night, and that night security staff had no facility to make hot drinks or dry clothes.
4.7. In response to a direct question from the Tribunal, the complainant said that management were unresponsive to security incidents such as stone throwing regardless of whether they occurred during the night or during daylight hours, but maintained that there was a much lower occurrence of such incidents during day shifts.
4.8. It is the complainant's contention that the challenging night shifts and the safer and more convenient day shifts were not rotated among the respondent's employees in an equitable fashion. He stated that he requested from his manager to be moved to day shift approximately once every two months during his employment with the respondent, and that this request was never responded to. He stated that likewise, the other non-Irish nationals found it impossible to move shifts, unlike the respondent's Irish workers who experienced a degree of shift rotation, and whose preferences in terms of site allocations were taken into account.
4.9. I found the complainant to be a credible and cogent witness, and am satisfied that the facts he described were either directly observable, or personally experienced by him in the course of his employment with the respondent. In this regard, the complainant's case differs from the facts set out in the Labour Court decision of Melbury Developments v. Valpeters [EDA0917], where the Court stated that "Knowledge of how the Complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of Respondent's capacity of proof. It is also plainly within the knowledge of those other workers. The Complainant could have sought to ascertain from those workers if they were treated as sub-contractors or as employees."
4.10. In the case on hand, knowledge of how his fellow workers were treated was clearly within the complainant's knowledge, and he gave evidence to that effect. I therefore accept the complainant's uncontested evidence as I have accepted Mr Robert Kocian's evidence on unequal enforcement of discipline in Bozs and ors v. Damoli Construction [DEC-E2009-074], and find that these facts do indeed raise an inference of less favourable treatment by the respondent on the ground of his nationality, which has not been rebutted. The complainant therefore has established a prima facie case of discrimination in his terms and conditions of employment and is entitled to succeed.
4.11. Turning to the complainant's complaint of discriminatory dismissal, it is the complainant's evidence that on the same day, 16 June 2006, all non-Irish workers of the respondent, that is, the complainant, one Italian worker and two other Lithuanian workers, were called into the complainant's office and told they didn't have to come to work because there was no more work for them. No further explanation was provided.
4.12. As noted above, I did find the complainant a credible witness throughout his evidence to the Tribunal. In the absence of any evidence to the contrary, it seems clear that the respondent attempted to purge his workforce of non-nationals, and accordingly I find that the circumstances of his dismissal do raise an inference that it was connected to the fact that like his co-workers, whose employment was also terminated, he was a non-Irish national and therefore connected to his race. Accordingly, I find that the complainant has established a prima facie case of discriminatory dismissal on the ground of race, and is entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did not discriminate against Mr Janis Cers on the grounds of race and disability contrary to S. 8(1) of the Acts, and did not discriminatorily dismiss him on the same grounds contrary to S. 8(6) of the Acts.
(ii) The respondent did discriminate against Mr Utaras Eimas on the ground of race in his terms and conditions of employment contrary to S. 8(1) of the Acts, in terms of an inequitable allocation of work sites and shift duties.
(iii) The respondent did discriminatorily dismiss Mr Eimas on the ground of race contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay Mr Utaras Eimas €3000 in compensation for the effects of the discriminatory treatment suffered, and €10,000 in compensation for his discriminatory dismissal. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
10 December 2009